Kokop v Kapere & 2 Others (Civil Appeal 31 of 2024) [2024] UGHC 1075 (25 November 2024)

#### THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA HOLDEN AT MBALE

# CIVIL APPEAL NO. 31 OF 2024

(Arising from Kapchorwa Chief Magistrate Court Misc. Application No. 059 of 2023)

# (Arising from Civil Suit No. 002 of 2019)

KOKOP CHEPTOYEK ANNA :::::::::::::::::::::::::::::::::

#### VERSUS

- 1. KAPERE MICHEAL - 2. SATYA SAMUEL

# 3. KIPROTWO DENIS ::::::::::::::::::::::::::::::::::::

## BRFORE: HON. JUSTICE LUBEGA FAROUQ

#### **RULING**

#### 1. Introduction:

- 2. The Respondents/Applicants on 14<sup>th</sup> November, 2023 under Misc. Application No. 059 of 2023 filed an application for stay of execution in Civil Suit No. 002 of 2019 until final determination of Civil Appeal No. 1111 of 2023 against the Appellant/Respondent. - 3. The said application was heard and determined by H/W Muhangi S. Gibson the Chief Magistrate of Kapchorwa Chief Magistrate Court who in his ruling dated 12<sup>th</sup> of March, 2024 stated that- "It is ordered that the execution of the decree of Kapchorwa Civil Suit No. 0002 of 2019 is stayed until determination of Civil Appeal No. 1111 of 2023 at Court of Appeal of Uganda." - 4. The Appellant was dissatisfied with the findings in the above application hence this appeal. The appeal is found on three grounds of appeal as listed below.

### 5. Grounds of Appeal

- (a) The learned trial magistrate erred in law and fact in failing to evaluate the record and reached an absurd decision. - (b) The learned trial magistrate erred in law in relying on the respondents defective and inadmissible affidavit to determine the application - (c) The learned trial magistrate erred in law and fact in disclosing execution at the Magistrates Court while execution by consent was ongoing at the High Court over the same matter. - 6. He prayed that the appeal be allowed, the trial court or ruling be set aside and costs be provided for. - 7. Background. - 8. The background of this appeal is that the Appellant instituted Civil Suit No. 0002 of 2019 against the Respondents for a declaration that the Defendants are not beneficiaries to the estate of late Kokop Chebijira Chesang, vacant possession, permanent injunction, Mesne profit, general damages and costs of the suit. - 9. The issues for determination in that suit were that- - (a) Whether the suit land belongs to the Plaintiff? - (b) Whether the Defendant trespassed on the suit land? - (c) What are the remedies available to the parties? - His Worship Magara Robert (Magistrate Grade 1 Kapchorwa Chief 10. Magistrate Court) resolved all the above issues in favour of the Appellant. - The Respondents were dissatisfied with his decision and instituted 11. Civil Appeal No. 76 of 2022. That appeal was heard and determined by Rrd Justice Godfrey Namundi. In his judgment delivered on 2<sup>nd</sup> of June, 2023, the judge upheld the findings of the trial magistrate save for Mesne profit which he set aside. He also awarded costs to the Respondent who is the Appellant in the instant application. - The Respondents were further dissatisfied with that decision and 12. allegedly appealed to the Court of Appeal.

However, according to annexure A3 to the affidavit in support to 13. Misc. Application No. 453 of 2023 the Appellant and the Respondents entered into a consent settlement for Civil Appeal No. 076 of 2022 arising from Civil Suit No. 0002 of 2019. The said consent stated as follows-

"By consent of both parties, it is hereby agreed as follows;

(1) The judgment debtor has paid $Ugx: 1,000,000/=$ (One Million Shillings Only) to the judgment creditor, out of the principle sum of Ugx: 3, 745,000/= leaving a balance of Ugx: 2, 745,000/= plus bailiff's costs of Ugx: $800,000/$ =

- (2) That the outstanding balance thereof $Ugx: 3,545,000/$ = *shall be paid in three installments as follows; -* - (a) On 17<sup>th</sup> December, 2023 Ugx: 1, 182,000/ $=$ - (b) On 17<sup>th</sup> January 2024 Ugx: 1, 182,000/ $=$ - (c) On 28<sup>th</sup> of February 2024 Ugx: 1, 182,000/= as the final That upon this consent, the judgment debtor is hereby *released and set free from civil prison".*

#### **Legal Representation** 14.

- Counsel Nancy Cheptoik represented the Appellant whereas 15. Counsel Ogundi Anthony represented the Respondents. - 16. This appeal proceeded by way of written submissions and all the parties complied. I will consider them in the determination of this matter.

### 17. Duty of the first appellate court

18. This court takes note that it has the duty to subject the entire trial court's evidence to a fresh evaluation and scrutiny and come to its independent conclusion bearing in mind that it did not see the demeanor of the witnesses.

#### 19. **Analysis of court**

20. I will determine the grounds of appeal as argued by counsel for the Appellant.


- Ground No.1: That the learned trial magistrate erred in law 21. and fact in failing to evaluate the record and reached an absurd decision. - Counsel submitted for the Appellant that the Appellant is aggrieved 22. because the trial magistrate did not evaluate the record. He contended that the Respondents' application had not met the threshold to grant a stay of execution. The Appellant had proved to court that there were already execution proceedings done at the higher court of Mbale High Court which had been arrived at by consent. The consent had not been set aside and there was no justification to hold execution on a matter already consented to. He argued that the stay should not have arose at the lower court whatsoever the reason. - Counsel for the Respondents on the other hand submitted that 23. following the hearing of Misc. Application No. 59 of 2023 for the grant of stay of execution which the Respondent lodged before the Chief Magistrate Court of Kapchorwa, the respondents were able to satisfy the ingredients of stay of execution and the same was granted by court. - He contended that the Appellant is misleading this court to the effect 24. that there was execution by way of consent in the High Court of Mbale which was entered into by the Appellant and the Respondents. Counsel submitted that the said consent is in respect of costs from Civil Appeal No. 076 of 2022 whereas the application for stay which is the subject before this court is in respect of vacant possession and the lower court indeed exercised its duties and reached a right decision.

#### **Determination of court** 25.

I have carefully studied the court record and noted as already stated 26. in the background to this ruling, that the Appellant was the successful party in Civil Suit No. 0002 of 2019. In that suit, the trial magistrate made the following orders-

> "That the defendants are not the beneficiaries of late Kokop Chebijira Chesang, that the defendants are trespassers on the suit land, vacant possession issued against the defendants,

> > $\overline{4}$

permanent injunction against the defendants and their assignees, agents, employees, decedents or any person claiming through them from interfering with the Plaintiff's peaceful possession of the suit land, the defendants jointly pay the defendant's jointly pay *Ugx:* $7,000,000/=$ *Uqx:* $10,000,000/$ = to the Plaintiff as general damages and costs of the suit."

- The above orders were upheld by the High Court in Civil Appeal No. 27. 76 of 2022 save for Mesne profits. - 28. I have also looked at the consent settlement between the Appellant and the Respondents quoted in the body of this ruling and observed that the said consent though general in nature, its preamble indicated that it is for Civil Appeal No. 76 of 2022. In that appeal, the trial judge upheld the trial court's decision and also awarded costs to the Appellant. - Counsel for the Respondents submitted that the said consent is in 29. respect of costs from Civil Appeal No. 076 of 2022. I agree with counsel. - According to the orders of court in Civil Suit No. 0002 of 2019, there 30. are several orders which are monetary and non-monetary. However, the said consent settlement does not specifically talk about any, but it only states the principle sum to be Ugx: 3, $745,000/$ = yet there is no such order or amount among the orders that were made in Civil Suit. No. 0002 of 2019. - 31. For the above reason, I agreed with counsel for the Respondent that the consent settlement was in respect of the costs for Civil Appeal No. 76 of 2022 only. - 32. I will now handle the issue of whether the trial magistrate did not evaluate the record when he held that the Respondents' application had met the threshold to grant a stay of execution. - 33. I have studied the ruling in Misc. Application No. 59 of 2023 and found that the trial magistrate considered all the ingredients or


conditions which the law required him to establish before granting an application for stay of execution.

- I however, do not agree with his reasoning and finding under the 34. issue of security for costs. The provision of the law which the trial magistrate relied on is Order 43 rule 4 (3) of the Civil Procedure Rules and the case of Hon. Theodore Ssekikubo and Others V. The Attorney General and Others Constitutional Application No. 03 of 2014, in both of those two authorities, the issue of security for costs was indicated as one of the condition which must be fulfilled before an application for stay of execution can be granted. - Therefore, the Appellant having been the successful party in the 35. Magistrate Court as well as the High Court, the trial magistrate ought to have ordered for the payment of security for costs as a condition for due performance of the decree. - In the circumstance, the Respondents shall pay Ugx: 20, $000,000/$ = 36. (Twenty million shillings) as security for costs. - Ground No. 1 is answered in the affirmative. 37. - Ground No.2: That the learned trial magistrate erred in law in 38. relying on the respondents' defective and inadmissible affidavit to determine the application. - Counsel for the Appellant submitted that there was no step taken 39. by the Respondents at the Court of Appeal. The appeal under the Electronic Court Case Management System (ECCMIS) is run under the E-government services enabled by the Electronic Transaction Act, 2011. He argued that the Appellant's documents (Notice of Instructions) were rejected by the system for case No. 1111 of 2023 as filed by different Lawyers and different individuals (parties) as explained in the affidavit of the Appellant. He contended that it cannot be proved that an appeal exists. - In addition to the above, counsel for the Appellant submitted that 40. the best forum for the Respondents should have been the Court of

 Appeal which determines whether the Notice of Appeal has been lodged properly.

- He further argued that the Respondents were not officers of court or 41. advocates to depose on the status of the appeal. That Counsel Wakoses was simply referred to with third party information which was not verified hence, the affidavits contained hearsay and the same is inadmissible. - Counsel for the Respondents on the other hand submitted that the 42. affidavit in support of the application for stay of execution was properly drafted and it clearly brought out the grounds for stay of execution which the trial magistrate considered. He argued that paragraph 14 of the affidavit in support and paragraph 10 of the rejoinder filed on the 14<sup>th</sup> of November, 2023 and 10<sup>th</sup> of January, 2024, the Respondents state that whatever is contained in the said affidavit are true and correct to the best of his knowledge and believe save for paragraphs he disclosed their sources. - 43. To support his submissions, counsel referred this court to three authorities to wit:- Besigye Kiiza V. Museveni Yoweri Kaguta & $\mathcal{L}_{\mathcal{A}}$ Another (Election Petition No.1 of 2001) [2001] IGSC 3, Rutaku Franies & 5 others V. Eliphas Ndomagye Court of Appeal Civil Appeal No. 1117 of 2017 and Saggu V. Road Master Cycle (U) Ltd (2002) EA 258 where court guided in relation to defective affidavits and stated- "Defined in the jurat or any irregularities in the form of the Affidavit cannot be allowed to vitiate an Affidavit in view of Article 126 $(2)(e)$ of the Constitution and the judge has power to order that an un dated affidavit be dated in court or that the affidavit be re-sworn and may penalize the offending party in costs." - 44. In the view of the above, counsel contended that if court is to apply a similar approach and sever the said contents complained of by the Appellant, the affidavit still stands and as such is not incurably defective.

Counsel submitted that the Appellant's mere allegations that the 45. Respondents' appeal does not exist are false and misleading since the Appellant was served with a notice of appeal and record of proceedings from the Court of Appeal and she received the same on 18<sup>th</sup> of June, 2023 and 26<sup>th</sup> of September, 2023 respectively.

## Determination of court 46.

- Order 19 rule 3 (2) of the Civil Procedure Rules provides that-47. - "Affidavits shall be confined to such facts as the deponent is able of his or her own knowledge to prove, except on interlocutory applications, on which statements of his or her belief may be admitted, provided that the grounds thereof are stated." - According to paragraph 14 of the affidavit in support to Misc. 48. Application No. 59 of 2023 the Respondents averred that- "Whatever I have stated herein above is true and correct to the best of my knowledge and belief save for the contents whose source has been disclosed herein." - Counsel for the Appellant submitted that the Respondents were not 49. officers of court or advocates to depose on the status of the appeal. That Counsel Wakoses was simply referred to with third party information which was not verified hence, the affidavits contained hearsay and the same is inadmissible. I do not agree with counsel. - The provision of the law cited above states that affidavits shall be 50. confined to such facts as the deponent is able of his or her own knowledge to prove. The Respondent after all his averments, he indicated that whatever he had stated was within his knowledge save for the contents whose source he disclosed. - In the view of the above observation, it is not clear what counsel for 51. the Appellant based on to come to a conclusion that the Respondents' affidavit in support contained hearsay in absence of any evidence to prove the same.

- The order cited above further indicates that if either party desires 52. the production of a witness for cross-examination, such witness can be produced. This in essence implies that, if the Appellant wanted to challenge the Respondents' affidavit evidence, he ought to have subjected the deponent to cross-examine to establish the correctness of the statements therein but he did not. Hence, he sat on his right. - *Forum for stay of execution* 53. - Counsel for the Appellant submitted that the best forum for the 54. Respondents should have been the Court of Appeal which determines whether the Notice of Appeal has been lodged properly. - Order 22 rule 23 (1) of the Civil Procedure Rules provides that-55.

"The court to which a decree has been sent for execution shall, upon sufficient cause being shown, stay the execution of the decree for a reasonable time to enable the judgment debtor to apply to the court by which the decree was passed, or to any court having appellate jurisdiction in respect of the decree or the execution of the decree, for an order to stay the execution or for any other order relating to the decree or execution which might have been made by the court of first instance, or appellate court if execution has been issued by the appellate court or if application for execution has been made to it."(Underline added for emphasis)

- From the above provision, it is clear that an application for stay of 56. execution can be made to the executing court or a court with appellate jurisdiction in respect of the decree. - In the present case, the High Court having upheld the findings of 57. the trial court, what was needed to be executed were the orders in Civil Suit No. 0002 of 2019 and by the issuing court. Therefore, there was no mistake committed when an order for stay of execution was granted by the trial court.

*Whether there existed a pending appeal* 58.

- The Respondents averred under paragraph 3 of the affidavit in 59. support that they had filed a Notice of Appeal and the memorandum of appeal in the Court of Appeal with Civil Appeal No.1111 of 2023. To support his averment, he attached annexures A1 and A2. - I have looked at annexure A1 which is the memorandum of appeal 60. and noted that the same was received by the Court of Appeal on 20<sup>th</sup> of September, 2023. It was further endorsed on by the Registrar of that court on the same date. - I have also looked at annexure A2 which is the Notice of Appeal. It 61. was received by the High Court on 08<sup>th</sup> of June, 2023 and endorsed on by the Assistant Registrar on $12^{th}$ of June, 2023. - I have further observed that the Notice of Appeal was given a draft 62. No. CA.522-2023. - It should be noted that since the introduction of ECCMIS, upon filing 63. of any matter, due to so many technologies related issues, a case is always given a draft number at first instance, I believe for proper tracking. Therefore, even if the number which was given could not be found in the system, the same, to this court does not indicate that the Respondent did not file a memorandum of appeal, since the said document contains a stamp of receipt from the Court of Appeal which was not challenged. - In any case, the law requires proof of Notice of Appeal which was 64. properly tendered in court by the Respondents as per annexure A2 to the affidavit in support of Misc. Application No. 59 of 2023. - Ground No.2 is answered in the negative. 65. - Ground No.3: That the learned trial magistrate erred in law 66. and fact in disclosing execution at the magistrate court while execution by consent was ongoing at High court over the same matter. - I have gone through the submissions of the parties in respect to this 67. ground and noted that whatever was argued therein, has already been handled in ground No. 1

- However, for purposes of emphasis, I will add that the consent 68. settlement was made in respect of costs for Civil Appeal No. 76 of 2022 only. It did not cover the orders in Civil Suit No. 0002 of 2019 hence, the said consent did not affect the validity and the findings in Misc. Application No. 59 of 2023. - Ground No.3 is answered in the negative. 69. - In the results, this appeal partially succeeds in the terms below-70. - (a) The decision of the trial court in Misc. Application No. 59 of 2023 shall be maintained subject to payment of security for costs of Ugx: $20,000,000/=$ - (b) The costs of this Appeal shall abide the results in Civil Appeal No. 1111 of 2023.

I so order.

**LUBEGA** ROUQ Ag. JUDGE

Ruling delivered via the emails of the Advocates of the parties on $25^{th}$ day of November, 2024