Emaku & Another v Emulu (Civil Application 76 of 2024) [2024] UGCA 142 (11 June 2024)

# THE REPUBLIC OF UGANDA

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

# CIVIL APPLICATION NO. 0,076 OF 2024

(Aising from Ciuil Appeal No. 409 of 2022)

#### 1. EMAKU JOSEPH

2. OPEJO STEPHEN : : : : : : : : : : : : : : : : : : : : : :: : : : : : : : : APPLICANTS

#### VERSUS

EMULU OJAMUGE CHARLES : : : : : : : : : : :: : : : : :: : : : : : : : : : : RESPONDENT

BEFORE: HON. JUSTICE OSCAR JOHN KIHIKA, JA (Sitting as a single Judge)

# RULTNG OF COURT

The Applicant frled this application by Notice of Motion under Rules l(2), 2, 6(2) (b), 42 and 43 of the Judicature Court of Appeal Rules seeking for orders that;

- 1. An order of temporaqr stay of execution be issued restraining the Respondent his agents acting under him or with his authority from executing the orders arising from Soroti High Court Civil Suit No. 28 of 2Ol8 until the hearing and the disposal of the Applicant's Appea-l against the orders. - 2. The costs of the Application be provided for.

## Background

The Respondent filed Civil Suit No. 028 of 2018 against the Applicants herein and the Departed Asians Custodian Board jointly and or severally for trespass to property comprised in LRV 142 Folio 14, Plot No. 18 Gweri Road Soroti Municipality. The Respondent was the registered proprietor of the suit land which had previously been vested under the Expropriated Properties Legal regime after the expulsion of the then registered proprietors. The former owners of the suit land were issued with a certificate of repossession by the Minister of Finance and repossessed the sarne on 18ih August 1995 for ttre remainder of the period of the un-expired lease.

The Applicants claimed to be tenants of the Departed Asians Custodian Board in a letter dated 13th March 2O18 and declined to pay rent or vacate the property. The civil suit was determined in favor of the Respondent, the Applicants were declared trespassers and an eviction order made against them hence the appeal to this court and the instant application for an order of stay of execution.

The application is supported by the afhdavit of EMAKU JOSEPH sworn on the 7ti,of February 2024. The grounds upon which this application is premised are laid out in the Notice of Motion and the affidavit in support and are briefly that;

- 1. The Applicants were the unsuccessful parties in High Court of Uganda at Soroti Civil Suit No. 28 of 20 18. - 2. The Applicants lodged an appeal in the Court of Appeal against the orders in Civil Suit No. 28 of 2018. - 3. The Respondent filed a bill of costs against the Applicants and the same was taxed and a-llowed at Ugx 86,932,800/=.

- 4. The Applicants fiied Miscellareous Application No. 140 of 2023 in the High Court at Soroti seeking for stay of execution of the orders in Civil Suit No. 28 of 2018, which was unsuccessful and there is an imminent threat against the Applicants. - 5. The Applicants bring this application seeking a stay of execution of the orders and decree in Soroti High Court Civil Suit No.28 of 2018. - 6. The Applicants will suffer irreparable damages if they are evicted before the appeal is heard and determined. - <sup>7</sup>. T}:.e Applicants' appeal has a high chance of success, and if the order for stay is not granted the Appeal will be rendered nugatory. - 8. The application was brought without unreasonable delay and it is fair and reasonable that court grants the order of stay of execution. - 9. Balance of convenience lies in the favor of the Applicants.

The Respondents filed an afhdavit in reply deponed by EMULU OJAMUGE CHARLES sworn on the 29,n of February 2024 opposing the application on the grounds that;

- 1. The Applicants were not the only party unsuccessful in the suit but a-lso the Departed Asians Custodian Board, which was also a pa-rty to the suit. - 2. Judgment was passed on 01"t June 2022 and the Departed Asians Custodian Board did not appeal the decision.

- 3. The bill of costs was filed, taxed and a-llowed at Ugs Shs. 86,932,8001= which amount was to be paid jointly by the Applicants and the Departed Asians Custodian Board. - 4. Miscellaneous Application No. l4O of 2023 for stay of execution at the High Court was dismissed on grounds that the application did not meet the test upon which an order of stay of execution could be issued. - 5. The Applicants were tenants of the Departed Asians Custodian Board which opted not to appeal the decision of the High Court. - 6. The nature ofthe orders ofthe High Court Soroti are declaratory in nature and are self-executing and the sarne cannot be stayed. - 7. The Applicants have not demonstrated that their appeal has a likelihood of success and that they will suffer irreparable loss if this application is not granted. - 8. The Applicant's appeal to this court is frivolous without any arguable grounds since the Applicants were mere tenants whose landlord has no interest in further litigation of the mater.

#### Representation

At the hearing of this application, Mr. Tony Okwenye appeared for the Applicants, while Mr. Emmanuel Ilukor appeared for the respondent. Both parties filed written submissions and the same were adopted as the legal arguments.

## Consideration of the application

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

The Applicants, in the Notice of Motion, prayed for an order of a tempora-ry stay of execution against the Respondent from executing the orders of the High Court in Civil Suit No. 28 of 2018. I agree with the Respondent's argument that there is no such order known as a temporary stay of execution. An applicant either seeks for an order of stay of execution or a temporary injunction.

Upon perusal of the Applicant's affidavits in support of the application and the submissions, it is my considered view that what the applicants seeks this court to grant is an order of stay of execution and I will consider the merits of the application under Rules 2(2) and 6(2) of the Rules of this court.

The jurisdiction of this court to grant an order of stay of execution stems from Rule 6 (2) (b) of the Rules of this Court which provides as follows;

# 6. Suspension of sentence and stag of executlon.

(2) SubJect to subnile (1) of thts ntle, the lnstltutlon of an appeal shall not operate to suspend ong sentence or to stag executlon, but the cout't, mag--

(a)...

(b) in any clull proceedings, uthere o notlce of appeal has been lodged ln accordance uith rule 76 of these Rules,

order a stdg of executlon, o,tt lnJunctlon, or a stag of proceedlngs on such tenns as the court mag thlnkJust.

The authorities of Lawrence Musiitwa Kyazze Vs Eunice Busingye SCCA No. 18 of 199O; Dr. Ahmed Muhammed Kisuule Vs Greenland Bank (In Liquidation) SCCA No. 7 of 2O2O and Gashumba Maniraguha vs Samuel Nkundiye SCCA No. 24 of 2O15 state the principles to be considered for the grant of a substantive order for stay of execution such as the one before me.

The Supreme Court in the case of Hon. Theodore Ssekikubo & Others vs. The Attorney General and Another, Constitutional Application No O6 of 2O13 clearly re-stated the principles as follows:

In order for the Court to grant an application for a stay of execution;

"(1) The appllcatlon must estobltsh that hts appeal hos a likelihood o.,f success; or a prlma facle case of hts rtght to appeal

(2) It must also be established. that the Appllcant utlll suffer irreparable damage or that the appeal utll be rendered nugatory if a stag is not granted.

(3) If 1 and 2 aboue has not been establlshed, Court must conslder uhere the bo,lance of conaenlence lles.

(4) That the Applicant must qlso establtsh thot thc applicatlon utas lnstltrtted utlthout 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.

## 7. Prima facie case with likelihood of success

On the issue of likelihood of success, the Applicant's counsel submitted that the main appeal has a high likelihood of success since the trial Judge erred in law and fact when he failed to properly evaluate the evidence on court record and that if the application for stay of execution is not granted, the appeal will be rendered nugatory.

I have perused the Notice of Motion and the a-ffidavits in support thereof. Whereas the Notice of Motion contains, as one the grounds, the assertion that the Applicants' appeal has a high chance of success, nowhere in the afhdavits is there any attempt to demonstrate that the Applicants have a prima facie case on appeal.

The main afhdavit in support does not make mention at all of a prima facie case with regard Applicants' appeal. It is in paragraph 14 of the affidavit in rejoinder sworn by the 1"t Applicant on the 7th of March 2024 , where mention is made of a prima facie case, and no more. The paragraph states as foliows;

## u74. That ln speclfic nesponse to pattgraph 79 and 2O of the aJfidavtt ln replg, I state that our appllcatlon has merlt utlth htgh chrrnces o.f success."

When the paragraph above quoted is considered, it becomes apparent that the Applicants have not availed this court with any material to support the assertion that the appeal has a probability of success.

The Supreme Court in the case of Gashumba Maniraguha vs Sam Nkudiye Civil Application No. 24 of 2OL5, held that the likelihood of success is the most important consideration in an application for stay of execution. Therefore, it is incumbent upon the Applicant to avail evidence, or materia-l to the court in order for it to establish whether or not the Applicant has a prima facie case on appeal.

In the case of Osman Kassim Vs Century Bottling Company Ltd Civil Appeal 34 of 2OL9, the Supreme Court of Uganda stated thus;

" It is trtte that in order to succeed on thls ground, th.e Appltcant must, apant from filing the Notlce of Appeal, place before Court, Material that goes begond d me?e statement that the appeal has cL ltkelthood of success........the lmportant questlons ere not euen mentloned ln his affid.adts so as to glae court an ldeq about the posslble ground. of hts lntended oppeal. We are ln the clrcum.stances unable to establlsh the llkelthood of success in the absence ofeuldence'

I therefore find that the Applicants have failed to establish a prima facie case with a probability of success.

## 2. Irreparable damage

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

In this regard, the Appticant's counsel argued that the applicant will suffer substantial loss in enforcement of paS,nnent of the taxed bill of costs. The Applicants' claim that they are a-lso at the verge of losing their property which cannot be compensated in monetary terms.

Black's Law Dictionary, 9th Edition at page 447 defined "irreparable damage" to mean;

odamages that cannot be easily ascertained because there is no fixed p e cuni ary st and ar d me asttr e m e nt "

The Applicants have to show that the damage bound to be suffered is such that it cannot be undone. No amount of monetar5r recompense can restore the injured party to the position he or she was before the damage was visited on the individual.

In the instant case, the Applicant has not given this court any evidence to prove irreparable damage.

On perusal of the Applicants' affidavits, the Applicants claim irreparable loss in execution of the taxed bill of costs and loss of the property. However, from the affidavit evidence on record it appears that the Applicants, in the first place were just tenants of the Departed Asians Custodian Board, the 2"d Defendant in Civil Suit No. 28 of 2018. The 2"a Defendant has opted not to appeal the decision

of the High Court. This set of facts is contained in paragraphs 19 and 20 of the a-ffidavit in reply which state as follows;

o79. That the purporAed Appeal ln the Coutt of Appeal ts frluolous ullthout ang arguqble ground slnce the Appllcants u)ere mere tenants oJthe Depor-ted Asicns Crtstodlan Board.

20. Thqt in ang case, Departed Aslans Custodlqn Board utho utas prevlouslg the purported landlord of the Appllcants h.os no lnterest uhatsoeuer tn luraher lltigatlon and neoer ftled an Appeal agalnst the decislon of the Htgh Court of Uganda ln Sorott.[Attached. are letters marked "A" artd "A7' respectlaelg.'

Annexure A to the affidavit in reply is a letter from Departed Asians Custodian Board addressed to the l"tApplicant dated 13th February 2023, in which the 1"'Appiicant is being informed that the said Departed Asians Custodian Board recognizes the decision of the High Court in Civil Suit No. 28 of 20 15 and that it is forthwith withdrawing the temporar5i a-llocation of the suit property.

The contents of paragraphs 19 and 20 of the affidavit in reply have not been challenged by the Applicants in their afhdavit in rejoinder, nor have they provided proof of ownership of the suit land in order to lay ground for the assertion that they will suffer irreparable damage.

This then leaves this court with the matter of the taxed costs. The Applicants are apprehensive that payment of the taxed costs will cause them irreparable damage. Costs are a moneta-ry award which

can be ascertained/ determined and which can be recompensed if the need so arises.

I am therefore unable to find that the Applicants will suffer irreparable damage.

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.

Given the findings above, I find no merit in the application and order as follows;

- 1. The application is dismissed. - 2. The costs of this application shall abide the outcome of the Appeal.

I so order

J.t^ Dated trris ....1.11....day of /\A <sup>2024</sup>

OSCAR JO II(A JUSTICE OF ryr{ <sup>I</sup> v