Apunyo v Atim Obua (Civil Application 206 of 2020) [2020] UGCA 2168 (30 October 2020)

Full Case Text

#### THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

#### CIVIL APPLICATION NO. 206 OF 2020

## (Arising from High Court Civil Appeal No. 0032 of 2018)

PUNYO TOM:::::::::::::::::::::::::::::::::::

#### **VERSUS**

ATIM MARGRET OBUA::::::::::::::::::::::::::::::::::::

## CORAM: HON. MR. JUSTICE CHEBORION BARISHAKI, JA

(SINGLE JUSTICE)

#### **RULING**

15 This is an application for an order of interim stay of execution of the Judgment in Civil Appeal No. HCT-10-LD-CA-0032-2018 dated 14th day of July 2020 against the applicant pending the hearing and determination of the main application before this Court. The application is brought by way of Notice of Motion under Section 98 of the Civil Procedure Act Cap.71 and Rules 2(2), 6(2) (b), 43(1), 44(1) of the Judicature (Court of Appeal Rules) Directions S. I $13 - 10$ . 20

The respondent sued the applicant in the Magistrate Court Grade 1 and the case was dismissed in favor of the applicant in 2018. The respondent was ordered to pay costs of the suit.

The respondent was dissatisfied with the Magistrates decision and filed Civil Appeal No HCT-10-LD-CA-0032-2018 in the High Court. The Learned appellate 25 $1$ | Page

5 judge set aside the trial court-s decrees and orders and re-instated the suit land to the respondent. He also ordered the applicernt to pay costs both in the lower court and on appeal. Being dissatisfied with the said judgment, the applicant filed a Notice of Appeal, appried for certified copies of the proceedings from the High court, and filed this application for an interim stay of execution of the 10 judgment and orders granted in civil Appeal No HCT- 1o-LD-cA-0o32-2o 1g pending the hearing and determination of the main apprication for stay of

execution vide Misc. Application No. 2OS of 2O2O.

The Notice of Motion is supported by an affidavit deponed by Apunyo Tom and set forth the following grounds upon which the Application is premised:

- 1- That the Appricant being dissatisfi.ed. utith the Judgment and. orders of the High court at Lira in civil Appear No HCT-ro-LDcA-oog2-2or8 arbing from Arebtong Magistrate's court at Apara in Land claim No. ro of 2015 and intends to appeal the same. - 2. TLe Applicant has fi.led a notice of appeal and\_ applied. for a certif.ed. record of proceedings which is get to be auailed; - 3. Ttnt the Respondent has ertracted. a decree, a necessary step to execution and the appricant is exposed to a real threat of execution. - 4. Ttnt the respondent has partia g taken possess ion of the Land, baned. the Applicant prus his tuorkers and. famity fo access the rand and. has dug a uell tn it. - 5. That the applicant sha suffer substantiar ross if an interim ord.er for stag of exeantion of the Orders made in High Court, Ciuil Appeal No.32 of 2o18 is not granted pend-ing the determination of the main application.

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- 5 6 Tlnt the applicant has made this application uithout detag upon fling the same in High Court at Lira uhich hr.s not been fixed for hearing. - 7 Ttnt the Applicant is readg to abide bg ang conditions that mag be imposed by thi.s Honorable Court as secttity for due performance of the Orders as mag ultimately be binding upott it. - The Applicant's main application and Appeal are meritoious and haue 10 a uery high likelihood o..,f success as it raises seious points of LatD relating to the Legalitg of ounership of Land as per the Constitution of the Republic of Uganda, 1995 as amended. - 9. Irreparable loss tlill result to the applicant if this application is not granted. - 10. It'slsd fair and equitable that an interim Order for stag of execation doth issue against the respondent pending the determination of the maintain application.

20 The respondent opposed the application and filed an affidavit in reply deponed by Atim Magaret Obua. The grounds in opposition are as follows:

- 1. Ttnt the application is fatally defectiue and does not pass the test as the same uas filed before a wrong forum. - 2. That the applicant has filed a substantiue case in this honorable court but it has no possibilitg of success at all. - 3. That since the land utas declared that of the respondent, the respondent is not using this land at all.

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- 5 4. That the contents of paragraph 5 of the applicant-s aJfidauit are Etestionable and no acts of commencement of execution against the applicant and there is no such threat thereof. - 5. That the photos attached thereto are old photos uhich do not depict the current status of the disputed land. - 6. That euer since the decision of court declaing me to be in possession, of the Land, no one except the applicant has been using the land to date, so there i.s no uag the orders of court can be rendered nugatory. - 7. That the main appeal lacks merit and has no likelihood of success and a waste of courts time, there is no serious point of laut relating to the legalitg of land outnership.

At the hearing of the application, Mr. Bakole Simon represented the applicant; Mr. Adoko Jofax represented the respondent. The parties were absent.

Counsel for the applicant submitted that he had been in possession of the suit land since 1971 and was ordered to vacate immediately yet he had food products such as maize and beans which were ready for harvest. That the respondent had denied him and his workers access to harvest, weed and even pass through the land and there was need to maintain the status quo to allow him continue with his farming until disposal of the main application.

Counsel further submitted that the intended appeal was meritorious and had a likelihood of success. That the applicant was ready to deposit security for costs for performance of the decree and he had brought the application without any delay. He added that due to the delay of hearing the applicant's application for stay ofexecution at High Court in Lira, the respondent despite being served with 4lPage

- 5 the Notice of Appeal had taken possession and control of the land which would cause the applicant irreparable loss. That the respondent had extracted a decree which was a necessary step for execution and that taking of possession of the land gave her free benefit which would disfranchise the applicant and render the appeal nugatory. - Cc'-:n:o-|ft\* \*h+r:a#i +aiscd a p;clii:-ri::al; obje c.i"-!:l- t\*af ilfskrhd noi have jurisdiction to hear the interim application. He argued that S.34 of the civil procedure Act Cap 7l mandates all matters for execution to be handled by the court executing it. That the applicant had frled Misc. Applications Nos. 025 and 026 all of 2O2O in the high court in Lira and they were still pending. That running - to this court was a fishing expedition and an abuse of court of process contrary to Rule 42 sub rule 1 of the Court of Appeal Rules. Further that the applicant had not tried to pursue his application in the court below. 15

Counsel referred to the decision in Zubed.a Mohammed. & Anor Lalla Kaka Wallla & anor Supreme Court C.ltil reJerence No. OZpOl6 where the Supreme Court held that applications of this nature can be granted if there is a competent Notice of Appeal, a substantive application and a serious threat. That there was no evidence on record showing a serious threat of execution. That the applicant was in possession of the land and his crops were being laid to waste by weed because he was unable to attend to them. Further that there had been no demand to vacate the land in dispute. He referred court to Zubeda Mohammcd & Anor os Kaka & Wallla (Supra) for the proposition that there must be a notice to show cause or a warrant of execution to prove or pass the test of eminent danger or a serious threat of execution. 20 25

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5 In rejoinder, counsel for the applicant submitted that this application was based on the urgency of the matter and the lower court-s delay in hearing the application was evidence that justice was being denied.

Counsel for the respondent submitted that the applicant ought to have liled this application in the High court first before this Court. Counsel for the applicant subii^ittcd it -pz:e -th:#i;trati sc of tl'ic iiig.nci of th-natl:-.inti-ti:=\*.-- that the High Court had taken long without hearing the matter, the applicant opted to file his application in this Court.

The jurisdiction of this court to grant a stay of execution is set out in Rules 2(2) and 6(2) (b) of the Judicature (Court of Appeal Rules) Directions which mandate the Court to grant a stay of execution, an injunction or order a stay of proceedings on such terms as the court may deem ht.

# Section 12 ofthe Judlcature Act, Cap.13 provides that;

"A single justice of th-e Court of Appeal mag exercise anA pouer uested in the Court of Appeal in ang interlocutory cause or matter before the Court of Appeal".

## Rule 42(2f of the Judlcature (Court of Appeal Rules) Directions Statutory Instrument 13-11 provides that; 20

ll "Wheneuer an application mag be made either in the court or in the High Court, it shall be made first in the High Court."

Before the Court exercises the discretion, the applicant ought to have lodged a notice of appeal in accordance with Rule 76 of the Rules of this Court. in addition, the Court has wide discretionary powers under Rule 2(2) of the Rules of Court to do all that is necessary to attain the ends ofjustice 5lPage 25

- 5 This Court has concurrent jurisdiction with the High Court over interim applications for stay of cxecution pending the determination of the main application for stay of execution. The Supreme Court in La.utrence Musiltua Kgazze V Eunice Buslngge, Suprerne Court Ciail Applicatlon No.78 oJ 7990 stated thus; - " l ltts Court ti6fid\$fel'e7\*Li?A\'n Court. to deal uith tne applidtftolfiirSltf ' on its merits fi.rst, before the application is made to the Supreme Court. Houteuer, if the High Court refuses to accept jurisdiction, or refuses juisdiction for manifestlg wrong reasons, or there is great delag, this Court mag interuene and accept jurisdiction in the interest of justice" - In the same case of Lan0rence Musiitwa Kgazze (supro) the Supreme Court provided conditions that must be present before an applicant may file an application of the present type in this Court first, without having filed it at the High Court to include: 15

1. There must be substance to the application both in form and content;

2. This Court maA in special and probablg rare cases entertain an appltcation for a stay before the High Court has refused a stay, in the interest of justice to the parties. But before the Court can so act it must be apprised of all the facts 20 o

Rule 6 (2) of the rules of this Court prouide that;

Subject to sub ntle (1) of this rule, the institution of an appeal shall not operate to suspend anA sentence or to staA execution, but the court may-25

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(b) in any civil proceedings, where a notice of appeal has been lodged in accordance with rule 76 of these Rules, order a stay of execution, an injunction, or a stay of proceedings on such terms as the court may think just.

Counsel did not adduce any evidence to show that he had taken any step to have the application in the lower Court fixed for hearing.

In E. B. Nyakaana and Sons Limited and Beatrice Kobusinge and 16 Others, Supreme Court Misc. App. No.13 of 2017; Lady Justice Dr. Esther Kisaakye in her ruling stated that before Court exercises its discretion it must be satisfied that:

- (a) A Notice of Appeal has been lodged in accordance with Rule 72 of the Rules of this court; - (b) A substantive application for stay of execution is pending before court; - (c) There is a serious threat of execution before the hearing of the substantive application; and - 20 (d) The application has been filed without undue delay.

A Notice of Appeal was filed in the High Court on $21/7/2020$ as required under Rule 76 of the Rules of this Court. The substantive application referenced as Civil Application No.205 of 2020 for stay of execution was filed on $1/9/2020$ in this court and pending hearing and determination. The two conditions have been fulfilled by the applicant.

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The effect of granting an interim stay of execution is that the judgment holder is deprived of enjoying the benefits of the judgment. The interim order of stay ought

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5 therefore, to be made only in compelling or exceptional circumstances to prevent defeat ofjustice. It should also be granted pending ascertained hearing of the substantive application by the full Court. Filing a notice of appeal per se in my view cannot be a compeliing reason to grant the stay.

ln Kgambogo Unfircrsitg V Pro;f. Isalah Onolo Ndlege, Court oJ Appeal C\*fili.l

- LE..--4gI!-:z!!e-- N=.347 s,'3313;-ka.i+tatd\*-ilatthe law r-cco6,iizcs tiiat rr.rb.=ii ordcrs or decrees appealed from have to be stayed pending appeal. It also recognizes the fact that an appea-l may be determined without the court having to grant a stay of execution. However, Court may stay execution where the circumstances of the case justify such a stay. It is therefore incumbent upon the 15 applicant in every application of stay of execution to satisfy court that the grounds exist for grant of a stay of execution. The court went further to emphasize that the assumption that once a party has filed an appeal a stay of execution must follow as a matter of course has no legal basis. - 20 As to whether there was delay on the applicant,s part, the judgment of the High court in Civil Appeal No. 97 of 2OO9 was delivered on l4/T/2O20 and the evidence on record shows that this application was lodged in this court on 1/9 /2o2o. The application was in my view lodged within a reasonabie time from the date when the judgment of this court was delivered. - 25

As to whether there is a serious and imminent threat of execution before the hearing of the substantive application, counsel for the applicant submitted that the respondent had partly taken possession of the land and cultivating on it, that he had dug a well and destroyed his crops, refused his workers to weed and harvest the produce. The respondent disputed this assertion and contended that 9lPage

no one was using the suit land. That the photos attached by the applicant were old photos which did not depict the current statu s of the disputed land.

The photographs attached on the affidavit in support ofthe application do not in any way give a clear picture of what was happening on the suit land. The only thing that can be discerned from these photographs is that the land was lA- - -'\*\*-d€\* tc ;:l c a;r i i-i g i1. o ii c \i. a s ti:=?tf rii?. p o SsEff ti...

counsel for respondent submitted that the applicant had not shown any threat of execution whatsoever. The applicant did not adduce any evidence to show that the respondent had extracted a decree or applied for a warrant of execution so as to demonstrate existence of threat of execution. I therefore find that there is no imminent threat of execution.

In the result, I decline to grant the interim order of stay of execution sought by the applicant.

The application is dismissed and costs shall abide the cause.

Dated at Kampala this 3fk OoEbel ...day of 2020

ORION BARISHAKI JUSTICE OF APPEAL

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