Ben Brown v Nagayi Annet and Another (Civil Application No. 5 of 2026) [2026] UGSC 18 (27 April 2026)

5 THE REPUBLIC OF UGANDA, IN THE SUPREME COURT OF UGANDA AT KAMPALA SINGLE JUSTICE APPLICATION S.8 JUDICAruRE Act CIVIL APPLICATION NO OO5 OF 2026 APPLICANT VERSUS BEN BRoWN) 10 15 20 25 30 1. NAGAYTANNET] 2. RWAKARARAJoSEPH) RESPONDENTS RULING OF CHRISI'OPHER MADRAMA IZAMA, JSC The Appticant's appLicatron rs for an order of stay of execution of the decree and orders rn Court of Appeal Crvit Appeat No. 108 of 2017 pending disposal. of Supreme Court Civit Appeat No. 24 of 202L. Further this ru[ing is in the main apptication pursuant to the powers of a singLe justice under section 8 of the Judicature Act. The factual. genesis of this dispute traces back to November 29, 2003, when Ben Brown (the Appl.rcant/First Defendant) and Nagayi Annet (the First Respondent/Ptaintiff) were [egaIty married at Bugombwa Parish. The coupte Lived in a residence coupted with a commerciaI unit on land comprised in LRV 3620 Fotio 20, initialty identified as Ptot 3 Bamwitirebye Avenue, situated within the Bundibugyo Town Counci[. The facts of the dispute are than on22nd Aprit, 2010, Ben Brown entered into an agreement with Joseph Rwakarara (the Second Respondent) for the sate of a commercial house on the property for a consideration of Shs. 66 mittion (Shs. 50 mil.lion paid via bank deposit, Shs. 16 miltion paid in cash). The agreement was witnessed by various [oca[ frgures, inctuding the area LC] Chairperson and a Magistrate Shortty after the transaction, Nagayi Annet formalty protested to the sate on the ground that the subject matter of the sale was famrty Land and that 1 5 she had never consented to the sal'e She argued that the ptot housed the fami[y's matrimonial home, several rentats, and a shop that served as her primary source of income. This protest staLled the transfer of possession and led to commencement of duat tegat proceedings. Frrstty, Joseph Rwakarara caused the initiation of criminaI proceedings against Ben Brown for obtaining money by fatse pretences. ln CriminaI Case No. 226 of 2016, the Magistrate's Court of Bundibugyo convicted Ben Brown on his own ptea of guitty and he was sentenced to 36 months in prison and ordered to refund the purchase price. 0n the other hand, Nagayi Annet commenced civil proceedings in the High Court in High Court Civit Suit No 0022 of 2011 for the nul.Lif ication of the sate and cancet[ation of Rwakarara's tit[e. White the narrative of Nagayi Annet and Ben Brown suggested a c[andestine, unitateraI aIienatron of famiLy [and coupled with outright forgery by Ben Brown, the facts disclosed in the affidavit of Joseph Rwakarara introduced contradictory facts. These were that that the transaction was preceded by a tocatl.y drafted purchase agreement witnessed by the LocaI Councit (LCl) Executive Committee of Kajambura, relatives, and neighbours. Cruciatty, Rwakarara contends that Annet and Ben jointty approached him to negotiate the sa[e. He deposes that Nagayi Annet actrvel.y participated, by personaLty counting the purchase money, and that she votuntaril.y signed the [oca[ agreement (Annexure D). A subsequent, formaL agreement was executed before a Magistrate onty after it was discovered that the Land heLd a certificate of titl.e registered sotety in the names of Ben Brown. Further, that after the recerpt of the purchase price, Ben Brown absconded. When Rwakarara sought vacant possession, Annet feigned ignorance of the sale This prompted Rwakarara to initiate criminal proceedrngs (Uganda v. Brown Benedict, Crrminal Case No. FPf-0/-CV-0226 of 2016 Whil.e Brown's supporting affidavit reties heaviLy on his conviction for obtaining money by false pretences (and his 36-month sentence) to assert that the sate was a nuttrty, Rwakarara's Affidavit ln Reply deposes that there was a cnticaL, calcutated non-disctosure to the effect that Ben Brown detiberatety omitted 10 15 20 25 30 2 35 5 page 2 of the criminal proceedings from his annexures. He supplied the omitted page which disctoses that after the prosecution read the facts- which exptrcitty ptaced his wife at the scene negotiating the saie, Ben Brown unequivocatly pLeaded guiLty and stated that: "The facts as presented by the prosecution are correct. /n fact, that is exactly what happened." 0n the other hand, the civiL track commenced with the fiting of High Court Civil Suit No. 0022 of 2011by Nagayi Annet, seeking to nuttify the sate and cancel Rwakarara's titte for lack of spousaI consent. ln the intended Cross-AppeaL the aLl.egation concerns the scope of the property transferred. The formaI sa|.e agreement expticitl.y referred only to Ptot 3. However, Rwakarara's title encompasses Ptots 3, 4, and 5 and Ben Brown contends this was a fraudutent transfer. 10 15 20 25 30 3 35 ln Rwakarara's Affidavrt rn RepLy, it is deposed that after the transaction, physicat inspection revea[ed that Pl.ot 3 fetI severety short of the 50x]00 feet dimensions expticitty agreed upon and paid for. To cure this deficit, Ben Brown votuntarity executed a transfer form for the entire PLot 3-5 btock, with the mutual understanding that upon detrvery of vacant possession, a resurvey and appropriate subdivisron wouLd occur. Rwakarara objects to this ground of cross-appeal on procedural grounds, arguing that the lssue of "fraudutent transfer" was never pleaded in the High Court, nor was it framed as an issue or determined by the Court of Appeal. Raising a novel cause of action on second appeal. constitutes an abuse of court process. From the pteadings and judgments of the High Court and Court of appeat, the fottowing facts are drsctosed. 0n the 29 of November 2003 Ben Brown and Nagayi Annet got married and acquired maritaI Legat rights and obtigations to each other and protection under the Land Act. 0n the 22nd of Aprit, 20'10, a sate agreement was executed. ln 201'1, Nagayifited HCT-01-CV-CS-0022 of 2011 in the High Court. 0n 2nd of June,2016, Ben Brown was convicted upon the findrng of fraud on his own plea of guitty. 0N 2nd of February,2017, the Hrgh Court entered judgment nu[tifying the sal.e and cancelting Rwakarara's titLe. 0n 26rh June, 5 2025, the Court of Appeal. reversed the Hrgh Court judgment and dectared Rwakarara the rightfut owner of the suit property and ordered the evictron of the Respondent and awarded mesne profits to Rwakarara. 0n the 7th of November 2025 Ben Brown fited a Notice of Cross-AppeaI intending to chaltenge the scope of the CA decree (Ptot 3 vs. Plots 3-5) There are objectrons to the cross appeal on the ground if detayed service on the Respondent. Again the Appticant served the apptication for stay of execution [ate. The judgment of the High Court disctoses that in the High Court at Fort Portal., per Justice 0yuko Anthony 0jok, rel.ied heavity on Section 39 of the Land Act whrch provides that famity property as defined therein cannot be sotd, mortgaged or a[ienated without consent of the other spouse The primary issue was whether the suit property quaLified as "famil.y [and" and whether the mandatory requirement for prior written spousal consent had been met. The Ptaintiff, Nagayi Annet, presented evidence that the premises were not merety a commercia[ asset but were the famiLy's permanent pLace of abode and source of sustenance. At the triat of the suit, Nagayi Annet who testif ied as PWl denied signing the sate agreement and atLeged that her srgnature thereon was forged. Her son, Denis Musinguzi (PW2), simil.arly denied signing the agreement as a witness. Most criticatty, Ben Brown (tne lst Defendant) testrfred in support of his wife's ctaim, admitting to the court that he had indeed forged her signature in an attempt to con Joseph Rwakarara because he was in desperate need of money. 0n the other hand, Joseph Rwakarara (tfre 2nd Defendant) and his witnesses (DW2 through DWB) testified that Nagayi Annet was present at the LCl Chairperson's off ice during the transaction, that the agreement was transtated into the [oca[ Lwamba/Rukonzo language for her, and that she signed it votuntariLy. Rwakarara atso produced evidence from potice and tetecommunications officers (DW9 and DW10) showing that Annet and Ben had been in constant tetephone communication throughout the period she cl.aimed they were estranged 15 20 30 4 35 10 5 The trial. judge found the suit in favour of Nagayi Annet. He found that the suit property was famity Land under Section 38A (4) because it was the ordinary residence of the famity and their source of LiveLihood. Regarding the forgery, the judge observed that whiLe the signature on the agreement appeared simiLar to Nagayi Annet's eartier affidavits. the handwriting samples she produced in open court were distinct. ReLyrng on the principte that courts do not condone an iLtegatity, the judge rul.ed that the sate nut[ was void ab inrtro He ordered the canceltation of Rwakarara's titte and directed Ben Brown to refund the 66 mittion shil.tings pLus 6% interest to the Rwakarara. The Court of AppeaL reversed High Court judgment in Civit Appeat No. 108 of 2017. The Court of Appeat, comprising DCJ Ftavian Zeija and Justices Barishaki and Nambayo JJA, reappraised the evidence. ln the tead judgment, DCJ Zeija, criticized the triaI judge for faiLing to give sufficient weight to the testimony of seven independent defence witnesses, incl.uding local. executive leaders, who had no apparent reason to fabricate Nagayi Annet's presence and signature. The Court of Appeat noted that there was a trend of "fraudu[ent coup[es," coltudrng to set[ property and thereafter chattenging the sate. The Court took judicial. notice of this trend where spouses cottude to setl property and after using the money use the spousal consent provisions of the Land Act to rectaim the l'and. The court found it hrghty improbabLe that a wife wouLd be unaware of her husband's activities when phone records proved they were in constant communication. Furthermore, the court held that whil.e the Land Act requires consent in a "prescribed form," the substance of consent, evidenced by a witnessed signature, is suff icient to create an estoppet. The appettate court set aside the High Court orders and substituted them with a decree declaring Joseph Rwakarara the rightfut owner of the Land comprised in LRV 3620 Fotio 20. The Respondents were dec[ared trespassers and ordered to vacate the premises. The court atso ordered them to pay mesne prof its of Shs. 500,000 per month from May 1, 2010, untit 10 15 20 25 30 5 35 5 Representations When the apptication came for hearing learned Counsel Kusiima lvan hotding brief for Bwiruka Richard represented the Appticant and learned CounseI Nakato Ju[iet represented the first Respondent The parties were directed to fite written submissions as their address to court and ruting was reserved on notice. 10 15 20 30 6 the date of vacant possession and this frnancial obtigation now exceeds 90 mil.tion shitl.ings. ln the Supreme Court the arguable point of law cou[d be the scope of the property awarded to Joseph Rwakarara. The originaI sate agreement expticitty referred on[y to Pl.ot 3 Bamwitrrebye Avenue. However, the Court of Appeat decree awarded Rwakarara lhe entire titl'e for LRV 3620 Fotio 20, which encompasses Ptots 3, 4, and 5. Ben Brown contends that this constitutes a fundamentaL error in fact and taw, as it attows the purchaser to acquire more land than was even purportedty sotd and if the property is atienated, his appeaL on this point wouLd be rendered nugatory. This apptication seeks an order to stay the executron of the Court of Appeal.'s decree pending the final. determination of the main appeal and cross- appeat. lt is the Appticant's case that there is urgency in the apptication because there is an imminent threat of execution of the decree. This is because on the 3'd of December,2025, the High Court at Fort Portal issued a formaI Notice of Eviction, granting the Appticant's famiLy 90 days within which to vacate the premises or face forceful removal by March 2026. Additionatty, a taxation hearing had been set for December 2025 lo tax the costs. Ben Brown's affidavit in support of the stay hightights that the property is his famity's sote residence and source of income, and that execution woutd not onty cause irreparabte domestrc harm but would atso render the pending Supreme Court appeaI moot if the land is transferred or atienated. 5 Consideration of the Apptication I have carefutty considered the Appticant's apptrcation, the aff idavits for and against as wetl as the submissions of both counsel Fottowing the issuance of a formal Notice of Eviction under the Constitutlon (Land Evlctions) (Practice) Drrections,202l (Legal Notlce No.2 of 202l, Ben Brown fiLed an apptication for a stay of execution (Supreme Court Civil Applicatlon No. 0005 of 2026) pending the disposal. of Supreme Court Civil Appeal No. 024 of 2025 and his own Cross-Appea[. The Appticant re[ies on the traditionaI grounds and principl.es for the grant of an application for a stay of execution as hetd in Lawrence Musiitwa Kyazze vs. Eunice Busingye (SCCA No 18 of /990). Reference rs also made to the expanded principtes in Kyambogo Universrty vs. Prof. lsaiah Omolo Ndiege (Civil Application No. 341 of 2013), incl.uding the risk of substantial toss (Nalwoga v EDC) Ltd & Anor (MA No. 07 of 2013) [20/3J UGHCLD 4n, an arguabl.e appeaL (Brlan Kigozi v Krrunda Moses Menya (2024), Stanley Kang'ethe Kinyanjui v Tonny Ketter (2013), and the provrsion of security (Wandira Srmon v Mutagula Moses (Mlscellaneous Applrcation 242 of 2024) [2025J UGHC 995', Universat Multtpurpose Enterprrses v Xue Wen Jun (Civil Application No. 297 of 2025) [2025J UCCA 226). The Second Respondent's Wrrtten Submissions and Affldavlt in Reply fundamentaLLy chattenge the viabiLity of this apptication. The Respondents counseI has asked this court to decIine the appLication on the ground that it was inter atia fited in the wrong court, and for abuse of court process. ln the written submissions, the Respondent's counseI objected to the appLication on the ground that it ought to have been filed first in the Court of Appeat and not in the Supreme Court directty This objection is rooted rn Rute 41(1) of lhe Judicature (Supreme Court Rules) Directions Sl 13-ll,which provides that where an apptication may be made either to the Supreme Court or the Court of Appeat, il shallbe made to the Court of Appeat f irst. The Second Respondent counseI argued that the Supreme Court's concurrent jurisdiction in such appl.ications is not a License for forum 10 15 20 25 30 7 35 5 shopprng. CounseI cited severaI precedents namety Chongquing lnternational Construction Corporation Limited (CICO) vs Francis Kaahwa (Supreme Court Civrl Application No. 0/2 of 2026), Formula Feeds Ltd & 3 Others Vs KCB Bank Uganda Ltd (Supreme Court Civil Apptrcation No. 0009 of 2023), Attorney General vs Eddre Kwrzera (Constltutional Application No. 1 of 2020), and Global Capltal Save 2004 Ltd & Another vs Alice Okiror & Another (Civtl Application Number 57 of 202/). The Respondent's counsel argued that direct access to the Supreme Court requires pl.eading and proving "exceptionaI circumstances" which inctude the [ower court's refusal to hear the matter or unreasonabLe del.ay (See Edhrruma v Kabaale & Another (Civil Apphcation 586 of 2024) [2025J UGCA 2A. Because Ben Brown fail.ed to first seek a stay in the Court of Appeal, and pLeaded no exceptionaI circumstances justifying this direct apptication, the apptication is proceduratly incompetent in limine (Latin for "at the threshotd or at the start"). Secondly, counsel for the Respondent argued that there was no valid pending appeal.. A stay of execution must be anchored upon a val.id, pending appeat. The Second Respondent attacks the jurisdictional foundation of the stay by chaLLenging the competence of Brown's Cross-AppeaI on two fronts. Firstl.y, there was late service of the cross appeaL. Under Rute 89(i) of the Rules of the Supreme Court, a Notice of Cross-Appeal must be served upon affected parties within 7 days of its being todged in the registry. The record indicates that the Cross-Appeal. was f iLed on November 7 ,2025, and seated on November12,2025, but was not served upon Rwakarara's counsel until December 3,2025, wel.[ beyond the statutory window. A formaI apptication to strike out the cross-appeat is pending. An apptication for a stay anchored upon an incompetent cross-appeal cannot stand. As noted, the al.l.egation that the transfer of the entire Ptot 3-5 titte was fraudutent was never pl.eaded rn the Hrgh Court nor framed as an issue rn the Court of Appeat. lt is a trite principLe of appeLtate titigation that a party cannot introduce a new cause of actron or unpteaded issue of fraud at the 10 15 20 25 30 8 35 5 second appetLate stage. This is because rt was not addressed by the lower courts and this court does not enjoy original. lurisdrction to try a new suit. Further, whi[e the eviction notice was issued in December 2025, the stay apptrcation was f ited in February 2026 and f ixed for hearing on March ,l9, 2026. However, the Appticant withheLd service untiI March 18,2026, the eve of the hearing, directty ftouting the Supreme Court Registrar's schedu[ing directions for timeLy service and rejoinders. The Second Respondent's counse[ submitted that this constituted ambush titigation. A stay of execution is a discretionary equitabte remedy. The Second Respondent's counsel submrtted that there rs bad faith on the part of Ben Brown and an attempt to unjustty enrich himseLf. Counsel. submitted that it was inequitabl.e for Ben Brown and Nagayi Annet to have retained the Respondents Uganda shittings 66 miLtion purchase price whil.e continuing to occupy the commercra[ property and cotlect rent for 16 years That the grant of the application in the circumstances wou[d amount to ludiciaI sanctioning of unjust enrichment. Furthermore, the del.iberate suppression of material facts and, specificaLly, Ben Brown's omission of page 2 of the crimina[ court record detaiting his confession vio[ates the absoLute duty of fu[[ and frank disctosure required in apptications for equrtabte remedies. The prrncipl.es uphetd by the Courts batance the competing interests of justice: the right of a successfuL party to the fruits of their trtigation against the right of an aggrieved party to an effective appeaL The Supreme Court and the Court of Appeal have developed criteria for consideration of these apptications. ln Lawrence Musiitwa Kyazze vs. Eunice Busingye (SCCA No 18 of 1990), the core principte estabIished is that the rnstitution of an appeaI does not, by itse[f, operate as an automatic stay of execution. lnstead, the court has a discretionary power to grant a stay if the Appticant satrsfies severaI specif ic conditions. This discretion must be exercised judrcratty, not capriciousty, and with a primary focus on preserving the subject matter of the dispute. 10 15 20 30 9 25 5 The conditions in the authorities starting f rom Musiitwa Kyazze and its [ater decisions are that: t. The Appticant must prove that they have todged a notice of appeal in accordance with the rutes of the court. z. The appeal must not be frrvotous; it must raise serious or triab[e rssues of taw or fact that warrant consideration by the higher court. s. The Appticant must demonstrate that they witt suffer substantiaL loss or irreparab[e harm if the execution proceeds before the appeat is heard. a The court must be convinced that if the stay is not granted, the appeat- even if successf ut-woutd be rendered meaningtess because the status quo woutd have been irremediabty destroyed. s. The apptication for a stay must be made promptty after the threat of execut ion arises. The principtesin Musiitwa Kyazzewere further expanded and articulated by the Court of AppeaL per Justice Kenneth Kakuru in Kyambogo University vs. Prof. /sarah Omolo Ndtege (Crvrt Apptrcation No. 341 of 2013). This case cl.arified that the "serious or imminent threat of execution" is a criticaI threshol.d requrrement. lt atso emphasized the "batance of convenience" or "batance of hardship," where the court weighs whether the refusaI of a stay woutd inftict more hardship on the Appticant than granting it wouLd inftict on the Respondent. fhe Kyambogo Universitydecision atso hightrghted that the grant of a stay is often conditional upon the Applicant providing security for the due performance of the decree. This ensures that the judgment creditor is not prejudiced by a deLay in execution if the appeat uttimatety fail.s. ln the apptication of the principtes for consideration of an apptication for stay of execution, there ought to be a distinction between monetary decrees and those invotving real estate or [iberty. ln cases where execution invotves the payment of money, courts are generatty reluctant to grant a stay because money can be recovered if the 10 15 20 )q, 30 1< 10 5 appea[ succeeds. However, substantia[ loss is estabtished if the Appticant can show that the Respondent is impecunrous and woutd be unabte to refund the decretaI sum. ln contrast, [and is considered a unique asset. lts atienation, devel.opment, or the eviction of [ong-term occupants is considered a substantia[ toss that cannot be easil.y reversed, atoned for or compensated by an award of damages. ln the apptication, the Appticant states that the anticipated [oss is a famity residence and primary business unit. An appeal is rendered nugatory when the success of the appea[ would be academrc because the subject matter has been destroyed or attered beyond repair. For exampte, if a perimeter watl is buitt and then ordered demoLished on appeat, the costs and physicaL changes render the appeal nugatory. ln [and disputes, the sate of the property to a third party during the pendency of an appeal typicalty makes the appeaL nugatory, as the third party may be a bona fide purchaser whose titl'e cannot be easiLy impeached. Ben Brown's argument that his cross-appeaL regarding Ptots 4 and 5 woutd be rendered nugatory is a ctear ittustration of this principte. These points are ctearty not frivotous and require a definitive pronouncement from the Supreme Court, particutarty given the Court of 10 15 20 25 30 35 11 Further, the Appl.icant does not need to show that the appeal wrll succeed, but rather that it is "arguabte". ln Brian Kigoziv Brian Kigozl(2024) UGCA 203, the Court of Appeat states the principte when it noted that an arguabte appeat is one that is not frivotous and presents triabte issues. Ben Brown's application identif ies two arguabte rssues: t. The Evidentiary Weight of lndependent Witnesses vs. The "Prescribed Form" of Consent: This is a substantiaI point of law regarding whether the Land Act's mandatory forms can be bypassed by secondary evidence of consent. z The Discrepancy in Property Description: Whether a court can decree an entire leasehold titte (Ptots 3-5) when the underLying sal.e agreement onl'y concerned a portron (Ptot 3). 5 Appeat's retrance on "judiciat notice" of fraudutent trends provided that there is a vatid appeal. before the court. Security is a mandatory consideratron in most stay apptications to prevent the process from berng used as a mere detay tactic ln the Ben Brown case, the security requirement is compticated by the fact that the "decree" is for both vacant possession and significant mesne prof its. The question woutd be whether the titte deed (currentl.y in Rwakarara's name but under chaltenge) can acts as sufficient security or whether the famrty must deposit a portion of the 90 miLl.ion shittings in mesne prof its to demonstrate good faith. The apptication is brought under Rul,e 6(2Xb) of the Judicature (Supreme Court Rutes) Directions Sl 13-11 Rute 6 (2) (b) of the Rul.es of Court presuppose the existence on record of a valid notice of appeat. The rute is conditional on the fiLing of a notice of appeal under rute 72. Rute 72 (2) requires the notice to be todged withrn ]4 days of the decision to be appealed. lt is to be served within 7 days after todging the notice under rute 74 (1). The decision of the Court of AppeaI was detivered on the 26'h of June, 2025 The Appettant todged in the Supreme Court Registry a notice of cross appeaI on the 7th of November 2025. A notice of cross appeaI is f iLed under rute 87 and is against the decision of the Court of Appea[. Under rute 87 (2) it is to be fited in the registry not more than thirty days after service on the Respondent of the memorandum of appeal. and the record of appeal. Under rule 89 it is to be served on the cross Respondents within 7 days. lt is to be noted that the Form of a Notice of Cross Appeal is Form G whrch required the grounds of cross appeal to be given and for the orders ought in the cross appeat to be specif ied. This is as good as a memorandum of cross appeal. There is no provrsion for a separate memorandum of cross appeat. The Appettant is the AppLicant's spouse. The Appticants notice of motion discloses that the memorandum of appeal was Lodged in the registry on the 19th of September and signed on 22"d September 2025. Even if the Appettant Ms Nagayi did not serve her 10 15 20 ,q 30 35 t2 5 spouse Mr. Ben Brown with her memorandum of appeal., her obtigation to serve was within 7 days. This expired by 29th September 2025. Thirty days thereafter woutd be 29 October 2025. According to the unchattenged evidence of Rwakarara in the affidavit in repl.y, Mr. Ben Brown served the notice of cross appeal on the Respondent's counsel Late. The Cross-AppeaL was f iled on November 7,2025, and seated on November 12,2025, but was not served upon Rwakarara's counsel untiI December 3, 2025, wetl beyond the statutory window. A formaI apptication to strike out the cross-appeal is pending. ln the circumstances there is no prima facie val.id memorandum of cross appeal to anchor the Appticant's app[ication The above notwithstanding, another critical procedural hurdte rs Rute 42, whrch dictates that applicatrons shoutd be made f irst in the "superior court" (the Court of Appeat) before the Supreme Court. The Supreme Court and Court of Appeat have recognized "concurrent jurisdiction" where special circumstances exist. ln terms of an order for stay of execution, is to ensure that the decree or orders of the court are not executed. There is a specif ic rute which attows temporary orders to be made for stay of execution to preserve the right of appeat and this is under Rute 41 (2) of the Judicature (Supreme Court Rutes) Directions which provides the purpose of an order of stay of execution where the apptication is made direct to the Supreme Court when no app[ication for the same orders has been made to the Court of Appeat. Rute 41 of the Rules of the Supreme Court provides that: 41. 0rder of appIications to the court and to Court of AppeaL. (1) Where an application may be made either to the court or to the Court of Appeal., il shall be made to the Court of Appeal first. (Emphasis added) (2) Notwithstanding sub rute ('l) of this rute, in any civiI or criminal matter, the court may, in its discretron, on apptication or of its own motion, give Leave to appea[ and make any consequentiaI order to extend the time for the doing of any act, as the justice of the case requires, or entertain an app[ication under ru[e 6(2)(b) of these Rules to safeguard the right of appeal, notwtthstanding the fact that no application has first been made to the Court of Appeal. (Emphasis added) 10 15 20 25 35 13 30 5 The rute appties where an apptication is made direct to the Supreme Court, without an appLicatron first having been made in the Court of AppeaL. The purpose of the appLication woutd be to safeguard the right of appeat. Rute t+1 (2) read together with rute 6 (2) (b) of the Rules of Court confers discretionary powers on the Supreme Court. There are narrower circumstances under which an appl.ication may be made direct to the Supreme Court and this is specificatty to safeguard the right of appeal.. Further it is an exception to the general ru[e that the apptication shatt f irst be f ited in the [ower court ln G.M Combined (U) Ltd Vs A.K Detergents (U) Ltd; (Civit Appl.ication No. 23 of 199q n994) UGSC 3 the Supreme Court considered rute 41 and inter alia hetd that it provides that the apptication for leave shatl first be made rnformalty at the time the decision is made to the court issuing the order or formatty within 14 days after the order intended to be appealed against is issued. Where the appl.ication is refused, it can then be fited in the Supreme Court. The conctusion is that an apptication shatt first made in the Court of Appeal untess speciat circumstances exist that require the safeguarding of a right of appeal and these circumstances must be proved at the hearing. The assertion of the Appticant that there is no Coram avaitabte to urgently hear the apptication, though ptausibte because the futt court has to sit on the ground that the appeal had been determined and a single justice has no jurisdiction in such circumstances, the assertron of [ack of Coram is not backed by any evidence. Who informed the AppLicant that the duty constituted Court of AppeaL coul.d not easi[y be constituted to determine the appl.ication? When anatysed sol.el.y through the [ens of the Appticant's initiaL pl.eadings before the Respondent f iLed a repl.y, after being served Late, the appl.ication for a stay of execution presented an arguabte case regarding the protection of famil.y [and. However, the late f iting of the Second Respondent's Affidavit in Replyand Wrrtten Submissrons after they had been served late disctoses other facts and atters the Appticant's case. 10 15 20 25 30 35 74 5 First[y, the application was first fited in the Supreme Court contrary to the Rute 41(1) of lhe Supreme Court Rules, and no exceptional circumstances for doing so were proved. Secondty there is no prima facie va|'id notice of cross appeaI which had been val.idty served to anchor the appl.ication. These two grounds render the apptication defective. The foundationaI basis for the stay, which is the notice of cross-appeat, is imperitted by late service under Rute 89(1). Uttimatety, the uncontroverted evidence of the Appticant's bad farth evidenced by concealing court records and the resuttant unjust enrichment evidenced by hrs famity enjoying both the purchase funds and the property for sixteen years without the purchaser getting any remedy f undamentatly strips the AppLicant of the equitabte standing required for reIief. I woutd in the circumstances I sustain the second Respondent's preIrminary objections and strike out the apptication with costs. Signed at Kampata the 23'd day of AprrL 2026 s opher Madrama lzama Justice of the Supreme Court at Kampata t " E-h, of April.2026 Name and Titte: 10 15 20 25 Detivered Signature 15 (eatsira<, B$?o€-rne @aLf