Bumali & 5 Others v Badrudin (Miscellaneous Application 730 of 2024) [2024] UGHCLD 200 (26 July 2024)

## **THE REPUBLIC OF UGANDA**

# **IN THE HIGH COURT OF UGANDA AT KAMPALA**

# **[LAND DIVISION]**

## **MISCELLANEOUS APPLICATION NO.730 OF 2024**

*(Arising from EMA No. 318 of 2020 and Civil Suit No. 2379 of*

*2016)*

**1. HAJJI SUJJA BUMALI**

**2. ASADU SEMPAGALA**

**3. SHEIKH KIRAGA MOHAMMED**

**4. HOOD KIKOMEKO :::::::::::::::::::::::::::::::::::: APPLICANTS**

**5. NANKUMBA NUSULA**

**6. ALI KASAKYA**

### **VERSUS**

**BADRUDIN GULAM HUSSEIN MANJI :::::::::::::::: RESPONDENT**

# **BEFORE: HON. LADY JUSTICE NALUZZE AISHA BATALA RULING.**

#### *Introduction:*

- 1. This was an application by notice of motion brought under Section 33 of the Judicature Act, Section 98 of the Civil Procedure Act, Order 52 rules 1,2& 3 of the Civil Procedure Rules (CPR) for orders that: - i) The execution of the order/ decree in Civil Suit No. 2379 of 2016 dated 15th March 2019 be stayed pending the hearing

and final determination of Court of Appeal Civil Appeal No. 86 of 2019 in respect of the same matter.

- ii) That the warrant issued to be realized by way of giving vacant possession, eviction/ demolition dated 16th January 2024 in respect of the suit property FRV 3 Folio 5 measuring approximately 440 acres land at Butambala district be stayed. - iii) Costs of the application be in the cause.

# *Background;*

- 2. The Respondent instituted Civil Suit No. 2379 of 2016 seeking orders among which is to declare the Applicants as trespasser, eviction orders, damages and other reliefs. That judgement was delivered in favour of the Respondent and the Applicants being dissatisfied with the decision of court file an appeal vide Civil Appeal No. 86 of 2019 in the Court of Appeal which is pending determination. - 3. That the Respondent embarked on the execution process before the determination of the appeal for which the Applicants aver that there is imminent threat of execution of the decree arising from Civil Suit No.2379 of 2016, hence this application.

### *Applicant's evidence;*

- 4. The application is supported by an affidavit deponed by **HAJJI SUJJA BUMALI** the 1st applicant which briefly states as follows; - i) That the Applicants/defendant's and other family members with beneficial interest in the estate of the late Hoda Bbira have long since been in actual and physical possession and uses of the whole of the suit land where they cultivate crops and grow eucalyptus trees and earn a living and livelihood on the same. - ii) That the Respondent/plaintiff was issued a warrant of execution by way of giving vacant possession, eviction/ demolition on the suit land and if the warrant is not stayed, the applicants/ defendants shall be evicted and will suffer irreparable loss as a result and the pending appeal due for hearing and final determination shall be rendered nugatory yet it has merits with high chances of success. - iii) That since the time when the judgement was delivered, the prevailing & current status quo is that the Applicants are in possession and the execution of the warrant by way of eviction

is intended to alter and disturb the status quo before the determination of the appeal.

iv) That there is imminent threat and danger of eviction by execution of a warrant issued by Court if the same is not stayed.

# *Respondent's evidence;*

- 5. The application is responded to by an affidavit in reply deponed by **BADRUDIN GULAM HUSSEIN MANJI** the respondent which briefly states as follows; - i) That the Applicants being aggrieved by the decision of the Court filed an appeal where the parties filed their submissions and are only waiting for the judgement to be delivered. - ii) That in my capacity as a judgement creditor, I applied to execute the judgement and I was issued with a warrant of execution on 28th November 2023 which expired and the Bailiffs applied for issuance of fresh warrants. - iii) That following the issuance of the said warrants, the applicants vide a letter dated 5th February 2024 lodged a complaint before this Honourable Court regarding the issuance of the said

warrants on account that they filed an appeal which had not yet been disposed of.

- iv) That the Honourable Court then recalled the warrants that it had issued pending hearing of the application for Notice to show cause why execution should not issue on the 18th day of March 2024 which was dismissed on condition that the Court of Appeal will determine the appeal within two (2) months short of which execution will proceed. - v) That the two months have since lapsed and neither an order has been issued nor the appeal determined by the Court of appeal and this Honourable Court is obliged to allow execution and issue a warrant of execution to the respondent's designated bailiff. - vi) That the Applicants have not satisfied the ingredients for the grant of stay of execution and I have taken five years without the realization of the fruits of litigation and this application is another attempt by the applicants to deny me what the High Court rightfully ordered to be mine.

vii) That if this Court grants the application, the applicants will continue their illegal activities on the suit land which this Honourable Court has already decided belongs to me.

# *In rejoinder*

- I. That the orders of Court issued by the Assistant Registrar on 28th March 2024 are not directives of the Court of Appeal and are not self-executing but rather administrative in nature. - II. That the temporary relief accorded by the Honourable Court to recall its warrant to give vacant possession by the applicants was to accord the parties a right to be heard on the notice to show cause and for a fair hearing to all parties. - III. That the respondent, his agents and authorized persons on 19th June 2024, shortly after attending Court, went to the suit land, mobilized police and other officers of the office of the RDC of Butambala, unlawfully and in contempt of the prevailing Court orders forcefully entered the land and opened boundaries and surveyed the same under the disguise to take unlawful possession and alter the status quo.

# *Representation;*

6. The applicant was represented by Mr. Mugogo Edward of Nile Law Chambers & Solicitors whereas the Respondent was represented by Mr. Charles Ouma of Ouma Tinyinondi & Co. Advocates. Both parties filed their affidavits and submissions which I have considered in the determination of this application.

# *Issues for determination;*

- **i) Whether the application merits the grant of an order for stay of execution pending the determination of the appeal?** - **ii) What remedies are available to the parties?**

# *Resolution and determination of the issues;*

7. It is a principle of law that the purpose of a stay is to maintain the status quo and preserve the right of an intending appellant to have his or her appeal heard and to ensure that the intended appeal or main application is not rendered nugatory. This rationale was stated in the ancient decision in **Wilson Vs Church (1879) Vol. 12 Ch. D 454** where court held that *"as a matter of practice, where an unsuccessful party is exercising an unrestricted right of appeal, it is the duty of the court in ordinary cases to make such orders* ## *for staying proceedings in the judgment appealed from as will prevent the appeal if successful from being rendered nugatory*"

## Issue 1**. Whether the application merits the grant of an order for stay of execution pending the determination of the appeal.**

- 8. An application for stay of execution pending an appeal is designed to preserve the subject matter in dispute so that the right of the appellant who is exercising his or her undoubted rights of appeal are safeguarded and the appeal if successful is not rendered nugatory. - 9. The fact that there is no specific provision regarding stay of execution of a decree from the high court where the appeal lies to the court of appeal, this is an area where court exercises its inherent powers as stipulated under Section 98 of the Civil Procedure Act Cap 71*. (See;*

### *Singh vs Runda Coffee Estates Limited (1966) EA)*

10. The conditions for court to consider in an application for stay of execution pending an appeal to the court of appeal were pronounced in the celebrated supreme court decision of *Lawrence Musitwa Kyazze vs Eunice Busingye* **S. C. C. A** *No.18 of 1990* and have been re-echoed in *Theodre Sekikubo and Others vs The Attorney*

*G***eneral** *and others Constitutional Application No.03 of 2014* and these include;

- *i) The applicant must show that he lodged a notice of appeal.* - *ii) That there is a serious and imminent threat of execution of the decree and if not stayed the said appeal will be rendered nugatory.* - *iii)Substantial loss may result to the applicant unless the application for stay is granted.* - *iv) That the application has been made without unreasonable delay.* - *v) That the applicant has given security for the due performance of the decree or order as may ultimately be binding upon them.* - 11. This honorable court will now proceed to qualify the above conditions in the instant case as follows; - *i) The applicant must show that he lodged a notice of appeal*

12. The applicants under paragraph 5 of the affidavit in support state that a notice of appeal was lodged and Civil Appeal No.86 of 2019 was filed and the same is pending determination before the Court of Appeal. I therefore find this condition met by the applicant.

# *ii) That there is a serious and imminent threat of execution of the decree and if not stayed the said appeal will be rendered nugatory.*

- 13. Imminent threat means a condition that is reasonably certain to place the applicant's interest in direct peril and is immediate and impending and not merely remote, uncertain, or contingent. **(Formula Feeds Limited & 2 othrs v KCB Bank limited MA No. 1647 of 2022, arising from Civil Suit No. 289 of 2014)** - 14. The applicants under paragraph 10, 11 and 12 of the affidavit in support of the application state that Court issued warrants of execution which were meant to give the respondent vacant possession by eviction and demolition yet the Applicants are in possession and that the same shall render the appeal nugatory. - 15. The Respondent in his affidavit in reply states that the said warrants were recalled by Court following the letter (complaint)

written by the Applicants on the 05th day of February 2024 on account that there is a pending appeal.

- 16. Furthermore, the Court dismissed the application to show cause why execution should not issue on which both parties were heard and Court in its decision ordered the parties to wait for two (2) months for the determination of the appeal. - 17. From the above, it is this Court's considered view that following the dismissal of the application to show cause why execution should not issue and the recalling of the warrants, there ceased to be any threat of execution thus the Applicants have not satisfied this ground. An order for stay of execution can only issue where there is actual or presently threatened execution.

## *iii) Substantial loss my result to the applicant unless the application for stay is granted.*

- 18. Having found no imminent threat of execution, its only logical to conclude that the Applicants will not suffer any substantial loss until the determination of the appeal since the loss may only occur as a result of the execution proceedings which have since been halted. - *iv) That the application has been made without unreasonable delay*

- 19. The Applicants bring this application to stay the execution of the judgment in Civil Suit No. 2379 of 2016 which was delivered on 15th March 2019 and the Order is dated 15th May 2019, however, the deponent did not in his affidavit in support of the application or in rejoinder give any reason explaining the delay to stay the execution of the said orders to date. - 20. It is trite law that an appeal by itself does not operate as a stay of proceedings under a decree or order appealed from nor should execution of a decree be stayed by reason only of an appeal having been preferred from the decree. **(Order 43 rule 4 of the Civil Procedure Rules and Rule 6 (2) of the Judicature (Court of Appeal Rules) Directions Formula Feeds Limited & 2 Others v KCB Bank limited MA No. 1647 of 2022, arising from Civil Suit No. 289 of 2014).** - 21. Aside from filing the appeal vide Civil Appeal No. 86 of 2019, the Applicants did not take any other steps to halt the execution proceedings and even in the instant application, they offer no explanation for the five years gap since the date of the judgement and the order thus the Applicants are guilty of dilatory conduct.

- *v) That the applicant has given security for the due performance of the decree or order as may ultimately be binding upon them.* - 22. Security should be given for due performance of the decree however each case should be looked at according to its own merits, the requirement for payment of security for due performance of the decree is to ensure that the losing party does not intentionally delay execution while hiding under unnecessary applications. - 23. The purpose of an order for security for costs on an appeal is to ensure that the respondent is protected for costs incurred for responding to the appeal and defending the proceedings, which therefore implies such an order does not adequately meet entirely the purpose of the security for due performance of the decree, **as per Justice Stephen Mubiru in Formula Feeds Limited & 2 Others v KCB Bank limited MA No. 1647 of 2022, arising from Civil Suit No. 289 of 2014.** - 24. In the instant application, the appeal before the Court of Appeal is soon to be determine never the less, it might have been determined thus finding no need to order for security for costs since court orders

are not meant to burden litigants. Therefore, I do not find it necessary for the applicants to deposit security for the due performance of the decree in the instant case.

- 25. This Court finds this application to be an afterthought as the Applicants filed an appeal before the Court of appeal, the same was heard to its advanced stages and did not find it necessary to apply for an order for stay of execution until the Respondent made the move to execute. - In the result, this Application is hereby dismissed and costs shall abide the outcome of the appeal.

### **I SO ORDER.**

**NALUZZE AISHA BATALA JUDGE 26 th/07/2024**