Garelnabi v Nayiga (Civil Application No. 682 of 2022) [2023] UGCA 45 (8 February 2023)

Full Case Text

### THE REPUBLIC OF UGANDA

### IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

### CIVIL APPLICATION NO.682 OF 2022

(Arising from Ciuil Application No.69 of 2022)

(Ansing from Ciuil Appeal No.231 of 2019)

## 10 MOHAMMED A. GARELNABI: : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : ] : : : : : : : : : : : :APPLICANT

#### VERSUS

# DIANA IRENE NAYIGA::::::::::::::::::::::::::::::::::::::3::]::::::::I::RESPONDENT CORAM: HON. MR. JUSTICE CHEBORION BARISHAKI, JA

### (srNGLE JUSTICE)

### 15 RULING

20 The applicant brought this application by Notice of Motion under the provisions of Rules 2(21 & 43 of the Judicature (Court of Appeal Rules) Directions and Rules 2(21 &' 4l(l\ of the Judicature (Supreme Court Rules) Directions seeking for orders that: an interim order of stay issues; restraining the respondent, her agcnts, associates, servants, assignees, affiliates, Iicensees or persons claiming under them from executing the dccree and/or orders of the Court of Appeal in Civii Appeal No.231 of 2079 and any other orders arising therefrom and / or evicting the appellant and his or her agents from land comprised in Kyadondo, Block 248 Plot 244 situate at Kawuku, Ggaba, Makindye Division, Kampala until the hearing and determination of

l lPage

5 the substantive appiication pending hearing in this Court and costs of the application be provided for.

### Background

The background to this application as can be discerned from the pleadings is that both the applicant and the respondent are in possession of certificates of title registered in each of their names over the same piece of land comprised in Kyadondo Block 248 PIot 244 situate at Kawuku, Ggaba, Makindye division, Kampala measuring 0.41 ha. The applicant is registered as a proprietor on the original certificate of title as of 2od July, 1976 to date while the respondent is a registered proprietor as of 12ft January, 2001 to date.

The respondent occupied the suit land until 2005 when the applicant evicted her. The respondent then sued the applicant in the High Court, Land Division vide High Court Civil Suit No.72 of 2006 for trespass and fraud' She sought orders of vacant possession, cancellation of the applicant's original certificate of title, general damages and costs. The learned trial Judge found that the applicant was a trespasser on the suit land and granted the respondent all the orders sought. Dissatisfied with the judgment of the High Court, the applicant appealed to this Court and the appeal was dismissed with costs. The appiicant has now filed the instant application for an interim order ofstay of execution of the decree and or orders of this Court in Civil Appeal No'231 of 2019. 15 20 25

### 5 Grounds of the application

The grounds in support of the application are contained in the Notice of Motion supported by an affidavit deponcd by Omer Adam Omer Elfarog stating that the land comprised in Kyadondo Biock 248 Plot 244 situate at Kawuku, Ggaba, Makindye, Kampala was the subject matter in Court of Appeal Civil Appeal No.231 of 2019, Mohammed A. Garelnabi V Diana Irene Nayiga where the learned Justices of Appeal found that the respondent herein was a bonafide purchaser for value without notice on the suit land. That a decree embedding the orders of the Court of Appeal was extracted and the applicant is in physical possession of the suit land.

- The applicant contended that dissatisfied with the decision of this Court, he has filed a Notice of Appeal in accordance with the law and a Memorandum of Appeal in the Supreme Court vide Civil Appeal No. 1 1 of 2022 and' in order not to render his appeal nugatory, the appiicant has filed a substantive application for stay of execution of the decree and/or the orders of this Court 15 - in Civil Appeal No.231 of 2(.:.19 vidc Civil Application No.69 of 2022. Fwrther that the applicant's substantive application No.69 of 2022 has not yet bcen hxed for hearing by this Honourable Court and there is an imminent threat of execution of the decree and/ or orders of this Court in Civil Appeal No.23 I of 2019 and other Court orders arising from the said appeal. That it is just and 20 - equitable in the circumstances to grant an interim stay of execution against the orders issued by this Court in Civii Appeal No.231 of 2019. 25

### 5 Grounds in oppoeition

The respondent opposed the application through an afhdavit in reply sworn by Matovu Peter Paul, the respondent's Attorney stating that there was no serious threat of execution that the applicant seeks the relief of this Court and the substantive application shall not be rcndcred nugatory as there has not been any alleged attempt to cvict the applicant from the suit land. Further that payment of costs in Taxation Application No. 15 of 2O22 arising from Civil Appeal No.231 of 2Ol9 will not jeopardize the applicant's rights in the substantive application or the right of appeal and that eviction or its threat is not sufficient for Court to exercise discretion to grant the orders sought.

#### Representation 15

At the hearing of the application, the applicant was represented by Mr. Ronald Tlrmusiime while Mr. Oscar Kihiika and Mr. Pius Kitamilike appcared for the respondent.

### Applicant's submissions

Counsel for the applicant submitted that Rule 2(21 of the Judicature (Court of Appeal Rules) Directions provides this Court with inherent powers to grant an interim order of stay of execution in deserving cases. He added that onc way of attaining the ends of justice under Rule 2(21 of the Rules of this Court is to preserve the litigant's right of appeal and to ensure that an applicant's substantive application is not rendered nugatory. He relicd ot Chlna Henan InternatLonal Cooperatlon Group Co. Ltd V Justrts Kgabahua, Clrttl Apptlcatlon No.29 of 2O2I for the proposition that the Court is empowered 20 25

5 to issue interim orders as a stop gap measure to ensurc that the substantive application is not rendered nugatory.

Counsel further submitted that this Court and the Supreme Court have concurrent jurisdiction to handle the present application in accordance with Rule 41 (1) of the Judicature (Supreme Court Rules) Directions and for that reason this application has been brought to this Court first. He further submitted that this Court has the power to stay the execution of its own orders where the intcrests of justice warrant the said stay. He relied on

Laurence Muslltuta Kgazze V Eunlce Buslngge, Civll Appllcatlon No.78 ol 7990 for the proposition that each Court has inherent powers to stay its

own decree and orders in appropriate cases upon application by an aggrieved party. 15

Counsel submitted that the applicant had fulfilled all the conditions required before an interim stay of execution can be grantcd to wit; the applicant had fiIed a Notice of Appeal. He stated that the said Notice of Appeal was lodged

- on 18th Marc!;, 2022 and the same was attached to the affidavit in support of the application marked as annexture "D". Secondly, a substantive application was filed in this Court on 7fr April, 2022 vide Civil Application No.69 of 2022 and attached to the affidavit in support of thc application marked as annexture "F". The same is pending hearing and determination by this Court. 20 - Counsel contended that there was a serious threat of execution of the decree and orders arising in Civil Appeal No.23 1 of 2079. He added that the respondent's advocates had commenced execution of the decree of this Court in Civil Appeal No.231 ol 2019 by taxing their Bill of costs and have applied 25

5lPage

5 to this Court to have the said Bill executed. Counsel further submitted that the award of costs is one of the orders of this Court whose execution the applicant intends to stay in his substantive application. in counsel's view, this shows that there is a serious thrcat of execution of the dccree in Civil Appeal No.231 of 2019. He relied on Chlna Henan Intematlonal Cooperatlon Group Co. Ltd V Jrtstus Kgabahua, Chil Applicatlon No,29 of 2021 for the proposition that one of the reasons for grant of an interim order of stay of 10

execution is to ensure that the substantive application is not rendered nugatory. He prayed that the application be granted.

### Respondent's submissions

- Counsel for the respondcnt conceded to the fact that the applicant had filed a competent Notice of Appeal and a substantivc application pending hearing and determination by this Court. He further submitted that there was no serious eminent threat of execution of the decrce and orders in Civil Appeal No.231 of 2Ol9 and further that the applicant's paymcnt of the taxed costs in 15 - taxation application No.15 of 2022 wlll' not jcopardise his right of appeal. Counsel added that the applicant had in paragraph 12 of the afhdavit in support of the application attached an application for execution of the taxed costs to demonstrate a serious thrcat of execution howcvcr in counsel's vicw, it was presumptive to argue that by the attached application the rcspondent 20 - intends to execute other orders of Court including but not limited to evicting the applicant from the suit land. He relied on Rosemary Blnuomukanna & Anor V tlganda wtldlft Authorltg, Ciltll ApplicatTon No.73 oJ 2079 for 5 the proposition that eviction or its threat is not sufficient to convincc Court to exercise its discretion

Counsel further submitted that the applicant can exercise his right to pursue the substantive application and even appeal while the Respondent's costs are paid and the applicant vacates the land comprised in Kyadondo Block 248 Plot 244 situate at Kawuku, Ggaba, Makindye Division in Kampala. Counsel

- prayed that this Court dismisses the application as the applicant's right of appeal will not be rendered nugatory should the application be dismissed. He added that in the event that this Court is inclined to grant the application, it should grant a conditional interim stay of execution by ordering the payment - within a period of thirty days from the date of the order of Court the taxed costs of UGX 20,111,600/= in Taxation Application No.19 of 2022 and performance of the decree in Civil Suit No.72 of 2006 where Court ordered payment of 30 Million as general damages and 9,60O,000/= being the interest of 87o per annum from the date of the judgment till payment in full. 15

## Submisslons in rejoinder 20

Counsel for the applicant submitted that the respondent did not contest to the existence of a valid Notice of Appeal and a substantive application but contested to the existence of a serious threat of execution. He submitted that there was an imminent threat of execution of this Court's decree in Civil

Appeal No.231 of 2079 and the evidence of the imminent threat is in the application seeking to execute onc of the orders of this Court to wit; the order as to costs. He further submitted that the applicant had already taxed her Bill of Costs in Civil Appeal No.231 o{ 2079 and has now commenced execution' 25

TlPage

5 Regarding the respondent's prayer that a conditional stay ofexecution should be granted by this Court in the cvent this Court allows thc application, counsel for the applicant submitted that all the Court nceds to satisfy itself is whether the applicant has fulfilled the 3 conditions rcquired bcfore an interim stay of exccution can be granted. Hc praycd that the intcrim stay of execution be granted. 10

## Court's resolution

I have read the submissions of both counsel and the authorities availed to this Court. The jurisdiction of this Court to grant a stay of exccution is set out in Rules 2(21 and 6(2\ of the Judicature (Court of Appcal Rulcs) Dircctlons which mandate this Court to grant a stay of execution, an injunction or order a stay of proceedings on such terms as the Court may deem fit.

In Zubeda Mohamed. & So;dnt Mohanned. V Latla Kaka Wallla & Anor, Supreme Court Ctril Reterence No.7 of 2076 which cited with approval Huang Sung Industries Ltd V TaJdtn llusseln & 2 Ors, Supreme Court Ctvtl Appllcatlon No.79 of 2OO8 stated as follows;

"For an application for an interim order of stag, it suffices to shoru that a substantiue application k pending and that there is a serious threat of exeantion before the heaing of the pending substantiue application. it is not necessory to pre-empt consideration of matters necessary in deciding whether or not to grant the substantiue application for stag." See Huang Sung Industrles Ltd V TaJdln llussein and 2 ors SCMA No.79 of 2004.

5 In summary, there are three conditions that on applicant must satisfg to justrfg the grant of an inteim order;

- 1. A competent Notice of Appeal; - 2. A substantiue application; and - 3. A seriozs threat of exeantion." - A notice of appeal was filed in this Court on 18th March, 2022 as per annexture "D" attached to the applicant's application. The applicant also filed a Memorandum of Appeal marked as annexture "E". 10

The applicant further Iiled a substantive application referenced as Civil Application No.69 of 2022 and marked as annexture 'F" which is pending hearing and determination before this Court.

As to whether there is a serious and immincnt threat of execution before hearing of the substantive application, counsel for the applicant submitted that there was an imminent threat of execution of this Court's decree in Civil Appeal No.231 of 2Ol9 and the evidence of the imminent threat is in the application seeking to execute one of the orders of this Court to wit; the order as to costs. He further submitted that the applicant had already taxed her Bill

of Costs in Civil Appeal No.231 of 2019 and has now commenced execution.

In reply, counsel for the respondent submitted that there was no serious eminent threat of execution of the decree and orders in Civil Appeal No'231 of

2019 and further that the applicant's payment of the taxed costs in Taxation Application No. 15 of 2022 w111not jeopardise his right of appeal. That it was presumptive to argue that by the attached application the respondent intends 25

5 10 to execute other orders of Court inciuding but not limited to evicting the applicant from the suit land. He added that the applicant can exercise his right to pursue the substantive application and even appeal while the Respondent's costs are paid and the applicant vacates the land comprised in Kyadondo Block 248 Plot 244 situate at Kawuku, Ggaba, Makindye Division in Kampala.

The applicant averred in paragraph 12 of his affidavit in support of the application that there was imminent threat of execution of the decree and/ or orders of this Court in Civil Appeal No.231 of 2019 and other Court orders arising from the said appeal. He attached an application for Execution of Order marked as annexture "G". I have looked at the said annexture and indeed find that there is a serious threat of execution.

For the reasons above, I allow the application and make the following orders:

- 1. An interim order of stay is hereby issued restraining the respondent, her agents, associates, servants, assignees, affiliates, licensees or persons claiming under them from executing the decree and/or orders of the Court of Appeal in Civit Appeal No'231 of 2019 and any other orders arising therefrom and / or evicting the appellant and his or her agents from land comprised in Kyadondo, Block 248 Plot 244 situate at Kawuku, Ggaba, Makindye Division, Kampala pending the determination and final disposal of the substantive application vide Civil Application No.69 of 2022. - 2. The costs of this application shall abide the outcome of the substantive application for stay of execution.

l0 lPage

3. The Registrar of this Court is directed to fix Civil Application No.69 of $\mathsf{S}$ 2022 before a full bench at the next convenient session of the Court.

I so order

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

Cheborion Barishaki

**JUSTICE OF APPEAL**