Byabagambi v Nampa & Another (Miscellaneous Application 147 of 2024) [2024] UGHC 981 (18 October 2024)

Full Case Text

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT KIBOGA **MISCELLANEOUS APPLICATION NO. 0147 OF 2024** (ARISING FROM LD-CS-0006 OF 2024) (FORMERLY MUBENDE LD-CS-2222 OF 2016)

BYABAGAMBI FRANCIS::::::::::::::::::::::::::::::::::::

#### **VERSUS**

1. NAMPA KATE

2. KAKWERERE DAVID:::::::::::::::::::::::::::::::::::

## **BEFORE: HON. MR. JUSTICE KAREMANI JAMSON. K**

#### **RULING**

### Background.

Byabagambi Francis (hereinafter referred to as the applicant) brought this application under section 98 of the Civil Procedure Act (CPA) and Order 43 rule 4 of the Civil Procedure Rules (CPR) against Nampa Kate and Kakwerere David

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(hereinafter referred to as the respondents) for an order for stay of execution of the judgment and decree in high court civil suit no.006 of 2024 pending the disposal of the intended civil appeal. He also prayed that the costs of the application be provided for.

#### Grounds.

The grounds of this application are in the application and affidavit in support sworn by **the applicant** but briefly they are that;

- 1. The applicant was the $1^{st}$ defendant in civil suit no. 006 of 2024 where he lost the suit to the respondents; - 2. It was decreed and ordered in the said judgment that the applicant be allowed two months from the date of judgment to vacate the land or be evicted thereafter; - 3. The applicant lodged a notice of appeal and a letter requesting for the record of proceedings from the High Court of Kiboga with intentions of filing an appeal in the Court of Appeal which has a likelihood of success; - 4. The applicant shall suffer a substantial loss if the application is not granted; - 5. There is a threat of execution of the decree in civil suit no. 006 of 2024 and the intended appeal will be rendered nugatory unless this application is granted; - 6. The applicant is ready to pay or deposit a security for costs if ordered and that the application has been brought without delay.

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In reply the $1st$ respondent opposed this application on grounds that;

- 1. The appeal lodged by the applicant has no likelihood of success and is merely a gamble meant to frustrate her from getting the fruits of judgment in civil suit no. 006 of 2024; - 2. The applicant has not made any effort to guide court on his intended grounds of appeal and that the appeal itself is frivolous; - 3. There are no execution proceedings against the applicant and there is no proof of imminent danger of execution of judgment in civil suit no.006 of 2024; - 4. The orders which the applicant seeks to stay if not allowed are reversible by the Court of Appeal and if that is so damages of whatever nature as against the 1st respondent can be paid and the same can reasonably compensate the applicant.

In rejoinder, the applicant contended that the appeal has a high likelihood of success and that the judgement in civil suit no. 006 of 2024 is self-executing since the judgment allowed the applicant only two months to vacate the land or be evicted thereafter.

#### Representation

The applicant was represented by Mr. Abed Nasser Mudiobole of $M/S$ Mudiobole & Co. Advocates while the $1^{st}$ respondent was represented by Mr. Kitimbo Simon Peter of M/S Kitimbo Associated Advocates.

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Both counsel filed written submission for consideration by this court.

- Mari

#### Service of the application onto the $2^{nd}$ respondent.

The $2nd$ respondent did not file an affidavit in reply. Counsel for the applicant submitted that the application was served onto the $2^{nd}$ respondent's counsel as was known in the main suit which I suppose is civil suit no. 006 of 2024. This to me was wrong because this is a different matter and for the applicant to serve the previous counsel of the $2^{nd}$ respondent would be assuming that they have instructions to represent the $2nd$ respondent in this matter which may not necessarily be the case.

The above notwithstanding, annexture " $A$ " attached to the affidavit of service dated $12/08/2024$ indicates that upon serving the previous lawyers of the 2nd respondent (Francis Owiny and co. advocates) with the application, it was noted by the recipient that the same was received in protest as counsel who was representing the $2^{nd}$ respondent was no longer working with that law firm.

This implied that the service made by the applicant on the $2nd$ respondent was not effective. The applicant ought to have served the $2nd$ respondent personally and if he wished to instruct the former counsel it should have been his choice. It is wrong to assume that a counsel in a concluded matter continues to act for a client where there is a subsequent matter whether related or not. Instructions to represent a client are never implied but actual. In the circumstances, I find that the application was not served on the $2^{nd}$ respondent at all and the application against the $2^{nd}$ respondent is dismissed under Order 5 Rule 2 CPR with no orders as to costs since no reply was filed.

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I will now proceed to determine the application against the $1st$ respondent on its merits.

#### The Law.

**Section 98 of the CPA** gives the High Court inherent powers to take decisions which are pertinent to the ends of justice and an order for stay of execution is one such orders. See: Ujagar Singh –V- Runda Coffee Estates Ltd [1966] EA 263. However, before an application for stay of execution is granted, the applicant must prove that the condition set under **Order 43 Rule 4 (3)** of the Civil Procedure Rules (CPR) have been proved.

These conditions were expounded by the supreme court case of **Hon Theodore** Ssekikubo and Ors -V- Attorney General and Ors Constitutional Application No. 03 of 2014.

These conditions are that:

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

In my view, the above conditions form the issues for determination in an application of this nature. I will now proceed to consider if each of these requirements have been complied with by the applicant.

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#### 1. Whether the applicant has lodged a notice of appeal.

Paragraph 4 of the affidavit in support of the application indicates that the applicant has filed a notice of appeal and the same is attached as annexture " $B$ ". This was not objected to by the 1st respondent as she concedes in her submissions that indeed the applicant has filed a notice of appeal. The first condition has been satisfied.

#### 2. Whether the applicant will suffer substantial loss.

In the case of Kyambogo University -V- Professor Isaiah Omolo Ndiege CA **NO.341 of 2013** the court expounded this ground as follows;

- i. The applicant must prove that there is serious or imminent threat of execution of the decree or the order and if the application is not granted, the appeal would be rendered nugatory; - ii. That the appeal is not frivolous and has a likelihood of success; - iii. Refusal to grant the stay would inflict more hardship than it would avoid;

I will go ahead to analyse each of these conditions.

$(i)$ The applicant must prove that there is serious or imminent threat of execution of the decree or the order and if the application is not granted, the appeal would be rendered nugatory.

Counsel for the applicant submitted that the $1st$ respondent approached Kiboga District Land Board to extend the lease of the suit land and has been seen with

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surveyors on the suit land carrying out boundary opening. Further that the decree in civil suit no. 006 of 2024 is self-executing as the applicant was ordered to vacate the suit land within two months or be evicted. He was also ordered to hand over the certificate of title. That all this point to imminent threat of execution. Counsel referred to the case of Formular Feeds Limited and 3 Ors –V- KCB Bank Limited HCMA No.1647 Of 2022

On the other hand, counsel for the 1st respondent submitted that this condition has not been fulfilled as there is no formal application for execution by the 1st respondent to this honorable court.

The general rule is that courts should not order a stay of execution where there is no evidence of an application for execution of a decree. See: Baguma Paul $t/a$ Panache Associates –V- Eng. Karuma Kagyina MA No. 460 of 2020.

In this case, the respondents being the successful parties in civil suit no.006 of 2024 have not taken any step in court to execute the said judgment. No evidence was presented to that effect. However, as stated by counsel for the applicant, the decree herein was self-executing as it had a timeline in which the applicant was ordered to vacate the suit land in default of which he was to be evicted.

In the case if Formular Feeds Limited and 3 Ors –V- KCB Bank Limited (Supra) Imminent threat was defined to mean a condition that is reasonably certain to place the applicant's interest in direct peril and is immediate and impending and

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$\mathcal{T}$ not merely remote, uncertain or contingent. There must be direct immediate danger of execution of decree.

Whereas there has not been a formal application for execution lodged by the respondents, the order given by this court put the applicant at an imminent threat of eviction upon the expiry of the two months thus warranting him the right to bring this application. I find that this ground has been proved.

## ii) That the appeal is not frivolous and has a likelihood of success.

Counsel for the applicant submitted that the trial judge wrongly evaluated evidence before him. That the judge erred when he relied on photocopy documents which had been tendered in for identification yet they were not exhibits and further that the judge erred when he held that the 1st respondent had locus to file the suit during subsistence of letters of administration held by another person not a party to the suit. That all this shows that the applicant is not just making statements but intends to contest the decision of the trial judge. Counsel cited the case of Irene Rukundo –V- Rogers Kalyegira Eurogus MA No. 1447 of 2023.

Counsel for the $1^{st}$ respondent submitted that paragraphs 5, 6 and 7 of the $1^{st}$ respondent's affidavit in reply clearly bring this shortfall on the part of the applicant to the attention of the court and invited court to find that the applicant had not proved that the appeal is arguable and not categorized as hopeless.

James Junemin

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I have perused paragraphs 5, 6 and 7 of the 1st respondent's affidavit in reply and all they allude to is that the applicant has not guided court on his intended grounds of appeal. The intended grounds of appeal have been clearly explained by the applicant's submissions which the 1st respondent has not objected to. Therefore, I agree with counsel for the applicant that the appeal lodged is not frivolous and on the face of it may have a likelihood of success.

## iii) **Refusal to grant the stay would inflict more hardship than it would** avoid.

In the instant case, counsel for the applicant submitted that the applicant was ordered to vacate the suit land within two months and to surrender the certificate of title which would inflict on him greater hardship than it would avoid.

Counsel for the 1st respondent on the other hand submitted that the granting of this application would inflict more hardship on the $1st$ respondent since the applicant has been on the land for 28 years, the case lasted 9 years in court and that whole time the $1^{st}$ respondent was not using her land. That the suit land measures 938.6 acres of which the applicant was given 187.72 acres which he can remain on. Counsel invited this court to balance interests of the applicant who is seeking to preserve the status quo and the interests of the 1st respondent who seeks to enjoy the fruits of judgment. Counsel cited the case of **Alice Wambui V John Ngure Kahoro and Anor ELC Case no. 482 of 2017.**

This court has got a duty to balance or weigh the scales of justice by ensuring that an appeal is not rendered nugatory while at the same time ensuring that a successful party is not deprived of enjoying the fruits of his or her judgment. No doubt it would be wrong to order a stay of execution pending appeal where the appeal is frivolous or where such order would inflict greater hardship than it would avoid. See: Erinford Propertied Ltd –V- Cheshire County Council [1974] 2 ALLER 448.

I take note of the fact that the applicant has been staying on the suit land for the last 30 years with his family and that is where he derives his source of livelihood. Counsel for the applicant submitted that the decision would render the applicant homeless including his family which would bring about shame that cannot be atoned by the award of damages.

Whereas I am a live of the fact that the 1st respondent desires to enjoy the fruits of her judgement, the decree in civil suit no.006 of 2024 if executed before the disposal of the intended appeal will lead to the applicant's eviction from the land before exercising his right of appeal and if the court of appeal found otherwise, it would be impossible to atone to such loss by award of damages.

It is my considered position that the balance of the judicial scale favors the stay of execution to enable appeal disposal. I find the $3rd$ condition is thus fulfilled.

Jame Dulam

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## 3. Whether the application has been made without unreasonable delay.

Judgment in civil suit no. 006 of 2024 was delivered on $26/4/2024$ . This application was filed on $31/5/2024$ which is one month and 5 five days later. This shows that there has not been any delay in bringing this application.

4. Whether the applicant has given security for due performance of the decree or order as may ultimately be binding upon him.

Under Order 43 Rule $4(3)(c)$ of CPR security must be given for the due performance of the decree. Courts have held that each case must be looked at according to its own merits. See: Aupal Kokas Winfred –V-Aisu Popuras HCM **No.052/2022.** The requirement for payment of security for due performance is $\frac{1}{2}$ to ensure that a losing party does not intentionally delay execution while hiding under unnecessary applications.

In this case, counsel for the applicant submitted that the applicant is ready to pay and deposit two million shillings $(2,000,000/=)$ as security for costs.

In Kisaalu Joseph & 10 others -V- Nakiito Mayi & Anor HCMA No. 105 of 2020 it was held that:

"Security for due performance has been interpreted to mean the entire decretal sum and it is intended to protect the judgment creditor in the event that the appeal is unsuccessful $^{\prime\prime}$

Court further stated that:

*"Courts have been reluctant to order security for due performance of the decree."* Rather Courts have been keen to order security for Costs (see: Tropical

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Commodities Supplies Ltd and others -V- International Credit Bank Ltd (in liquidation) [2004] 2 EA 331 and DFCU Bank Ltd-V-Dr. Ann Persis Nakate Lussejere, C. A Civil Appeal No.29 of 2003), because the requirement and insistence on a practice that mandates security for the entire decretal amount is likely to stifle appeals."

It is trite law that due performance of the decree can only be secured by the provision of security for costs. See: Lawrence Musiitwa Kyazze versus Eunice Busingye SCCA No.18/1990.

The court in the case of **Wandera Micheal V Baguma Samalie HCMA No. 036 of 2021** observed as follows:

"court may in deserving cases order a stay without payment of security for costs if it will frustrate the applicant's right to prosecute his or her appeal while at ease or where a party is indigent or a pauper as provided for in the *Civil Procedure Rules. The requirement to deposit security for costs should* not be used as a punishment to the applicant or used as a mechanism to *frustrate his appeal by ordering security for costs which the applicant may* not be able to pay. Court must make an independent assessment of the facts *and the parties before it prior to ordering for security for costs."*

In that case, the trial judge upon observing the history of the case, the judgement and orders granted therein ordered the applicant to pay forty-five million shillings $(45,000,000/=)$ as costs for due performance of the decree.

In the instant case, the 1st respondent and her registered co-tenants were declared owners of the suit land measuring 380 acres which the applicant has occupied for

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30 years depriving the $1^{st}$ respondent of her rights for all those years. Civil suit no. 006 of 2024 (formerly civil suit no.2222 of 2016) was in court for 9 years. The $1^{st}$ applicant was granted among others general damages of twenty million shillings $(20,000,000/=)$ and costs of the suit.

The learned counsel for the applicant suggested shs. $2.000.000=$ as the amount the applicant is willing to deposit.

The learned counsel for the respondent did not address this issue of security.

I have considered the above circumstances and I find that this is a case deserving an order for security for due performance of the decree. I find the amount put forward by the learned counsel for the applicant of shs.2.000.000= rather a mockery. I find shillings thirty million (shs.30.000.000=) appropriate and order a deposit of the same within thirty days from today.

## 5. Costs

According to Section 27 of the Civil Procedure Act costs follow the event unless courts orders otherwise. In the circumstances of this case the costs will abide the outcome of the appeal.

This application is allowed with the following orders;

- 1. The application against the $2^{nd}$ respondent is dismissed with no order as to costs. - 2. The execution of the decree in civil suit no. 006 of 2024 is hereby stayed pending the disposal of the appeal arising therefrom. - 3. The applicant deposits security for due performance of shillings thirty million (shs.30.00.000=) within 30 days from today.

mm / Man

4. Costs will abide the outcome of the appeal.

I so order.

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-Mam **Doman** IJ

KAREMANI JAMSON. K $\boldsymbol{JU}\boldsymbol{D}\boldsymbol{G}\boldsymbol{E}$ 18/10/2024.