Kisekka v Mugulula (Miscellaneous Application 59 of 2021) [2023] UGHC 369 (30 May 2023)

# **THE REPUBLIC OF UGANDA THE HIGH COURT OF UGANDA AT MASAKA MISCELLANEOUS APPLICATION NO.59 OF 2021 (ARISING FROM HIGH COURT CIVIL APPEAL NO.88 OF 2016) (ARISING FROM THE CHIEF MAGISTRATES COURT AT MASAKA CIVIL SUIT NO. 19 OF 2010)**

# **KISEKKA JOSEPH:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPLICANT VERSUS**

**MUGULULA**

**JOHN::::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT.**

# *Before; Hon. Justice Victoria Nakintu Nkwanga Katamba*

# **RULING**

This Application was brought under Section 98 of the Civil Procedure Act, Order 43 Rules 2, 4 and 6, Order 41 of the Civil Procedure Rules and Rule 43 of the Judicature (Court of Appeal Rules) Directions, seeking orders that;

1. The execution of the decree in High Court Civil Appeal. No.88 of 2018 be stayed pending the hearing and determination of the Appeal in the Court of Appeal.

2. Costs of the Application be provided for.

The grounds in support of this application are contained in an affidavit deponed by the Applicant, where he states as follows that;

1. He has appealed to the Court of Appeal from a decision of this Court in High Court Civil Appeal No.88 0f 2020.

2. He filed a notice of appeal on 12th March 2020.

3. After filing the notice of appeal, the country went into a lock down due to the COVID 19 pandemic.

4. He has applied for certified record of proceedings.

5. The Respondent filed a bill of costs and taxation hearing notices were served on him.

6. He stands to suffer substantial loss if the Applicant proceeds with execution of the decree and sell of the properties, kibanja and the developments thereon to third parties. 7. The Appeal has high chances of success because it is based on this Court's failure to reevaluate evidence.

8. The Application has been brought without delay.

An affidavit in reply was deponed by the Respondent where he states as follows that;

1. He was the successful party in the trial Court and in the High Court on appeal.

2. A notice of appeal was filed but there is no appeal filed in the Court of Appeal.

3. Execution was commenced on 2nd September 2020 by a letter addressed to the trial Court and that an eviction notice was issued on 11th February 2021.

4. There is no execution to stay because the Respondent already took vacant possession on 23rd February 2022 and the Applicant already paid Ugx. 3,000,000 of the total Ugx. 15,036,200/= as the taxed bill of costs.

5. The Applicant went into hiding and the Respondent was unable to locate him.

6. The Applicant shall not suffer any substantial loss because he has since abandoned the suit property.

In rejoinder, the Applicant stated as follows that;

1. A notice of appeal was filed, it has never been withdrawn and therefore, it is sufficient to constitute an appeal.

2. Execution has not been concluded.

3. A notice of eviction was issued but no eviction has taken place and the Applicant is still in possession.

Both Parties filed written submissions.

#### **Submissions for the Applicant.**

Counsel relied on the case of Gashumba versus Sam Nkundiya, SCCA. No.24 of 2015 to establish the grounds for grant of a stay of execution which are;

1. Likelihood of success of the Appeal or existence of a prima facie case.

2. The Applicant suffering irreparable damage or the appeal being rendered nugatory if execution is to issue.

3. Balance of convenience in the event the Court has failed to resolve the Application on the first two grounds.


Counsel submitted that the Appeal has a likelihood of success because it is based on the fact that the Court held that time was of the essence in the land sale transaction which was not the case.

He also submitted that the Applicant shall suffer irreparable damage because if execution is to issue, the Applicant shall be evicted and the land sold off and yet from the suit land is where he derives sustenance.

It was also submitted that the execution process commenced however the same has never been concluded. Counsel relied on the case of **Hwang Sung Industries Limited versus Tajdin Hussein and others, Civil Application No.19 of 2008** to support the preceding proposition.

Lastly, Counsel submitted that the Application was brought after a notice of appeal was filed and as a result, there was no delay in bringing the application. That the balance of convenience is in the Applicant's favor because he is a peasant and he stands to lose his source of livelihood if evicted.

### **Submissions for the Respondent**.

It was submitted for the Respondent that there is no proof of existence of an appeal in the Court of Appeal. It was then submitted that execution was commenced and duly concluded. Counsel referred to a letter from this Court to the Trial Court dated 02/09/2020. Counsel then submitted that the Appeal has no likelihood of success because the Applicant has already been successful both at the trial Court and on Appeal.

Having carefully considered the affidavits of all the parties and the submissions, I now proceed to determine this Application.

### **Determination of Application.**

The case of *Hon. Theodore Ssekikubo and others versus Attorney General and others, SCCA. No.3 of 2014* establishes the considerations to warrant a grant of an order staying execution which are;

1. The Applicant must show that they lodged a notice of Appeal.

2. The Applicant must show that substantial loss may result if stay of execution is not granted.

3. That the Application for stay has been brought without reasonable delay.

4. That the Applicant has given security for the due performance of the decree or order.

As rightly submitted by Counsel for the Applicants, the case of *Kyambogo university versus Prof. Isaiah Omollo Ndiege, COAMA. No. 341 of 2013* adds to the considerations in Hon. Theodore Ssekikubo and others versus AG and others (supra) and these other considerations are ;

1. Eminent threat of execution.

- 2. The appeal not being frivolous and having a high likelihood of success. - 3. Infliction of more hardship in the stay is not granted.

There is a notice of appeal on record. It is however not disputed that execution has commenced or that the Application was brought without unreasonable delay.

However, I am unable to determine whether the Appeal has a probability of success or whether there exists a *prima facie* because the Applicant while briefly stating that the Court never properly evaluated the evidence, did not attach a proposed memorandum of appeal despite the fact that the decision of this Court was delivered more than 2 years ago. It is my opinion that the Appeal to the Court of Appeal is a second appeal and the rules governing determination of second appeals are stricter compared to rules governing first appeals therefore, a proposed memorandum would have been sufficient to provide context to the proposed second appeal and also act as an aid to this Court in determining the existence of *prima facie* case or the likelihood of success of the second Appeal but the Applicant never attached a memorandum or any attachments to aid this Court in resolving the requirement of existence of a *prima facie* case in his favor.

#### **Substantial loss**.

In *Tropical Commodities Suppliers Ltd and 2 Others versus International Credit Bank Ltd (In Liquidation), Misc. Application No. 379 of 2003*, the concept of substantial loss for purposes of stay of execution was held to mean, loss not determined by any mathematical formula whose computation yields any particular amount however the loss must be actual loss, whether great or small, as opposed to nominal damages.

Counsel for the Applicant submitted that the Applicant is a peasant and from the suit land is where the Applicant derives sustenance and eviction will affect his livelihood. It is my view that the matters as submitted were never contained in the affidavit in support or in rejoinder. Be that as it may, the Applicant stated in his affidavit that he


was in possession of the land with a plantation thereon. On the other hand, the Respondent stated that the Applicant went into hiding to avoid payment of the debt arising from the taxed bill though the Applicant made a part payment. In Reply to the above, the Applicant in rejoinder simply states the execution commenced but it has not been concluded but the Applicant never specifically responded to the allegations of disappearance and becoming illusive.

In my opinion, it was a grave assertion from the Respondent and if the same was a false, the Applicant ought to have robustly responded to the assertion.

Considering the above, I find that the assertion that Applicant abandoned the land, became illusive and that he has since seized to be in possession on account of the disappearance was never rebutted by the Applicant and is therefore true.

I therefore find that the Applicant has failed to prove substantial loss on account of possession of the land or derivation of sustenance from the land.

On Security for due performance of the decree, In *John Baptist Kwanga versus Namyalo Kevina and another, HCMA. No. 12 of 2017***,** this court held that every application should be handled on its merits and a decision whether or not to order for security for due performance should be made according to the circumstances of each particular case. It was further held that the objective of the legal provisions on security was never intended to fetter the right of appeal. It was intended to ensure that courts do not assist litigants to delay execution of decrees through filling vexatious and frivolous appeals.

It is also my observation that Courts are now inclined to order security for costs rather security for due performance of the decree because the latter is likely to hinder appeals. (see: *DFCU Bank Ltd versus Dr. Ann Persis Nakate Lussejere, C. A Civil Appeal No. 29 of 2003.*)

Though the Applicant expressed willingness to comply with any orders issued by Court, it is my opinion that the Applicant already expressed his unwillingness to comply with orders when he became illusive with regards to satisfaction of a debt arising from a taxed bill of costs even though he had previously made a part payment and therefore, security for costs is not an avenue this Court is willing to consider based on the Applicant's actions.

# **Conclusion**.

With the Applicant's failure to prove substantial loss and existence of an Appeal with a likelihood of success or a prima facie case, I find this Application to be without merit and the same is hereby dismissed with costs to the Respondent.

Dated and delivered electronically this 30th day of May 2023.