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)

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

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

5 page 2 of the criminal proceedings from his annexures. He supplied the omitted page which disctoses that after the prosecution read the factswhich 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.

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

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

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.

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 crossappeat. 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

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

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.