Lubega & Another v Ssinabulya & 2 Others (Civil Application 13 of 2024) [2024] UGSC 37 (15 July 2024)

file is


THE REPUBLIC OF UGANDA

# THE SUPREME COURT OF UGANDA AT KAMPALA

*(Coram: Monica K. Mugenyi, JSC, sitting as a Single Judge)*

#### **CIVIL APPLICATION NO. 13 OF 2024**

(Arising from Civil Application No. 12 of 2024)

#### 1. JOHN LUBEGA ANNET NAMPUUTA ...................................

**VERSUS**

1. JOHN SSINABULYA 2. DEZIRANTA NANNONO 3. IVONA NANZIRI ...................................

$\mathbf{1}$

mit;

# **RULING**

# A. Introduction

- 1. This Application is brought under Rules 2(2), 41(2) and 43 of the Judicature (Supreme Court Rules) Directions S. I 13-11 ('the Supreme Court Rules'). The Applicants seek an interim order of stay of execution against the Respondents until the determination of the substantive Application for stay of execution. - 2. The background to this Application is that the Applicants were the unsuccessful parties in Civil Appeal No. 18 of 2012. The dispute in that case pertains to Mailo land in Buye, Ntinda comprised in Kyadondo Block 216 Plots 1218, 3960 and 3961 ('the suit land/property'). Yozefu Bukenya, the original proprietor of that parcel of land, died intestate and Petolalina Nabulya, his widow, was appointed an administrator to his Estate and registered as such on the certificate of title. Ms. Nabulya died testate, appointing the Respondents as the executors of her Estate but before the grant of probate to them, the Applicants (a grandson and sister to the late Yozefu Bukenya) had forcefully entered onto the land. - 3. The Respondents thereupon filed Civil Suit No. 78 of 2009 in the High Court whereby they unsuccessfully sought the Applicants' eviction from the suit land. On appeal, however, the decision of the High Court was reversed by the Court of Appeal vide Civil Appeal No.18 of 2012. Being dissatisfied with the Court of Appeal's decision, the First Applicant lodged Civil Appeal No. 5 of 2024 in this Court. He did also lodge the present application for an interim stay of execution. - 4. The Application is supported by an affidavit deponed by the First Applicant and lodged in the Court on 31<sup>st</sup> May 2024. An affidavit in reply that essentially opposes the Application was in turn filed one Zacharia Buyera, the Second and Third Respondents' lawful attorney; in response to which the First Applicant deponed an affidavit in rejoinder. - 5. At the hearing of this Application, the Applicants were represented by Mr. John Bosco Mudde while Mr. Peter Mukiibi Walubiri assisted by Mr. Emmanuel Kirya represented the Respondents. The Court was notified that the Second Applicant and the First Respondent have since passed away.

## **B. Parties' Submissions**

6. It is the First Applicant's contention that the Application duly satisfies the prerequisites necessary for the grant of an interim order of stay of execution. Reference is made to Theodore Ssekikubo & Others v Attorney General & 3 Others, Constitutional Application No. 6 of 2014 and Hwan Sung Industries Limited v Tajdin Hussein & Others, Civil Application No. 19 of 2008 for the proposition that it is sufficient for applications of this nature for the applicant to establish that there is a substantive application pending the court's determination,

min.

as well as a serious threat of execution before the hearing of that substantive application.

- 7. It is argued that the affidavit in support of the Application establishes that a Notice of Appeal was filed in this Court; there is a substantive application for stay of execution before the Court, to wit, Civil Application No. 12 of 2024, and the substantive Appeal, *Civil Appeal No. 5 of 2024*, has since been served upon the Respondents. It is further argued that an eviction notice to the First Applicant and all tenants on the suit property issued by Jobka General Auctioneers and Court Bailiffs on 9<sup>th</sup> April 2024, as well as a letter from the Respondents' advocates giving all tenants a maximum of seven days to vacate the suit land, are sufficient indication of a serious threat of execution. This threat is allegedly buffered by the Respondents' attempt to place containers on the suit land and destruction of the Applicants' banana plantation. - 8. Counsel for the Applicants contends that the First Applicant had initially sought stay of execution in the Court of Appeal vide Civil Applications No. 229 and 230 of 2024 but the court (sitting as a single judge) declined to entertain the Application citing lack of jurisdiction under Section 12 of the Judicature Act. It is on that premise, and on the advice of the single judge of that court and the court administrator of the same court that there was a shortage of judges in the Court of Appeal to hear the main Application for stay of execution, that the said applications were subsequently withdrawn. - 9. Conversely, the Respondents contend that the Application is prematurely before this Court, is an abuse of the court process and does not demonstrate any threat of execution. It is argued that the Respondents filed Civil Applications No. 230 and 229 of 2024 before the Court of Appeal and then filed related applications in the Supreme Court that were struck out by Madrama, JSC owing to the same Applications pending before the lower court. To date the Applications are allegedly still pending in the Court of Appeal with neither proof of the acceptance of the withdrawal nor endorsement of such withdrawal by the Registrar. The Application is therefore opined to be barred by rule 41(1) of the Supreme Court Rules. - 10. The Respondents thus contend that the Applicant's failure to comply with established jurisprudence on stay of execution by filing new interlocutory applications seeking the same orders amounts to forum shopping and an abuse of court process. Reference is made to **Benkay Nigeria** Limited v Cadbury Nigerian PLC SC 29 of 2006, where the Nigerian Supreme Court outlined circumstances which demonstrate an abuse of court process, including:

mit.

- a. Institution of multiplicity of actions on the same subject matter against the same opponent on the same issues or a multiplicity of action on the same matter between the same parties even where there exists a right to begin the action. - b. Institution of different actions between the same parties simultaneously in different Courts even though on different grounds. - c. Where two similar processes are used in respect of the exercise of the same right for example, a cross appeal and a Respondent's notice. - d. Where there is no iota of law supporting a Court process or where it is premised on frivolity or recklessness. - e. Where an Application for adjournment is sought by a party to an action to bring an Application to Court for leave to raise issues of fact already decided by a lower Court. - f. Where a party has adopted the system of forum shopping in the enforcement of a conceived right. - g. Where two actions are commenced, the second asking for a relief which may have been obtained in the first. *(Party's emphasis)* - 11. It is the Respondents' contention that the filing a multiplicity of actions on the same matter in different courts and attempt to evade the jurisdiction of the Court of Appeal in this case, amount to an abuse of court process. It is argued that Counsel for the Applicant followed the wrong procedure to fix the matter for hearing and, in any case, the averments to that effect amount to hearsay and ought to be purged from the evidence - 12. Without prejudice to the foregoing preliminary objections, the Respondents further contend that the Application does not disclose sufficient grounds for the grant of an interim order of stay of execution. Reference in that regard is made to Muhammed Mohamed Hamid v Roko Construction Ltd, Misc. Application No. 23 of 2017 where this Court established the following prerequisites for the grant of an interim stay of execution: - i. The filing of a Notice of Appeal in accordance with Rule 72 of the Rules of this Court; - ii. The filing of a substantive Application for stay of execution; - iii. The evidence of an imminent threat of execution: - iv. That the Application should have been brought without delay. - 13. The Respondents argue that Orders 1, 2, 3, 4 and 5 that are sought to be stayed are mere declarations incapable of stay of execution and are self-executing. There is no threat to execute such declarations. With regard to Order No. 6 on eviction, it is argued that the Respondents have neither filed an application for execution nor instituted any proceedings under the Constitution (Land Evictions) Practice Directions, 2021 as the Applicants are not in possession of the suit property. - 14. The averments in paragraph $6(a)$ and $(b)$ of the affidavit in rejoinder and the letter dated 19<sup>th</sup> June 2024 indicating that the First Applicant is in possession of part of the suit property are opined to be false as they were never mentioned in Supreme Court Civil Applications No. 6 and 10 of 2024 that were dismissed by Madrama JSC or in Court of Appeal Civil Applications No. 229 and 230 of 2024 that were dismissed by Kihika, JA.

$\overline{4}$

mull.

- 15. The Respondents further allege the averment in paragraph 6(d) of the same affidavit that the First Applicant is in control of the suit property and that the tenants are still paying rent to him is false given that: - I. The Applicant's false averment is not supported by any evidence. He has not produced any tenancy agreement in evidence to prove that he is in control of any tenant on the suit property or any receipt to prove that any tenant is still paying rent to him. - II. The Applicant has not disputed the fact that the persons named in the tenancy agreements attached to the affidavit in reply as Annexure 'C' are tenants on the suit property. - III. The tenancy agreements in issue were produced by the Respondents in Supreme Court Civil Applications No. 6 and 10 of 2024 and Court of Appeal Civil Applications No. 229 and 230 of 2024, and the Applicant has on both previous occasions not disputed them because he is fully aware that all tenants on the suit property are now paying rent to the Respondents. - IV. KCCA recognised the Respondents as the owners of the property to clear the outstanding property arrears which the First Applicant neglected to pay. - 16. It is further argued that the First Applicant will not suffer injustice or be prejudiced by Order No. 7 requiring him to file a return at the High Court Family Division accounting for all monies/property received and held during the time they were in possession of the suit property. In relation to Order No. 8 on cancellation and reversal of all entries on the suit property, reference is made to paragraph $6(b)$ of the affidavit in reply and the land search reports in annexures B1, B2 and B3, which depict the Respondents as the registered proprietors of the suit property while the Applicant's caveats are duly registered. Furthermore, the tenancy agreements in annexures $C1 - C28$ to the affidavit in reply are referred to as proof that the Respondents are already in possession of the suit property and have signed tenancy agreements with the tenants. - 17. With regard to the order for costs, it is argued that no steps have been taken to prepare a bill of costs in relation thereto therefore there cannot be any imminent threat of execution. Reference is made to **Muhammed Mohamed Hamid v Roko** Construction Limited (supra) where, in the absence of evidence of a pending application for execution of the taxed bill of costs, the Court held that there was no evidence of any imminent threat of execution as would warrant the grant an application for interim stay of execution. - 18. Consequently, the Respondents contend that this Application is overtaken by events as all orders in Civil Appeal No. 18 of 2012 that are capable of execution have since been executed, there is nothing left for the Court to stay and, if issued, the order would be in vain.

$\mathsf{S}$

- 19. By way of rejoinder, the Applicant contends that the provisions of rule 41(1) of the Supreme Court Rules notwithstanding, the Supreme Court has discretion under rule 42(2) of the Rules to entertain an application that is brought under rule $6(2)(b)$ so as to safeguard a party's right of appeal. - 20. Counsel maintains that the Court of Appeal having declined jurisdiction over the application for interim stay of execution, and given the difficulty in securing a hearing date for the substantive application yet the quest for stay was urgent; the Applicant was advised to file the matter in the Supreme Court. Thereafter, given the ruling of the Supreme Court in Civil Applications 6 and 10 of 2024 that there was indeed concurrent jurisdiction between the Court of Appeal and Supreme Court, the Applicant was advised to withdraw the applications that were before the Court of Appeal to avoid a multiplicity of suits. Both applications were allegedly withdrawn on 29<sup>th</sup> May 2024 by notices of withdrawal that was supposedly consented to by the Respondent's advocate(s) and endorsed by the Registrar Court of Appeal on 30<sup>th</sup> May 2024. He invokes rule 94(3) of this Court's Rules to argue that the withdrawal of appeals in the Court of Appeal is complete upon filing a notice of withdrawal and does not require any further hearing to give them effect. It is thus argued that there is no multiplicity of suits given the withdrawal of the previously pending applications in the Court of Appeal. - 21. Counsel reiterates his earlier arguments on the existence of a serious threat of execution given the Respondents' actions that are highlighted earlier in this ruling. In addition, it is argued that the time of 90 days allotted by the Court of Appeal for the First Applicant to file a return at the High Court Family Division accounting for all the monies/property received and held during the time they were in possession of the suit property to the estate of the Late Nabulya is running out, yet the Court of Appeal decision has been challenged on appeal. It is further re-asserted that there is need to forestall the order of the Court of Appeal that directed the Commissioner Land Registration to cancel and reverse all entries made on the properties of the Late Yozefu Bukenya and Petolalina Nabulya, until the determination of the Appeal that is pending before this Court. Hence the application for interim orders to preserve the Applicant's right of appeal.

## C. Court's determination

- 22. I propose to address the preliminary objections raised by learned Counsel for the Respondents prior to delving into the merits of this Application. The order of hearing applications in the Supreme Court vis-à-vis the Court of Appeal is addressed in rule 41 of the Supreme Court Rules as follows: - (i) Where an application may be made either to the court or to the Court of Appeal, it shall be made to the Court of Appeal first.

Civil Application No.13 of 2024

mit.

- (ii) <u>Notwithstanding subrule (1) of this rule</u>, in any civil or criminal matter, the court may, in its discretion, on application or of its own motion, give leave to appeal and make any consequential order to extend the time for the doing of any act, as the justice of the case requires, or entertain an application under rule 6(2)(b) of these Rules to safeguard the right of appeal, notwithstanding the fact that no application has first been made to the Court of Appeal. (*Emphasis mine*) - 23. Rule 6(2)(b) mandates the Court to order a stay of execution in any civil proceedings where a notice of appeal has been lodged. - 24. In the instant case, the Applicant fulfilled the requirements of Rule 41(1) insofar as he sought an interim stay of execution in the Court of Appeal vide Civil Application No. 230 of 2024 before lodging Civil Application No. 10 of 2024 in this Court. Civil Application No. 230 of 2024 was not heard on account of what the single judge of the lower court adjudged to be lack of jurisdiction to entertain the matter, deferring to the view that such an application can only be entertained by three judges of the court. Meanwhile, it would appear that after Civil Applications No. 6 and 10 of 2024 were struck out by my brother Madrama JSC, and given the supposed inability of the lower court to fix the applications for hearing expeditiously, the First Applicant filed notices of withdrawal in respect of Civil Applications No. 229 & 230 of 2024 from the Court of Appeal and filed the present Application and *Civil Application No.* 12 of 2024 (the substantive application for stay of execution) in this Court. The notices were apparently endorsed by the Respondents' advocate and the Registrar of the Court of Appeal - 25. Given the express provisions of rule 41(2) of the Supreme Court Rules, I am unable to fault the Applicant for this course of action. Given the circumstances of this case, this cannot be classified as either forum shopping or an abuse of court process. It thus follows that there is no bar to this Court handling the current Application. It is additionally noted that the Applicant is not forum shopping as he sought urgent relief from the appropriate Courts. The preliminary objections are accordingly overruled. - 26. Turning to the main Application, the grant of interim reliefs such as are in issue presently is governed by Rule 2(2) of the Court's Rules. That procedural rule recognizes this Court's inherent power to 'make such orders as may be necessary for attaining the ends of justice or to prevent abuse of the process of any such court ... and shall be exercised to prevent abuse of the process of any court caused by delay.' In Theodore Ssekikubo & 2 Others v Attorney General & 4 Others, Constitutional Application No. 4 of 2014 (SC) the preservation of parties' right of appeal was adjudged by this Court to speak to the ends of justice. In that case, the Court did also allude to the role of interim orders in preserving the status quo so as to allow for the determination of the issues in contention between the parties by the full court. See also **Uganda Revenue**

$\overline{7}$

mil.

# <u>Authority v Nsubuga Guster & Another, Miscellaneous Application No. 16 of</u> $2018.$

- 27. Additionally, it is now trite law that for an application for interim orders of stay of execution to succeed there must be substantive application for the same relief in respect of a pending Appeal, as well as imminent threat of execution of the lower court's orders before the determination of the substantive application. The existence of a Notice of Appeal is a sine qua non. See Patrick Kaumba Wiltshire v Ismail Dabule, Civil Application No. 3 of 2018 and Theodore Ssekikubo & 2 Others v The Attorney General & 4 Others (supra). - 28. In this case, a Notice of Appeal was duly filed in this Court and served on the Respondents through their advocates. The record does also bear evidence of a substantive application for stay of execution that is pending this Court's determination, namely, *Civil Application No. 12 of 2024*. The question then is whether there is an imminent threat of execution before the determination of the substantive application by the Court.

29. For brevity I reproduce verbatim below grounds (c) and (d) of the Application:

- a. ................................... - b. $\cdots$ - c. That there is an imminent threat of execution as the Respondent has commenced execution proceedings after acquiring the Court of Appeal decree which empowers the Commissioner Land Registration to cancel and reverse all entries made on the properties of the Late Yozefu Bukenva and Petolalina Nabulya. Additionally, the 90 days from the date of judgment in the Court of Appeal running out requiring the Applicant to file a return at the High Court on the file of the Late Nabulya Petolalina. - d. That this Application will safeguard the Applicant's right of appeal, for if it is not granted, the 1<sup>st</sup> Applicant's appeal will be rendered nugatory as the Respondents have already obtained a decree that can be used to enforce some of the orders of the Court of Appeal. - 30. Those pleadings seek to justify the preservation of the Applicant's right of appeal against the lower court's orders for the cancellation of all entries made in respect of the suit property, and the filing of returns in respect of the late Petolalina Nabulya's Estate. The sense of urgency is reflected in the extracted decree that awaits execution by the Respondents. The affidavit evidence on record is that an eviction notice was issued by M/s Jobka General Auctioneers & Court Bailiffs on 9<sup>th</sup> April 2024, followed by a letter addressed to the LC1 Chairperson of Bukenya zone dated 15<sup>th</sup> April 2024 notifying him of the eviction notice and giving tenants seven days within which to vacate the suit property. In addition, there is photographic evidence on record of felled banana trees that illustrate the Respondents' attempts to take possession of the property. Furthermore, the Applicant adduced a letter from the Local Council authorities dated 19<sup>th</sup> June 2024

mny.

and stating that the First Applicant controls the property and is in occupation of the suit land with his family and tenants.

- 31. The totality of the foregoing material negates the Respondents' claim to occupation of the suit land and underscores the imminent threat of execution by way of eviction of the actual occupants thereof. To that extent, the execution of the decretal orders cannot be complete as was argued for the Respondents. This is reinforced by the averment in the affidavit in reply that the Applicant seeks to use the orders to be issued by this Court to continue trespassing on the suit property, the inference being he still is in physical possession of the premises. Given that the First Applicant challenges the lower court's finding that he was a trespasser, it seems to me that the preservation of the current status quo as far as the occupation of the suit land is concerned does speak to the ends of justice. - 32. I am satisfied, therefore, that there is a real threat of completion of execution before the substantive application for stay of execution is heard and determined.

#### D. Conclusion

33. In the result, this Application does succeed with the following Orders:

- I. An interim order is hereby issued staying the execution of the decretal orders arising from Civil Appeal No.18 of 2012 until the determination of Civil Application No. 12 of 2024. - II. Costs of this Application shall abide the substantive application for stay of execution, Civil Application No. 12 of 2024.

$\alpha$

It is so ordered.

Dated and delivered this $\frac{15}{15}$ day of $\frac{12}{15}$ day of $\frac{12}{15}$ ....................................

Monica K. Mugenyi **Justice of the Supreme Court**

J delivered How Jushee.

Civil Application No.13 of 2024