Katungulu & Another v Rwabuganda (Miscellaneous Application 4 of 2019) [2019] UGSC 98 (19 May 2019)

Full Case Text

# THE REPUBLIC OF UGANDA

# IN THE SUPREME COURT OF UGANDA AT KAMPALA **MISCELLANEOUS APPLICATION NO. 04 OF 2019** ORIGINATING FROM MISCELLANEOUS APPLICATION No. 3 of 2019 Arising from CIVIL APPEAL NO. 6 OF 2014.

# 1. KATUNGULU JOHN MATOVU

#### **:::::::::::::::::::::::::::::::::::::** 2. MUTANSAVA JOSEPH

### **VERSUS**

# **:::::::::::::::::::::::::::::::::::::** GODFREY RWABUGANDA **REASONS FOR THE RULING**

I heard this application on 11th March, 2019, and dismissed it but promised to give my reasons for the dismissal later. Below are the reasons for the ruling.

This application was brought by notice of motion under rules $2(2)$ , $6(2)$ (b), 42 and 43(1), 44, 50 and 51 of the Judicature (Supreme Court Rules) Directions seeking the following orders:

- An interim order for stay of execution of the judgment and orders of this $(i)$ court's judgment delivered on the 19th December, 2017. - Costs of the application. $(ii)$

These orders were to be given pending the disposal of the substantive application for stay of execution.

A brief background to this application is as follows:

Bitamisi Namuddu, the appellant in Supreme court civil Appeal No. I 6 of 20 14, instituted legal proceedings against Godfrcy Ii.wabuganda, the respondent in this application, and the Registrar of Tittes in the Kiboga District Land Tribunal, in respect of tand comprised in Leasehold Ilegister 645 folio Singo Block 783 Plot 3 Nakatakuli (the suit land) for conversion and trespass. She brought the suit in her capacity as holder o[ letters of administration lor the estate of her deceased father. Her claim was that the respondent was unlawlutly registered as proprietor of the suit land.

The Tribunal and High court held in favour of Bitamisi Namuddu. The High court ordered for cancellation of Godfrey Rwabuganda's name as registered proprietor and granted vacant possession in respect of the suit land'

Bitamisi Namuddu was regisrered as proprietor and Godfrey Rwabuganda was evicted from the suit land.

1'he respondent appealed to the Court olAppeal which allowed the appeal, set aside the decision of the High Court and ordered for the cancellation of Bitamisi Namuddu's name from the register as proprietor of the suit land. The coun also ordered the reinstatement of Godfrey Rwabuganda's name on the Register of Titles'

Namuddu Bitamisi, being dissatisfied with the decision of the court of Appeal appealed to this court which dismissed her appeal and upheld the decision of the court ofAppeal. During the hearing ofthe appeal, the appetlant raised an issue ol the appellant having sold part of the suit to the two applicants' That they were therefbre bona tlde Purchasers.

'l'his issue was a triable issue which could not which should be considered in this but in a trial court. This interim application seeks review of this Court's judgment, and stay ofexecution pending the disposat of the'substantive application tbr review and stay of execution.

The grounds for the application were stated as lbllows:

- (t)The applicants have filcd an apptication in this honorable court vide No. 3of 2019 seeking orders for this court to recall its judgment entered in civil Appeal No. l6 of 2014 for purposes of reviewing and or correcting the errors of facts on record, amending and /or otherwise varying thc same for having affccted the rights of thc applicants unheard' - (2)The applicants have filed an application for stay of cxecution and or effecting of the decision and ordcrs of this honorablc court's judgement entercd in Civil Appeal No. l6 of 20t4, delivered on lgth December,20l8, which will be rendered nugatory if the orders sought herein are not granted and execution is allowed to procecd. - (3)That the said applicants application for stay of execution has high chances of success in that; - (i)Inthcjudgmentandortlerswhoseexecutionssoughttobestaycd' there was an accidcntal slip or omission whercin court inadvertently in its jutlgcmcnt in evaluating the chronology of the transfers and registered proprietors in respect of the suit omittcd to find that the respondent illcgally transferred the land into his names comprised in SINGO LRV 645 FOLIO 9 at Nakatakuli' Mubende District measuring 204 acres, now described as Singo Block 783 plot 3 land at Nakatakuli, Mubende District omittcd to find that the respondent illegally transferred the suit land into his na nlcs.

- (ii) The applicants havc occupied and utilized the suit land since 2009 but the respondent is threatening them with eviction arising out of the impugnetl judgment of this honorable court whose cxecution would affect their said intcrests unhcard. - (iii) The applicants will individually and collectively suffer irreparable damage / loss if thc orders sought herein are not granted as thcy will be subject of eviction from the land where they reside and derive all their livelihood and the said land shall be alienated, transferred or otherwise irrecoverable, before the main application for stay of execution which is pending in this honorable court is heartl and determined and the said application may take long to be heard and finallY determined. - (iv) There is a serious threat as a warrant of execution arising out of thc judgment and decrec entcrcd in Civit Appeal No' l6 of 2014 has beenissuedyetitisthcexecutionthereofthesubstantive application for stay hereto is seeking to stay hence thcre nccessary to stay execution in the intcrim order pending the hcaring and determination of the main application for stay of execution which is pending before this honorable court' - (4)That it is only fair equitable and in the interest of justice that this application should be allowed.

Both applicants swore af't-rdavits in suppo( of the notice of motion. 1'hey averred, among other things, that they were bona fide purchasers lor value without notice who acquired their interests from Bitamisi Namuddu, the registered proprietor of the suit land at the time. They further averred that they have been in possession o[ the said land since 2009 and have developed it. 'l'hey then reiterated the grounds as contained in the notice of motion.

The affidavit in reply was swom by the respondent Rwabuganda Godfrey. He stated among other things that; he had suffered an injustice when he was condemned unheard and that this resulted into his eviction. That he was forced to move to a refugee camp where that his wife died due to the stress of homelessness. He further averred that ever since he won the appeal in this Court in December,2018' the appellant and the applicants have refused to give him vacant possession ofthe land.

In their atfidavits in rejoinder, the applicants reiterated their earlier averrnents.

At the hearing, Mr. Abaine Jonathan appeared for the applicants while Mr. Mugenyi Jesse appeared for the respondent. Both counsel made oral submissions'

# Subnr issions of counsel.

Counsel for the applicants submitted that the applicants were seeking an order for stay of execution to preserve the status quo pending the disposal of the substantive application for stay of execution.

He submitted that the applicants had satisfied the grounds for the grant ofan order for interim stay of execution by the following:

- (l)The lodgment of an application for review in this court vide Civil Application No. 2 of20l9 seeking orders from this court to recall its judgement entered in Civil Appeal No. 16 of 2014 for the purposes of reviewing it and correcting errors having affected the rights ofthe applicants unheard. - (2) Lodgment of an apptication for substantive stay of execution vide Civil Application No.3 of 2019. - (3)The existence of an imminent threat of execution of the decree

- (4)The applicants' application for review would be rendered nugatory if an interim order for stay was not grantcd. - (5)The applicants would suffer irreparable damage if the stay was not granted.

Counsel submitted that the applicants were bonafide purchasers for value without notice and thejudgment ofthis court had adversely affected their interests in the suit land therefore condemning them unheard. Counsel argued that there seemed to be a contradiction in the said judgement since on one hand it appeared to acknowledge third party interests ofthe applicants and on the other hand refused to decide their fate.

He referred court to the letter from the Registrar of Titles, Mityana Land Office' dated 7rh March, 2Ol4,to the Registrar of the Court of Appeal in which the land office sought clarity regarding the fate o[the owners of the 3'd party interests. He lunher argued that the applicants had filed a suit in the High Court and that it was only fair that the court should maintain the status quo pending the determination of their claims that this court seems to acknowledge in its judgment'

Counsel also contended that the court should treat as analogous the application for review to a Notice of Appeal. He relied on the case of Kiganda John and Anor vs. Yakobo M. N Ssenkungu S. C Civil Application No' l6 of 2017'

counsel for the respondent opposed this application. counsel argued that the application for review was misconceived and that the court's decision relating to alleged 3'd party interests was clear and unambiguous. Counsel submitted that the court did not acknowledge the 3'd party interests as alleged by counsel for the applicants. What the court said in the view of counsel for the respondent was that issues conceming 3'd party interests were new matters which were not part of the parties' pleadings and could not be reviewed at this level' On the issue of balance of convenience, counsel submitted that the execution judgment of this court could not be stayed on ground that a case had been filed conceming the suit subject matter.

He argued that according to the affrdavit in reply, the respondent had suffered a great deal since he was evicted from the suit land. He was forced to move to a refugee camp in Masindi ar.rd the stress of moving to a refi.rgee camp led to the death of his wife who was buried on a fiiend's land near a swamp. He thus prayed court to dismiss the application.

In rejoinder, counsel for the applicants argued that the respondent was not staying in arefugee camp but rather in Lubiri Parish. He referred court to Annexture Rl which is a letter from the LCI Lubiri parish showing that the respondent was a resident in his village.

He thus prayed court to grant the application for interim stay in order not to render the application for review and their case in the High Court nugatory.

## Considerntion

The rules goveming the grant ofstay ofexecution are based on rule 6 (2) (b) of the Judicature (Supreme Court Rules) Directions which permits the court to order for stay of execution in any civil proceedings where a notice ofappeal has been filed in accordance with rules 72 of the rules of this court. The aforesaid rule 6(2) (b) provides as follows.

.'subject to sub rule (l) of this rule, the institution ofan appeal shall not operate to suspend any sentcnce or stay execution, but the court may(b) ln any civil proceedings, wherc n notice of appcal has becn lodgcd in accordance with rule 72 of these rulcs, grdcr a stay of execution, an injunction or stay proceedings as thc court may considcr just-"

This court under rule 2(2) is also empowered with wide discretion to make such orders as may be necessary to achieve the ends ofjustice or prevent the abuse of its process as was stated by Okello, JSC, in the case of G. Afro vs. Uganda Breweries Ltd, SCC Appl. No. l2 of 2008. He stated that:

'l he principtes goveming the grant of stay of execution have been explained in various decisions such as: Francis Drake Lubega vs. A. G & 2 Others Misc. Appl. No. 13 of 2015, Theodore sekikubo & others vs. Attorney General SCCA No. 4of 2014, Alcon International Ltd vs. Thc New Vision Printing and Publishing co. Limited & Anor, scMA No.4 of 2010), Hwang sung Industries Ltd vs. Tajdin Hussein and others SCC Appl. No. l9 of 2008, Hon' Mukasa Mbidde & Hon. Micheal Mabikke vs. Law Development centre, Misc. Appl. No. I 5 of 201 5 where this court held that the basic requirements that must be satisfied by an applicant for the grant ofan interim order for stay ofexecution are the following'

- I . 'the applicant should have tlled a notice of appeal and requested for cerrified copies of the judgement and proceedings to enable him or her llle a memorandum of aPPeal' - 2. The applicant should have lodged a substantive application for stay of execution - 3. The applicant must show that there is a serious threat of execution of the judgment and orders being appealed against. - 4. lt must be shown that the substantive application and the appeal will be rendered nugatory if court does not grant the interim order of stay' - 5. It shoutd be shown that the appeal stands a reasonable likelihood ofsuccess.

6. It must be shown that the applicant will suffer irreparable loss if the court does not grant the interim order of stay of execution.

The applicants have not filed a Notice of Appeal firstly because there is no right of appeal against the decision of this court and secondly the applicants were not part of the proceedings in the lower courts. However, counsel for the applicants sought this court's indulgence to treat the application tbr review as being analogous to a Notice of Appeal. He relied on rule 2(2) of this courl's rules and the case of Kiganda John & Anor vs. Yakobo M. N Senkungu (supra) to support this proposition. In that application it was held that a reasonable likelihood ofsuccess is a pre-condition to the decision of whether the application for review should be treated as being equivalent to a Notice of Appeal.

ln this case, thc likelihood of success ol the applicants' application for review is in my view quite limited.'Ihe applicants claim to be bonatlde purchasers fbr value without notice is a claim that is yet to be determined by a trial court. The applicants have indeed filed a case in the High Court to determine the legatity of their alleged interests in the suit land. This court could not determine the claim because it is not a trial court as was stated in its judgment as f,ollows:

"On the issue raised by counsel for the appellant concerning Misc. Appl. No. 174 of 2014, John Katungulu Malovu vs. Rwabuganda and Bitamisi Namuddu regarding third paily interests in the suit land, I om olthe view lhat the suid cloims ruise lriable issues which connol be deciiled by this courl. Furlhermore, lhese ore new mutte\* thul were not port of the purties' pleadings antl which c nnol, therefore, be considered al this level."

In my view, therefore, there is no inconsistency in this decision or elror apparent on the face of the record to warrant the invocation of this court's inherent's power under 2(2) ofthe rules ofthis court.

Before a court can treat an application for review as analogous to a notice ofappeal, the applicant should advance special reasons as to why such should be the case' In the case of Belex Tours and Travel Ltd vs. crane Bank, Misc. Appl. No.21 of 2015, this court rejected an application for stay ofexecution for failure to comply with rule 72 of this court's rules that requires f,or a notice of appeal to be lodged before the court can grant an order for stay of execution. The applicant failed to advance any special circumstances as to why the application for revierv should be regarded as a notice ofaPPeal.

Counsel for the applicants cited the case of Kiganda John & Anor vs. Yakobo M. N. Senkungu (supra) to support his proposition that this court treats their application tbr review as equivalent to a notice of appeal. However, that case must be distinguished from the instant case. In the former case, the applicant's father was the registered proprietor of the suit land when the suit was instituted in the High Court bur was not a party to the suit in the High Court, couft of Appeal and the Suprerne Court. He had applied to be joined as a co-del'endant to the suit in the High Coutt denied by the trial judge.

The court allowed the applicants' application in that case because the court's decision had contravened afticles 28( I ) and 44 (c) ofthe constitution that guarantees the right to be heard which is a fundamental principle in the administration ofjustice' Therefore, in my view, applicant's application for review stands very limited chances of success.

On this ground alone, this application t'ails because the other grounds such as the application for review being rendered nugatory and the existence of a serious threat of execution would alt depend on the sttccess of the likelihood of success of the appl ication for review.

This court cannot interfere with the execution of its own judgement on ground that asuit has been filed in a lower court concerning the same subject matter.

It was for this reason that I dismissed.

This application is dismissed with costs.

atr 2019. Dated a palu this ol'

## JOTHAM TUMWESIGYE

## AG. JUSTICE OF THE SUI'ITEME COUR'T'