Lubega v Lubega and 5 Others (Civil Application 770 of 2022) [2023] UGCA 359 (20 March 2023)

#### THE REPUBLIC OF UGANDA

### IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

### CIVIL APPLICATION NO. 770 OF 2022

#### (ARISING FROM CIVIL APPLICATION NO 769 OF 2022)

#### (ARISING OUT OF CIVIL APPEAL NO. 49 OF 2019)

DRAKE LUBEGA::::::::::::::::::::::::::::::::::::

#### **VERSUS**

1. LUBEGA ROBERT 2. MEGAN JOAN MUTEBI 3. JOSEPHINE NASALI 4. EMMA NDUGWA 5. MUSA NDAULA 6. ALEX BWANIKA

**RESPONDENTS**

### RULING OF CHRISTOPHER GASHIRABAKE

#### (SINGLE JUSTICE)

#### **INTRODUCTION**

This is an Application brought under section 98 of the Civil Procedure Act Rule $6(2)(b)$ of the Judicature (Court of Appeal Rules) Directions (hereinafter referred to as the "Rules of this Court").

The Application seeks Orders that: -

- a) An interim Order of Stay of Execution of the Judgment and Orders issued against the Applicant in High Court Civil Suit No. 875 of 2Ol4 delivered by Justice Elizabeth Jane Alividza on 24lOll2Ol9 be stayed pending the hearing and determination of the main Application for Stay of Execution before this court. - b) Costs of the Application abide the outcome of the main Application for stay of execution.

The Application is supported by the affidavit of Francis Drake Lubega the Applicant which briefly states;

- 1) The Applicant being dissatisfied with the decision in HCCS No. 875 of 2014 lodged an Appeal (Civil Appeal No.49 of 2019) before this court. - 2) Civil Appeal No. 49 of 2Ol9 was heard by this court and Judgment was to be given on notice and the same has never been delivered. - 3) The Respondents attempted to execute the Judgment through execution Misc. Application No. 169 of 2019. - 4) The Applicant's Appeal to this court raises serious legal issues that warrant serious judicial consideration by this court and the Appeal has high chances of success. - 5) The Application has been brought without undue delay.

### BRIEF FACTUAL BACKGROUND.

The Applicant was sued by the Respondents vide Civil Suit no. 875 of 2015. Court entered Judgment in favour of the Respondents and

ordered for payment of the decretal sum of UGX 500,000/= plus interest and TOoh of the taxed costs.

### REPRESENTATION

The Applicant was represented by Mr. Kirumira Adam and Harnza Ssebuta while Mr. Hudson Ssegamwenge appeared for the Respondents.

## APPLICANT'S SUBMISSIONS

Counsel for the Applicant submitted that the guiding principles for the grant of an Interim Order of stay Execution were laid down in the case of Hwang Sung Industries v Tajdin Hussein and. 2 others civil Application No. 19 0f 2008 as follows;

"For en application for an inteim order of stag, it suJfices to show that a substantiue application is pending and there is a serious threat of exeantion before heaing of the pending substantiue application. It is not necessary to pre-empt the consideration of matters necessary in deciding whether or not to grant the substantiue application for stag."

Counsel for the applicant submitted that there was exists <sup>a</sup> competent appeal in the court which was heard and pending Judgment.

Secondly, he submitted that there was a substantive Application for stay in this court of the decree in High Court Misc. Application No. 875 of 2O15 vide Civil Application No.769 of 2022.

Thirdly, he submitted that there was a serious threat of execution in the current matter before the hearing of the main Application for stay of execution this was because the Respondents attempted to execute the decree when the obtained garnishee absolute.

## RESPONDENT'S SUBMISSIONS

Counsel for the Respondent submitted that the Judgment in the main suit was delivered on 24th Jafiuary 2019 and since then the Applicant had never taken any active steps to have decree stayed. He argued that it was now three years since.

He further submitted that when the Applicant filed Misc. Application No.677 of 2OI9 in the High court for stay of Execution no active steps were taken by him nor his lawyers to have the same fixed for hearing until 1Sth July 2022.

He also argued that the Applicant's dilatory conduct was intended to deny the Respondents the fruits of their successful litigation. He argued that this application was only intended to frustrate the Respondents. He prayed that that this Application be dismissed.

On the other hand counsel for the Respondent submitted that the Applicant had not demonstrated how he would suffer any substantia-l loss if the decree was executed.

# COURT'S FINDINGS

## THE PRINCIPLES

Rule 6 (2) (b) of the Rules of this Court provides: -

"... in ang ciuil proceedings where a Notice of Appeal has been lodged in accordance with rule 76 of these Rules, order a stag of exeantion, an injunction, or a stag of proceedings on such terms as the court mag think just..."

This is the Rule that provides for stay of execution whether interim or substantive. However, there are different principles which the court must consider when hearing an interim stay on the one hand and a substantive stay on the other hand.

In the case of Patrick Kaumba Wiltshlre v. Ismail Dabule, Supreme Court Civil Application No. 03 of 2018 Court relied on its earlier decision in Zubeda Mohamed & Anor v. Lalla Walia & Anor, Civil Reference No. 07 of 2016 where it laid down the conditions to be satisfied by an Applicant to justify the grant of an interim order, namely the presence of;

- i) A competent notice of Appeal - ii) A substantive application for stay of execution; and - iii) A serious threat of execution

# Consideration of the merit of the Application

I have read the Motion in this Application and the Affidavits for and against it. I have also addressed my mind to the submissions of both Counsels and the authorities supplied to Court for which I am grateful.

I agree and find that the Applicant has shown that he has filed an Appeal in this Court being Civil Appeal No. 49 of 2Ol9 and a

substantive Application No. 677 of 2O19. The Appea-l has been heard but not yet determined. It is the case for the Applicant that there is a serious threat of execution before hearing the main Application since the Respondents attempted to execute the decree by obtaining a garnishee absolute .

I am therefore satisfied and find that a case has been made for the grant of an Interim Order.

Given my findings above I hereby Order and Direct as follows: -

- 1. An interim Order is hereby issued staying the execution of the Judgment and Decree in HCCS No. 875 of 2Ol4 pending the hearing and determination of the substantive Application. - 2. The Registrar of this Court is directed to see that the substantive Application is fixed as soon as possible. - 3. Costs in the cause.

# I so Order.

Dated at Kampala this >o It- ....day of 204.

l ,

CHRISTOPHER GASHIRABAKE

JUSTICD OF APPEAL

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