Emmejje and Another v Asegoit (Civil Application 35 of 2024) [2024] UGCA 116 (7 May 2024)

Full Case Text

# THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL. OF UGANDA AT KAMPALA CIVIL APPLICATION NO. 35 OF 20/24

(Aising from Ciuil Application No. 2a of 202a)

## 1. EMMF^IJE JOHN

## 2. OKACUGA EMMANUEL : : : : : : : : : : 3 : : : : : : : : : : : : : : : : : : : : APPLICANTS VERSUS

ASEGOIT ANNA MARGARTT : : : : : : : : : : : : : : : : : : : : : : : : : : : : : RESPONDENT

#### BEFORE: HON. JUSTICE OSCAR JOHN KIHII{A, JA (Sitting as a single Judge) 10

### RULING OF COURT

The applicant filed this application by Notice of Motion under Rules

- 6(2) (b), and 43 of the Judicature Court of Appeal Rules. It seeks for orders that; 15 - 1. An order of interim stay of execution be issued staying all execution proceedings arising out of Tororo High Court Miscellaneous Application No. 279 of 2022 until the disposal - 20

- of Court of Appeal Civil Appliqation No. 24 of 2024. - 2. Costs of this application be provided.

The grounds upon which this application is premised are stated in the Notice of Motion and the affidavit in support sworn by OKACUGA EMMANUEL deponed on the 19th of January 2024 and are briefly that;

- 1. The 2"0 Applicant is one of. the Appellants in Court of Appeal Civil Appeal No. 1353 of 2023. - 2. A payrnent of Ugx.227,OO0,OO0/= was made by the Standard Guage Railway Project to the estate of the 2"0 Applicant's late father, the late Martin Okacuga. - 3. The said money was paid to the administrators of the estate of the late Martin Okacuga to be shared between all the beneficiaries. - 4. The Respondent, being one of the widows to the late Martin Okacuga filed Miscellaneous Application No. 279 of 2022 in Tororo High Court claiming to be entitled to the compensation money since her house was. one of the properties affected by the railway project. - 5. The Applicants opposed the application but the trial Judge ruled that the said monies. be paid to the Respondent. - 6. The Applicants immediately filed a Notice of Appeal and applied for a typed record of proceedings and the same is attached and marked annexure 'A'. - 7. The Applicants filed an appeal in this court vide Civil Appeal No. 1353 of 2023 and the same is pending hearing in this court. - 8. The Applicants liled an application for stay of execution before the High Court and the same was dismissed with costs on grounds that there was no threat of execution. - 9. The Respondent applied and Garnished the estate account in execution of the impugned order and took UGX 1OO,OOO,OOO/=, money meant for the beneficiaries of the estate.

- 10. The Respondent has applied for execution of another Ugx. 5,500,000/= being taxed costs in Miscellaneous Application No. 036 of 2023. - 11. The Respondent has against applied for execution orders giving false information that there. is no appeal preferred from the decision of the High Court.

12. The Respondent applied for contempt of court orders before the same Judge who ruled that the Applicants were in contempt of the court orders given in Misc. Application No. 279 of 2022.

13. The Applicants have filed a substantive Application for stay of execution vide Miscellaneous Application No. 24 of 2024.

The Respondent filed an affidavit in reply deponed by ASEGOIT ANNA MARGARET sworn on the 15th of February 2024 and opposed the application on grounds briefly that;

- 1. The Respondent is amongst the widows of the Late Martin Okacuga having got married to him tn 1978. L5 - 2. Due to persistent conflicts between the second wife and the Respondent, the late Martin purchased land for the Respondent in Kasoli East village, Kasoli Parish, Eastern Division Municipality where she relocated to with her children. - 3. In March 2OL6, the Respondent's family was informed that the land upon which they were settled was required by the SGR Project. - 4. On lllLO/2016, her husband passed on before compensation was paid by the Standard Guage Railway Project.

- 5. SGR deposited Ug.. 227,642,669f = on the estate account and the Applicants demanded that the money be divided between the beneficiaries. - 6. The Respondent had to relocate together with her family upon receipt of the compensation from SGR. - 7. The Respondent filed an application in the High Court seeking that she was entitled to the entire compensation. - 8. Since March 2OL8 when the Applicants obtained letters of administration, they have never divided the estate of the late Martin Okacuga.

### Consideration of the Application

I have carefully considered the submissions of both counsel, the affidavits filed and the authorities cited therein.

Rule 2l2l of the Judicature (Court of Appeal Rulesf Directions

grants this court powers to make such orders inter alia as may be necessary for achieving the ends of justice. 15

The principles upon which an application for an interim order for stay of execution are granted were clearly stated by the Supreme Court by Civil Application No.19 of 2OO8 Hwang Sung Industries Ltd vs. Tajdin Hussein and 2 others as follows: -

" For an application for an interim order of stag , it suffices to shout that a substantiue application is pending and that there is a seious threat of exea,ttion before the hearing of the pending sub stantiu e application.

ft is not necessary to pre-empt consideration of matters necessary in deciding whether or not to grant the substantiue applicationfor stay."

5 I have borne all the above principles and authorities cited by both counsel in mind in considering this Application.

In evaluation of the conditions laid out above and with regard to the condition of lodging a Notice of Appeal, I make reference to the Supreme Court decision in Dr. Ahmed Muhammed Kisuule vs. Greenland Bank (In liquidationl Miscellaneous Application tro. 7 of 2O1O in which it was stated that;

"For an applicationinthis Courtfor a stay of exeantionto succeed the applicant must first show subject to otlrcr facts in a giuen case, that he/ she has lodged a notice of appeal in accordance with Rule 72 of Rttles of this Court..."

According to paragraph 5 of the Applicant's affidavit in support of the Application, a Notice of Appeal was lodged in accordance with Rule 76 of the Rules of this Court on the 18th of July 2023. 15

A substantive application for Stay of Execution was also filed and it is referenced as Civil Application No. 24 of 2024.

The third consideration is whether there exists a serious threat of execution. From paragraph 10 of the Applicant's affidavit in support of the application, the Respondent applied and obtained a garnishee order against the Applicants on the estate account and was given UGX. IOO,OOO ,OOO /= from the said monies on the estate account. 20

The Respondent has also filed an application for execution of another UGX 5,5OO,OOO/= being taxed costs in Miscellaneous Application No. 036 of 2023 (See paragraph 11 of Applicant's affidavit).

The above set of facts which have not been disputed by the Respondent, make it clear to this court that there exists a serious threat of execution.

An interim order for stay of execution must be intended to serve a purpose. See Mugenyi vs National Insurance Corporation, SCCA No. 13 of L984, Wambuzi CJ (as he was then). This is one of the cases which, in my view, warrant grant of an interim order of stay of execution pending the determination of the substantive application.

In the circumstances of this case, I find that the Applicant has proved the conditions for grant of an order of interim stay of execution. This application therefore succeeds with the follo\*i.rg orders;

- 1. An interim order of stay of execution of the orders in Tororo High Court Miscellaneous Application No. 279 of 2022 is hereby granted until the disposal of Court of Appeal Civil Application No. 24 of 2024. 15 - 2. Costs of this application shall abide the main cause. - 20

I so order

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

OSCAR JOHN KIHIKA JUSTICE OF APPEAL

$10\\$

$\mathsf{S}$

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