Balende & Another v Seromba (Miscellaneous Application 117 of 2023) [2024] UGHC 299 (18 March 2024)

Full Case Text

## THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MASAKA MISC. APPLICATION NO. 117 OF 2023 (ARISING FROM COA-00-CA-0328-2023) (Also arising from HIGH COURT MASAKA CIVIL SUIT NO. 0080 OF $2015)$

**BALENDE EDWARD** (Through his next friend **KIKOROMWEIJO JOYCE** BALENDE):::::::::::::::::::::::::::::::::::

#### -VERSUS-

# **NUWAGIRA GEOFREY SEROMBA** (An Administrator of the Estate of the SEROMBA HERBERT) ::::::::::::::::::::::::::::::::::::

### **Before: HON JUSTICE LAWRENCE TWEYANZE**

#### **RULING**

#### Introduction.

- 1. The Applicant brought this Application under Section 98 of the Civil Procedure Act, Cap 71 and Order 43 rule 4 (s) of the Civil Procedure Rules SI 71-1 as amended for orders; That execution arising from Civil Suit No. 0080 of 2015 and EMA No. 5 of 2023 be stayed pending Appeal, and that costs for the Application be provided for. - 2. The Application is supported by the Affidavit of Kikoromweijo Joyce Balende, the next friend and representative of Balende Edward and briefly are; That having obtained judgment in his favour before this Honourable Court, the Respondent applied for execution vide EMA No.5 of 2023 and the same was fixed for Notice To Show Cause why execution should not issue on the 1st day of June, 2023; That the Applicant who was unsuccessful in Civil Suit No. 0080 of 2015 has through Kikoromweijo

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Joyce Balende as the next friend also appealed against the judgment in the Court of Appeal vide COA-00-CV-CA 0328-2023 and the said appeal is pending determination.

3. That the Appeal has a likelihood of success and that there is an imminent threat of execution by the Respondent as the Respondent has already embarked on the process of execution and the Applicant's appeal will be rendered nugatory if the execution process is not stayed.

## The Affidavit in Reply.

4. The Respondent filed an affidavit in reply on the 7th day of November, 2023 and replied that the Application and the affidavit in support of the application is an afterthought and an abuse of court process intended to defeat the Respondent from benefiting from the fruits of the Court judgment; That the Applicant's appeal pending the hearing in the Court of Appeal is groundless, it raises no serious issues of law and has limited chances of success; that the Applicant was served with a Notice To Show Cause why execution should not issue requiring her to appear before Court on the $1^{st}$ day of June, 2023; that the Applicant did not appear on the said date as directed by Court to respond to the Notice To Show Cause why execution should not issue; That the Applicant's Application is premature; That the Applicant has not paid security for due performance for this Application to be granted.

#### Representation.

5. The Applicant was represented by $M/s$ Ruyondo & Co. Advocates while the Respondent was represented by $M/s$ Jambo & Co. Advocates.

#### Submissions.

6. The parties were directed to file written submissions. Counsel for the Applicants filed their submissions and as well as Counsel for the Respondent. I have read and appreciated the contents of the affidavit in

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JIMMIKK BA

support of the application, the Respondent's affidavit in reply, and the submissions of the parties. I will refer to the submissions as and when I find it necessary since they majorly repeat the contents of the affidavits save for the cited authorities.

Issue.

The only ground for determination is whether the Applicants have satisfied the requirements for grant of a stay of execution.

### Applicant's submissions.

7. Counsel for the Applicant cited several authorities which I have considered and they are on Court record. He prayed that the execution of the decree arising from Civil Suit No. 0080 of 2015 and EMA No. 5 of 2023 be stayed pending the hearing of the Appeal in the Court of Appeal vide COA-00-CA-0328-2023.

### **Respondent's Written Submissions**

8. Counsel for the Respondent submitted that the Applicant has not demonstrated and/or adduced evidence whatsoever that there is an impending threat of execution, no warrant of execution has been issued or applied for, the applicant has not further demonstrated the loss (if any) will not be capable of monetory atonement by the Respondent. That while exercising the discretion conferred under the law of stay of execution, the Court should duly consider that a party who has obtained a lawful decree/order is not deprived of the fruits of that decree except for good and cogent reasons. That whereas the Applicant has not met any of the above prerequisites to grant of stay of execution, it is prudent that this Honourable Court be pleased to dismiss the same with costs. Counsel cited several authorities which I have considered.

#### **Decision of Court.**

9. I have carefully read all the submissions of both Counsel in this Application for stay of execution; the law has been properly cited and

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argued by both Counsel but for emphasis; for an Application for stay of execution to be granted, the Applicant must show sufficient grounds laid out under Order 43 rule 4 (1), 4(2), and 4(3) of the Civil Procedure Rules, Order 22 rule 23 and 26 of the Civil Procedure Rules;

- 10. It is a settled position that an Applicant seeking stay of execution must meet the conditions set out in Order. 43 r.4 (3) of the Civil Procedure Rules and those in the case of Lawrence Musiitwa Kyazze Vs Eunice Businge, Supreme Court Civil Application No 18 of 1990, but more pronounced in the Supreme Court Case of Hon Theodore Ssekikubo and Others Vs Attorney General and Others Constitutional Application No 03 of 2014, which include: - a. The Applicant must show that he or she lodged a Notice of Appeal; - b. That substantial loss may result to the Applicant unless the stay of execution is granted; - c. That the Application has been made without unreasonable delay; - d. That the Applicant has given security for due performance of the decree or order as may ultimately be binding upon him. - 11. Although one may have the right to appeal, such right must be exercised within the timeframe given and not just brought for the sake of it. It is important that the Applicant has taken steps to appeal, he or she is likely to suffer substantial loss or irreparable damage; no time has been wasted, security for costs has been given to avoid flimsy intentions to Appeal and that the scales of convenience tilts in his/her favour and that there is notice (see the case of *Nabossa v Yagala & 4 Ors* (*MISC. APPL. NO. 2699*) **OF 2016**); I shall address each of the grounds.

## The Applicant must show that he/she lodged a Notice of Appeal;

12. In this case, the High Court delivered a judgment on the $31st$ day of March 2023. The Applicant filed a Notice of Appeal before this Court vide Civil Appeal No. 328 of 2023 on the $6th$ day of April 2023; a copy of a Notice of Appeal is on record as Annexure B. In the case of *Attorney General of the* Republic of Uganda Vs The East African Law Society & Another EACA

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$\sim$

*Application No.1 of 2013.* It was held that a Notice of Appeal is a sufficient expression of an intention to file an Appeal and that such an action is sufficient to found the basis for grant of orders of stay in appropriate cases; the Applicant had requested for a record of proceedings from the High Court and the said record was availed.

- 13. In Kampala Capital City Authority V Mulangira Joseph MA 26/2016 it was held that " a Court is constrained to take into account the peculiar $\frac{1}{2}$ circumstances of the case to wit that the Applicant expressed the intention to appeal as soon as judgment was delivered and applied for certified proceedings *and copy of the judgment".* $\mathcal{L}$ - 14. Having found a Notice of Appeal was filed on the 6th day of April 2023, five (5) days after the Judgment was delivered in the High Court dated $31/03/2023$ , it is sufficient for this Court to find that there is a proper Notice of Appeal.

## That substantial loss may result to the Applicant unless the stay of execution is granted;

- 15. In *Tropical Commodities Supplies Ltd & 2 Others vs International Credit* Bank Ltd (In Liquidation) [2004] 2 EA 331, Ogoola J (as he then was) held that the phrase substantial loss does not represent any particular amount or size, it cannot be qualified by any particular mathematical formula. It refers to any loss great or small: of real worth or value as distinguished from a loss that is merely nominal; - 16. The Applicant in paragraph 6 of the Affidavit in support of the Application states that there is an imminent threat of execution by the Respondent as the Respondent has already embarked on the process of execution and that the Applicant's appeal will be rendered nugatory if the execution process is not stayed. The Applicant relies on the Notice To Show Cause why execution should not issue in EMMA No. 5 of 2023 issued on the 17th day of April 2023 to show that they are in danger of execution. Page 5 of 9

- 17. The Respondent contends that the Applicant's appeal pending hearing in the Court of Appeal is groundless, it raises no serious issues of law and has limited chances of success. That the Applicant was served with a Notice To Show Cause why execution should not issue requiring her to appear before Court on the 1st day of June, 2023. That the Applicant did not appear on the said date as directed by Court to respond to the Notice To Show Cause why execution should not issue. - 18. I have also perused the Motion and perused the Notice to Show Cause referred to under paragraph 3 of the Affidavit in support. There is no statement as to what transpired on the day when the said notice came up, thus $1^{st}$ day of June 2023. A Notice To Show Cause against execution in certain cases is provided for under **Order 22 rule 19** and it briefly provides that where an Application for execution is made more than one year after the date of the decree or against the legal representative of a party to the decree, the Court executing the decree shall issue a notice to the person against whom execution is applied for requiring him or her to show cause, on a date to be fixed, why the decree should not be executed against him or her. - 19. Further Order 22 rule 20 of the CPR provides for the procedure after the issue of notice thus; - (1) *Where the person to whom notice is issued under rule 19 of this Order does* not appear or does not show cause to the satisfaction of the court why the decree should not be executed, the court shall order the decree to be executed. - (2) *Where the person offers any objection to the execution of the decree, the court shall consider the objection and make such order as it thinks fit.* - 20. Basing on the above I find that this Application demonstrates that substantial loss may result to the applicant unless the stay of execution is granted. I thus find that this condition has been met especially considering that the Applicant has proved imminent threat of execution by virtue of the Notice To Show Cause why execution should not issue.

## That the Application has been made without unreasonable delay;

JANUARA JANUARA Page 6 of 9

21. The record shows that the Application was filed without unreasonable delay given the fact that a Notice to Show Cause was issued on the 17th day of April 2023 and this Application was filed on 31st day of May 2023 that is a time frame of Approximately 1 month and 2 weeks. I therefore find that this condition has been satisfied.

## That the Appeal has a likelihood of success; or a prima-facie case.

- 22. Likelihood of success does not mean that the suit shall succeed but whether there are triable matters; whether there is merit in the case; it means the existence of serious questions to be tried. In GAPCO Uganda Ltd v Kaweesa & Anor (MA No. 259 of 2013) [2013] UGHCLD 47 Court stated that 'the Court must be satisfied that the claim is not frivolous or vexatious and that there is a serious question to be tried. (See American *Cyanamid versus Ethicon [1975] ALL ER 504).* - 23. From the Memorandum of Appeal, the Applicant challenges the Trial Judge's decision and raises grounds like, That the Learned trial Judge erred in law and fact when he held that the suit land belongs to the Respondent by virtual of a Certificate of Title that was issued in 2006 in total disregard of the fact that the Appellant has been in continuous occupation of the suit land for over 30 years hence occasioning a miscarriage of justice; That the Learned trial Judge erred in law and fact when he held that the Appellant is not an adverse possessor on the suit land yet the Appellant was able to show at locus his continuous occupation by grazing cattle thereon over 30 years hence occasioning a miscarriage of justice; That the trial Judge erred in law and fact when he awarded excessive general damages of UGX $50,000,000/$ = hence occasioning a miscarriage of justice. - 24. In my view, the above grounds of appeal raise triable issues and therefore, this condition has been satisfied.

That the Applicant has given security for due performance of the decree or order as may ultimately be binding upon him/her.

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- 25. On Security for cost for due performance as provided for under Order 43 $r$ 4(3) of the Civil Procedure Rules; the Applicant did not mention it in the affidavit and nor in the submissions. On the other hand, the Respondent submitted that the applicant has not demonstrated anywhere in her affidavit in support of the application that she has and/ or is willing to pay security for due performance before this application is granted. The Respondent's Counsel prayed that the application be dismissed with costs. - 26. It is the position under Order 43 r 4(3) of the Civil Procedure Rules that in order for this court to grant an order for stay of execution, it must be satisfied that security has been given by the Applicant for the due performance of the decree or order as may ultimately be binding upon him or her. In some cases like *Walusimbi Mustafa Vs Musenze Lukia*; High Court Miscellaneous Application No. 0232 of 2018, Justice Luswata stated that, "*Without any commitment by the Applicant in his or her application* or supporting affidavit to furnish security for due performance or costs, a stay *would not be granted despite having satisfied the other conditions necessary."* - 27. Security for due performance has been interpreted to mean the entire decretal sum and it is intended to protect the judgment creditor in the event that the appeal is unsuccessful. Courts though have been reluctant to order security for due performance of the decree. Rather Courts have been keen to order security for Costs because the requirement and insistence on a practice that mandates security for the entire decretal amount is likely to stifle appeals. (see DFCU Bank Ltd v. Dr. Ann Persis Nakate Lussejere, C. A Civil Appeal No. 29 of 2003). - 28. In the case of John Baptist Kawanga Vs Namyalo MA No. 12 of 2017 and Margarette Kato Vs Nalwo MA No. 11 of 2011, security for due performance is not a mandatory condition precedent for the grant of an order of stay of execution. This Court has discretion to grant an order for stay of execution without security for due performance. - 29. In this case, the Applicant seeks to stay enforcing of the orders arising from a land dispute until the appeal in the Court of Appeal is disposed off. For all purposes and intents, the Applicant's right to be heard on

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appeal has to be balanced with the Respondent's right to benefit from the decree. I have already found that the Applicant's Appeal raises triable issues in regard to the decision over a land dispute.

- 30. In conclusion, I hereby grant an order for stay of execution premised on the principle that it is the paramount duty of a Court to which an Application for stay of execution pending an Appeal is made to see that the Appeal, if successful is not rendered nugatory. - $31. No$ order as to costs.

I so order.

Ruling signed and read in open court at Masaka this 18th day of March, 2024

NAM

LAWRENCE TWEYANZE JUDGE. 18th March, 2024.