Lubega v Nassimbwa (Civil Application 122 of 2024) [2024] UGCA 219 (21 August 2024)

# THE REPUBLIC OF UGANDA

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

#### **CIVIL APPLICATION NO. 0122 OF 2024**

(*Arising from Civil Appeal No. 148 of 2022*)

**BETWEEN**

LUBEGA MOSES...................................

#### **VERSUS**

NASSIMBWA SYLIVIA...................................

# RULING OF CHRISTOPHER GASHIRABAKE, JA (SINGLE JUSTICE)

### **Introduction**

- 1.] This application was brought under, Rules $2(2)$ , $6(2)(b)$ , 42, 43, 46 and 47 of the Judicature (Court of Appeal) Rules SI 13-10, for Orders that; - *a. Stay of execution doth issue staying the execution of the Judgment* and Decree in Civil Suit No.42 of 2020 pending the outcome of Civil Appeal No. 148 of 2022. - *b. The costs of this application be in the cause.*

#### 2.] The application is premised on the grounds as follows:

- *a. A Notice and memorandum of Appeal was filed in this court.* - *b. That the appeal is yet to be determined by this honourable court.* - *c. That the Respondent has already applied for execution of the decree* in Civil Suit No. 42 of 2020 and this execution will not only render the 's intended appeal nugatory but also deny the right to appeal. - d. That the has had an application for stay of execution in the high Court under Miscellaneous Application No. 3069 arising out of HCT-00-LD-EMA-0321-2023 dismissed.

$\mathbf{1}$

- e. That it is just and Equitable that this application is granted by this Court. - 3.] The application was opposed by an affidavit sworn by Nassimbwa Sylivia on the ground that the application is frivolous, vexatious, bad in law misconceived, and an abuse of the court process.

### Representation

4.] The Applicant represented himself. Mr. Karoro Francis represented the Respondent. The parties filed written submissions.

### **Submissions by the Applicant**

- 5.] The Applicant submitted that the learned trial Judge erred in law and fact in that she disregarded the appellant's pleadings and evidence that the Respondent breached the sale agreement executed between the parties for her failure to pay the balance of the purchase price by the 9<sup>th</sup> day of march 2018 as expressly agreed in the sale agreement and dismiss the Appellants counterclaim. - 6. The Applicant submitted that this Appeal has a likelihood of success because he did not breach the land sale agreement. The Applicant submitted further that the Respondent failed to pay the remaining money. The Respondent did not communicate or offer an explanation for failing to fulfill the obligation. - 7. The Applicant further submitted that in **Lawrence Musiitwa Kyazze Vs** Eunice Busingye, [1990] UGSC 13 (12 February 1990) it was held that an application for stay of execution pending appeal is designed to preserve the subject matter in dispute so that the right of the appellant who is exercising

his/her undoubted rights of appeal are safeguarded and the appeal if successful, is not rendered nugatory.

- 8.] The Applicant averred that he had lodged an appeal in this court and had lodged both the Notice of Appeal and Memorandum of Appeal against the decree and orders in civil suit no. 42. Of 2020 and attached copies marked A and B. - 9.] Additionally, he submitted that he would suffer irreparable loss if no order of stay of execution was granted pending the outcome of the appeal. The Applicant averred that the Respondent applied for attachment of property vide HCT-00-LD-EMA-0321-2023. The Applicant submitted that if execution is made, his family will suffer undue hardship because the suit property is their family home. The Applicant cited Dr. William Shija v **Fortunatus Masha, Civil Application No. 1 of 2002.** The Applicant also relied on Giuliano Garigio v Claudio Casadio [2013] UGSC 1, where Katureebe, CJ. referring to the Geriod Francis Tairo v Jumanne S. Kitila, Civil Application No 254 of 2019 [2020] TZCA 1843, held that when the Court was faced with almost a similar scenario, it cited with approval the case of *Clara Kimoka v Surumbu Axweso [2002] TL R 255* where the Court granted a Stay of Execution on the ground that:

"The Applicant is in possession of the suit land and now long been in possession of it. The interruption of her long occupation of the suit land would, be justified only after the case was finally determined in the Respondent's favour. But in the event the appeal is allowed, it would not make much sense to temporarily interrupt the Applicant's long possession now only to restore it to her after the success of her appeal."

#### $10.$ The Applicant also cited **Deusdedit Kisisiwe v Protaz B. Bilauri,** Civil Application No. 13 of 2011 [2003] TZCA 16 the court stated that:

"The attachment and sale of immovable property will, invariably, cause irreparable injury. Admittedly compensation could be ordered should the appeal succeed but money substitute is not the same as the physical house. *The difference between the physical house and the money equivalent, in the judge's opinion, constitutes irreparable injury.*"

The Applicant prayed that this Court grant the Stay of $11.$ execution.

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

- Counsel for the Respondent submitted that the Applicant's $12.$ submissions address the appeal and not the current application. Counsel further stated that he is misleading this court by submitting that his house is the subject matter of this Application, yet the application is for a stay of a monetary decree and not land. - $13.$ Counsel argued that the Applicant has failed to prove the grounds or considerations that Courts take into account before an order for stay of execution pending appeal can be granted. Counsel further argued that Rule 6(2) of the Judicature (Court of Appeal Rules) (Directions) stipulated that the institution of an appeal in the Court of Appeal shall not operate as a stay of execution. - $14.1$ Therefore, the ordinary rule is that an execution of the decree need not be stayed pending an appeal unless the appellant shows good cause. Counsel cited P. K Sengendo v Busulwa Lawrence and Anor, [2014] UGCA 17 (4 June 2014) which cited Kyambogo University v Prof. Isaiah Omolo Ndiege, Court of Appeal Civil Application No. 342 of

**2013, (unreported)** where it was noted that not all orders or decrees appealed from have to be stayed pending appeal. That it is incumbent upon the Applicant to satisfy the Court that grounds exist for a grant of stay of execution. There is no legal basis that once a party has filed an appeal, a stay of execution must follow as a matter of course.

- $15.$ The Gashumba Maniraguha v Sam Nkundiye [2015] UGSC 7 (23) April 2015) cited in Nakato Sarah and Anor v James Busonga and others Court of Appeal Civil Application No. 303 of 2023 (unreported) lays out the grounds that must be proved in the application for a stay of execution pending appeal. - $16.$ Counsel acknowledged that the Applicant filed a Notice of Appeal and also applied for a certified copy of a record of proceedings. - Regarding the likelihood of success, counsel submitted that the appeal $17.1$ has no merit and was brought in bad faith with the intention to delay the Respondent from enjoying the fruits of her judgment. Counsel argued that the evidence was properly evaluated by the court. Counsel submitted that the application has no chance of success on appeal and this ground has not been proved. Counsel relied on Twongyeirwe Peter v Muhumuza Peter, **Miscellaneous Application No. 0681 of 2021.** - On Irreparable damages, counsel argued that the decree sought to be $18.1$ stayed does not concern a house but it is a monetary decree of UGX. $14,115,000/$ =. Counsel argued that in this case money be compensated. Counsel further argued that the has not shown that the Respondent is incapacitated from paying the said monetary decree if they will not suffer a substantial loss.

- $19.1$ Counsel relied on the decision in **P. K Sengendo** (supra); where the Court also relied on the National Enterprises Corporation v Mukisa **Foods (Miscellaneous Application No. 7 of 1998.)** where it was held that the general rule is that the only ground for a stay of execution is for them to show that once the decretal property is disposed of there is no likelihood of getting it back should the appeal succeed. Counsel noted that the Learned Justice further held that the correct position of the law is that for a stay of the execution pending an appeal to be ordered, they must show sufficient cause. The court explained that such sufficient cause includes where the subject matter of a case is in danger of being destroyed, sold or disposed of or where the decree in question is affected by a glaring flaw in the record of the lower court as to make the appeal likely to succeed. - Counsel submitted that the balance of convenience tilts in favor of the 20.1 Respondent because the judgment was in her favor. In the Judgment, the applicant was ordered to pay a sum of UGX. $14,115,000/$ = inclusive of interest and costs of the suit. - $21.$ Regarding whether the application was filed within a reasonable time, counsel submitted that the judgment was given on the 29<sup>th</sup> day of June 2021, and the Applicant filed a second application for a stay of execution more than two years after the judgment had been given. There was an unreasonable delay in filing this application. - $22.1$ Furthermore, the perusal of the record of proceedings clearly shows that on the 4<sup>th</sup> of July 2022, The Registrar; Her Worship Natukunda committed the Applicant to Luzira Prison where he proceeded to serve 6 months, therefore, the application was brought after execution was partially

completed as the judgment debtor/ had already been committed to prison. Counsel submitted that this principle fails.

Counsel prayed that the application should be dismissed. $23.1$

# Rejoinder

The Applicant reiterated the earlier submissions, stating that this $24.]$ application satisfies all the requirements of the grant of a stay of execution. The Applicant additionally refuted the fact that this is a decretal sum. He stated that there is an application to attach his home. The Applicant further averred that he could hardly manage to survive with his family because he lost all his business, and good reputation both internationally and nationally.

# **Consideration of Court.**

$25.1$ The jurisdiction of this Court to grant a stay of execution is set out in Rule $6(2)$ (b) of the Rules of this Court which provides that:

> "2. Subject to sub-rule (1), the institution of an appeal shall not operate to suspend any sentence or stay execution but the Court may:

> b) in any civil proceedings, where a notice of appeal has been $\frac{1}{2}$ lodged following rule 76 of these Rules, order a stay of execution........on such terms as the Court may think just".

This rule and rule $2$ (2) give this Court, the discretion, in civil $26.1$ proceedings, where a notice of appeal has been lodged following rule 76 of the Rules of this Court, to order a stay of execution in appropriate cases and on terms that it thinks fit. This discretionary power must be exercised judiciously and exercised in a way that does not prevent a party from pursuing its appeal so that the same is not rendered nugatory should the appeal overturn the trial court's decision.

In Hon. Theodore Ssekikubo & Others v The Attorney General $27.$ and Another, [2013] UGSC 21 (10<sup>th</sup> October 2013, the Supreme Court laid down the principles to guide the Court in granting a stay of execution. It held that:

"(1) The application must establish that his appeal has a likelihood of *success; or a prima facie case of his right to appeal* (2) It must also be established that the will suffer irreparable damage or that the appeal will be rendered nugatory if a stay is not granted. (3) If 1 and 2 above have not been established, the Court must consider where the balance of convenience lies. (4) That the must also establish that the application was instituted without delay."

- 28.1 The purpose of the grant of stay of execution is to help preserve the status quo and then have the merits of the case to be handled by the full bench. This Court has the task of establishing whether the Applicant has made out the conditions for the grant of stay of execution. - $29.1$ I have carefully considered the submissions of the counsel for the Respondent, the affidavit on record, and the law. It is not in dispute, that there is a Notice of Appeal in this Court. However, the likelihood of success of the appeal, which is the most important consideration in my view, must be satisfied. The Court at this point is not interested in the merits of the matter per se. According to the Memorandum of Appeal, it raises issues on the award of general damages and breach of contract which warrant the consideration of this Court. It is therefore my considered view that the appeal is not vexatious.

On whether he would suffer irreparable damages if the execution is 30.1 not stayed, is unfounded. There has been partial satisfaction by civil imprisonment of the Applicant. However, the decree concerns a decretal sum and not the house as the Applicant alleges. He clearly states so in his affidavit in support of the motion (paragraph 3). It is further supported by annexure C to the affidavit in support which is an application for execution of the decree. Item six thereof is a decretal sum of $14,115,000/$ = (Fourteen million, one hundred and fifteen thousand shillings only). In resolving this principle, I am persuaded by the case referred to by counsel for the Respondent that **Twongyeirwe Peter v Muhumuza Peter** (supra) where the court defined what was meant by the appellant suffering irreparable losses that the appeal will be considered nugatory. It was stated that:

> "...... nugatory means of no force or effect: useless; invalid." In this context, the term "nugatory" has to be given its full meaning. It does not only mean worthless, futile, or invalid, it also means trifling. Whether or not an Appeal will be rendered nugatory if a stay is not granted depends on whether or not what is sought to be stayed if allowed to happen will be reversible, or if it is not reversible, whether damages will reasonably compensate the party aggrieved. Or it is in *the public interest to grant a stay ....*"

$31.1$ The learned Judge in this case further noted that:

> "...... satisfaction of a money decree does not ordinarily pose the danger of rendering a pending appeal nugatory. Where the Respondent is not impecunious, as the remedy of restitution is *available to them in the event the appeal is allowed. The presumption* then is that payment made to the Respondent in the execution of the decree will be reversible in the event of the succeeding appeal. If it is reversible. It has not been shown that damages will not reasonably *compensate them, or that it is in the public interest to grant a stay....*"

> > 9

- 32.1 ln this instant application hc has not dcrnonstratcd that hc would sullcr irrcparablc damagcs il' thc stay is not grantcd and thc appcal succccds. IIc has not also dcrnonslratcd that thc Ilcspondonl cannot colnpcnsatc hin-r whcn thc appcal is in his favor. - 33.1 Sincc this is a dccrctal sum claimcd liom thc Applicant thc balancc olconvcnicncc tilts towards thc llcspondcnt. - 34.1 According to thc rccord this sccond application was rnadc within rcasonablc tinrc. - 35.1 Considcring, thc law undcr rulc 6 (2), thc institution ol-an appcal docs not opcratc as a stay ol'cxccution. 'l.hc Applicant rrust adducc cvidcncc to satisly this court that thcrc is a nccd to grant a Stay ol- lixccution. Onc ol'thc rccluircmcnts Ibr thc grant ol stay of- cxecution is thc nccd to dcposit sccurity lbr duc pcrlbrmancc. (scc, l-awrcncc Musiitwa Kyazzc v Eunice llusingyc(supra))'l'hc Applicant has ncithcr dcpositcd nor indicatcd that hc would dcposit thc sccurity lbr duc pcrlbnnancc. (Scc Ilaruna Scntongo v l&M llank l-td Civil Application Nol I3 of 2023,120231U(;CA 153 (I9

## May 2023)

(a)'l'hc application is hcrcby dcclincd.

(b)Costs shall abidc by thc outcornc ol'thc appcal.

## I so order.

I)atcd signcd and dclivclcd at Kampala this 2024 2t \$ I)ay i

('. (;ASIilttAll^Kt,l

# ,n ts't'tCl,t or At,t,uA l.