Ashimwe and Others v Dr. Aggrey Kiyingi (Civil Application No. 191 of 2011) [2012] UGCA 62 (11 May 2012)

## THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

# CIVIL APPLICATION NO.191 OF 2011

(Arising from Miscellaneous Application No.56 of 2011 and Civil Suit No.147

of 2010)

#### **BETWEEN**

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1. ASIIMWE DIANA JACKLINE

2. HENRY MUGYENYI

3. STEVEN SERWADDA

4. SILVER KANGAHO $10$

5. COMMISSIONER LAND REGISTRATION

#### AND

DR. AGGREY KIYINGI :::::::::::::::::::::::::::::::::::

CORAM: HON. LADY JUSTICE A. E. N. MPAGI-BAHIGEINE, DCJ

$15$ HON. JUSTICE S. B. K. KAVUMA, JA

HON. JUSTICE REMMY KASULE, JA

$\mathsf{S}$

### RULING OF COURT

The applicant, through this application brought under **Rules 6** 20 (2) (b) and 43 of The Judicature (Court of Appeal) Rules seeks orders that the proceedings in the High Court (Commercial Division) Miscellaneous Application No.56 of 2011 and High Court Civil Suit No.147 of 2010 be stayed pending disposal of the Court of Appeal Miscellaneous Application No.163 of $25$ 2011.

The application is supported by the affidavit of the first applicant dated 09.09.2011. Richard Komakech, an advocate for respondent, filed an affidavit in reply dated 12.12.2011 in 30 opposition to the application.

At the hearing learned Counsel Erick Muhwezi appeared for the applicants while counsel Mwenyi represented the respondent.

The background to the application is that the $1^{st}$ applicant obtained a decree against the respondent in the High Court,(Commercial Division), Kampala in High Court Civil Suit No.266 of 2008. The decree was executed by attachment and

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sale of the respondent's property comprised in Kyadondo Block $\epsilon_1()$ 273 Plot 140, LRV 3922 Folio 10 at Buziga, Makindye Division, Kampala, that was sold by the 2<sup>nd</sup> applicant, a court auctioneer, to the 4<sup>th</sup> applicant; and proceeds of the sale passed over to the 1<sup>st</sup> applicant as decree holder.

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Dissatisfied with the way the execution process was carried out, the respondent filed in the same court **Miscellaneous** Application No.56 of 2011 seeking nullification of the sale of the said property pursuant to execution of the court decree in Civil Suit No.266 of 2008. He also filed a separate Civil Suit 50 No.147 of 2010 on 28.04.2010 challenging the execution of the stated decree. The applicants were made defendants to the said suit.

When Miscellaneous Application No.56/2011 came up for 55 hearing before Kiryabwire, J., counsel for the respondents raised preliminary objections that Civil Suit No.147/2010 was wrong in law as any questioning of execution must be pursued through the suit, the subject of execution, that is **Civil Suit** 60 No.266/08 and not by lodging a fresh suit: Civil Suit No.147/2010. Further, the buyer of the property under execution of a court decree enjoys absolute protection and

cannot be sued as had been done in Civil Suit No.147/2010. Also, the affidavits supporting Application No.56/2011 had falsehoods that made the application itself to be incompetent. 65

The learned trial judge, after hearing and considering the submissions for and against the objections, delivered a ruling dismissing the objections on 06.07.2011. The applicants informally applied for leave to appeal the ruling, but the judge 70 refused to grant the same to the applicants.

applicants then lodged in this court Miscellaneous The Application No.163 of 2011 praying that leave be given to them to appeal against the ruling delivered on 06.07.2011. The 75 applicants also filed this application. A Notice of Appeal was also filed by the applicants.

For the applicants, it has been submitted that since a Notice of Appeal as well as an application for leave to appeal had been 80 filed in this court, the ends of justice demanded that this application be allowed so as to prevent irreparable damage and substantial injustice from being suffered by the applicants.

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Learned counsel for the applicants, Mr. Erick Muhwezi, was also of the view that this application ought to have been 85 entertained by the Registrar, Court of Appeal, and not by a full Bench of the Court. Apparently the Registrar had declined to entertain this application and decided to place the same before a full Bench of the court. Counsel requested that this court comes out with a clear decision on the issue. 90

In opposition to the above submissions, counsel for the respondent argued that the applicants had not shown that they would suffer any irreparable damage and injustice by not being granted leave to appeal. Counsel, instead asserted that justice would be done to all the parties, if the trial court proceeded to 95 decide Miscellaneous Application No.56 of 2011 and Civil Suit No.147 of 2010 on their own merits, without spending unnecessary time and other resources of both the parties and the courts pursuing appeals on issues that were interlocutory in nature. Counsel maintained that the application was properly $100$ before the full Bench of the court.

We have considered the pleadings and submissions of counsel for both parties. This court notes that Order 6 (2) (b) of the Judicature (court of Appeal Rules) Directions provides that:

"6. Suspension of sentence and stay of execution.

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(2) (a) ..................................

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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, [court may] order a stay of execution, an injunction or a stay of proceedings on such terms as the court may think just."

In Supreme Court Civil Application No.6 of 2002, National Housing & Construction Corporation Vs. Kampala District $115$ Land Board and Another, The Supreme Court held that:

> "..................................... in the form of suspension of proceedings in an action, which may be temporary until something requisite or ordered is done, or permanently where to proceed would be improper."

The above relief is as a result of the exercise of discretion by the court to which such an application is properly made. This discretion will be exercised by court in favour of the applicant where such applicant is an unsuccessful party exercising an 125 unrestricted right of appeal. In such a case it is the duty of the court, in ordinary cases, to make such orders for staying proceedings under the judgement appealed from as will

$\mathfrak{S}$ prevent the appeal if successful, from being nugatory. But the court will not interfere if the appeal appears not to be bonafide $130$ or where there are other sufficient exceptional circumstances: See:

## SUPREME COURT (UGANDA) SOMALI DEMOCRATIC REPUBLIC VS ANOOP SUNDERIAL TREON: CIVIL APPLICATION NO.11 OF 1988.

- As to the issue of whether or not Registrars can issue an interim 135 order of suspension of proceedings, the Court of Appeal (Judicial Powers of Registrars) Practice Direction No.1 of 2004 provides that: - " Pursuant to the Court of Appeal Rule's Directions $\mathcal{F}^{\mathcal{A}}$ 140 1996 made under section 41 (1) (V) of the Judicature Act, 2000, and in order to ensure expeditious disposal of cases, the powers of Registrars shall include, but not limited to entertaining matters under the following rules:

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1. ...................................

2. ................................... *interim orders."*

The Rules Committee is empowered by section 41 of the Judicature Act to make rules by Statutory Instruments, for 150 regulating the practice and procedure of the courts, including

the jurisdiction which may be exercised by registrars or other officers of the court. The Practice Direction No.1 of 2004 was issued pursuant to these powers.

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It has to be appreciated that a court interim order of whatever 155 purpose is by nature different from a substantive order. An interim order is issued pending litigation of a substantive matter by the court. The order is usually to ensure maintenance of the status quo in the interim. It is of a limited duration until the court has had the opportunity of hearing and 160 finally determining the substantive matter. **Mulenga, JSC, thus** expounded in WILSON MUKIIBI V JAMES SEMUSAMBWA: CIVIL APPLICATION NO.9 OF 2003 (SC), that:-

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"The interim order ought to be made only in 165 compelling circumstances, to prevent defeat $\boldsymbol{O} \boldsymbol{F}$ justice, and strictly pending ascertained hearing of a substantive application by the full court."

In Civil Application No.6 of 2002: NATIONAL HOUSING & CONSTRUCTION CORPORATION VS KAMPALA DISTRICT LAND 170 **BOARD ANOTHER** (supra) the Supreme $\mathbf{a}$ Court staved proceedings, by way of interim order, amongst other orders, because the applicant showed a probability of success on appeal in respect of which a Notice of Appeal had also been

filed in court and the applicant was ready to deposit security 175 for costs.

On the other hand in Uganda Supreme Court criminal Application No.3 of 2003: Charles Harry Twagira V Uganda, J. W. N. Tsekooko, JSC,(single Justice) refused a stay of criminal proceedings pending disposal of the appeal against a holding 180 by the Chief Magistrate's Court that a prima facie case had been made out against the applicant. The refusal was because the applicant had no right of appeal to the High Court in respect of interlocutory matters i.e. discretionary orders or rulings of the Chief Magistrate in criminal matters. 185

The law therefore, as it is now, empowers the Registrar to issue interim orders, on condition however, that the Registrar weighs all the circumstances, including the state of the case in the High Court. It would be improper, for example, where, the High 190 court insists and has fixed a date for proceeding with the hearing in the case, the subject of the application, for the registrar to issue an interim order purporting to stop the hearing of the case.

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The Registrar ascertain, before entertaining must the application for an interim order, that the issuance of such an order is not likely to be an abuse of court process and the same is being pursued in good faith. The overriding principle is that the Registrar must not delve into substantive issues beyond the 200 Registrar's mandate. See: COURT OF APPEAL CIVIL APPEAL REFERENCE NO.22 OF 2010: BURUNDI TOBACCO CO. S. A. R. L & ANOTHER V. BRITISH AMERICAN TOBACCO (U) LTD (Lady Justice A. E. N. Mpagi-Bahigeine, JA, (as she then was) (single 205 Justice).

We also hasten to add that the Registrar entertaining such an application must all along be conscious of the fact that the jurisdiction of the registrar is subject to that of the High Court $210$ Judge.

Bearing the above principles of law in mind, we are satisfied that the Registrar, Court of Appeal, was right to place this application before the full Bench of the court. The $215$ circumstances of the application dictated so. The High Court had indicated proceeding with Application No.56/2011 and **Civil Suit No.147/2010.**

We observe that the preliminary objections that the learned trial judge comprehensively dealt with in his ruling of 220 06.07.2011 were basically interlocutory in nature and for that purpose the same can be the subject of an appeal when a final decision is made by the High Court in **Miscellaneous** Application No.56 of 2011 and Civil Suit No.147 of 2010. We have also held in Miscellaneous Application No.163 of 2011 225 that the learned trial judge was justified in refusing to grant leave to appeal to the applicants.

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Accordingly we find no merit in this application. The same is dismissed. 230

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We order that the status quo between the applicants and respondent be maintained; unless and until the High Court, in the course of determining Miscellaneous Application No. 56 of 2011 and or Civil Suit 147 of 2010, finds otherwise, in 235 which case the High Court shall be at liberty to make appropriate orders in the application and in the suit.


We award costs of this application to the respondent.

Dated at Kampala this $\frac{1}{\sqrt{2}}$ of $\frac{1}{\sqrt{2}}$ $\frac{1}{\sqrt{2}}$ .


Hon. A. E. N. Mpagi-Bahigeine

į

DEPUTY CHIEF JUSTICE



**JUSTICE OF APPEAL** < his absence hure 21 $\mathcal{L}$ $g$ delivert $\overline{12}$


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