Ayee-too v Abonga & Another (Miscellaneous Application 2 of 2024) [2024] UGHC 1118 (27 December 2024)

## **THE REPUBLIC OF UGANDA**

# **IN THE HIGH COURT OF UGANDA HOLDEN AT KITGUM**

## **MISCELLANEOUS APPLICATION No. 02/2024**

## **(ARISING FROM CIVIL SUIT No. 06/2019: MAGISTRATE PADER)**

5 **AYEE-TOO DAVID MUTESA APPLICANT**

**Versus**

- **1. ABONGA YUSAMO** - **2. JED COURT BAILIFFS & AUCTIONEERS ASSOCIATES RESPONDENTS**

10 **BEFORE HON. MR. JUSTICE PHILIP W. MWAKA. RULING.**

#### **Introduction and Background.**

[1]. The Applicant seeks Orders from this Court – staying execution of the Judgment and Orders in Civil Suit No. 06/2019 delivered by His Worship Akankwasa Edward Kabayo, Magistrate Grade 1, Pader on the 4 15 th October, 20**19** (the correct year being 2021) with demolition of structures halted; the Decree be set aside; the *"Appeal be allowed"* and making provision for costs.

[2]. The Application is instituted by way of Notice of Motion filed on the 2nd May, 2024 curiously under **Section 82 of the Civil Procedure Act, Cap. 71 (now** 20 **Cap. 282); Order 46 Rules 1 and 8 of the Civil Procedure Rules, SI 71 – 1** – which provide for review and its procedure. These citations were revised by the **Law Revision Act, Cap. 3 and Statutory Instrument No. 049/2024: The Law Revision (Commencement of the 7th Revised Edition) (Principal Laws) Instrument, 2024.**

25 [3]. An Affidavit supporting the Application is attached deponed by the Applicant.

#### **The Applicant's Case and Submissions.**

[4]. The Applicant's grounds in the Motion are: - his address is Angagura "B" Village, Kalawinya Parish, Angagura Sub County in Pader District; **Civil Suit** 30 **No. 16/2017** was filed against his son, Bukenya Sunday, and summons dated 15th November, 2017 served on his son with the claim in the Plaint being for ownership of sixty (60) acres of land in Agwera Village, Kalawinya Parish, Angagura Sub County; later his son who resides in his home was arrested without attending any Court hearing with the Respondent said to have 35 abandoned the case; **Civil Suit No. 06/2019** was then filed against *"one Mutesa"* without notice of summons to file a Defence only for him to realize that a Decree was passed in his absence in respect of land at Agwera Village; he did not know that the Respondent had a land matter with him in Angagura "B" Village, Kalawinya Parish, Angagura Sub County in Pader District (his 40 address) until a notification meeting was held on his land with the Resident District Commissioner (RDC) declaring that he would be removed from his home; he claims on, or about 31st August, 2023 he was forced to sign a *"bill document"* he was unaware of and upon refusal to sign and pay money the Police got involved and arrested him taking him to Kinene Prison for six (6) 45 months; his land measuring approximately seventy (70) acres in Angagura "B" Village, Kalawinya Parish, Angagura Sub County in Pader District turned out to be the suit land subject of an eviction Order with his neighbours aggrieved by the sudden eviction Order; he insists that he does not have land at Agwera Village as stated in the Respondent's documents; his LC1 Chairperson of 50 Angagura "B" Village and LC2 Chairperson of Kalawinya Parish have not been contacted by Court Officials for any *"correspondence"*; it was the intervention of the District Security Committee at the notification meeting on the recommendation of the District Crime Intelligence Officer, Pader District that he found out that his land at Angagura "B" Village was the suit land in 55 **Civil Suit No. 06/2019** – hence the *"cause of action in this Application"*.

- [5]. The Applicant concludes this rather inconsistent narration of events by averring that owing to *"disability"* and *"frauds"* he was not in a position to file an *"appeal Application"* earlier and he was not given a copy of the Judgment. - [6]. It is on this basis that he says he brings the Application for stay of execution 60 and the *"Court of Appeal reviews"* and for Orders that the Respondents stays the sale of the land pending determination of an Application to set aside the *Ex Parte* Judgment and hearing of the main suit as to ownership of the land at Angagura "B" Village, Kalawinya Parish, Angagura Sub County in Pader District. It is noteworthy that the Applicant is a *Pro Se* litigant. - 65 [7]. In his supporting Affidavit the Applicant reiterates the entire narrative hereinabove *verbatim*. Attached are documents of the Lower Court. - [8]. The Applicant initially filed a *"Written Reply"* on the 18th June, 2024 and later filed submissions on the 18th July, 2024 and addressed the Issues of – Whether the Court should stay execution of the Decree in the Suit and Whether or not 70 the Court should set aside the Judgment. - [9]. The Applicant cited **Order 43 Rule 4(3) of the Civil Procedure Rules, SI 71 -1** in respect of grounds to be considered in an Application for stay of execution in the High Court and **Supreme Court Constitutional Application No. 03/2013: Hon. Theodore Ssekikubo & Others Vs. The** 75 **Attorney General & Others** for an elaboration of the grounds pertaining to stay of execution including – (1). The Applicant must show that he lodged an - Appeal. (2). Substantial loss may result to the Applicant unless the stay of execution is granted. (3). The Application was made without unreasonable delay. (4). The Applicant has given security for due performance of the 80 Decree or Order as may ultimately be binding upon him. - [10]. It is the Applicant's case citing **Order 43 Rule 4(3) of the Civil Procedure Rules** that while an Appeal does not operate as a stay of proceedings under a Decree nonetheless a stay of execution is provided for based on sufficient grounds – and whether there is an Appeal or not *"is not vital"*.

- 85 [11]. In respect of the substantive grounds firstly, the Applicant submits that he has demonstrated in his Affidavit that he will suffer substantial loss highlighting that he was not served summons to file a Defence in the head suit and the person referred to was not him. Moreover, the land referred to in the head suit is different from the land which he is in possession of and on 90 which he resides and cultivates and therefore cannot be evicted from it; secondly, regarding depositing security of performance of the Decree, the Applicant submits that he has demonstrated that he was not served copies of the summons and therefore cannot be made to deposit security for performance; thirdly, in respect of whether or not the Court should set aside 95 *Ex Parte* Judgment, the Applicant submits citing **Order 9 Rule 27 of the Civil Procedure Rules** and *inter alia* **HCMA No. 308/2014: Damco Logistics Company (U) Ltd Vs. Societe Bisimaki Bakanova** that this Court (as opposed to the Lower Trial Court which passed the Judgment and entered the Decree) may set it aside for sufficient cause specifically for failure to serve 100 summons or failure to appear at the hearing following which a day shall be appointed to proceed with the suit. In conclusion, the Applicant submits that denying a party the opportunity to be heard is a last resort of Court and immediately the Applicant became aware of the matter on the 25 th April, 2024 he immediately filed this Application to set aside the Judgment which had 105 been passed against him with him being interested in defending the matter. He prays that execution is stayed and Judgments and Decrees of the Lower Trial Court in Civil Suits No. 016/2017 and 06/2019 are set aside to enable him file Defence and defend the head suit. The Orders sought are outlined. [12]. It is observed that the self-prepared Motion itself is neither signed nor dated - 110 by the Applicant much as the Affidavit is thumb printed and Commissioned. The document outlining the summary and lists is not dated. The Motion was issued. The Order sought states the Decree was issued on the 4th October, 2019 while the Decree on Record is dated 4th October, 2021.

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#### **The Respondent's Case and Submissions.**

- [13]. The 1 st Respondent filed an Affidavit in Reply on the 31 115 st May, 2024 in opposition to the Application. He avers that – he is a resident of Agwera Village, Kalawinya Parish, Angagura Sub County in Pader District and is conversant with the litigation and the subject matter claiming to also be a resident on the suit land with full rights of ownership and possession; he 120 claims that the supporting Affidavit is misconceived and contains falsehoods and misrepresentations; he instituted a suit against the Applicant and followed all lawful procedures; he informed the Applicant of it several times including by process server, newspaper advertisement, radio announcement and Court Notice Board which were ignored; the Lower Trial Court gave notice to the 125 Applicant including of the *Locus in Quo* visit; execution in **Civil Suit No. 06/2019** was concluded with the Applicant giving vacant possession and with costs and damages outstanding inspite of the Applicant having been detained for six (6) months; in regard to Bukenya Sunday he was convicted by a Court for aggravated defilement and is serving sentence and his arrest was not 130 connected to the land dispute. - [14]. In conclusion, the 1st Respondent avers in his Affidavit that the Application lacks merit and this Court does not have Jurisdiction to hear this Application as there is no execution before this Court nor an Appeal before this Court and also there is no matter before this Court from which the Application 135 arises. It is his case that the Application is brought in bad faith aimed at frustrating a legitimate process denying that he is on the Applicant's land. The 1 st Respondent adds that the Applicant earlier brought two (2) different Applications for stay of execution before the *"right Court"* which were both dismissed with costs and this Application ought to be dismissed with costs. - [15]. The Respondent 2nd 140 Respondent, through Bailiff Ms. Aciro Janeth, also filed an Affidavit in Reply on the 31st May, 2024 in opposition to the Application. The substance of her Affidavit echo the 1st Respondent's averments.

- [16]. The 2nd Respondent adds that they were Bailiffs for the 1st Respondent and executed an Order for vacant possession against the Applicant for which they 145 filed a full return with the issuing Court. This was inspite of threats and opposition from the Applicant. They also aver that the Applicant brought two (2) earlier Applications for stay of execution before the *"right Court"* which were both dismissed with costs. They refute the claim that the Applicant was incapacitated and similar to the 1st Respondent aver that the Application 150 ought to be dismissed with costs. - [17]. There are no Submissions for the Respondents on the Record of the Court. **Rejoinder.** - [18]. The Applicant filed an Affidavit in rejoinder on the 2nd July, 2024 in which he avers that – the 1st Respondent is not conversant with the suit land hence his 155 efforts to evict him and denied the claims of misrepresentations and, or falsehoods. He contests the 1st Respondent's claim to have followed legal avenues and insists that he was not served Court documents only receiving the taxed Bill of Costs and arrest warrant in execution. In sum, he reiterates his earlier averments including that he was wrongly and, or mistakenly 160 executed against as he was never a party to the suit.

#### **Representation.**

- [19]. The Applicant appeared in Court *Pro Se* and self-prepared the Motion and some pleadings himself, though the Court observes that certain documents 165 were prepared by Messrs. Egaru & Co. Advocates. - [20]. Counsel, Mr. LoboAkera Stephen and later Mr. Kilama Calvin, represented the Respondents. The 1 st Respondent was present in Court.

#### **Proceedings of the Court.**

[21]. The proceedings of the Court were on the 31st May, 2024 and the 19th June, 170 2024. The Applicant filed submissions while there are no submissions filed by the Respondent on the Record of the Court inspite of Directions given. #### **Issues for Consideration.**

[22]. The Issues for consideration to be addressed by the Court which shall be considered jointly are - **Whether the Application is properly before the** 175 **Court and Whether the Applicant has demonstrated sufficient cause for the Court to exercise its discretion Judiciously and grant stay execution of the Judgment/Decree of the Lower Trial Court – or other Orders.**

### **Considerations and Determination of the Court.**

[23]. At the outset, the Court observes that the Application is curiously filed under 180 **Section 82 of the Civil Procedure Act, Cap. 282** and **Order 46 Rules 1 and 8 of the Civil Procedure Rules SI 71-1** which both provide for Review of a Judgment or Ruling by the same Court which determined the matter. This is in stark contrast to the principal Order sought which is for stay of execution of the Judgment and Orders of the Lower Trial Court in **Civil Suit No.** 185 **06/2019** and the entire substance of the Application. This, however, is not necessarily or always fatal and is more likely than not a consequence of the Applicant preparing the pleadings himself without the requisite legal knowhow or adequate professional input.

#### **See: Saggu Vs. Road Master Cycles (U) Ltd [2002] 1 EA 258.**

190 [24]. **Order 43 Rules 4(1) and (3) of the Civil Procedure Rules** considered together in context generally envisage a stay of execution in respect of a matter appealed to the High Court from the decision of a Lower Court – hence the consideration that an Appeal to the High Court does not automatically operate as a stay of the Judgment and Decree of the Lower Court but the 195 High Court may in the judicious exercise of its discretion grant a stay of execution. The same is applicable to execution of the Decree. The grounds to be considered by the Court in determining whether sufficient cause has been established include those in **Rule 4(3)** – with others expounded on in case Law. The grounds are instructive even in appeals to superior Courts.

- 200 [25]. It is apparent based on the pleadings and evidence on the Record of the Court and not disputed by either of the parties that the Applicant has not instituted any Appeal from the decision of the Lower Trial Court in **Civil Suit No. 06/2019** to the High Court nor has he presented any material to indicate that he is pursuing affirmative steps to do so. This is also conceded by the 205 Applicant supposedly claiming *"disability"* and *"frauds"* as well as that the existence of an Appeal is not *"vital"*. There is also no material on the Record of the Court establishing that the Applicant has taken or is in the process of pursuing any affirmative steps to contest the Judgment and Decree in the Lower Trial Court. The Respondents suggest without clearly elaborating that 210 certain actions attempted by the Applicant to contest the Judgment/Decree and the execution in the Lower Trial Court were unsuccessful and, or futile. - [26]. In these circumstances, therefore, the Applicant would seem to seek a stay of execution of the Judgment and Decree of **Civil Suit No. 06/2019** from this Court for its own same without any remedial action taken or even intended. - 215 [27]. Needless to say, if entertained, this would present the risk of an Order of stay of execution granted to an indolent litigant in perpetuity thus undermining the purpose of such orders and rendering the entire proceedings already substantially concluded by the Lower Court futile and in vain. This is the rationale for the Rules providing that a substantive action, moreso as already 220 cited an Appeal, must be the basis of such a grant of stay of execution. - [28]. Much as the Applicant has not cited **Section 98 of the Civil Procedure Act, Cap. 282** or **Section 37 of the Judicature Act, Cap. 16**, it is incumbent that a Court does not grant a stay of execution or similar temporary Order without not only sufficient cause being established based on substantive actions but 225 also without limits imposed to its application which may have the effect of rendering decisions reached in exercise of any Jurisdiction nugatory. In this instance, the Applicant's submission to the effect that - whether there is a pending Appeal, or not, *"is not vital"* – is telling.

- [29]. The Court finds that the Application fails at the first hurdle in as far as the 230 Applicant has not instituted an Appeal and no indication is given that he is taking affirmative steps to do so – let alone in any way contest the Judgment and Orders of the Lower Trial Court. There is therefore no core basis for grant of stay of execution which is by its very nature of temporary application. - [30]. The Court is conscious of other considerations for grant of an Order of stay 235 of execution cited in *inter alia* **Supreme Court Constitutional Application No. 03/2013: Hon. Theodore Ssekikubo & Others Vs. The Attorney General & Others** and finds that the Applicant's inaction in not contesting the Judgment and Decree is in itself indicative of his acceptance of the pronouncement of the Lower Trial Court and it is therefore a contradiction 240 to claim substantial loss. Moreover, three (3) years have passed since the decision of the Lower Trial Court was rendered. The other considerations needn't be canvassed as it would amount to an exercise in futility. - [31]. The Court observes that the Applicant in his submissions introduces the misconceived notion that this Court may set aside (*Ex Parte*) the 245 Judgment/Decree of the Lower Trial Court under **Order 9 Rules 27 of the Civil Procedure Rules** to be subsequently heard and determined on its merits. Not only was this not the core basis of the instant Application but this provision is only applicable to the very same Court which passed the Decree or Order and should have been properly directed to the Lower Trial Court. - 250 [32]. The other Order sought that *"Appeal be allowed"* is redundant in the absence of an Appeal duly instituted. - [33]. In concluding, the Court observes variations in the description of the land said to have been subject of the Judgment/Decree and subsequent execution variously described sometimes as Agwera Village and at other times as 255 Angagura "B" Village both said to be in Kalawinya Parish, Angagura Sub County in Pader District. This may be addressed for due consideration to the Lower Court under appropriate procedure.

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- [34]. In sum, the Court finds that the Application is wholly incompetent, misconceived and without merit. It is hereby dismissed. - 260 [35]. Having carefully given due consideration to the Application, the supporting and responsive Affidavits and Rejoinder as well as Annextures thereto, the submissions on Record, the Law applicable and the circumstances of the case – the Application is hereby dismissed. - [36]. Each Party shall bear their own costs.

## **Orders of the Court.**

- [37]. Accordingly, the Court makes the following Orders: - 1. **Miscellaneous Application No. 02/2024** is hereby dismissed. - 2. Each Party shall bear their own costs. - 270 It is so Ordered.

**Signed and Dated on the 27rd day of December, 2024 at High Court Kitgum**

**Circuit.**

275 **Philip W. Mwaka**

**Acting Judge of the High Court.**

# **Delivery and Attendance.**

This signed and dated Ruling has on the directions of the Presiding Judge been delivered to the Parties electronically by the Deputy Registrar, High Court Kitgum 285 Circuit.

- 1. Deputy Registrar, - High Court Kitgum Circuit Her Worship Suzanne Aisia Musooli. - 2. The Applicant Mr. Ayee-Too David Mutesa

& Messrs. Egaru & Co. Advocates.

- 290 3. Counsel for the Respondents Mr. LoboAkera Stephen & Respondents.

- 4. Court Clerk and Interpreter Mr. Atube Michael. - 5. Interested and Affected Persons and Entities.

**Philip W. Mwaka**

295 **Acting Judge of the High Court.**

**High Court Kitgum Circuit.**

**27 th day of December, 2024.**