Bagalana v Besi Musubika (Civil Miscellaneous Application No. 251 of 2021) [2021] UGCA 145 (6 December 2021)

### THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

## **MISCELLANEOUS APPLICATION NO. 251 OF 2021**

(Arising from Miscellaneous Application No.250 of 2021)

(Arising from Civil Appeal No.275 of 2020)

BAGALANA MOSES::::::::::::::::::::::::::::::::::: 10

### **VERSUS**

BESI MUSUBIKA::::::::::::::::::::::::::::::::::::

CORAM: HON. MR. JUSTICE CHEBORION BARISHAKI, JA

#### (SINGLE JUSTICE)

#### 15

## **RULING**

This application seeks for an order of interim stay of execution of the judgment in Civil Appeal No.110 of 2018, High court of Uganda at Mukono pending the hearing and determination of the main application before this Court. The application is brought by way of Notice of Motion under O.52 R 1 of the CPR and section 98 of the Civil Procedure Rules.

The background to the application is that the respondent sued the applicant alleging trespass to her Kibanja and damage to property in the Chief Magistrates Court of Lugazi vide Land Case No.0083 in which she claimed damages, interest

and costs of the suit. On the 30th day of July, 2018, judgment was delivered in $\mathsf{S}$ favor of the applicant. The respondent appealed to the High Court which overturned the findings of the trial Court and held that the suit property (Kibanja) belonged to the respondent and the applicant was a trespasser on it. Dissatisfied with the decision of the lower Court, the applicant appealed to this 10 Court.

The respondent applied for execution of the decree and a Notice to show Cause why execution should not issue against the applicant. The application was granted by the High Court hence this application.

The Notice of Motion is supported by an affidavit deponed by Bagalana Moses dated 15th September, 2021. It sets forth the following grounds upon which the 15 application is premised;

- 1. That the applicant is the appellant in Civil Appeal No.275 of 2020 filed in this Court on 5th November, 2020 against the respondent. - 2. That the applicant is aggrieved by the decision and orders of Batema, $J$ in - HCCA No.110 of 2018 that in effect awarded ownership of the applicant's 20 land to the respondent and ordered for his immediate eviction from his home *without considering the applicant's equitable interest in the suit land.* - 3. That the applicant has filed a substantive application vide Miscellaneous Application No.250 of 2021 for stay of execution and the same is pending *hearing and determination by this honorable Court.*

- 4. That the respondent has moved the High Court to tax the bills of costs from *proceedings of both the lower Courts and she has extracted certificates of* taxation and served them on the applicant. - 5. That the respondent has applied for execution of the decree and orders and *High Court has issued a Notice to show cause as to why execution should* not issue against the applicant and the notice has been served on the applicant. - 6. That the applicant stands to be evicted from his land and home that he has occupied and possessed for a long period of time as the decree orders the *respondent to evict the applicant forcefully forthwith.* - 7. That the applicant owns 2 residential houses on the suit land and a farm land where he and his family draw their subsistence and survival. - 8. That if the application is not granted, the applicant will suffer irreparable loss of eviction from his home and his appeal will be rendered nugatory. - 9. That the applicant has already provided a bond for security for costs in this

Court.

The respondent opposed the application and filed an affidavit in reply dated 18th October, 2021 and deponed by Besi Musubika. The grounds in opposition are as follows:

a) That the respondent has not applied for execution of the decree and orders of the High Court. The Notice to show cause why execution should not issue that the applicant attaches to his affidavit was never heard as the date it

$\mathsf{S}$

- was given fell within the lockdown period which was put in place to curb the spread of the Covid 19 pandemic. - *b) That the respondent has not yet obtained an eviction order to forcefully evict* the applicant. - *c) That the applicant has been selling off the disputed Kibanja in contempt of*

$10$

the High Court orders and intends to finish it off before his appeal is heard and disposed of that is why he is seeking orders to stay execution.

At the hearing of the application, Mr. Ssenkumba Davis appeared for the applicant while the respondent was represented by Mr. Kafuko-Ntuyo Robert.

Both counsel filed written submissions which they adopted at the hearing.

- Counsel for the applicant submitted that the applicant had satisfied the two 15 conditions required before Court can grant an order for an interim stay of execution and that is; that the applicant has filed a notice of appeal and that there is a threat of execution. He added that the applicant had filed a substantive application for stay of execution vide Miscellaneous Application No.250 of 2021. - He relied on Alcon International Ltd V The New Vision Printing and $20$ Publishing Co. Ltd & Anor, Civil Application No.4 of 2010 and Iddi Halfani V Hamisa Binti Athumani (1962) E. A 761.

Counsel further submitted that the respondent had moved the High Court to tax bills of costs and she had extracted certificates of taxation and the same had been served on the applicant. That the respondent had also applied for execution of the decree and a Notice of execution had been served on the applicant. Counsel 4 | Page

$\mathsf{S}$

further submitted that there was no doubt that the respondent despite having $\mathsf{S}$ been served with both the notice of appeal and the memorandum of appeal against the decree in Civil Appeal No.110 of 2018, intends to proceed with execution of the decree without regard to the pending appeal. In counsel's view, the execution of the decree at this stage will not only disrupt wholly the applicant's livelihood but also put the applicant's right of appeal in jeopardy. He 10 prayed that the application be allowed and the status quo maintained until the determination of the main application.

Counsel for the respondent opposed the application and submitted that the respondent was not aware of any substantive application filed by the applicant 15 because she had never been served with the same. He further submitted that the applicant had deponed in paragraph 6 of his affidavit in support of the application that the respondent had applied for execution of the decree and the High Court had issued a notice to show cause why execution should not issue against him but since the notice was never heard it would not constitute a serious threat of execution. He relied on Micheal Mukono V Alice Kimono, Civil 20 Application No.93 of 2021.

Counsel further submitted that the applicant had not adduced any evidence of an application for execution as required by **0.22 R.7** of the Civil Procedure Rules He added that under direction 6 (b), (C) and (d) of the Constitution (Land

**Evictions) (Practice) Directions 2021**, before an eviction is carried out, there 25 must be an order of eviction or demolition, clearly stating the name of the person

- or persons to be evicted or the illegal structure to be demolished. There must be $\mathsf{S}$ a notice of eviction or demolition issued to the affected person or persons to be affected and there must be a warrant of eviction or demolition. According to counsel, the applicant has failed to prove the requirements for the grant of interim orders. He prayed that the application be dismissed. - 10 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 give this Court power to grant a stay of execution, an injunction or an order of stay of proceedings on such terms as the Court may deem fit.

**0.22 R.26 of the CPR** provides that where a suit is pending in any Court against 15 a holder of a decree of the Court in the name of the person against whom the decree was passed, the Court may, on such terms as to security or otherwise, as it thinks fit stay execution of the decree until the pending suit has been decided.

In the present application, the applicant seeks for an interim stay of execution in Civil Appeal No.110 of 2018, High Court of Uganda at Mukono until the determination of the main application for stay.

Lady Justice Esther Kisaakye, JSC in the case of **E. B Nyakaana and Sons** Limited v Beatrice Kobusingye and 16 Others, Supreme Court **Miscellaneous Application No. 13 of 2017** had this to say on the requirements for granting an interim stay of execution;

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"There is a wealth decisions of this Court's that have laid out the factors" that Court will consider before granting an application for an interim order for stay of execution pending the determination of the substantive application. These include Zubeda Mohamed & Anor V Laila Kaka Wallia & Anor, Civil Reference No.7 of 2016 (SC), Theodore Ssekikubo & 4 Others V *The Attorney General, Constitutional Application No.04 of 2014 (SC), Yakobo* Senkungu & Ors V Cresensio Mukasa, Civil Application No.05 of 2013 (SC).

A perusal of these authorities shows 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 (d) the application has been filed without undue delay."

The applicant avers in paragraph 2 of his affidavit in support of the application that he is the appellant in Civil Appeal No.275 of 2020 filed in this Court against the Respondent. However I note that the applicant neither availed this Court 20 with a copy of the Notice of appeal nor the Judgement of the lower Court from which the intended appeal emanated. He merely stated in his submissions that he had served a notice of appeal and a memorandum of appeal to the respondent. Surprisingly, the respondent did not rebut this averment.

$25$ Regarding the existence of a substantive application for stay of execution pending before this Court, the applicant averred under paragraph 4 of his

$\mathsf{S}$

affidavit in support of the application that he had filed a substantive application $\mathsf{S}$ for stay of execution and the same was pending determination by this Court. Apart from merely stating so, the applicant still did not avail Court with a copy of the said substantive application. The respondent submitted that he was not aware of any substantive application because they had not been served with a copy of the same. 10

As to whether this application was filed without undue delay on the applicant's part, I cannot tell whether this application was lodged within reasonable time because counsel did not avail Court with a copy of the judgment of lower Court in Civil Appeal No.110 of 2018.

The East African Court of Justice in Arusha in the case of *The Attorney General* 15 of the Republic of Uganda V The East African Law Society & The Secretary General of the East African Community, Appeal No.1 of 2013 stated as follows:

"It is the duty of Counsel to avail to the Court all necessary documentation, including that which he could not have obtained at the time of filing the *Reference, to enable the Court to reach a just decision. It is also the duty of* the Court to do justice to the parties, and to arrive at a just decision after reviewing all the evidence."

Regarding the existence of a serious threat of execution before hearing of the substantive application, counsel for the applicant submitted that the respondent 25 had moved the High Court to tax bills of costs and he had extracted certificates 8 | Page

of taxation and the same had been served on the applicant. Further that the $\mathsf{S}$ respondent had also applied for execution of the decree and a Notice of execution had been served on the applicant.

The respondent averred under paragraph 3 of her affidavit in reply that she had not applied for execution of the decree and orders of the High Court. Further that

the Notice to Show Cause why execution should not issue that the applicant 10 attached to his affidavit was never heard as the date it was given fell within the lockdown period which was put in place to curb the spread of the Covid 19 pandemic.

In counsel's view, a Notice to Show Cause which was never heard doesn't constitute a serious threat of execution later alone a weighty moment to execute.

The record shows that there is a copy of the Notice to Show Cause why Execution should not issue marked as Annexture "D" and attached to the applicant's application. Although counsel for the respondent submitted that the same was never heard, it is evident that the execution process had already commenced. The applicant also attached a decree marked as Annexture "E". I therefore find

that there is imminent threat of execution.

I have taken note of the sloppy manner in which counsel for the applicant handled the instant application. He did not avail Court with the necessary documents but a mistake, negligence, oversight or error on the part of counsel should not be visited on the litigant. Such mistake, or other error as the case maybe, constitutes just cause entitling a trial Judge to use his discretion so that

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$\mathsf{S}$ the matter is considered on its merits. See **Banco Arabe Espanol V Bank of** Uganda, SCCA No.8 of 1998.

I have looked at the mother file and find that the applicant indeed filed a notice of appeal referenced as Civil Appeal No.275 of 2020. The same was served on the respondent which the respondent did not contest. The applicant filed a substantive application No.250 of 2021 although the same has not yet been served on the respondents and neither has it been fixed for hearing.

On the whole, the applicant has fulfilled the requirements for grant of an interim order of stay and I accordingly allow the application and make the following orders:-

- 15 1. An interim order is hereby issued staying the execution of the decree and orders in Civil Appeal No.110 of 2018 from High Court of Uganda at Mukono pending the final disposal of the main application of stay of execution vide Miscellaneous Application No.250 of 2021. - 2. The Registrar of this Court is hereby directed to fix Miscellaneous Application No.250 of 2021 for hearing in the next 21 days. - 3. The costs of this application shall abide the outcome of the substantive application for stay of execution.

I so order

$\overline{b}$ day of ................................... Dated at Kampala this... $-2021$

**CHEBORION BARISHAKI**

**JUSTICE OF APPEAL**

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