Bandeeba v Rwantebe & Another (Miscellaneous Application 236 of 2022) [2023] UGHC 404 (7 August 2023)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MASAKA MISCELLANEOUS APPLICATION NO. 236 OF 2022 (ARISING FROM CIVIL SUIT NO. 26 OF 2020) BINDEEBA JACOB ……………………………..….………...…………… APPLICANT VERSUS**

| 1. | RWANTEBE YOFAS | | |----|---------------------------------------------|--| | 2. | RWABWERA MOSES …………………………………………… RESPONDENT | |

## **RULING**

*Hon. Lady Justice Victoria N. N. Katamba*

### **BACKGROUND**

The Applicant instituted civil suit No. 26 of 2022 against the Respondents for a declaration that they had trespassed on his land. This court found no merit in the Applicants suit and dismissed it with no order as to costs. It also made no orders of vacant possession nor eviction against the Applicant because there was no counterclaim for the said orders by the Respondents.

The Applicant was dissatisfied with the findings of this court and has since instituted an appeal in the court of appeal and for the above reason he has instituted the instant Application for stay of execution of the orders of this court to enable him prosecute his appeal.

#### **Representation**

The Applicant was represented by **M/s Byamugisha Gabriel & Co. Advocates**.

The Respondent was on the other hand represented by **M/s Manigaruhanga & Co. Advocates**.


#### **APPLICANT'S SUBMISSIONS**

The Applicant submitted that according to his second affidavit filed on 12/04/2023 he deponed that the 1st Respondent has continuously entered onto the disputed land with his cows and grazed them in the Applicant's gardens.

The Applicant further submitted that under paragraph 4 of the affidavit in support, he has demonstrated that he filed an appeal and the memorandum of appeal is on the record of the court of appeal.

He buttressed his submissions on the authority of *Francis Nansio Micah vs. Nuwa Walakira SCCA No. 9 of 1990 in which it was held that every court has an inherent jurisdiction to stay its own orders*

In conclusion, the Applicant prayed to this Honourable court to allow his application and grant a stay of execution pending determination of his appeal with costs.

#### **RESPONDENTS SUBMISSIONS**

The Respondent submitted that decided cases have set grounds which the applicant must prove for the application of this nature, and that the same grounds have their legal backing from the law under *O 43R 4(3) of Civil Procedure Rules*.

The Respondent submitted further that whereas the Applicant has filed an appeal and the same is pending before Court of Appeal, there is no application for execution and as such the applicant cannot stay emptiness disguised as Execution.

That there is not even a threat of execution, and there is nothing to execute as the respondents' have always been in occupation of the suit land.

The Respondents also submitted that the ruling of the learned Registrar of this court dated 16th November 2020, indicates that, when she visited locus there was nothing the applicant owned on the suit land. That the applicant only claimed that there was a structure **(no proper description)** that was allegedly destroyed by respondents.


The Respondent further submitted that filing of Notice of Appeal and Memorandum of Appeal in the Court of Appeal doesn't give the Applicant powers to stay the orders that **"the case is dismissed with no order as to costs"** which is un enforceable.

The Respondents also submitted that the Applicant will not suffer any substantial loss if the Application is not granted and prayed that the same be dismissed with costs to them.

## **DETERMINATION BY COURT**.

I have carefully considered the Application, the affidavit in reply, rejoinder and the submissions of the parties.

*Order 22 rules 26 and 89 of the C. P. R SI 71-1* empowers this Honourable Court to stay execution of a decree pending the disposal of a suit between the decree holder and the judgement debtor

The court of *Appeal in Kyambogo University vs. Prof. Isaiah Omollo Ndiege Civil Application No. 340 of 2013 laid down the grounds for granting a stay of execution as below;*

- *1. That the Applicant has lodged a notice of appeal.* - *2. That the appeal is not frivolous.* - *3. That there is a serious and imminent threat of execution of the Decree.* - *4. That the application was made without unreasonable delay.* - *5. That the Applicant is prepared to grant security for due performance of the Decree.*

Having considered the grounds above laid down in the Prof. Isaiah Omollo case, I am not satisfied that there is a serious and imminent threat of execution of the Decree.

I am instead inclined to agree with the Respondents' submissions that the orders in the Decree of this court that were issued on 3rd November 2022 are not executable. This court *neither issued an order of vacant possession nor of eviction nor to pay costs against the Applicant.*

There is *no pending application for execution nor have the Respondents applied for consequential orders,* as a result of this court's finding that the Applicant is not the owner of the suit land.

This court is also in doubt as to the merits of the Applicant's grounds of appeal and moreover, the Applicant has not made an undertaking to grant security for due performance of the Decree.

In conclusion, this court finds no merit in the instant Application. The Application is hereby dismissed with costs to the Respondents. To ensure that no executable orders are created, the costs of this Application will be collected by the Respondents at the determination of the Applicant's appeal.

I so order.

Orders;

- 1. The Application is hereby dismissed with costs to the Respondents. - 2. The costs of this Application will be collected by the Respondents at the determination of the Applicant's appeal.

Dated and delivered electronically this 07th day of August 2023

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**HON. LADY JUSTICE VICTORIA NAKINTU NKWANGA KATAMBA**