Batambuze v Ataro (Civil Application 512 of 2024) [2025] UGCA 29 (11 February 2025)

Full Case Text

# 5 THE REPUBTIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPATA

# CIVIL APPLICATION NO.0512 OF 2024

# (ARIS| NG OUT OF CrVrr APPEAT NO.s54 OF 2023t.

## BATAMBUZE MAJ!D APPTICAN''

#### VERSUS

#### JOYCE ATARO

### RESPONDENT

# Before Hon. Justice Moses Kazibwe Kawumi, JA. (Sitting as a single Justice)

#### RULING

The Applicant filed a Notice of Motion under Article 132 (1)&(2) of tne Constitution of the Republic of Uganda 1995, Sections 4,6,7 and 8 of the Judicature Act, Rules 2(211, 6 (2) (b) and 43(1), (2) of the Judicature (Court of Appeal Rules) Directions S.l. 13-10 seeking orders that;

1. An order to stay execution of the judgment and orders of the High Court in HCCS. No.083 of 2010 be granted pending the determination of Civil Appeal No.554 of 2023 by this Court.

2. Costs of the applicatlon be provided for.

The grounds of the application which are also reiterated in the affidavit in support of the Application deposed by the Applicant are as follows ;- 35

- 1. The Respondent successfully instituted Civil Suit No. 83 of 2010 against the Applicant and another - 2. The Applicant lodged a Notice of Appeal against the judgment, decree and orders of the trial Court.

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- 3. That the Respondent has already been served with the Notice of Appeal and the Memorandum of Appeal together with a letter requesting for the typed and certified record of proceedings. - 4. That the Applicant first filed an application for stay of execution vide Misc. Application No. 162 of 2023 which was unjustly dismissed by the High Court.

5. That the Respondent was awarded 200,000,000/- in general damages as the successful litigant and she filed a bill of costs that was fixed for hearing on 5th September 2024.

- 5. That there is eminent danger that the Respondent might execute against the Applicant to recover the damages and costs before the determination of the Appeal. - 7. That the Applicant shall suffer substantial loss if the application is not granted. - 8. That the Applicant's right to appeal shall be curtailed and the Appeal rendered nugatory if the application is not granted. - 9. That it is in the interest of justice and equity that the Court grants an order for stay of execution pending the disposal and determination of the appeal.

-; he Respondent opposed the Application through her affidavit in reply filed on December 09, 2024 denying the Applicant's averments. She 3s contended that;-

1. The application is frivolous, vexatious, speculative, incompetent and full of falsehoods and an abuse of Court process for which reasons it should be dismissed with costs.

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- 5 2. The High Court entered judgment in her favour in Civil Suit I o. 083 of 2010 against the Applicant and a one Richard Onen who purported to claim interest in land comprised in LRV 59 Folio 19 Plot 3 Circular road. - 3. That The Applicant filed numerous applications in bad faith witlr the intention of frustrating her interest in the land and to deny' her the fruits of the judgment but all the applications were dismissed. - 4. The Appeal is moot since after obtaining the judgment, she took possession of the suit land and had the certificate of title transferred into her name. The Respondent then sold the land to One another lnternational of 374 Deven Drive, Waterloo ON Canada N2K 2C4 and plot 5A Circular road Jinja City who are already constructing a hospital for children on it. - 5. The subject matter has been overtaken by events since the Respondent transferred her interest in the land and there is nothing to stay pending the appeal. - 5. The Respondent contends that the application is speculative since no execution orders, Notice to show cause why execution should not issue and/or execution warrant has been issued to the Applicant. - 7. The Respondent contends that the Court rightly awarded her general damages and the recovery of damages cannot be a ground for stay of execution. She further contends that in a,ty event the applicant has not shown that she in impecunious or un able to refund should the appeal succeed.

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- 5 8. There is no prima facie appeal with a likelihood of success, the applicant will not suffer any damage that cannot be atoned for by way of damages, that the balance of convenience tilts in her favour since the property already reverted to her name and she already transferred her interest to third parties. She further contends that the application was brought after substantial delay. - 9. The applicant did not come to Court with clean hands having obtained registration of the suit land into his name despite the existing caveat, transferred the suit land to Mayfair Hotel when there was a pending suit and later transferred the suit land to a one Kawanguzi Peter Frantile immediately after the Judgment. - 10. The applicant should be ordered to pay 70 % of the decretal sum being 445,000,000/= as security for the due performance of the decree if the Court is inclined to grant an Order to stay of execution of the decree in Civil Suit No.083 of 2018. - 11. That it is in the interest of justice that the Court declines to grant the orders sought in the application.

ln rejoinder, the applicant contended that whereas he was sued together with a one Onen Richard, he appealed in his own right as an a39rieved party. That he filed the numerous applications in the High Court in pursuit of justice and as required by law. That the appeal is not moot since he sought a retrial despite the other matters having been overtaken by events.

That upon ordering a retrial, any transactions that took place can be reversed. That there is an eminent threat of execution and the Respondent will suffer irreparable damage if the application is not granted.

s The Applicant contends that if the Court is inclined to grant securlty for due performance, a fair percentage should be applied since the damages and costs are to be split between him and Onen Richard.

# Representation

Ms. Stella Bamwekobe represented the Applicant while Mr. Asasira Bosco appeared for the Respondent. Written submissions were filed and adopted by the Court as final arguments for the determination of the Application. 10

#### Applicant's submissions 15

Counsel cited Rule 42 (1) of the rules of the Court as well as the case of Lawrence Musiitwa Kyazze V Eunice Busingye, SC CA Application [t o. 18 of 1990 and submitted that applications of this nature are required to be first made in the High Court. He argued that he duly complied with the law by first seeking an Order for stay of execution in the High Court

but the application was dismissed with costs. 20

Counsel also cited the case of Hon. Theodore Sekikuubo & 3 others V Attorney General and 4 others, [2013] UGSC 21 in which the supreme Court stated the requirements to be satisfied by applicants for Orders to stay execution of decrees pending appeal. The considerations for t re grant of such orders applications are;

1.. lt must be established that the applicant will suffer irreparable damage or that the appeal will be rendered nugatory if a stay is not granted.

- 2. The applicant must establish that the appeal has a likelihood of success; or a prima facie case of his right to appeal. - 3. lf (i) and (ii) above have not been established, the court must consider where the balance of convenience lies. - 4. That the applicant must establish that the application instituted without delay. WAS

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5 As to whether the Appeal has a likelihood of success or a prima facie appeal, Counsel cited Section 10 of the Judicature Act and Section 66 of l re Civil Procedure Act and submitted that appeals against decrees from the High Court lie in the Court of Appeal. The Applicant asserted that he filed a Notice of Appeal, a letter requesting for the record of appeal as well as a Memorandum of Appeal.

Counsel argued that the grounds appeal laid out in the Memorandum are viable and the Court should find that he has a prima facie appeal with a high likelihood of success.

l.elating to proof of possible irreparable damage if the application is not granted, Counsel submitted that the Respondent was awarded UGX. 200,000,000/= as general damages. The award has since accumulated interest of UGX. 90,000,000/= and the Respondent filed a bill of costs for UGX. 145,000,000/=.

The Applicant contends that the Respondent seeks execution against him either by way of imprisonment or attachment of his property which will render the appeal nugatory in the event that the decision of the I igh Court is overturned.

It was further submitted that there is need to safe guard the applicant's rights until the appeal is resolved. lt was argued that the balance of convenience tilts in his favour of the Applicant as the Respondent has already entered the suit property as the registered proprietor and that she will not suffer any harm if the registration is reversed.

The Applicant argued that he acquired the property using his hard e,arned savings and as such he attaches great emotions to it. He prayed tnat the Court should find that the balance of convenience tilts more in favour of granting the orders sought. lt was further argued that the Application was filed without any delay and with utmost good faith in the pursuit of the Applicant's rights. ## 5 Respondent's submissions

Counsel for the Respondent cited Theodore Ssekikubo & 3 others V. Attorney General & 4 others, ConstitutionalApplication No.05 of 2013 (Supra) in agreement with Counsel for the applicant as regards the conditions which must be fulfilled in order for this kind of application

to be granted. While citing rule 6 (2) (b) of the rules of the Court. lt was submitted that the powers of Court to grant this kind of application ; re discretionary. 10

Counsel cited Osman Kassim V. Century Bottling Company Ltd, Civil

- Appeal No. 35 ol 20t9 and argued that in order to succeed on the ground that there is an appeal with a likelihood of success, the applicant must place before the Court material that goes beyond a mere statement that the appeal has a likelihood of success. 15 - It was asserted that the applicant did not show the issues for trial rr any arguable ground of appeal or any evidence to show that the appeal has chances of success. lt was submitted that the appeal is frivolous since the applicant does not have any right in the property whether legal or equitable. 20

It was submitted that the application for stay of execution is against a Court of competent jurisdiction which acted impartially, honestly and with integrity. The Court was urged to find that the applicant did not prove that there is a prima facie appeal.

Regarding the requirement to prove irreparable damage or that the appeal will be rendered nugatory, Counsel submitted that the applicant does not show that he faces significant difficulties, expenses or disruptions beyond which every judgment debtor is necessarily subjected.

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- 5 It was argued that the Respondent is not under any bankruptcy proceedings and that she owns property within the jurisdiction of the court that can satisfy any award in the vent that the decision is reversed and a similar award is made. - It was submitted, that any loss suffered by the Applicant is reparable since it relates to the award of damages and costs and not the substance of the case. As such, satisfaction of a money decree cannot l'ose any danger of rendering a pending appeal nugatory where the Respondent is not impecunious. 10

The Court was urged to find that the applicant failed to prove that he will suffer irreparable loss that cannot be atoned for by an award of damages. lt was further argued that there was no imminent threat of execution ofthe decree appealed against by the Applicant.

On the balance of convenience, it was submitted for the Respondent that the Applicant has not shown that she is impoverished and cannot srtisfy the decree. That the Respondent has been in Court for over 18 years and an order of stay of execution would mean prolonged suffering without realising the iruits of her judgment and further costs to defend the appeal. lt was submitted the Respondent stands to be more inconvenienced in the application is granted.

As to whether the apolication was made without unreasonable delay It was submitted that the applicant's conduct of pursuing several applications in the High Court instead of prosecuting the appeal . i"nounts to dilatory conduct that will only delay the Respondent's enjoyment of the fruits of the judgment. 30

It was argued that the applicant paid UGX.200,000/- as security for costs which is about O. O45 % of the decretal sum in form of damages and costs incurred in the lower Court. Counsel prayed that if Court is inclined to grant the application, the applicant should be ordered to pay 70% of the decretal sum amounting to UGX. 314,000,000/=.

## 5 Consideration by the Court

The jurisdiction of this Court to grant a stay of execution is set out in Rule 6(2)(b)of the Rules of this Court which provides that;-

"2. Subject to sub-rule (7), the institution of on appeol shall not operote to suspend ony sentence or stoy execution but the Court may:

b) in any civil proceedings, where o notice of appeal hos been lodged in occordance with rule 72 of the Rules of this Court, order o stoy of execution.....on such terms as the Court may think just".

The above provision gives this Court the discretion to order stay of execution in appropriate cases and on the terms that it thinks fit. lt should however be noted that the judicial discretion must be exercised on well-established principles.

ln Theodore Ssekikubo & 3 others V The Attorney General & 4 others [2013] UGSC 21 the Supreme Court re-stated the principles to consider before granting an order of stay of execution pending appeal. T te principles are :-

- 1. lt must be established that the applicant will suffer irreparable damage or that the appeal will be rendered nugatory if a stay is not granted. - 2. The application must establish that the appeal has a likelihood oi success; or a prima facie case of his right to appeal. - 3. lf (i) and (ii) above have not been established, the court must consider where the balance of convenience lies. - 4. That the applicant must establish that the application was instituted without delay.

I will be guided by the above principles to determine whether the Applicant has met the conditions necessary for the grant of the sought relief.

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## 5 Likelihood of success of the Appeal

The Applicant filed a Memorandum of Appeal and it is not the duty of the Court to pre-empt consideration of matters for the full bench in determining the appeal. The Applicant seeks to challenge the remedies granted by the trial Court including general damages and costs. The r pplicant further seeks a retrial of the suit.

Ifind that the Applicant filed an Appeal with a likelihood of success and which may be rendered nugatory if the application for stay of execution is not granted.

As to whether the applicant will suffer irreparable damage if the Application is not granted 15

The Respondent contends that she transferred the suit property to third parties who are already constructing on it. There is also evidence t lat the decree is not yet satisfied.

lrreparable damage is defined in the Black's Law Dictionary 9th Edition Bryan A. Garner as damage th,rt cannot be easily ascertained because there is no fixed pecuniary standard measure. 20

The applicant deposed that he used his hard earned savings to purchase the property from Richard Onen (The 1st Defendant in the suit) who is a brother to the Respondent. The Applicant contends that the said Richard Onen is a party to the scam. The Applicant did not expound on the alleged scam but the assertion was not rebutted by the Respondent i r any way.

There is however ample evidence on record indicating that execution proceedings are ongoing and the decree is yet to be satisfied. This means that the process of execution is not yet complete. lf the appeal succeeds after execution has been completed, it would be onerous for the applicant to commence recovery measures in order to procure a refund. 30

There also is no evidence to back up the allegations by counsel for the Pespondent that the Respondent is not impecunious and that she has l roperty within the jurisdiction of Court. I therefore find that substantial loss will result to the applicant if a stay is not granted. 35

5 10 It is important to note that execution is not an event but rather a process as was held in the case of Osman Kassim Ramathan V Century Bottling Company timited, SC. Civil Application No. 35 of 2019. The submission by the Respondent that the Notice to show cause is old does not hold water given the fact that the execution process alreaJy commenced with the filing and taxing the bill of costs.

The judgment from which the Appeal arose was delivered on 11th October 2022. The Applicant took steps to apply for a stay of execution in the High Court but the application was dismissed on13th March 2023. The Notice to Show Cause why Execution should not issue was served upon Counsel for the Applicant on 15th June 2023. I therefore find that the application was filed without undue delay.

## As to whether the Court should make provision for security for d te performance

ln the case of Joel Kato and Another V Nuulu Nalwoga 2013 SC. Civil Application No.l1 of 2011 (UGSC 15) (1 February 2013) the Supreme Court stated that;- 20

"Rule 6(2) (b) of the Judicature (Supreme Court) Rules, which is the applicable law on this matter, empowers this court to order a stay of executron in any civil proceeding "as the court may consider just." There is no requirement under our Rules, for an applicant to make a deposit of security for due performance of a decree, before the Court can exercise its powers under rule 6 (2) (b). The court is only required to exercise its discretion as it may consider just. The practice in the past of this Court to impose this condition in some cases is only a rule of practice based on case law."

Rule 6 (2) (b) of the Judicature (Supreme Court Rules) Direction S.l. 13-10 is analogous to rule 5 (2) (b) of the Judicature (Court of Appeal Rules) Directions S.l. 13-10. The two provisions have a similar effecl in their application. 35

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- The Respondent contends that she recovered the suit property and s:ld it to a third party. On that basis, I find that this is an application r;here the applicant should not be directed to furnish security for due performance of the decree issued by the High Court. - For the reasons given above, I find that the applicant satisfied the conditions for the grant of an order to stay execution of the decree in Civil Suit No.83 of 2010.1 make the following orders; - 10 - 1. Execution of the decree in Civil Suit No.83 of 2010 is hereby stayed pending the determination of Civil Appeal No.564 of 2023. - 2. Costs of the Application shall abide the outcome of the Appeal.

Dated and detivered at Kampata tnis...lt\*av otRh.l.....zozs.

Moses Kazibwe Kawumi Justice of Appeal

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