Balkudembe v Dr. Mayanja (Miscellaneous Application No. 205 of 2023) [2023] UGHCLD 102 (13 April 2023)

#### THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT KAMPALA

## (LAND DIVISION)

#### **MISCELLANEOUS APPLICATION NO.205 OF 2023**

#### (Arising out of Civil Suit No.464 of 2017)

JOSEPH BALIKUDEMBE:::::::::::::::::::::::::::::::::::

#### **VERSUS**

DR. FRANCIS MAYANJA BUGEMBE:::::::::::::::::::::::::::::::::::

## Before: Lady Justice Alexandra Nkonge Rugadya.

#### Ruling.

This application brought by way of notice of motion under the provisions of Section 33 of the Judicature Act cap.13, Section 98 of the Civil Procedure Act cap. 71, and Order 43 rule 4, & Order 52 rules 1 & 3 of the Civil Procedure Rules SI 71-1 seeks orders that;

1. An order doth issue against the respondent, his agents, servants, 15 and persons claiming under him staying the execution and implementation of the decree and all orders of this court in High Court Civil Suit No.464 of 2017: Dr Francis Mayanja Bugembe vs Joseph Balikudembe, and further restraining the respondent and his agents from evicting or otherwise dispossessing the applicant 20 and taking over possession of the suit property situate at Kyadondo Block 195 plot 1448 (now 4806) at Kyanja Kampala Capital City until the final disposal of the applicant's appeal to the court of appeal against the said judgment and decree;

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2. Costs of the application be provided for.

Nubart

## Grounds of the appllcatlon.

The grounds in support of the application are contained in the aflidavit in support thereof deponed by the applicant, Mr. Joseph Balikudembe. He stated that he was the unsuccessful party in IICCS 464 OP 2017 filed against him by the respondent in whose favour judgment was entered and wherein court made orders that the applicant had no equitable interest in the suit property situate dt Kgadondo Block 795 plot 1448 (nou 48O6) at KganJa Kampala Capltal City whereon he was a trespasser and court further ordered that the applicant pays compensation of Ugx. 4O,OOO,OOO/=, general damages of tlgx. 2O,OOO,OOO/=, mesne profits of Ugx, 2O,OOO'OOO/=, punitive damages of Ugx, 2O,OOO,OOO/=, interest of 15%, and costs of the suit to the respondent or the estate of the late Yosia Mayanja which is currently being administered by the respondent.

That the applicant being dissatisfied with the judgment and orders of this 15 court, and being desirous of appealing against the same in the court ofappeal instructed his lawyers to commence an appeal in the Court of Appeal and that his counsel has since lodged a Notice of Appeal as well as a letter requesting for typed and certified copies of proceedings and the judgment to enable him prepare and file the appeal to the Court of Appeal.

That there is an urgent threat of execution of this court's decree and orders because they are not only executable but also entitle the respondent to cause the applicant's eviction or dispossession from the suit property and also recover the sums decreed yet it is the same orders and decree that the applicant seeks to challenge before the Court of Appeal and that there is very little likelihood that that his appeal shall be heard before execution. 20 ,q.

That because the suit property is developed with a storeyed commercial building constructed by the applicant who has been in possession of the same since 2012 with tenants, if an order of stay of execution in the terms sought herein is not granted, he as at a great risk of being evicted or dispossessed, 30 and the property alienated by the respondent before the determination of the appeal which appeal which will be rendered nugatory.

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In addition, that all the monetary awards made by this court including compensation, general & punitive damages, mesne profits and costs of the suit are all pegged on the determination of the legality of the applicant's acquisition of the suit land which is one of the issues set to be determined in the intended appeal thus if execution is effected and the applicant succeeds on appeal, it will not be possible for the applicant to recover the land, or the sums decreed by court from either the respondent or third parties, and that since the reliefs sought in the appeal directly impact on the orders granted by this court, the reliefs sought shall be rendered nugatory if execution is allowed to proceed as the suit property and commercial building will have been alienated, and irrecoverable.

That based on the advice of his lawyers, the applicant believes that because his intended appeal is not only plausible, and meritorious but also raises pertinent points of law which merit reconsideration by the Court of Appeal with a high likelihood of success, the imminent threat and danger lies in the fact that the intended appeal may not be disposed of soon thus the need to protect the applicant's unrestricted right to appeal by preserving the status quo as well as the suit property through an order of stay of execution lest the applicant shall be dispossessed, the suit property alienated and rendered irrecoverable even irrespective of whether he succeeds in the appeal. 15 20

Further, that the respondent who intends to execute judgment and decree of this court shall not hesitate to do so as he has since commenced the execution process by extracting the decree by extracting the decree which has been served upon the applicant's lawyers for approval while the respondent's agents have since been inspecting the suit property in preparation of the intended prosecution.

That the respondent shall not be prejudiced as the application for stay of execution has been made without undue delay as the judgment of this court was delivered on 23'd June 2023 and that the orders of stay of execution are intended to safeguard the applicant's right of appeal, and not to render the same nugatory and that the applicant is not only ready, but also willing and

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able to furnish security for due performance of the decree which will be binding on him in such reasonable terms as this court my direct.

That the balance of convenience lies in the applicant's favour since the respondent who sold him the land has never been in possession or occupation of the same since 20 12 and all the developments on the suit land were

constructed by the applicant thus the respondent shall not be inconvenienced

by the grant of the stay of execution of the orders of this court. The applicant further averred that he will suffer substantial loss if the order of stay of execution is not granted as the reliefs sought in the intended appeal

will be rendered nugatory since he is in possession of the suit property, and that the stay of execution will safe guard his right to appeal thereby preventing the appeal from being rendered nugatory. 10

That it is just, fair and equitable that an application for an order of stay of execution pending appeal is issued.

The applicant also filed a supplementary affidavit in support of the application wherein he stated that while court finally endorsed and sealed the decree in HCCS No.464 of 2077, the respondent also filed a bill of costs which has been fixed for taxation, and an application for execution of the decree and orders of this court vrde Executlon Mlscellaneous Appllcatlon No. OO34 of 2O23 wh,rch was also {ixed for hearing. 15 20

That it is now apparent that despite having been served with the notice of appeal, the respondent is determined to conclude execution before the appeal

is determined which will render the same nugatory.

## Respondent's replu.

The respondent opposed the application through his affidavit in reply wherein he objected to the application on grounds that this application for stay of execution as well as the applicant's appeal are frivolous, vexatious and devoid of merit as the same are calculated to deny the respondent the fruits of his judgment. 25


That while the applicant has not attached a cause list to show that the intended appeal may not be disposed of soon, the applicant's intention is to waste the respondent's years in court without getting any justice, and that the respondent should not be denied the fruits of his judgment if the applicant fails to meet the conditions for this application.

That the respondent has no agents inspecting the property in preparation for immediate execution and that while the applicant has not attached any proof of the same, the respondent will be prejudiced because he will be deprived of the use of his land by being condemned to wait for the appeal to be disposed of yet the applicant is not the owner of the land.

In addition, that the balance of convenience does not favour the applicant since the agreement of sale of land was repudiated but the applicant took possession of the land which he had not fully paid for, and started constructing thereon without any right thereby denying and depriving the respondent of the ownership of his land since 2Ol2 and causing him great inconvenience which is why he sued the applicant and patiently waited for court's judgment.

Further, that the respondent who is in need of owning what belongs to him shall be greatly inconvenienced by the stay of execution and that the applicant who has not made any deposit for due performance of the decree, forcefully

constructed on the land despite several interventions from KCCA, and a court order compelling him to stop constructing therefore he cannot suffer any loss.

That the applicant who has been defiant in his actions cannot claim that it is just, fair and equitable for this application to be granted and that the mere statement of likelihood to suffer substantial loss without proof of such loss

leaves a lot to be desired by this court to substantiate this ground thus it is neither just, nor fair for this application to be granted.

The applicant did not file an affidavit in rejoinder to the averments set out in the respondent's affidavit in reply.

# 30 Representdtlon.

UF}p't"

The applicant was represented by M/s Magna Advocates while the respondent was represented by M/s ASB Adoocates. Both counsel filed written submissions in support of their respective client's cases as directed by this court.

# s Detennlnatfion of the apollcatlon ba court.

I have carefully read the pleadings, evidence and submissions of both counsel the details of which are on the court record and which I have taken into account in determining whether this application discloses grounds for stay of execution.

10 Sectlon 98 oJ the CPA gives the High Court inherent powers to take decisions which are pertinent to the ends ofjustice; and an order for stay of execution is such one (see the case of Stngh u Runda Coflee Estates Ltd [19661 EA).

An applicant seeking stay of execution must meet the conditions set out in Order 43 rule 4 (3) oJ the Ctull Procedure Rules, and those espoused in the case of La.wrence Muslltua Kgazze Vs Eunlce Buslnge, Suprerne Court Ctttl Appltcation No la oJ 199O, but more pronounced in the Supreme Court Case of Hon Theodore Sselcikubo and Ors Vs The Attorneg General and Ors Constltutlonal Appllcatlon No 03 of 2014.

20 The applicant must show that he lodged a notice of appeal; That substantial loss may result to the applicant unless the stay of execution is granted; That the application has been made without unreasonable delay; That the applicant has given security for due performance of the decree or order as may ultimately be binding upon him.

## a. Whether there ls a oendlno aooeal.

')( The applicant is required to demonstrate that there is a pending appeal, and that he has lodged a notice of appeal.

In the case of Attorneg General of the Republlc of Uganda versus The Dast AJrlcdn Laut Socletg & Another EACA Appllcatlon No.7 of 2013, it was held that;

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# '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'.

$\mathsf{S}$

In this case, it is not in dispute that the applicant lodged a notice of appeal. a perusal of the applicant's pleadings indicates that the applicant through his lawyers filed a notice of appeal in this court on $27<sup>th</sup>$ January 2023. (See Annexure 'B1' of the affidavit in support of the application). Thus it is clear that the applicant lodged an appeal therefore satisfied this requirement.

## b. Whether or not substantial loss may result if the order of stay is denied.

The phrase substantial loss doesn't 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. (See: Tropical Commodities Supplies Ltd & 2 others v International Credit Bank Ltd (In Liquidation) [2004] 2 EA 331)

The Court of Appeal in the case of **P. K Sengendo vs. Busulwa Lawrence &** Another CACA 207 of 2014 noted that,

"if what was sought to be executed was payment of a sum of money, generally courts will deny stay. Reason being that money can always be returned. But where the subject matter was property capable of permanent alienation and therefore capable of causing the appeal preferred to be nugatory, for example, transfer, then court will exercise its discretion in favour of the Applicant, so as to give benefit to the appeal to be attended to on its merits".

This court in its judgement in the main suit issued a declaration that the 25 applicant had no equitable interest in the suit land and that he was a trespasser on the suit land constituting part of the estate of the late Yosiya Mayanja which is currently being administered by the respondent.

Court also orders the applicant to pay compensation of **Ug. Shs.** 40,000,000/- (Uganda Shillings forty million only) to the estate of the late 30

Juloof

Yosia Mayanja for irregularly acquiring the suit land, general damages of *Ug.* Shs. 20,000,000/= (Uganda Shillings twenty million only), mesne profits of Ug. Shs. 20,000,000/= (Uganda Shillings twenty million only), and punitive damages of *Ug. Shs.* 20,000,000/= (*Uganda Shillings twenty* **million only),** interest of 15%, as well as costs of the suit.

It is not in dispute that the applicant is in possession of the suit land, and is likely to be held in contempt of court if the decretal sums are not paid by him, and this application is not granted. It is also not in dispute that the respondent has since commenced the execution process having filed **Execution Miscellaneous Application No.0034 of 2023** which has been fixed for hearing and may result in the attachment of the applicant's

properties, or arrest. The applicant has expresses the likelihood of his eviction from the property by the respondent who according to the applicant has his agents inspecting

the property in preparation for sale of the same. While no evidence has been 15 led to prove the same, this court is inclined to believe that there is a threat of the same being alienated by the respondent. Accordingly, it is the finding of this court that the applicant is likely to suffer substantial loss if this application is not granted.

#### c. Whether there was unreasonable delay. 20

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In the case of Ujagar Singh v Runda Coffee Estates Ltd [1966] EA 263 court held that;

'It is only fair that an intended appellant who has filed a notice of appeal should be able to apply for a stay of execution . . . as soon as possible and not have to wait until he has lodged his appeal to do so. Owing to the long delay in obtaining the proceedings of the High Court it may be many months before he could lodge his appeal. In the meantime, the execution of the decision of the court below could cause him irreparable loss.'

The judgment in the main suit was delivered on 23<sup>rd</sup> January 2023, and this 30 application was filed on 31<sup>st</sup> January 2023. The applicant also filed

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Mlscellaneous Appllcatlon No,2O6 of 2023 seeking an interim stay of execution pending the determination of this application.

The applicant has clearly been diligent in following up on this matter and filed this application without unreasonable delay.

#### 5 d. Securlta for due perforrnrrnce of the decree.

The Supreme Court in Muslltua Vrs Eunlce Buslngge C/l No. 18fi99o advised that a party seeking a stay should be prepared to meet the conditions set out in Order 43 ntle 4(3). The applicant in his affidavit in support of the appiication intimated to this court that he is not only ready, but is also willing to furnish security for due performance of the decree.

Counsel for the applicant in his submissions prayed for reasonable terms ln regard to this requirement and suggested that the security for due performance of the decree be set at Ug. Shs. 7 5'OOO'OOO/= (Uganda Shtlltngs fffi.een mllllon onlg).

- 15 It is now settled that the applicant's right to be heard on appeal has to be balanced with the respondent's right to costs, and the right to enjoy the fruits of one's judgment without being unnecessarily frustrated. Court must strive to maintain a balance between the need to have a successful party enjoy the fruit of his victory and at the same time to ensure that the unsuccessful party - 20 who has appealed would not be incapacitated as not to pursue his legitimate constitutionally guaranteed right to appeal against the judgment.

Considering the size of the suit land, location and commercial value of the same, this application is accordingly granted on condition that the applicant deposits 7Oo/o of the decretal sum in court as security for due performance of

the decree within 30 days from the date of this ruling. 25

Accordingly, Mlscellaneous Appllcatlon No.2O6 of 2O23 seeking an intertm stay of execution is hereby overtaken by events.

Each party to bear its own costs

I so order.

S"J"Pd

(Phoof Alexandra Nkonge Rugadya.

$\mathsf{S}$ Judge

13<sup>th</sup> April, 2023.

Delived by earl<br>Ashaege J<br>17/4/2023