Kato and 2 Others v Nalubega (Civil Application No. 381 of 2021) [2022] UGCA 221 (10 August 2022)

# THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT I(AMPALA CIVIL APPLICATION NO. 381 OF 2O2I

lAr-lsing from Miscellaneous Appllcation No, 38O of 20211

5 I. KATO MOSES

t0

2. WASSWA MAGUNDA

3. KIMULI SAMUELAPPLICANTJ

APPLICANTS

### VERSUS

#### NALUBEGA PAULINE :RESPONDENT

### RULING

The Applicants brought this application under rules 2(2) (bl, 42 and 43 of the Judicature (Court of Appeal Rules) Directions S.l 13- 10. They sought for an interim order for stay of execution of an order issued in the High Court at Mukono in Miscellaneous Application No. 20 of 2079 and for the costs of the application.

The grounds of the application were briefly stated in the application and set out at length in the affidavits in support of the application sworn by Kato Moses and Kimuli Samuel, the 1st and 3.d applicants, respectively, on l"t December 2021.

20 The grounds stated in the application were that the applicants filed an application for stay of execution as Court of Appeal Miscellaneous Application No. 380 of 2021 and an appeal registered as Court of Appeal Civil Appeal No. 383 of 2021.

The applicants further stated that there is a serious threat of execution of the order issued in Mukono HCMA 20 of 2Ol9 against the applicants.

1/'L"v

Copies of the Application for Execution and a Notice to Show Cause Why Execution should not issue were attached to their afhdavits as Annexure Bl and 82. The applicants further averred that they filed an application for stay of execution in Mukono HCMA No. 28 of 2027 and the same was dismissed by, Batema, J. They contended that the said trial Judge visited the loans in qto and incited "mob justice" upon them to demolish their home and destroy their food crops without according them the right to be heard.

They further averred that the statement by the Judge that they used an Interim Order in Jinja HCMA No. 156 of 2016 to gain possession of the land in question was baseless since they were born and raised on the said land. Further that they were not in contempt of court when they gained possession of the land because the order in HCMA 156 of 2016 was to the effect that the status quo on the land ought to be maintained. 10

They contended that they were already on the land so that is what was maintained by the said order. 15

The applicants contended that the ruling in HCMA No. 20 of 2027 was never read in open court; that they only came to know about it when the l"t and 2",1 applicants visited the court on 21"t January 2027 to check on the progress of the matter. That as a result, the issue of execution proceedings before receiving a judgment notice from the court was premature.

The applicants claim that the land in dispute which is comprised in Kyaggwe Block 101 Plot 279 at Misindye is their home where they live and derive their subsistence. That they will suffer irreparable loss if this application is not granted. Further, that HCCS No. 505 of 2018 was dismissed on technicalities of procedure and as such, HCCS No. 2OO of 20 l9 which was hled instead of the former suit has a high likelihood of success. And that the said suit together with the main application for

5,r{\*

stay of execution in this court, Application No. 380 of 202 1, will be rendered nugatory if this order is not granted. And that HCMA No. 379 of2Ol2, HCCS No. 264 of2Ol8 and HCCS No.200 of2019, pertaining to the land in dispute pending before the High Court at Mukono will also be rendered nugatory. Further that the applicants will be denied a chance to be heard to defend their claim of ownership of the land if this application is not granted. That it is in the interests of justice that execution of the order in Miscelianeous Application No. 20 of 2Ol9 be stayed pending the determination of the main application in this court for stay of execution.

The respondent opposed the application in an affidavit in reply sworn on 2oth January 2022 and filed in this court on the same day. She stated that the application hled by the applicants does not satisfy the conditions for grant of the order sought because it is full of falsehoods, incurably defective, misconceived and bad in law.

The respondent further averred that the Notice of Appeal (Annexure A to the affidavits in support) Iiled by the applicants in this court on 29th January 2021 is incurabiy defective because it shows that it was filed in respect of a ruling dated 2l"t January 2021, which is a day before the ruling of court it seeks to appeal against which was pronounced on 22^a January 2021 . That the Notice of Appeal attached bears no signature of the Registrar and the seal of the Court to show that it was duly received

by the court.

The respondent further contended that upon a visit to til.e locus in quo, it was established by Batema, J who heard the applicant's HCMA No 28 of 2021, as he stated in his ruling, that the applicants were never resident on the suit land and did not have a family home thereon as alleged. That it was further stated in the ruiing that the applicants erected a small room on the land in an attempt to misguide court that 25

fr\*

it was their family home. That the applicants therefore do not come to this court with clean hands.

5 She further contended that on l"t March, 2021, the applicants, well aware of the orders issued in HCMA No 20 of 2Ol9 began to dig a foundation on the land in dispute in an attempt to expand the oneroomed house that they had recently constructed on the land. That in total disregard of the orders issued in Miscellaneous Cause No. 2O of 2019, the construction ensued after the applicants filed HCMA No. 28 of 2021 for stay of execution of the said orders. That the attempts by the applicants to commence construction was reported to the Distrlct Police Commander, Mukono District who deployed police officers to stop any further construction on the suit land. 10

The respondent further averred that contrary to the assertions of the applicant that it was not, the ruling in HCMA No. 20 of 2Ol9 was read in open court by the Chief Magistrate at Mukono on the orders of the Deputy Registrar of the High Court, after issuing a ruling notice dated <sup>1</sup>7th December, 2O2O. Further that execution proceedings in Misc. Application No. 20 of 2079 are long overdue and are further being delayed by the applicants' filing multiple applications, including the one now before court, in the hope that the respondent will give up or pass on before the matter is concluded. 15 20

She further averred that she is informed by her advocates that the filing of High Court Civil Suit 2O0 of 2Ol9 was in violation of the lis pendens rule since it was filed in the pendency of Miscellaneous Cause No. 20 of 2019, '"l'hich properly canvassed all issues in the said civil suit. Further that she committed no fraud when the land in dispute was transferred and the allegations of the applicants in that regard are baseless and u,ithout proof. She added that she cultivated and utilized the suit land 25 30

f/\*

I

since 1984 when her late husband purchased it from the late William Maganda, till 2016 when she was evicted using an interim order to maintain the status quo issued by the High Court at Jinja.

5 The respondent further averred that the allegations that the applican.ts will lose their home if this application is not granted are meant to totally mislead this Court. That instead it is she that has been denied her livelihood and sustenance from using the suit land. She thus prayed that this application be dismissed for being grossly marred with lies and falsehoods.

At the hearing of the application, the applicants were represented by Ms Judith T\-rmusiime from Katende Ssempbwa & Co Advocates. Mr Muhammed Imran of Imran Advocates & Solicitors represented tire respondent. The advocates addressed court briefly to clarify on the contents of the affidavits filed by the parties. The application was therefore disposed of on the basis of their brief submissions and knou,n 10 15

legal principles relating to disposal of such applications.

## Submissions of counsel

Counsel for the applicant was put to task as to why she liled an application for stay of execution in this court when there were still sults in the High Court at Mukono. She explained that they lodged Civil Appeal No. 283 of 2021 in this court in which they seek to set aside the orders in Mukono HCMA No 20 of 2019. That the orders that they seek to appeal against are in respect of the dismissal of HCCS No 264 of 2O18 between the parties to this application. That the suit was dismissed on a technicality that it did not disclose a cause of action. Further that HCCS No 505 of 2018 was similarly dismissed. 20

Counsel explained that the applicants a-lso filed HCCS No 2OO of 2019. She said that the applicants were unable to get an order to stay

'yt^

execution of the orders in HCMA No 20 of 202 1 because the Judge, Batema, J. ordered that all applications pending hearing in the High Court at Mukono would be stayed until the final disposal of the appeal pending before this court as Civil Appeal No. 283 of 2021.

- 5 Counsel further explained that by the order referred to above, issued in HCMC No 2a of 2021, Judge Batema also stayed the hearing of HCCS No 200 of 2019. That this order was contained in the ruling of the Judge, Anne:nrre 'C' to the affidavit in support, in which the judge dismissed the applicant's application for stay of execution. She referred - me to the last page of that order where it was stated that "until a fresh sutt is brought before this court there is no substantiue suit because u.te shall not reinstate a suit struck out for disclosing no cause of action. " 10

When Ms Tumusiime was put to task about the fact that it was inconceivable that the judge could refuse to hear a suit before him, HCCS No 2OO of 2019, she said she would produce the order to prove that to court. She undertook to produce a copy of the order on the 24tt' January 2022.

Ms Thmusiime further explained that HCCS No 200 of 2019 was different from the other two suits that were dismissed in that the causes of action were trespass and fraud. That the element of fraud made Civil Suit No 2OO of 2Ol9 different from the two suits that were dismissed earlier by the court.

In reply, Mr Imran explained that HCCS No 264 of 2018 was allotted that number in Mukono when it was made a High Court circuit, the suit having been transferred from the High Court sitting at Jinja. That the suit was dismissed upon an application frled by the respondent, HCMC No 20 of 20 19. That before this application was determined by the court, the applicants filed HCCS 2OO of 2019. He argued that the ftling of the

5,\* <sup>6</sup>

latter was contrary to the /is pendens ru1e. He explained that there was already a suit in the same court yet to be decided in HCMC No 20 of 20 19, whose ruling was delivered on 22"d January 2021 . That therefore, no suit could be filed where there was still a pending matter before the court on the same subject.

He argued that what this court ought to consider in this application is whether the dismissal of HCMA No 2O of 2O19 has a bearing on the application now before court. In as far as the previous suits were concerned, he submitted that Batema, J. was correct when he ruled that until a fresh suit is filed before court, the court could not dwell on matters that had already been disposed of because the suits filed by the applicant were a replica of those that had already been dismissed by the court. He affirmed that what the applicants seek from this court is for the property in dispute to be saved from execution pending the disposal of Civil Appeal No 38O of 2021, now pending before this court.

# Determination

The principles to be considered by this court before granting of an interim order for stay of execution were re-stated in Kyambogo University v. Professor Isaiah Omolo Ndlege, Civil Application No. 34 of 2013 where Kakuru, JA, stated (7) conditions that must be satisfred before an (interim) order is granted by the court as follows:

- i. The applicant has lodged a notice ofappeal in accordance with rule 76 of the Rules of this court; - ii. There is a substantive application for stay of execution filed and pending hearing in this court - iii. The substantive application and the appeal are not frivolous and they have a likelihood of success;

1,rr\*

- There is a serious imminent threat of execution of the decree or order and that if the application is not granted the main application and the appeal will be rendered nugatory; lv. - The application was made without unreasonable delay;

- vl. The applicant is prepared to grant security for due performance of the decree, and - vl l. The refusal to grant the stay would inflict greater hardship than it would avoid.

The evidence on record shows that the hrst and second requirements above have been satisfied by the applicants. They lodged an appeal in this court as Civil Appeal No 383 of 2021, which is pending hearing. They also lodged Civil Application No. 38O of 202 1, which too is pending hearing before this court.

15 20 With regard to the third principle, whether the appeal before this court has a likelihood of success and is not merely frivolous and vexation, counsel for the applicant explained that the appeal is against the order of the High Court at Mukono in HCMC No 20 of 2019, in which two suits in respect of the land in dispute were dismissed on preliminary points of law. In their affidavits in support of the application, the applicants assert that the appeal has a strong likelihood of success. The applicant's claim that HCMC No 20 of 2019 was never heard by the court so raising a ground of appeal and evidence that the main application in this court should succeed.

However, there is evidence on the record that the High Court at Mukono, on the 17th December 2O2O, issued a ruling notice to all counsel in the matter, including M/s Katende, Ssempebwa & Co. Advocates. And according to the order under appeal, the ruling was delivered by the Assistant Registrar, Mary Ikit, in the presence ofthe advocates for the respondent, though Ms T\rmusiime for the

Atttu

applicants was absent. Nonetheless, the applicants came to know about the ruling and filed the appeal now pending hearing in this court.

The applicants do not vouch for the likelihood of success of their appeal before this court. However, in paragraph 13 of their similar afhdavits in support of their application they averred as follows:

"That I haue been informed bg mg lautgers Ms Katende, Ssempebua & Co Aduocates, uthich information I belieue to be true and correct that HCMC No 2O of 2019 dismissed the Applicants' suit HCCS No 505 of 2O18 on technicalities of procedure and the 3d applicant filed HCCS No 2OO of 2O19 pending before the Mukono High Court uith a likelihood of success. (A copg ofthe Plaint in Mukono HCCS No 200 of 20 19 is attached marked D)."

In HCMC No 2O of 2O19, Mutonyi, J, the trial judge, deemed it fit to dismiss HCCS No 5O5 of 2O18 and in doing so, she pointed out that the applicants brought the suit as beneficiaries to the estate of the deceased under whom they claimed title or an interest in the land. She referred to the mandatory requirements of Order 6 rule I of the Civil Procedure Rules (CPR) that every pleading shall contain a brief statement of the 15

material facts on which the party pleading relies for a claim or defence, as the case may be. Further that the applicants omitted to indicate how they came to sue as beneficiaries to the land in dispute. She pointed out that Part V of the Succession Act gives an elaborate description of the persons entitled to a deceased's estate as beneficiaries and the respondents, now the applicants, did not give any particulars about their entitiement to sue as beneficiaries. She then ruled as follows: 20 25

> "I agree uith the submissions of counsel for the applicant that the respondents ought to haue giuen mateial particulars to help this court understand their capacitg to bing HCCS No 505 of 2O18. Mere mention that theg are beneficiaies of the estate of the late William Magunda tuithout giuing further particulars as to what makes/ entitles them as beneficiaies is not enough.

a s ( l/d\"'

I thus find that the failure bg the respondents to giue mateial facts of their beneficial capacitg in the estate of the late William Magunda renders their plaint defectiue as theg lack the reEtisite capacitg/ Iocus standi to file this suit.

The trial judge relied on the decision of Bashiaja Andrew, J. in Fakrudin Vallihai Kapasi & Another v. Kampala District Land Board & Another, HCCS No 57O of 2O15, where it was held that loans stan.di whether in the capacity of beneficiary, administrators or executors, must be expressly established at the time when the plaint is filed by attaching proof of it thereto. That the requirement is meant to enable court and the defendant to know with clarity the basis of the plaintiff's claim. (See also Israel Kabwa v. Martin Banoba, SCCA No. 52 of 1995).

It is indeed important that the source of the plaintifl's right to sue be clearly shown in the plaint. In this case, it was not and the suit was dismissed for that reason. The applicants thus brought another suit against the respondent with similar claims in HCCS 200 of 2019. In that suit, the 1"t applicant claims to be one of the administrators of the

estate of the deceased, while the 3.a applicant is stated to be <sup>a</sup> beneficiary, but with specific details as to how he is entitled to be one. 20

While the filing of HCCS No 2OO of 2Ol9 attempts to cure the defect in the dismissed HCCS 505 of 2018, it does not contribute to making <sup>a</sup> finding that the appeal pending before this court has a strong likelihood of success. Instead it is an admission that HCCS No 5O5 of 2018 was properly dismissed by the trial judge in HCMC 20 of 2018, for failure to disclose the standing of the plaintiff therein to file the suit.

The trial judge in HCMC No. 20 of2018 did advance another reason for the dismissal of the suit. She found that it was ltled in 2018, 20 years

<sup>10</sup> ryc\* after the land in dispute was transferred to the late Kawadwa, the husband of the respondent from who she derived her interest. In conclusion of this point she held as follows:

"As stated aboue the cause of action arose in 1998 u.then the late Andrew Kawadwa was registered on the certificate of title and the plaint in HCCS No 5O5 of 2018 u.tas filed in 2O18, 20 gears later. The plaintiff did not plead ang grounds for exemption from limitation. I thus f.nd that HCCS No 505 of 2O 18 is time barred and dlsmiss the same."

My quick analysis of the facts upon which the appeal is based shows that it has limited chances of success, especially because the applicants tried to remedy the lapses or shortcomings in HCCS 5O5 of 2O18 by Iiling a new suit in the same court. Indeed, it is this suit that they claim has a strong likelihood of success, not the appeal pending before this court. They then aver that if this application for stay of execution is not granted, HCCS 2OO of 2Ol9 will be rendered nugatory. 10 15

In HCCS 2OO of 2019, tlre applicants contend that the transfer of the land in dispute to the late Kawadwa was effected fraudulently. That seems to be the new claim which was not in the suits that were dismissed, the subject of the appeal pending before this court. The issue has not been decided and so this court cannot make a determination as to whether it will be successful or not.

Nonetheless, during the hearing of this application, Counsel for the applicants brought it to the attention of court that in the process of dismissing the application for stay of execution in HCMC No 28 of 2O19, the trial judge stayed all proceedings in the High Court at Mukono, including HCCS No 2OO of 2()19, which they claim has a high likelihood of success. The allegation that the trial judge stayed a suit which was pending hearing till the conclusion of an appeal in this court,

fr\*

though relating to the same property to me sounded incredible.

The appeal in this court is against an order issued by Mutonyi, J. dismissing Mukono HCCS No 5OS of 2O18, brought by the applicant against the respondent in this application, because she found that it was barred by limitation, as well as the applicants having no locus to bring the suit.

After she asserted that Batema, J. stayed the hearing of HCCS 2OO ol 2O19, which was filed after the dismissal of HCCS No. 5OS of 2O18 to replace the suit that was dismissed by Mutonyi, J., (HCCS 5OS of 2O18) I requested Ms Ttrmusiime to produce the order to prove that the judge indeed stayed all proceedings in that court relating to the same dispute as she alleged. This was particularly so because the ruling from which she alleged the order arose in fact recommended that the parties had the option of hling a fresh suit to show that they had the locus standi to do so.

Ms T\rmusiime undertook to produce the order by Monday, 24th January 2022. Slre accordingly produced an order attached to a letter to the Registrar, said to have been issued on 2"d November 2021, and signed by Batema, J., in Mlscellaneous Appllcatior No 2a of 2021, arising from among others, HCCS No 2OO ol 2019. Following that, the 15

Registrar drew my attention to a letter addressed to her dated 25th January 2022 from counsel for the respondent challenging the order that was proffered by Ms Tumussime. In the letter, Imran Advocates & Solicitors stated that the order that was presented to court by Ms T\rmusiime was a forgery. That it was altered in its heading to refer to 20

HCCS 2OO of 2019, but was actually an order that was issued in respect of HCCS No 5O5 of 2O19. Copies of the two conflicting orders were attached to the letter. 25

I carefully examined the two copies of the orders in issue. I observed that the order attached to the letter from counsel for the applicants, Ms

fla/L

Ttrmusiime, showed that it was issued by Batema, J on 2"d November 2021, in Misc. Application No 28 of 2021, arising from Misc Cause No 20 of 2019, HCCS No 2OO of 2Ol9 and HCCS No 264 of 2018, formerly Jinja HCCS No 92 of 2016. lt was stated therein that it was issued in the presence of Ms Judith Tumusiime, counsel for the applicants and Mr Imran Muhamed, counsel for the respondent. It read as follows:

"All pending Applications, Suits and matters pending before thls court are staged until final disposal of the apoeal before the CourA o'f Appeal ln Kdmpd.la ln HCMC No. 2O of 2O79."

On the other hand, Imran Advocates & Solicitors drew it to the attention of court, through the Registrar, that the order that was issued by the trial judge on 2"d November 2O2l was in of Misc Application 28 of 2021, arising from Misc. Cause 20 of 2019, HCCS No 505 of 2018, arising from HCCS No 264 of 2018, formerly Jinja HCCS No 92 of 2016. It was also stated therein that the order was issued in the presence of Ms T\rmusiime and Mr Imaran. It read as follows: 10 15

> "AII pend.ing Applications, Suits and matters before the Deputu Reoistrar be staged until the flnal dlsposal and ntlino in Mlscellaneous Applica.tlon No. 28 of 2027."

The major differences in the two orders therefore were that while the order submitted to the court by Ms Ttrmusiime included HCCS 200 of 2019, the order that was presented by Mr Imaran referred to HCCS No 505 of 128 /src/. The error in the year of registration seems to have been a computerised typographic error in the order. It was carried into the ruling of the judge which too referred to "HCCS No 5O5 of 128". From the records on file, it seems this was meant to be HCCS No 5O5 of 2018. 20 25

Secondly, while the order presented by Ms Tlrmusiime referred to a stay of proceedings till hearing and final disposal of an appeal before this

f,ltu

court in HCMC No 20 of 2019, the order that was drawn to the attention of court by counsel for the respondent referred to a stay of all proceedings before the Registrar till final disposal of and delivery of a ruling in HCMC No 28 of 2019, pending in the same court.

I observed that both copies of orders were not certified by the court said $\mathsf{S}$ to have issued them. However, both counsel having been present when the order in dispute was issued by the court had access to the correct order, since they represented the parties to the dispute. I therefore have no doubt that the order drawn to the attention of court by counsel for the respondent was a genuine order, though not cetified by the registrar. 10 Moreover, rule 17 (1) of the Advocates (Professional Conduct) Regulations (SI 267-2) provides for the duty of an advocate to advise the court on matters within his or her knowledge in the following terms:

# "(1) An advocate conducting a case or matter shall not allow a court to be misled by remaining silent about a matter within his or her knowledge which a reasonable person would realise, if made known to the court, would affect its proceedings, decision or judgment."

It was therefore incumbent upon Mr Muhamad Imran to inform court that the order that Ms Tumusimme produced in these proceeding in 20 which they both appeared as learned counsel for each of the parties, appeared to be a forgery.

I observed that the order presented by Ms Tumusiime appeared to have alterations in its material particulars, represented by black lines above and below the words and figures which could have been altered. This 25 was clearly evident in the heading were the numerals "200" and "2019" appear to have been inserted. It was also evident in the body of the order where the words "pending before this court" and "Appeal before the Court of Appeal Kampala in HCMS No. 20 of 2019", appeared to have been inserted to replace other words. The order that was produced by Ms 30

Ixor.

Tumusiime indeed looked suspicious, both on the face of it and within the context of the litigation in the High Court and this court.

The ruling of Batema, J. in **HCMA No 28 of 2019** was already on file in this application. It showed that it was in respect of an application to

stay execution of the orders of Mutonyi, J. in HCMC No 20 of 2019. 5 The ruling detailed a visit to the *locus in quo* by the judge to establish whether the allegations made by the applicants in the application to stay execution that they were resident on the land in dispute were true. This would necessitate the issue of an order to stay execution of the orders of Mutonyi, J. to reinstate the respondent on the land as 10 beneficiary to the estate of the registered proprietor thereof, and so maintain the status quo before the applicants are evicted from the land. In his ruling dated 23<sup>rd</sup> November 2021, Batema, J. found and held as

follows:

"My visit to the locus in quo confirmed to this court that the applicants applied for an injunction and got it vide Misc. Application 218 of 2016 at Jinja.

The applicants used this injunction as an eviction order and threw Paulina Nalubega out of the suit land since then. In that abuse of court *process, the applicants argue that they have lived here for decades.*

No. The injunction was not an eviction order. The injunction in fact maintains Paulina Nalubega on the suit land until the case is disposed of. But now this court struck out the suit by the applicants for disclosing no cause of action, the applicants have no basis at all for being on the *suit land and constructing kiosks for rent.*

*Until the land title is cancelled, the suit land remains the property of the* respondent who is the recognised widow administering the estate of the late Andrew Kawadwa Kaggwa.

Until a fresh suit is brought to this court, there is no valid substantive suit because we shall not reinstate a suit struck out for disclosing no cause of action.

*The applicants have no cause of action and therefore are not entitled to any stay of execution.*

Iron.

The applicotion for stag of execution is dismissed uith costs."

# {Mg Emphasts}

After he dismissed the application on the 23,a of November 2021, the judge ordered that execution of the orders of the court (in HCMC No 20 of 20211 do commence and that all developments on the land by anyone deriving title from the applicants here should be demolished forthutith, and the suit land handed over to the respondent.

In view ofthe fact that thejudge encouraged the applicants to file a suit that disclosed a cause of action in respect of the land in dispute, to replace the two that were dismissed, it was inconceivable that he would in the knowledge that they did so in HCCS No 2OO of 2019, stay the hearing of that same suit he advised them to file.

In addition, I did not see any order staying the hearing of HCCS No. 2OO of 2Ol9 in the ruling in HCMA No 28 of 2021, as Ms Tlrmusiime 15 asserted before me. In view of these inconsistencies and contradictions, I requested the Registrar of this court to establish from the trial court from the files in HCCS 2OO of 2019, I(izza David & Kimuli Samuel v Nalubega Pauline & Administrator General, and HCMA No 2O of 2O19, the subject of the appeal in this court registered as Clvil Appeal 20 No. 383 of 2O2l, as well as HCMA 28 of 2021, whether there was indeed an order issued in the terms alleged by Ms Tumusiime, by any of the judges in the proceedings in issue.

In a letter dated the 8th February 2022, the Registrar of this court requested the Registrar at Mukono to verify whether the suspicious order was issued by Batema NDA, J, on the 2"a November 2O2l as it was stated therein. The Registrar at Mukono responded to the inquiry in a letter dated 10tt February 2022. She informed the Registrar of this

7\*

court that the learned trial judge denied that he issued the contentious order. C)n the copy of the order that was shown to him he stated thus:

"DR

- 1. This is not mg signature. It is forged.

2. The content is contrary to mg ruling on record.

#### Stgred,

## Judge 1O. O2.22'

Attached to the letter was a certilied copy of the judge's National Identity Card which has a specimen of his correct signature.

10 It is therefore clear from the letter from the Deputy Registrar of the High Court at Mukono that Ms Tumusiime produced a forged order before this court. This was done in a bid to persuade me to issue an interim order for stay of execution in order to protect the property in dispute in HCCS No 2OO of 2079 in the High Court at Mukono till that suit is ls disposed of by that court. All the facts averred to by the applicants in their affidavits in paragraphs 13 to 22 were meant to persuade this court to issue the order, but they referred to the likelihood of success of the suit pending in Mukono, not the appeal pending before this court.

For her unmitigated temerity to produce a forged order before this court, Ms T\rmusiime ought to face the consequences of her actions. Whether she participated in forging the order or procured her clients to do so, the production ofa forged document is an offence. Forgery of a judicial or official document is proscribed by section 349 ofthe Penal Code Act. "Ang person tuho forges any judicial or official document is liable to impisonment for ten gears." 20 25

It is also an offence to utter a false document and in that regard, section 351 of the Penal Code Act provides that:

# "Any person who knowlngly and fraudulently utters a false document commits an olfence of the same klnd and ls llable to the same punlshment as if he or she had forged the thlng in questlon."

5 It is therefore befitting that the Registrar of this Court informs the Secretary of the Law Council about the conduct of Ms Ttrmusiime in this matter, which shall take the necessary disciplinary action against her.

And in the end result, the applicants have not satisfied the requirement that before an order to stay execution is granted by this court, the substantive application pending before it, and the appeal should have a likelihood of success.

As to whether there is a serious imminent threat of execution of the decree or order against the applicants, the evidence on record from HCMA I{o 28 of 2021, in which their application for stay of executicn was denied by Batema, J on 23.a November 2O21, is that the eviction order was issued because the applicants were proved not to be resident on or in possession of the land in dispute. They had gained control thereof by unlaw{ully evicting the respondent from it. The Judge established at the /ocus in quo that their known residence was <sup>a</sup> distance away from the land, but they made efforts after the order was issued in HCMC No 2O Of 2O18, the subject of the appeal in this court, to take possession of the land by constructing a building thereon and letting out space to other persons to construct kiosks. Photographs of the structures were produced in evidence before this court and marked 'E' and (Fr' attached to the affidavit of the respondent opposing the application. 15 20 25

I therefore came to the conclusion that the order of Batema, J. in HCMA No 28 of 2O2l was directed at demolition of such developments by the applicants and other persons that they brought onto the land after the

order that is under appeal in this court was issued. I am therefore unable to conclude that there is a serious and imminent threat of eviction against the applicants from their known home, as they allege.

And much as the application was made without unreasonable delay, 5 there is no evidence on record that the applicants are willing to guarantee security for the performance of the orders issued in HCMC No 2O of 2019. Indeed, the appeal before this court is not their reason for seeking an interim order for stay of execution. Rather, it is the pending suit in the High Court at Mukono, No 200 of 2019. In view of 10 that suit, the applicants believe they have a right to an order from this court to stay execution pending the appeal, which is a fallacy.

Finally, as to whether refusal to grant the order to stay execution would inflict greater hardship than it would avoid, I am of the view that it would not inflict any hardship at all on the applicants, save for possible refunds of monies taken from unlawful tenants on the land. But so be it, because the applicants' actions are in blatant abuse of the processes of this court and the trial court.

20 In conclusion, it is clear that the applicants seek an interim order for stay of execution from this court because they have a pending suit in the High Court at Mukono, connected to an appeal pending before this court. The correct court to issue such an order would be the court before which the suit is pending hearing, not this court. The applicants are therefore advised to pursue their cause in the High Court at Mukono in HCCS No 2OO or 2079.

zs This application is therefore dismissed with costs to the respondent.

It is further ordered that the Deputy Registrar of this court sends a copy of this ruling to the Secretary to the Uganda Law Council. She should also lodge a complaint with the Council about the unprofessional and

possible criminal conduct of Ms Tumusiime in these proceedings, with a view to the Council taking disciplinary action against her.

$\bigcup_{\text{day of } -}$ Dated at Kampala this $\perp$ Ang 2022. Irene Esther Mu onja

**JUSTICE OF APPEAL**

$10$

$\mathsf{S}$

١