Byaruhanga & 4 Ors v Musimenta & Anor (Civil Application No. 278 of 2019) [2020] UGCA 92 (17 August 2020)

Full Case Text

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THE REPUBLIC OF UGANDA

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# IN THE COURT OF APPEAL OF UGANDA

## AT KAMPALA

# Civil Application No. 278 of 2019

(*Arising from Court of Appeal Miscellaneous Application No. 255 of 2019*) (*Arising from High Court at Kabale Civil Suit No. 35 of 2014*)

# 1. Byaruhanga Innocent

2. Turyakira Julius

3. Rwambuka Silva

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4. Arineitwe Wensi $\overline{20}$

5. Tindiwegi Annet

**Versus**

1. Musimenta Flora 2. Kakuramasi Ivan **Respondents**

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Hon. Justice Cheborion Barishaki, JA Coram: Hon. Justice Stephen Musota, JA Hon. Justice Remmy Kasule, Ag. JA

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# **Ruling of the Court**

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This application is brought under Rules $2(2)$ , $6(2)$ , $42(2)$ and 43 of the Judicature (Court of Appeal Rules) Directions, SI 13-10. It is for orders that:

- an interim order does issue staying execution of the decree 35 $i)$ and enforcement of the orders dated 15th July, 2019 made in Kabale High Court Civil Suit No. 35 of 2014 pending the disposal of the substantive application for stay in Civil Application No. 255 of 2019 - cost of the application be provided for. 40 $\overline{ii}$

The grounds of the application are contained in the Notice of Motion and the affidavits in support and in rejoinder sworn by Hilda Katushabe, one of the children of the late Alifunsi Kibande dated $1^{st}$ August, 2019 but briefly, the grounds being that:

- a) The applicants are some of the 15 children of the late $45$ Alifunsi Kibande who were named in a distribution deed dated $1^{st}$ September, 2013 as beneficiaries to the property described as Plot 8 Lower Bugongi belonging to the late Alifunsi Kibande. - b) One of the said siblings called Musimenta Flora who is 50 the 1st respondent sold a big part of the said Plot 8 Lower Bugongi to the $2^{nd}$ respondent when Alifunsi Kibande

was still alive alleging that the said Plot 8 Lower Bugongi Kabale Municipality had been given to her by Alifunsi Kibande in 2011.

c) After his death, all the rest of the children of Alifunsi Kibande, instituted High Court Civil Suit No. 35 of 2014 in Kabale High Court against the $1st$ respondent as seller and the $2^{nd}$ respondent as buyer for recovery of Plot 8

Lower Bugongi, Kabale Municipality, from both of them.

- d) The applicants lost the said case in a Judgment delivered on 15.07.2019. They appealed against the said Judgment to this Court by lodging a Notice of Appeal to the High Court Registrar, Kabale on 18th July, **2019.** - e) In the Judgment, the learned trial Judge made orders directing the respondents to take immediate possession of part of the suit property; which means that the trial Court ordered immediate execution by the $2^{nd}$ respondent of the Judgment and decree. - $f$ ) That the respondents have interpreted the said Judgment and order to have authorized the respondents

to execute the court decree without warrant and the respondents have already stated doing so.

- g) In order to protect the status quo of the suit property 75 from being altered, the applicants have filed a substantive Miscellaneous Application No. 255 of 2019 seeking stay of execution of the decree which application is still pending determination in this court. - h) On $25^{th}$ July, 2019, the $2^{nd}$ respondent took goons to the suit land who broke down part of the fence thereon before they were chased away without raving more havoc. - i) The $2^{nd}$ respondent then resorted to mobilizing prisoners to be taken to the suit land to deal with it in further execution of the Court Judgment and decree.

The $1st$ respondent in opposition to the application filed an affidavit in reply in which she contended that the applicants' application was baseless and had been prematurely filed in Court. The 2nd respondent also filed an affidavit in opposition to the application.

By way of background the late Alifunsi Kibande died intestate on the 21st April, 2014. He owned land known as Plot 8 Bugongi Road, Kabale Municipality, herein to be referred to as "the suit

property". He had built a building of four units which he used to rent out for income. The applicants, who all claim to be children 95 of the late, contend that before his demise the late had executed a document on 1st September, 2013 titled a "declaration" with his children to the effect that they were to inherit the suit property in equal proportions upon his demise.

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It is also the case of the applicants that when the late Kibande 100 attempted to acquire a Certificate of Title for the suit property, the $2nd$ respondent lodged a caveat thereon claiming to have purchased part of it from the 1st respondent. The late Kibande had filed Civil Suit No. 010of 2014 in the High Court at Kabale against both respondents but he died before the case was concluded. The 105 applicants took over prosecution of the suit in the High Court at Kabale as beneficiaries of his estate. At the conclusion of this suit, Judgment was delivered by Court against the applicants. They lodged a Notice of Appeal intending to appeal against the said Judgment. 110

The respondents on the other hand, claim that the late Alifunsi Kibande had on the 14th February, 2011 by a gift inter vivos gratuitously distributed the suit property to his four wives and their children. The $1^{st}$ respondent claims to have specifically been

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given land behind the house on Plot 8 which she sold to the $2nd$ 115 respondent on 14th June, 2013. The respondents contend that the applicants are thus trespassers on the suit property.

### **Representation:**

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At the hearing of the application, Counsel Perusi Birungi, holding brief for Counsel Baku appeared for the applicants, while Counsel 120 Rukundo Ibrahim appeared for the respondents.

#### **Submissions of Counsel:**

Counsel for respondents raised three preliminary objections to the application based on the affidavit in reply by the $2^{nd}$ respondent.

The first objection was that this Miscellaneous Application No. 278 125 of 2019 was premature and improper before this Court since the same ought to have been filed first in the High Court in Kabale. It is only upon the same being denied by the High Court that the same can be lodged in this Court pursuant to Rule 42(1) of the Rules of this Curt which provides that whenever an application 130 may be made to this Court or in the High Court, it shall be made first in the High Court.

Learned Counsel submitted that Rule 42(1) of the Rules of this Court was mandatory. Counsel relied on Lawrence Musiitwa

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**Kyazze vs Eunice Busingye: Supreme Court Civil Application** 135 No. 018 of 1990 and Shshikani Patel vs Akampulira Michael: Court of Appeal Civil Application No. 98 of 2003 in support of this submission.

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On the second objection, Counsel contended that Hilda Katushabe, the deponent to the affidavit in support of the 140 application and the affidavits in rejoinder, lacked legal capacity to swear the affidavit in issue, since she was not a party to the original suit or a party to the appeal or to this application, thus making the application to be incurably defective and liable to be struck out with costs. This is because the said Hilda Katushbe's 145 affidavit in support of the Application was defective by reason of being sworn on behalf of others without showing that she, as the deponent, had the authority of those others, who were the true parties to the Application. The said affidavit therefore offended Rule 44(1) of the Court of Appeal Rules. Counsel invited this Court 150 to dismiss the application on this ground, amongst others.

On the third objection, Counsel submitted that the application in issue was overtaken by events since the $1^{st}$ respondent had already taken immediate possession of the suit property. Counsel contended that it was trite law that an interim application could

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only be granted if there was eminent threat of execution of the orders appealed against or that the main application and the interim shall be rendered nugatory if an interim injunction is not granted. However in this case, execution of the Decree had already been completed and the $2^{nd}$ respondent was in possession and ownership of the said property.

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Counsel prayed for the three preliminary objections raised by the $2nd$ respondent to be upheld by this Court by dismissing/striking out with costs this application and the main application for stay.

- In reply, Counsel for the applicants submitted on the first 165 objection, that the applicants had special preliminary circumstances for making this application direct to this Court. These circumstances are stated in the body of the application and also in the affidavits in support and in rejoinder for the applicants. - The special circumstances are that the learned trial Judge had 170 ordered the respondents to execute the Judgement with immediate effect when he stated in the Judgement that "the counterclaimant (2nd respondent) shall take immediate possession of the portion of plot 8 behind the commercial building; that is suit property. - Therefore, since the learned trial Judge had ordered immediate 175 execution of the Judgment, the same Judge would not be impartial

if the same application to stay execution had been placed before Counsel prayed this court to reject the first preliminary him. objection as being without merit.

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- On the second preliminary objection, Counsel submitted that 0.19 180 rule 3 of the Civil Procedure Rules do not require a deponent to be a party to the suit appealed against or a party to the appeal or to the application like this one as it had been contended by learned Counsel for the respondents. - Counsel further submitted that the right person to depone to an 185 affidavit is one who has knowledge of the facts of the case before Court and not necessarily one who is a party to that case or application.

Counsel for the applicant further contended that at any rate, Hilda Katushabe the deponent of the affidavits was a child and 190 beneficiary to the estate of the late Alifunsi Kibande and as such she was a party to the original suit, the appeal and to the application.

Counsel prayed for the second preliminary objection to be overruled. 195

On the third preliminary objection, Counsel submitted that the unchallenged evidence in the applicant's affidavits that showed that immediate execution of the Judgment being appealed against had been resisted, rendered the third objection to be without merit.

- The affidavit in support of the application, in paragraph 10 thereof 200 stated that "on the 25.07.2019, the respondents brought goons" who started breaking down the fence and part of it was destroyed before they were chased away". This, according to Counsel was proof that execution had been resisted. Counsel further contended, that paragraphs 8 and 9 of the affidavit in rejoinder 205 further proved the case of the applicants that their vigilance resisted and barred the respondents from going ahead to execute the learned trial Judge's Judgment and Orders. Accordingly it was not true that the application had been overtaken by events. - Counsel for applicants prayed to Court to agree with their 210 submissions, overrule the respondents on the preliminary objections by allowing this application with costs.

We have read the pleadings and the annexures thereto and we have also carefully listened to the arguments of both Counsel. In resolving this application, as regards the preliminary objections. 215 the law on preliminary objections is laid out in the case of **Mukisa** Biscuits Manufacturing Co. Ltd vs West End Distributors Ltd **(1969) EA 696** to the effect that:

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"*A preliminary objection consists of an error on the face of the*" pleadings which rise by clear implication out of the pleadings and which, if argued as a preliminary objection may dispose of the suit".

This means that all the objections above, raised by the respondents must amount to points of law which, if successfully established, will fully dispose of the applicants' Application.

In respect of the first preliminary objection, Rule 42(1) of the Rules of this court states:

"42(1) wherever an application may be made either in the *Court or in the High court it shall be made first in the High* court".

It is a well settled law that this court and the High court have concurrent jurisdiction in applications of this nature. The Supreme Court in **Lawrence Musiitwa Kyazze vs Eunice Busingye: Civil Application No. 18 of 1990** held that:

"The practice that this Court should adopt is that general $235$ applications for a stay should be made informally to the Judge *who decided the case when Judgment is delivered. The Judge* may direct that a formal motion be presented on notice (Order *XLVIII Rule 1.), after a notice of appeal has been filed. He may* in the meantime grant a temporary stay for this to be done. 240 The parties asking for a stay should be prepared to meet the conditions set out in Order XXXIX Rule 4(3) of the Civil *Procedure Rules. The temporary application may be ex parte* if the application is refused, the parties may then apply to the *Supreme Court under Rule 5(2)(b) of the Court of Appeal Rules* 245 *where again, they should be prepared to meet similar* conditions, similar to those set out in XXXIX Rule 4(3). However there may be circumstances when this Court will intervene to preserve the status quo. In a case where the High *Court has doubted its jurisdiction or has made some error of* $250\\$ law or fact, apparent on the face of the record, which is probably wrong, or has been unable to deal with the application in good time, to the prejudice of the parties in the suit property, the application may be made direct to this Court". $255\\$

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The Supreme Court did not hold that the categories of special circumstances it enumerated were the only ones. It remains to the Court handling the matter to determine what constitutes "special" and rare circumstances and whether or not it is in the interest of justice to do so. See: **Court of Appeal Civil Miscellaneous** Application No. 207 of 2014: P. K. Sengendo vs Busulwa Lawrence & Another Judgment of Kenneth Kakuru, JA.

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From the applicant's affidavit, it is stated that while passing Judgment, the learned trial Judge made an order authorizing the $2nd$ respondent to take immediate possession of the portion of the 265 This made this portion of the Judgment to be suit property. executable with immediate effect. The $2^{nd}$ respondent immediately set out to execute the order and brought people who destroyed the fence of the suit property. However, they were stopped by the applicants and the police together with the local councils. This 270 state of affairs justified lodgement of this application direct to this Court according to the applicants.

It is our considered view that the applicants have proved the exceptional circumstances envisaged in **Lawrence Musiitwa** Kyazze vs Eunice Busingye (Supra) case. The learned trial Judge's Judgment was, in a way self-executory when it allowed the

$2nd$ respondent to take possession and occupation of part of the suit property immediately on delivery of the Judgment. This made it rather difficult, in terms of fairness, for the applicants to go to the same trial Court and pray for a stay of the same Judgment which in a way, was self-executing on its delivery date.

Yet the applicants had to act effectively and with all speed. Given the above circumstances, this Court is satisfied that the applicants were justified to lodge this application direct to this Court without first lodging the same and having the same first determined by the

High Court. The first preliminary objections is overruled.

The second objection queries the affidavits sworn by Hilda Katushabe on the grounds that she lacked legal capacity to swear the same because she was not a party to the original suit and is not a party to this application. We note that Rule $44(1)$ of the Rules of this Court provides that:

## **"44. Supporting Documents"**

(1) *Every formal application to the Court shall be supported by one* or more affidavits of the applicant or of some other person or *persons having knowledge of the facts".*

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Learned Counsel for the respondents did not point out to this Court any law that provides that it is only a party to a suit or to an application who is allowed to depone to an affidavit in that suit or application. Our appreciation of the law is that anyone who has knowledge to prove the case or any other matter that is before 300 Court can depone to an affidavit. In this case Hilda Katushabe, being a child thus a beneficiary of the estate of the late Alfunsi Kibende, whose estate was the subject of litigation was entitled to depone to the affidavits. We accordingly overrule the second objection. 305

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The third preliminary objection is that this application has been overtaken by events in that the Judgment has been partly executed by the 2nd respondent's taking immediate possession of the relevant part of the suit property.

The applicants have asserted in the affidavit in support as well as 310 in the affidavit in rejoinder, that any attempts by the respondents to execute the Judgment or part of it was resisted by them. Accordingly a threat of execution is still obtaining.

The respondents did not deny the assertions of the applicants as to resistance of the execution of the Judgment. At any rate, the 315 respondents admit the fact that the whole Judgment has not been executed as by now. It follows therefore that a threat of execution of the Judgment whether in part or as a whole still obtains. An application for a stay cannot therefore, in such circumstances, be said to have been overtaken by events. The third preliminary objection is accordingly also disallowed.

As to the merits of the application the applicants, in order to succeed, ought to show that; they lodged a Notice of Appeal in accordance with Rules of this Court, have filed in this Court a substantive application for stay of execution and that the same is 325 pending hearing. The applicants have also to show that there is a serious and imminent threat of execution of the decree or orders, the subject of the intended appeal, and that if the interim application is not granted the main application and the appeal will be rendered nugatory, and finally that the application for interim 330 stay of execution was made without unreasonable delay. See: Supreme Court Miscellaneous Application No. 13 of 2015: Francis Drake Lubega & Another vs The Attorney General. See also: Hwang Sung Industries Ltd vs Tajdin Hussein & Two others: Supreme Court Civil Application No. 19 of 2008.

We agree with learned Counsel for the applicants that the applicants lodged a Notice of Appeal in accordance with Rule 76 of

the Rules of this Court. This was done on 18th July, 2019. The respondents do not deny this fact.

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As for the substantive application for stay of execution, we have 340 ascertained from the Court records that there is a pending Miscellaneous Application No. 255 of 2019 for a substantive application for stay of execution from which this application arises. As to the respondents' contention that they have, as yet, not been served with this application, this does not amount to the said 345 application not having been lodged and being pending in this Court.

It is most unlikely that the pleadings in **Miscellaneous** Application No. 255 of 2019 from which this Application for Interim Stay (278 of 2019) arises, are different in any substantial 350 way. The respondents were served with this application for interim stay and therefore have a broad picture of what the substantive application to stay execution is about. Accordingly their claim of not having been served with the substantive application to stay execution cannot be a ground for refusing grant of this application 355 for interim stay. The applicants are accordingly held to have satisfied the condition that a substantive application for stay of execution is pending before this Court.

As to the existence of a serious or eminent threat of execution of the trial Court Judgment and orders made therein, there is 360 evidence from the applicants' affidavits in support and in rejoinder, that on 25th July, 2019 goons sent by the respondents destroyed part of the cactus fence in the process of attempting to execute the Judgment of the trial Court in Civil Suit No. 35 of 2014. They had no Court warrant issued by the Court Registrar to carry out such 365 execution. They were resisted by the applicants and were chased away. Thereafter the respondents mobilized prisons to once again take over the suit property on the basis of the same court Judgment. They were again resisted by the applicants assisted by police and the local council officials. 370

The above stated threats of execution are stated by the applicants in the affidavit in support of the application and in the affidavit in rejoinder.

None of the above averments were rebutted by contrary evidence from the respondents. 375

This Court is therefore satisfied that the applicants have established the existence of an immediate threat of execution of the trial Court's Judgment in Civil Suit No. 35 of 2014. This justifies a grant of an order for interim stay.

- The requirement that the applicants must show that the 380 application for interim stay was not lodged in this Court after undue delay, the evidence on Court record is that Judgment in Civil Suit No. 35 of 2014 was delivered on 15th July, 2019 and the application for Interim Stay was filed in this Court on 20th August, - 2019. This was exactly 35 days after delivery of Judgment. The 385 first attempt by the respondents to execute the Judgment without any warrant to do so from the court registrar was on 25th July, 2019 when the respondents sent the goons to the suit property in an attempt to execute the Judgment. - The above evidence is proof, which this Court accepts, that the 390 application for interim stay was filed in this Court without undue delay.

This Court is therefore satisfied that the applicants have satisfied the requirements necessary for the issuance of an order for interim stay. The Court is also satisfied that it is in the interests of justice 395 to preserve the status quo of the suit property from execution, pending disposal by this Court of the main substantive application No. 255 of 2019.

Accordingly this Court hereby issues an order staying the execution of the Judgment of the High Court at Kabale delivered 400

on 15th July, 2019 in Civil Suit No. 35 of 2014 until the disposal by this Court of the application for substantive stay that is Civil Application No. 255 of 2019 or the appeal that the applicants are pursuing in this Court.

The Registrar of this Court is hereby directed to take steps to fix 405 for hearing the said substantive application No. 255 of 2019 at the earliest date possible.

As to costs of this application, the same shall follow the event in the Substantive Application No. 255 of 2019.

It is so ordered. 410

Dated at Kampala this .................................... 2020.

**Cheborion Barishaki**

## **Justice of Appeal**

**Stephen Musota Justice of Appeal**

**Remmy Kasule**

**Ag. Justice of Appeal**

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