Byamukama v Kyampagi & 3 Others (Civil Application 139 of 2024) [2024] UGCA 289 (3 October 2024)

# THE REPUBLIC OF UGANDA

#### IN THE COURT OF APPEAL OF UGANDA AT I(AMPALA

#### CIVIL APPLICATION NO. 0139 OF 20/24

(Aising from Ciuil Appeal No. 244 of 2008 and Ciuil Appeal No. 341 of 2022)

BYAMUI(AMA FRED : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : APPLICANT

#### VERSUS

#### 1. I(YAMPAGI FARM ESTATES LIMITED

2. MUIESIGYE SAM

3. COMMISSIONER LAND REGISTRATION

4. MUGARURA PETER :::::::::::::::::::::::::::::: RESPONDENT

# BEFORE: HON. JUSTICE OSCAR JOHN KIHII(A' JA

(Sitting as a single Judge)

#### RULING OF COURT

The Applicant filed this application by Notice of Motion under Rules 2(21, 6(2) (bl, 42 and 43(1 ) and 44(1) of the Judicature Court of Appeal Rules seeking for orders that;

- 1. An order doth issue for staying the execution of the judgment and decree in Civil Suit No. 244 of 2008 until the final determination and disposal of Civil Appeal No. 244 of 2022. - 2. Tlne costs of and incidental to this application be provided for.

The Applicant filed an affidavit in support of the Notice of Motion sworn on the 7th of March 2024, amplifying the grounds upon which the application is premised. The grounds are briefly as follows;

a

- 1. On the 26th day of August 2022, the High Court Kampala delivered a judgment vide Civil Suit No. 244 of 2OO8 against the Applicant. - 2. Court declared, among others, that the Applicant purchased 4oo/o shares in the l"t Respondent company but registration as shareholder was subject to the directors agreeing to enter him in the register in accordance with the Articles of Association. - 3. The Applicant was dissatisfied with the decision of the trial court and filed an appeal in this court vide Civil Appeal No. 34L of 2022. - 4. The Respondent also lodged a notice of cross appeal contesting the awards given by the High Court in Civil Suit No. 244 of 2008. - 5. The Respondents initiated execution proceedings by commissioning a survey and the boundary opening in respect of the suit land seeking to evict the Applicant. - 6. There is a serious threat of execution of the orders of the High Court in Civil Suit No. 244 of 2OO8 in form of eviction and destruction of property. - 7. The Applicant will suffer substantial loss if the execution is carried out by the Respondents since the Applicant is in possession of the suit property and has lived there since 1993. - 8. The Applicant's appeal has a likelihood of success with arguable grounds that merit this court's consideration.

The Respondent filed an affidavit in reply deponed by SAM MWESIGYE sworn on the 15th of March 2024 and opposed the application on grounds briefly that;

- 1. The Applicant filed a similar application in the High Court vide Misc. Application No. 1831 of 2023 and the sarne is pending hearing. - 2. The application before this court is incompetent since the sarne is pending before the High Court and this court can only hear the application when the High Court refuses to grant the order. - 3. The Respondents have not commenced the execution process nor have they filed any bill of costs pursuant to the orders of the High Court. - 4. The Respondents have not issued any instructions for opening of boundaries as alleged by the Applicants and the said survey was not initiated by the Respondents.

### Representation

At the hearing of this application, Mr. Kaweesi Kakooza appeared for the Applicants, while Mr. Bwengre Martin appeared for the l"t and 2nd Respondents together with Mr. Jason Kigumon for the 4th Respondent. The parties filed written submissions and the same were adopted as the legal arguments.

#### Consideration of the application

I have carefully considered the affidavits and the submissions of both parties. I have also perused the authorities provided by counsel for which I am grateful.

The jurisdiction of this court to grant a stay of execution is set out in Rule 6 l2l p) of the Rules of this Court which provides that;

## 6. Suspension of sentence and stag of executlon.

(2) SubJect to subrttle (1) of this tttle, the lnstltutlon of an appeal shall not operate to suspend ang sentence or to stag q,cecution, but the coutt matr

(a) ...

b) fn ang citrll proceedlngs, where a notlce of appeal ho,s been lodged ln accorda.nce with ntle 76 of these Rules, order a stag of execution, an lnJunctlon, or a stag of proceedlngs on such term.s as the court mag thtnk Just.

The Rule gives this Court the discretion, to grant a stay of execution, however the discretion must be exercised on well-established principles.

The Supreme Court in the application by Hon. Theodore Ssekikubo & Others vs. The Attorney General and Another, Constitutional Application No 06 of zOLg clearly re-stated the principles as follows:

3'In order for the Court to grant an appllcation .for a stag of q,cecution;

(1) The appllcatlon must establish thqt his appeal has a llkelthood of success; or a prima facie co,se of his rtght to appeal

(2) It must also be establtshed that the Appltcq.nt utlll suffer Ireparable damage or that the appeal utlll be rendered nugatory tf a stag ls not granted.

(3) If 7 and 2 aboue ho,s not been establlshed, Court must conslder where the balance of conaenience lles.

## (4) That tttc Appltcant must al"so establish that the applicatlon ura,s tnstttttted without delag."

The issue for determination by the Court is whether the Applicant has adduced sufficient reasons to justify the grant of a stay of execution.

As already stated in Hon. Theodore Ssekikubo & Others vs Attorney General & Others (supra), for an application for stay of execution to be granted, there should exist the following elements;

## L. Prl.ma facie case with likelihood of success

I have carefully read the submissions by counsel for the Applicant and the Respondents, the affidavits on record and the law applicable.

On the issue of likelihood of success, the Applicant stated in paragraph 1 1 of the Applicant's affidavit in support of the application,

that the appeal presents sound arguable issues which merit serious consideration. The Applicant attached the Memorandum of Appeal to his affidavit in support of the application, marked annexu.re 'B'.

The Applicant contends that the appeal raises arguable grounds to wit, among others, whether the subject of the sale agreements of 1993 and 2OOO were of shares and not land as comprised in LRV 2396 Folio 25 B1ock773 Plot 10 together with LRV 2414 Folio 6 Singo Block 773 Plot 1 1.

I reiterate that it is not the duty of this court to pre-empt considerations of matters for the full bench in determining the appeal, but to determine whether the appeal is frivolous. In the instant case, the Applicant not only attached the Memorandum of Appeal but also laid out the questions for this court to determine in the appeal.

It is therefore my considered view that the applicant has established that he has a prima facie case pending determination before this court.

#### 2.ltreparable damage

The second consideration is whether the Applicant will suffer irreparable damage or that the appeal will be rendered nugatory if a stay is not granted.

In American Cynamide vs Ethicon [1975] 1 ALL E. R. 5O4 it was held;

"The governing principle is that the court should first consider whether if the Plaintiff were to succeed at the trial in establishing his right to a Permanent Injunction he would be adequately compensated by an award of damages for the loss he would have sustained as a result of the Defendant's continuing to do what was sought to be enjoined between the time of the Application and the time of the trial. (Emphasis added)

In this regard, the Applicant stated in paragraphs 7-10 of the affidavit in support of the application that he will suffer substantial loss if execution proceeds considering the fact that he is in occupation of the suit land and has lived there since 1993. He also constructed 2 valley dams, a silo, a homestead and has his wife's burial grounds thereon.

In my understanding, the applicant has proved, by affidavit evidence, that he is in possession of the suit land and also has a number of properties thereon. An eviction prior to the hearing and determination of the appeal would cause irreparable loss to the Applicant that cannot be atomed for in damages. An Applicant has a duty to show that the damage bound to be suffered is such that it cannot be undone.

It is therefore my considered view that the Applicant will suffer irreparable damage if this application is not granted.

Having found as I have above, I find no reason to consider the issue of balance of convenience for reasons that court should only consider the balance of convenience where it is in doubt.

In the result, I allow this application and make the following orders;

- 1. An order for stay of execution of the judgment and decree in Civil Suit No. 244 of 2008 is hereby issued until the final determination and disposal of Civil Appeal No. 244 of 2022. - 2. Costs shall abide the outcome of the appeal.

Dated this /^ day of ... S). 2024

v OSCAR J HIKA JUSTICE OF'