Bujingo and 3 Others v Kikoba and 2 Others (Miscellaneous Civil Application 745 of 2022) [2023] UGCA 157 (4 May 2023)

Full Case Text

#### THE REPUBLIC OF UGANDA

#### IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

#### CIVIL MISCELLENEOUS APPLICATION NO. 745 OF 2022.

(Arising From COA-00-CV-CA-396 OF 2022) (Arising From HC-FD Civil Suit No. 558 OF 2016)

1. BUJINGO AYUB

$\overline{a}$

- 2. KAFUUMA IBRAHIM - 3. KASSIM ABDIRAHMAN - 4. KASAB B. M INVESTMENTS LIMITED :::::::::::::::::::::::::::::::::::: **VERSUS**

#### 1. ABUBAKALI KIKOBA

## 2. MARIAM MAKANGA

3. DDAMULIRA ABASI MABALE:::::::::::::::::::::::::::::::::::

## **BEFORE: HON JUSTICE OSCAR KIHIKA, JA**

*(Sitting as a single Justice)*

## **RULING OF COURT**

This application was brought under Rules $2(2)$ , $6(2)(b)$ , $43(1)$ and (2) of the Judicature (Court of Appeal Rules) Directions SI 13-10 seeking for orders that;

- a) An order for stay of execution doth issue restraining the Respondents, their servants/agents attorneys or any person acting on their behalf from executing and or enforcing the Judgment and orders of the High Court Family Division by Honourable Justice Ketrah Kitarisibwa Katunguka, delivered on $11<sup>th</sup>$ day of October, 2022 in Civil Suit N0. 558 of 2016 pending the determination of the appeal. - b) Costs of the application to abide the results of the appeal.

## Background

The background to this application as discerned from the High Court judgment attached to the affidavit in support of the application is as follows;

The Respondents filed a suit against the Applicants at the High Court Family Division seeking for orders of removal of a caveat lodged on Administration Cause No. 899 of 20 1 5 by the 1"t, 2"d and 3.d Applicants; a declaration that the developments including a commercial house on Block 12 Plot 139 land at Kasaato zone Kisenyi II parish still forms part of the estate of the late Hajji Muhammed Makanga; a declaration that a memorandum of understanding d.afed. 17 l09/2012 made between the 1st and 4ttt Applicants is null and void.

The deceased, Hajji Mohammed Makanga purchased land comprised in LRV Folio 17 Block 12 Plot 139 at Kasaato Kisenyi II parish from the Departed Asian Property Custodian Board and obtained a certihcate ofpurchase on 19/07 /2OOO for a 49 year lease. Upon his death, the family appointed the 2nd Applicant, the 1st, 2nd ard 3rd Respondents and one Rehema Nakiryowa Makanga to apply for letters of administration. The 1"t, 2"d and 3.d Applicants lodged a caveat to block the application for letters of administration. The suit land is now registered in the names of the 4fi Applicant, which registration was effected after the purchase of the suit land by the 1"t and 3.4 Applicants from Christine Eseza Ntiisa, the then mailo owner and the Applicalts claimed that the 49 year lease expired by ellluxion of time on 28 / 10 /2014 and the land reverted back to the lesser who sold it to the 1"t Applicant.

Due to financial constraints, the 1"t Applicant entered into a memorandum of understanding with the 4th Applicant to complete the purchase price. The Respondents a-llege that the transfer was fraudulently done by the 1"t and 4th Applicants and that the land still forms part of the estate of the late Muhammed Makanga.

Judgement was on the 29th of January 2021 was passed in favour of the Respondents.

The Applicalts filed an application for al interim stay of execution vide Misc. Application No.169 of 2021, and they also file Misc. Application no. 168 of 2O2l for an order of stay of execution. Both applications were heard on the l6ttt September 2022 and dismissed by Justice Ketra Kitarisibwa Katunguka.

The Applicants have now filed this application for an order for stay of execution of the decree in Civil Suit No. 558 of 2016.

The grounds upon which this application is based a-re set out in the afhdavit of BUJII{GO AYUB which sworn on the 12th October 2022 and briefly are: -

- 1. THAT the Respondents filed a suit against the Applicants in High Court Family Diuision Ciuil Suit No. 558 of 2O16 (Abubakali Kikoba & 2 Ors Vs. Bujjingo Agub & 4 Others) and judgment utas deliuered on 29th January,2021 in the absence of the Applicant and he uas not notified bg the tlen Counsel and judgment utas in fauour of the Respondents - 2. Soon afier judgment was reeiued, ue instructed our Counsel ttten to file an appeal against the ulwle judgment and to applg for stag of exeantion. - 3. A notice of appeal utas filed on 72th February, 2O21 in the High Court Familg Division and later a copg tuos filed at the Court of Appeal on 7 lth March,2o21. - 4. The Respondents applied for exeantion ofthe decree uide HC-FD EMA No. O16 of2O22 (Abubakali Kikoba & 2 Others Vs 4 others) and secured a Notice of Euiction dated 18th Julg, 2022 ulase expiry date is lVh October, 2022 for one propertA that u,as a subject of mntention in Ciuil Suit.lVo. 558 of 2O16 (Abubakali Kikoba & 2 Otlrcrs Vs 4 oth.ers Vs. Bujjingo Agub & 4 OtLers). - 5. The Memorandum of Appeal utas filed.

6. There rls a serious risk that since the lower court dismissed the application for stag of execution, the execution of the decree tuill continue tuhich stnll lead to great loss and ineparable damage to us the Applicants and this mag render tle appeal moot or nugatory.

7. The appeal has a uery high chance o..f szccess and if this application is not granted this utill cause a mi-scarriage of justice.

The Respondent filed an aJfidavit in reply opposing the application deponed by Abubakalt Klkoba sworn on the 25tt' day of October 2022. The grounds of opposition can be surmised as foilows;

- 1. There is no valid appeal before this court as the Notice of Appeal was filed out of time. - 2. That the judgment of the High Court was delivered on the 2I"t of January 2O2l bttt it is not true that the Notice of Appeal was filed on 12th February 2021. Thrat the Notice of Appeal was filed on 2"d March 2021 which was 31 days from the date of delivery of the judgment. - 3. That the High Court has already made a ruling that the Notice of Appeal was filed out of time and backdated. - 4. The Applicant's application for stay of execution at the High Court was dismissed on the grounds that there was no valid Notice of Appeal. - 5. That Civil Appeal No. 396 of 2022 was itself filed out of time on 12!h October 2022 without leave of this court.

## Representatlon

At the hearing of the application, Ms. Norah Matovu appeared for the Applicants while Mr. Kavuma Issa and Mr. Kanaabl Emmanuel appeared for the Respondents. Both parties filed written submissions which were adopted by court.

## Appllcant's submisslons

Counsel submitted that Rule 6 (20(b) of the Judicature (Court of Appeal Rules) Directions Sl 13-10 gives this court power to order a stay of execution where <sup>a</sup> Notice of Appeal has been lodged in accordance with Rule 76. Counsel relied on the cases of Lawrence Mueiltsra Kyazze Vs. Eunlce Buslngye (SC Civtl Applicatlon No. 18 of 19901, and Hon. Theodte Seekikubo & 4 Others Va.

# Attorney General & 4 Others Constitutlonal Appllcatlon No.3 of 2O14(SC!

on the principles which govern the grant of stay of execution by an appellate court and these include the following:

- a) The application must show that he/she has lodged a notice of appeal in accordance with rules 76 of the rules of this court. - b) The other facts to which lodgment of notice of appeal is subject, vary from case to case but include: - That the Applicants' appeal has a likelihood of success. i. - The substantial loss may result to the Applicant unless the order is made. ii. - The application has been made without unreasonable delay. iii. o

counsel submitted that the Applicant has filed a Notice of Appeal in accordance with rule 76. That the Applicants complied with the requirements of this Rule albeit there were some mistakes by the previous counsel which, according to counsel, should not be visited on the Applicants. counsel submitted that the Applicants also filed through their lawyer, a letter requesting for record of proceedings artd certified copies were endorsed on the 29d July, 2022 ' ln addition, civil Appeal No. 0617 of 2O22 Bujjingo Aymb & 3 others vs. Abubakali Kikoba & 2 others was hled on 12th October, 2022 hence the Applicant has accordingly complied.

Counsei contended that the appeal has a likelihood of success. At this stage the court needs not delve into the merits of the appeal. counsel relied on Paragraph 4(d) ofthe affidavit in support ofthe application deponed by the 1st Applicant, to which the Memorandum of Appeal was annexed.

counsel submitted that the trial judge stretched it too far when she decided the case by not differentiating the interests in the disputed land between the parties and made wrong and erToneous decision. That there are merits in the appeal but if the stay is not granted, the appeal will be rendered nugatory. The Applicants shall suffer irreparable loss if the execution takes place. counsel argued that it is usually in disputes of land that courts are prepared to consider that monetary

compensation will not be sufhcient if the appeal is successful. In these circumstances if the Applicants loose land and all their developments thereon, there will be no way of getting it back especially if it sold to 3rd parties'

The application has been made without unreasonable delay as required by rule 42 of tine rules of this court. The Applicants first filed HC-FD MA 168 of 2021(Bujjingo Ayub & 3 others Vs. Abubakali Kikoba & 2 others) and this was dismissed on 1lth october, 2022. Instantty this application was filed without undue delay.

# Respondent's wrltten submlgslons

In reply, the Respondents' counsel opposed this application on the ground that there is no valid appeal because the Notice of Appeal and the appeal itself were not filled in accordalce with the law. counsel submitted that the requirements laid down in the case of Lawrence Muslltrra l(yazze Vs. Eunlce Buslngye (sccA No 18 of 199O) as cited by counsel for the Applicants, that require that the application must show that he/she has lodged a Notice of Appeal in accordance with Rule 76 of the rules of this court have not been met by the Applicants.

counsel relied on Rule 76(2) of the court of Appeal Rules which gives a party who intends to appeal fourteen days to file a Notice of Appeal from the date of the decision ofthe court from which an appea-l is preferred. Counsel argued that the judgment in Civil Suit No' 558 of 2016 was delivered on the 296 day of January 2021 but the Applicant's Notice of Appeal was filed out of time on the 2nd day of March 2O21 beyond the 14 days mandatory period'

counsel argued further that the Applicants engaged in acts of forgery by back dating the Notice of Appeal to appear as if it was filed on 12th day of February 2021 which was false. The High court indeed investigated the Notice of Appeal and delivered its ruling on the 1lth day of October 2022 and found that the Notice of Appeal was filed out of time and back dated. The High court dismissed Misc. Application No. 168 of 2O2l on that ground among others. Furthermore, m}z the appeal itself was filed out of time on the 12th day of October 2022 without leave of court for extension of time.

Counsel further argued that the Applicants did not comply with the requirement of Rule 83 of the Rules of this court because the certificate of correctness on Page 170 of the record of Appeal indicates that the letter requesting for proceedings was made on the 6th day of April 2022 beyond the mandatory 30 days' period. That since there is no valid notice of appeal on court record coupled with lodging the appeal out of time, the Applicants have failed to satisfy the requirement for stay of execution and thus, the application should be dismissed with costs.

## Conslderatlon of the appllcatlon.

Before I consider the merits of the application, I find it pertinent to address the issue raised by the Respondent's counsel that the Notice of Appeal filed by the Applicants was frled out of time and backdated and as such, there is no valid appeal pending in this court.

The Respondent's counsel argues that judgment in Civil Suit No' 558 of 2016 was delivered on 29th January 2027 but the Notice of Appeal was filed out of time on 2"d March 2021. That the Notice of Appeal was back dated to 12th February 2O2l yet the letter requesting for proceedings was filed on 6th April 2022 beyond' the mandatory 30 days period.

The Respondent attached to his affidavit in reply a ruling by Justice Ketrah Kitariisibwa Katunguka in M. A No. 168 of 2027, an application for stay of execution, which was dismissed by the trial Judge.

In her decision, after inquiring into the allegation that the Notice of Appeal was filed out of time on 2"d March 2O2t and backdated to the 12th of February 2021 she ruled as follows;

sI hauc looked at a lettct bg the counsel Jor the Respondcnts to the Reglstrar Fa:mllg Dhtlslon f.eJ LLK/TA/GEN/2O21 dated th March 2021; tt uas br'l.;nglng to altentlon oJ the Reglsbar that a Notlce of Appeal had been

back d.ated to took as tt lt had been ffled on 12/2/2O27 uhereas not; that the reglstct lor lVotices oJ Appeat together utlth the recelpt tor payment oJ court Jees lor the sald notlce of appeal both shou.t that the Notice of Appeal uas filed on 2/3/2O21 afier the tlne tor ffllng had passed; theg requested Jor lrunstlgatlons to be carrled out; counsel Jot the Appllcants dld not replg to thesc pdrtlcular clabtrs.,....... I found no record of the Notlce oJ Appeal on 7?"h Eebruary 2O27; there uta.s lnstcad a record shotoln,g thrrt the notlce uas entered on 2/O3/2O21 7n the reglster book oJ the Notlce ot AppeaL To me thls mrlkes betier sense beco;use then lt utrrs endorsed' a's lodged on 4th March 2O27, serued on counsel tor the Respondents on 7Un March 2O27 and Jiled tn the court oi dPPeal on 7 7th March 2027; I hau not lound re. Inon not to belleue counsel for the Respondent that the stanryt uas backdated to mo'ke tt look as lf the notlce uas recelved on 14h February 2O27 because tJ tt had been so recelted, lt should ha ue been recorded ln the reglster on tha;t date and endorsed bg the Reglsttar Tmmedlatelg thereaficr tnstcad oJ 2O dags latcr...'

I find no reason, given the evidence before me, to depart from the learned trial Judge's finding. Additionally, the Applicant does not deny the fact that the Notice of Appeal was filed out of time and back dated but contends that mistake of counsel should not be visited on alt innocent litigant.

In the case ofBanco Arabe Espanol Vs. Bank of Uganda, SCCA No. 8 of 1998 it u/as held that;

"A mistake, negligence, ouersight or error on the part of counsel should not be uisited on the litigant. Such mistake, or as the case may be, constitutes just cause entitling the trial judge to use his discretion so tLnt the matter is considered on its merits."

whereas it is true that mistake of counsel should not be visited on an innocent litigant, this argument is not helpful for the purposes of this application. For an application for stay to be successful the Applicant must have filed a valid Notice of Appeal. In my view there is no va-lid Notice of Appea.l.

There being no valid Notice of Appeal, the Applicants ought to have filed an application for extension of time which would have validated the Notice of Appea-l. It is in that application where arguments of mistake of counsel could be considered.

The Applicants, however, have not demonstrated to this court that there's an application for validation of the Notice of Appeal or extension of time, that is pending hearing. As it stands now, sadly, the Applicants have no appeal pending in this court; and validation or extension of time cannot be granted within ambit of this application for stay of execution.

I therefore find this application void of merit and dismiss it for the reasons given above.

This application is thus dismissed with costs to the Respondent.

I so order.

Dated this day of May 2023 4th

OSCAR HN IKA JUSTICE

/t::