Kiiza v Bazalirwaki (Civil Application 657 of 2024) [2025] UGCA 44 (13 February 2025)

Full Case Text

5 THE REPUBLIC OF UGANDA IN THE COURT OF APPEAT OF UGANDA AT KAMPALA ctvtl APPLICATIoN NO.657 0F 2024 (Arising from Civil Appeal No.721 of 20241 (Arising from Fort Portal Civil Suit No.018 of 2O2Ol

## YOWANA KIIZA APPLICANT

### VERSUS

### ANDREW BAZALIRWAKI RESPONDENT

# RULING OF MOSES KAZIBWE KAWUMI (Sitting as a single Judge)

The Applicant filed a Notice of Motion under Section 98 of the Civil Procedure Act and Rules 2(2),6(2)(b1,43(1) and 44(Ll of the Court of Appeal Rules, seeking orders thaU 20

- l-. Execution of the Orders in Fort Portal HCCS No.01"8 of 202r ' be stayed pending the hearing and determination of Civil Appeal No.72t of 2024 by this Court. - 2. Cancellation of the Certificate of title for the suit land comprised in Bunyangabu Block 75 Plot 3 be annulled, cancelled and/or set aside pending the hearing and determination of the Applicant's appeal. - 3. The Commissioner Land Registration be directed to rectify the Register by re-instating the Certificate of title to the suit ;anrl comprised in Bunyangabu Block 76 Plot 3 pending the hearing and determination of the Appeal. - 4. Costs of the application be provided for.

Page 1 of 11

- 5 The grounds of the application which are also reiterated in the affidavit in support of the application deposed by the Applicant are summarized below. - i)The Applicant was the losing party in Civil Suit No.018 of 2020 irr the judgment delivered in favour of the Respondent on 5th April 2024. - ii) The Applicant filed an application to stay execution of the decree in Civil Suit No.018 of 2020 and further filed an application to set aside an order for the cancellation of the certificate of title for the suit land but lost on both fronts. - iii)That the cancellation of the certificate of title for the suit land was tainted with fraudl illegalities and the Respondents have sold part of the suit land measuring 30 acres and are in preparations to dispose of the portion occupied by the Applicant. - iv)The Application was filed without any undue delay, the Appeal is not frivolous and the Applicant will suffer irreparable loss if execution is not stayed and cancellation of the title for the suit land is not set aside before the determination of the Appeal.

ln the Affidavit in support of the application, the Applicant details the alleged acts of fraud surrounding the cancellation of the certificate of title to the suit land. The Applicant further deposed to the sale of part of the suit land measuring 30 acres to a one Amos Turyashaba in June 2024 by the Respondent.

The Application was opposed by the Respondent. He contends that the allegations about the fraudulent cancellation of the Certificate of titk: to the suit land cannot be adequately dealt with given that the Registra:' of Titles is not a party to the application.

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- 5 The Respondent contends that Miscellaneous Application No.56 of 2024 for stay of execution of the same decree was dismissed by the court for the reason that the certificate of title for the suit land had been cancelled on 9th May 2024 as ordered by the trial court. - 10 It is deposed by the Respondent that by the time the Court at Fort Pnrtal issued an lnterim relief to the Applicant vide MA No.57 of 2024 the Certificate of title had been cancelled under a valid order of the court which cannot be reversed until the Appeal is determined. - 15 The Respondent contends that he learnt of the cancellation of the certificate of title on 31't July 2024 through his Lawyer Mr. M.ugisa Rwakatooke and he cannot be blamed for the facts which were not in his knowledge at the time of swearing the affidavit in reply. - 20 It is further averred that the interim order acquired by the Applicant could not act retrospectively against the sale of part of the suit land. The Respondent further contends that the Application was not brought in good faith since the Applicant disregarded the decretal order to vacate the suit land within 30 days.

ln an affidavit filed in rejoinder, the Applicant contends that the suit land is approximately 200 acres and his claim as a tenant in equal sh:res with the rest is 50 acres. The entire suit land has not been sold off and the orders sought are for the preservation of the same until the appeal is disposed of.

# Representation

The Applicant was represented by Mr. ,\ndrew Wetaka holding brief for Mr. Nyakana Patrick Mabiiho while Mr. Mugisa Richard appeared for 35 the Respondent.

- 5 Counsel filed submissions which on application were adopted as their arguments for the determination of the application. The submiss ons will not be reproduced but may be referred to where necessary in tht: determination of the issues framed for resolution by the court. - Counsel for the Applicant proposed two issues for resolution by the court;- 10 - i) Whether there is sufficient cause justifying stay of executibn of the decree in HCCS No.018 of 2020 pending the outcome of the Appea l. - 15 - ii) Whether sufficient cause has been shown for annulrnent, cancellation and/or setting aside the execution of the decree in Civil Suit No.018 of 2020 by cancellation of the Certificate of title for land comprised in Bunyangabu Block 76 Plot 3.

# Resolution of the 1st issue

The Applicant submitted that he filed an appeal in this court whi,h is pending determination. That he occupies part of the suit land on whiclr he has a home and grows food to sustain his family. The Applicant submitted thatthe Respondent who has already sold 30 acres plans to sell the part occupied by the Applicant and wil! suffer substantial loss if the application is not granted by this court.

It was submitted by the Applicant that the application was made without undue delay as shown by the acquisition of an interim o'der from the High Court and the subsequent dismissal of a simila,' application by the same court. The Applicant further contends that the Appeal will be rendered nugatory if execution of the decree is not stayed.

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5 It was finally submitted that there is an imminent threat of completing the execution as shown by the fraudulent cancellation of the certificate of title to the suit land. The sale of part of it to a third party further points to the threat to sell off the reniaining portion to the detriment of the Applicant submitted Counse!.

The Respondent on the other hand submitted that the application is an abuse of the court process since execution of the decree in Civil Suit No.018 of 2020 was completed. lt is further submitted that the Commissioner Land Registration acted rightly and in compliance with the Court Order to cancel the certificate of title upon receipt of the Order.

!t was submitted that there is no imminent threat of execution. The court has not issued a Notice to show cause and no bill of costs has beer, filed for taxation or any order to evict the Applicant issued by the trial court. Counsel for the Respondent argued that the Applicant does not deserve the grant of a stay of execution since he has failed to abide by the order to vacate the suit land within the 30 days decreed by the cou rt.

The mandate for this court to order for stay of execution of decre :s is derived from Rule 5(2Xb) of the Judicature (Court of Appeal Rules) Directions S.l. 13-10 which provides that:-

"Subject to sub rule (1) of this rule, the institution of on appeal sholl not operate to suspend ony sentence or to stay execution, but the court may;-

(b) in any civil proceedings, where o notice of appeal hos been lodged in accordonce with rule 76 of these Rules, order a stoy of execution, on injunction, or o stoy oJ proceedings on such terms as the court moy think just."

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5 In the exercise of the jurisdiction conferred on the court by Rule 5(2\(b), the objective the court strives to achieve is for the filed Appeal hot tn be rendered nugatory and for the status quo to be maintained until the appeal is finally determined. lt is also pertinent to note that at this stage the court is not required to investigate the merits of the Appeal. lt is sufficient for the court to establish that the appeal is not frivolous or vexatious. . 10

The considerations for the grant of a stay of execution are uell established. In Lawrence Musiitwa Kyazze V Eunice Busingye. SC Civil Application No.18 of 1990 the court held that:-

"Parties asking for a stay should meet conditions like:

- i) That substontial loss may result to the applicant unless the order is mode. - ii)That the application hos been mode without unreasonable deloy.

iii) That the opplicant hos given security for due performonce of the decree or order os may ultimately be binding upon him."

ln Theodore Ssekikubo &Others V Ttle Attorney General &Andther. Constitutional Application No.06 of 2OL3 the Supreme Court re-stated the principles to consider before granting an order of stay of execu .ion pending appeal. The principles are that :- 30

i) lt must be estoblished thot the opplicont will suffer irreporable damage or thot the oppeal will be rendered nugatory if a stay is not gronted.

5 ii) The opplication must estoblish thot the appeol hos o likelihood of success; or a primo focie cose of his right to appeol.

iii)lf (i) ond (ii) obove have not been established, the court must consider where the bolance of convenience lies.

iv)That the applicont must estoblish that the applicotion was instituted without delay.

I will be guided by the above principles to determine whether the Applicant has met the conditions necessary for the grant of the sought relief. 15

## 1. Likelihood of suffering substantial loss by the applicant

part of the suit land on which he was registered on the certificate of title with others as tenants in common before its cancellation by the Registrar of Titles. The Respondent does not dispute the fact that the Applicant resides on the land but only contends that he has defied the order to vacate the same as ordered by the court in the appealed judgment.

The Applicant submitted that he resides and derives livelihood fronr

What amounts to substantial loss is not necessarily monetary. ln Tropical Commodities Supplies Ltd &Others V lnternational Credit Bank Ltd (200412EA 331 the court observed;

"The phrase substantiol loss does not represent ony particular omount or size; it cannot be quolified by any mothemoticol formula. lt refers to any loss, greot or small or real worth or volue as distinguished from a loss thot is merely nominol."

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5 This court in City Council of Kampala VS Donozio Musisi Sekyay,r. CA Civi! Application No.3 of 2000 defined irreparable loss as "o loss that connot be compensoted for with money."

The Applicant has a home and derives his survival from the part of the suit land he occupies. Any order to force him off the land would result into substantial loss to him and his family and besides, it would render the pending appeal nugatory.

## 2. Whether the application was filed without unreasonable delay

Judgment in Civil Suit No.018 of 2020 was delivered on 5th April 2024 and the Applicant filed a Notice of Appeal on 9th April 2024 following which he sought an interim order that was granted by the Court. The subsequent application for a stay of execution of the decree filed in the trial court was however denied by the court. The filing of the application in this court on 8th November 2024 was without any unreasonable delay. 15 20

## 3. Whether the appeal has any likelihood of success

The Applicant filed a Notice of Appeal and applied for a record of the proceedings in the trial court. At this stage, this court is not required to delve into the full merits of the appeal but to determine if the intended appeal is not frivolous or vexatious. 25

From the Memorandum of Appeal, it can be deduced that there are crucial issues relating to the cancellation of the certificate of title as ordered by the trial court. The cancellation may have affected other common tenants on the land who were not parties to the suit. 30

5 10 Equally substantial are other matters in the Memorandum of Appeal necessitating consideration by the court. lssues of the court relying on hearsay evidence, the alleged illiteracy and minority age of the defendants at the time the land was acquired, the impug ned registration of the Applicant as one of the tenants in common ano thn issue of the effect of the law of limitation on the facts presented to the trial court.

I thus find that the Appeal is not frivolous or vexatious and has a likelihood of success. ln a nutshell the Applicant has made out sufficient justification for the grant of a stay of execution of the decree in Fort Portal Civil Suit No.018 of 2020.

## Resolution of the 2nd issue

20 Whether sufficient cause has been shown for annulment, cancellation and/or setting aside the execution of the decree in Civil Suit No.018 of 2020 by cancellation of the Certificate of title for land comprised in Bunyangabu BlockT6 Plot 3.

25 It is not disputed by the parties that the Registrar of Titles cancellec' the Certificate of title to the suit land comprised in Bunyangabu Bloc;l 76 Plot 3 that was held by the Applicant and others as tenants in common. This was done before the filing of the present application. The purpose of granting an order for stay of execution is to maintain

the status quo pending the determination of the appeal. lt is not to correct what could have wrongly been done before the orders are issued. 30

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5 ln DFCU Bank Ltd VAnn Persis Nakate CACA No.0029 of 2003, the courc observed as follows;-

> 'lt is the poromount duty of a court to which an applicotion to which on applicotion for o stay of execution pending on appeol is mode to see thot the oppeal, if successful, is not rendered nugotory..."

It follows from the above that an order for stay of execution mus,. be prospective and not retrospective since the status quo is what would be prevailing at the time the Order is issued.

The above notwithstanding, any orders relating to the reversal of what is alleged to have been fraudulently done by the Registrar of Titles would amount to handling one of the grounds of Appeal set out in the Memorandum filed by the Applicant.

Such an order would have been issued outside the jurisdiction of this court and an encroachment of the mandate of the full bench that is to hear the appeal. I find no merit in the 2nd issue raised by the Applicant.

- 25 !n summary, the application succeeds in part and I make the following orders; - i)An Order staying execution of the orders of the Court at Fort Portal in HCCS No.018 of 2020 is hereby issued. - 30 ii) The Order for the Applicant to vacate the suit land is hereby stayed pending the determination of Civil Appeal No.721 of 2024.

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5 iii)The Respondent and his servants/agents or persons working under him shall not sell any part of the suit land until the final determination of Civil Appeal No. 721 of 2024 pending in this court.

iv)The costs of this application shall abide the outcome of Civil Appeal No.72L of 2024.

| | +1^ | | |---------------------------------------|-----|------| | Dated and delivered at Kampala this B | of | 025, |

Moses Kazibwe Kawumi Justice of Appeal