Lutaaya v Efuraimu (Misc Cause No. 474 of 2022) [2022] UGHCLD 148 (30 June 2022)

# THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT KAMPALA

# (LAND DIVISION)

#### **MISCELLANEOUS APPLICATION NO.474 OF 2022**

$\mathsf{S}$

## (Arising out of Civil Suit No. 550 of 2007)

#### LUTAAYA JAMES::::::::::::::::::::::::::::::::::::

#### **VERSUS**

EFURAIMU SAFARI:::::::::::::::::::::::::::::::::::

Before: Justice Alexandra Nkonge Rugadya.

#### **RULING**

#### Introduction:

The applicant brought this application by notice of motion, under the provisions of **Section 33 of the** Judicature Act, Section 98 of the Civil Procedure Act, Order 22 rule 23 and Order 52 rules 2 & 3 of the Civil Procedure Rules.

He seeks orders that the execution of the decree and orders arising from the judgement against the 15 applicant in *High Court Civil Suit No.550 of 2007* be stayed pending an appeal; and for costs of the application to be provided for.

### Grounds of the application:

The grounds of the application are set out in the affidavit of Mr. Lutaaya James wherein he stated *inter* 20 alia that the respondent filed Civil Suit No.550 of 2007 against him and another and that the same was decided in the respondent's favor.

That court ordered for among others the cancellation of the entry of the applicant's name onto the title of the suit land; payment of general damages of *Ug. Shs. 120,000,000/*= with interest at the court rate from the time of judgment until payment in full, as well as the costs for this application.

That the respondent intends to execute the decree as he has served the applicant with a notice to show $25$ cause why a warrant of arrest should not be issued. That the applicant instructed his lawyers to file a notice of appeal to safe guard his rights and that he has also requested a certified copy of the proceedings to enable them prepare a memorandum of appeal and a record of appeal.

That although he earlier instructed his lawyers to file an application for stay of execution, there was no

threat of execution at the time as normal court business had been affected by the presidential and Chief 30 Justice's guidelines to prevent and mitigate the spread of COVID-19 and that while his previous lawyers did not file the said application, he instructed his current lawyers to file the instant application after the respondent threatened to execute the decree.

(into the

$\overline{1}$

That based on thc advice by his iawyers, it is the applicant's bclief that hc has a plausible appeal that raiscs scrious questions of law and facts, with a high likelihood of succcss thcreby warranting the stay of execution against him to safc guard his right to appcal.

5 ln addition, that the applicant shall suffer grave injusticc if thc rcspondent is not restraincd from cxecuting the orders by this court. 'Ihat not only will thc appeal bc rcndcrcd nugatory, but thc applicant's title will be cancellcd. Othcr picces of land from which thc applicant dcrives livelihood may be attached; and since the respondcnt has alrcady served him a noticc to show cause why a warrant of arrest should not issuc, there is also a possibility of his arrest and imprisonmcnt.

[.urthermore that if the applicant is arrested, he will not be ablc to prosecute his appeal and that it is just and equitable for this application to be granted as thc same was brought without unreasonable delay. 10

The respondent disputed thc abovc grounds in his affidavit in rcply whcrcin he averred that thc applicant's notice of appeai was filcd out of timc meaning that thc applicant has no right of appeal since no Ieavc to file the noticc of appcal out of time was sought.

That the applicant only flled the said notice of appeal, requested for a ccrtified copy of the proceedings and changed lawyers in a bid to frustratc the rcspondcnt's efforts to enjoy his fruits of the judgement through cxecution. 15

That the applicant does not have a plausiblc appeal since hc has not attached a draft mcmorandum of appeal with substantial grounds of appeal and that the applicant has never taken any positive steps to file an appeal or seck lcavc to appcal out oI time and acted only after the respondent's lawyers filed for execution.

In addition, that the affidavit in support of the application is Iull of falsehoods as thc samc does not contain a certificate of translation yct thc applicant docs not know I,lnglish. 1'o this end, the respondent attachcd a previous aflidavit dcponcd by thc applicant whcrcin a ccrtificatc of translation was attached.

- I.-urthcr, that the instant application is overtakcn by cvcnts sincc cxccutt)n of the said decree has commcnced and thc cortificate of titlc of rhc su it land h.rs alrcady bccn transfcrrcd into the respondcnt's namcs and that if this application is to be grantcd, the applicant should be required to deposit Ug. Shs. L2O,OOO,OOO/= (O'].e huadted tuentg mllllo shllllngs onlg) or a land titlc of cquivalent valuc, in thc applicant's names as sccurity for due pcrformancc of thc dccrcc or ordcr. 25 - Thc applicant also filcd an affidavit in rcjoindcr to the rcspondcnt's avermenls contending that hc rs not an illitcratc person since he can rcad and understand ltnglish and thzrt it is his former lawycrs to wit; M/s Vlctotld. Adttocates & Legal Consultcrrts who put thc cc.tificate of translation thinking that the applicant could only undcrstand Lug.rnda. llut nowherc was it statcd that he was illiterate. 30

That when he changed instructions to M/s Bg@rnugisha, Lubega, Ochleng & Co. Adroc.ttes to pursue the appcal, thcy discovcrcd that thc noticc of appeal and lcttcr rcqucsting for certified rccord of 35

plcadings had been filcd and scrvcd out of timc.

That thcy informed him that thc powcrs to strikc out the noticc of appcal are rcstricted to the court of appcal, upon application of thc rcspondcnt and becausc no such application has been made by thc

respondent, the applicant has instructed his lawyers to apply for extension of time within which to file and serve the notice of appeal and/or validate the notice of appeal that was filed.

In addition, that the delay was caused by mistake of counsel which should not be visited on the litigant.

## Representation.

$\mathbf{r}$

$\mathsf{S}$ The applicant was represented by *M/s Byamugisha*. Lubega, Ochieng & Co Advocates while the respondent is represented by *M/s Mugarura*, *Kwarisiima & Co. Advocates*.

Both counsel filed written submissions in support of their respective clients' cases as directed by this court.

### Consideration of the application.

10 Where an unsuccessful party is exercising their unrestricted right to appeal, it is the duty of the court to make such order for staying proceedings in the judgment appealed from as will prevent the appeal from being rendered nugatory. (See Wilson vs Church (1879) Vol. 12 CH D 454 followed in Global Capital Save 2004 Ltd & Another vs Alice Okiror & Another HCMA No. 485/2012)

The principles under which an application of stay of execution can succeed were well espoused in the

- 15 case of Lawrence Musiitwa Kyazze Vs Eunice Businge, Supreme Court Civil Application No 18 of 1990, as well as the Supreme Court case of Hon Theodore Ssekikubo and Ors Vs The Attorney General and Ors Constitutional Application No 03 of 2014, as follows: - a. The applicant must show that he lodged a notice of appeal - b. That substantial loss may result to the applicant unless the stay of execution is granted.

- c. That the application has been made without unreasonable delay. - d. That the applicant has given security for due performance of the decree or order as may ultimately be binding upon him.

# Lodging a notice of appeal:

25 Regarding the first principle which stipulates that there should be a pending appeal, the applicant annexed a notice of appeal to this application. (See: Annexure 'B' of the affidavit in support of the application).

The said notice of appeal was lodged in this court on 20<sup>th</sup> December, 2019 and the date on which it was received by the Court of Appeal is quite unclear. The Judgement from which the applicant seeks to appeal was read and delivered by this court on the 17<sup>th</sup> December, 2019.

Counsel for the respondent in his submissions argued that the notice of appeal was filed out of time owing to the fact the judgement in issue was delivered on 25<sup>th</sup> November, 2019 but the notice of appeal was filed 25 days therefrom on 20<sup>th</sup> December, 2019 contrary to the provisions of *rule 76 (l) and (2) of* the Judicature (Court of Appeal Rules) Directions S. I 13-10 which stipulate that a notice of appeal ought to be lodged within 14 days from the date of the judgement or ruling.

In addition, that the applicant ought to have sought leave to file the notice of appeal of time before filing the same which means that the applicant does not fulfil this principle.

$3$ Noteg

In the case of Attorney General of the Republic of Uganda versus The East African Law Society **& Another EACA Application No.1 of 2013**, as rightly cited by counsel for the plaintiff in his written submissions, it was held that:

'A notice of appeal is a sufficient expression of an intention to file an appeal and that such an action is sufficient to found the basis for grant of orders of stay in appropriate cases'.

In the case before me, it is not in dispute that the applicant filed a notice of appeal as well as a letter dated 20<sup>th</sup> December, 2019 requesting for the typed certified copy of proceedings. There is no indication however as to whether or not the court proceedings were availed to him.

10 The applicant in his affidavit in rejoinder categorically stated that he has since instructed his new lawyers to apply for extension of time within which to file and serve the notice of appeal and/or validate the notice of appeal that was filed. There is no evidence however that the application was filed and/or served to the respondent.

Without a notice of appeal filed within time as stipulated by law, and without evidence that an 15 application for extension of time (within which to file and serve a notice of appeal/validate the notice of appeal has been filed, this application must fail.

Costs awarded to the respondent.

$25$

I so order.

Alexandra Nkonge Rugadya Judge 30<sup>th</sup> June, 2022.

Defored by email<br>aborty<br>30/6/2022