Makumbi v Ssemango and Another (Miscellaneous Application No. 535 of 2022) [2022] UGHCLD 127 (6 July 2022)

Full Case Text

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## THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT KAMPALA

## (LAND DIVISION)

# MISCELLANEOUS APPLICATION NO.535 OF 2022

(Arising from High Court Execution Miscellaneous Application No.20 of 2022)

# (Arising out of Civil Suit No.194 of 2010)

JAMES MAKUMBI::::::::::::::::::::::::::::::::::::

Versus

## 1. JOSEPH SSEMANGO

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2. LAKERI NALUWOOZA::::::::::::::::::::::::::::::::::: 10

# Before: Lady Justice Alexandra Nkonge Rugadya.

## **RULING:**

### Introduction:

- The applicant brought this application under Section 33 of the Judicature Act Cap. 13, Section 15 98 of the Civil Procedure Act Cap.71 and Order 22 rules 23 & 89 (1) of the Civil Procedure Rules SI 71-1 for orders staying execution of the judgement decree in Civil Suit No. 194 of 2010; James Makumbi vs Joseph Ssemango & Another pending the determination of Court of Appeal Civil Appeal No.184 of 2021; James Makumbi vs Joseph Ssemango & Another, and - that costs of the application be provided for. 20

## Grounds of the application:

The grounds upon which the application is premised are set out in detail in the affidavit in support of the Mr. James Makumbi, the applicant but briefly, that the applicant instituted Civil Suit No.194 of 2010 against the respondents seeking among others a declaration that the estate of the late Israel Nyanzi is the lawful occupant of the land in dispute and is entitled to possession thereof but the same was dismissed with costs. Orders for vacant possession of **plots 96 & 98** were made; as well as an order for the immediate demolition of the applicant's house on **plot 96.**

That the applicant being aggrieved with the judgement filed Constitutional Appeal No.184 of 2021 which raises serious questions of law and facts which are pending determination by the Court of Appeal and that the said appeal has a likelihood of success based on the grounds

presented for determination by the court.

That the respondents have been on the move aimed to evict the applicant from his house and as such that there is a real threat of execution of the judgement despite the pendency of the appeal considering thc fact that thc applicant was scrved with a noticc to show cause why execution should not issuc. It was slated for hcaring on 30th March, 2022

In addition, that thc suit land is d'cvclopcd with a housc from which thc bencficiarics to thc cstatc of the late Nyanzi derivc income for thcir livclihood, which if dcmolishcd, will causc irreparable loss to lhe applicant as wcll as his siblings and that thc pcnding appeal shali be rendcrcd nugatory'

Further, that the instant application which was brought without delay is brought in good faith, in the intcrcst ofjusticc and that the rcspondents shall not bc prejudiced if thc same is granted'

## Id. Res pondent's reolu:

10 The l"rrespondent objected to the application through his affidavit in repiy whcrein hc stated inter alia that the instant application was not only brought in bad faith but is also a misconception of the law on cxecution sincc hc has not rxrmmt:nccd any cxecution proccedings against thr: applicant; and that if thc samc is grantcd, thc rcspondcnt will bc unfairly condemncd in costs of thc application.

## 2"d Resoond.ent's reolu:

15 The 2n,r respondent cqually opposed thc application though an affidavit in rcply sworn by hr:r la\a{ul attorncy, Ms. Idah Erios Nantaba who dcponcd that thc applicant's appcal is incompetent becausc thc appiicant only effccted scrvice of the Noticc of nppeal on the 1"1 respondent on 1srh Fcbruary, 2021 while the 2"d rcspondent has ncver bccn sr:rvcd with the same and thal the applicant's lawycrs have adamantly omittcd to cffcct scrvice of the memorandum of appeal as well as the record oI appeal on the 2nd rcspondcnt. 20

That nonc oI thc requisitc documcnts havc bccn scrved on thc 2n't rcspondcnt despite the fact that court has on occasions dircctcd thc applicant's lawycrs to cffect scrvice of the same on the 2'd rcspondent's lawycrs.

That foilowing thc applicant's failure to comply with a court ordcr to pay tlgx' 60'000,000/=

coUnsel for the rcspondent wrotc a letter sccking an alrcSt warrant which was issued againsl the applicant on 19rh May, 2022 and, on 2orh May, 2022 hc was produced beforc court and was rcmanded to civil prison. 25

That thc applicant was not only awarc of the status of the suit but also that thc respondcnt had commcnced cxecution proccedings against him but the applicant had deliberately refused to pay

the money. 30

> That the applicant has bccn affordcd sufficicnt time to scttle thc sums therein and furthcr vacate the suit property comprised in Block 78 Plot 96 and that hc is secking to stay the said orders pcnding dctcrmination oI an appcal filed challcnging thc judgcmcnt of this court, but the said appcai is not known to either 2"'l rcspondent or hcr counscl'

Irurther, that thc applicant's allcgcd application for leave to appcal out oI timc has no iikelihood of succcss, as it is incurably incompctcnt and that it is just that this court dismisscs the s2id 35

application becausc it is brought in bad faith in a bid to rcstrain thc 2'd respondent from lawfully bcnefiting from thc fruits of iLs judgmcnt in ,IICCS No.'794 of 2070'

## Aaolica'rt 's reloinder:

5 Thc applicant also filcd an affidavit in rcioindcr to thc l\$ & 2''r rcspondcnts'respcctive affidavits in reply. ln responsc to the 2n'i rcspondcnt's avcrments, he avcrred that the court in Clu{I Sult No.794 oJ 201O madc various ordcrs including an award of costs, the amount of which was indicated by court and that the 2n'r respondent seeks to, among othcrs, cxecute thc orders for costs in Executl on Mlscellaneous Appltcatlon No,2O of 2Q22, to which the 1s' rcspondent is a party.

That thc avermcnts by the 2"d respondcnt that shc was nevcr scrvcd with thc Notice of Appeal and mcmorandum of appeal werc arc unfounded becausc llls Mcgna Adrocates wcre served with thc same but declined to acknowledge rcccipt thcreof because thcy had to consult with their client' 10

The applicant attached a copy of the affidavit of servicc showing that the papcrs werc received but that counscl with pcrsonal conduct dcclincd to acknowlcdgc reccipt pending consuitations with their client. Thc 2n,r respondcnt did not dcny thc fact that shc rcccivcd a copy of the noticr: of

appeal. In thc casc ol Ataoneg Gel.ero.l o! the Republtc oJ tlganda versus The East Afrlcan Laut

socletg & Another EACA Appltcqtlon No,7 oJ 2O73, it was held that a notice of appeal is a sufficicnt cxprcssion of an intcntion to filc an appcal and that such an action is sufficicnt to form thc basis Ior grant of ordcrs of stay in appropriatc cascs'.

Thc a-ffidavit of scrvicc also showcd that counscl for the 1"( rcspondent, M/s Lukwago & co. Adltocqtes was also duly scrved with thc notice of appeal, which they acknowiedgcd'

In addition, that thc instant application was alrcady filcd at the time the parties appcared trefore thc learncd Registrar who issucd thr: ordcr for paymcnt of monies withln 30 days and that the pcndency of this application was brought to the attcntion of the krarncd rcgistrar who confirmed that thc same was yct to bc allocatcd and fixcd for hcaring via ECCMIS

ln rcsponsc to thc objcction, this court takcs.judicial notice of thc challenges faced so far in the operation of thc ITCMIS systcm giving the bcnclit of doubt to the applicar)t l'or thc above rcasons thercfore, the objection raiscd by thc 2n'r respondcnt cannot bc sustaincd'

- It was €Llso thc applicant,s claim that thc inslant application only sccks to stay thc exccution procccdings in Executlon Mlscellqneous Appllc(rtlor. No.2O oJ 2022 whrch the applicant's lawvers only found out on 21 \$ March, 2022 when thcy werc servcd with a notice to show cause slated for hearing on 3orh March, 2022 and that this court is clothed with widc discretionary powers to grant thc ordcrs sought pcnding thc determination of thc appeal' 30 - That the building sitting on plot 96 which is thc applicant's ordinary residencc was constructed by his latr: father in the early 197os also servcs as thc residence to other bcneficiaries of the dcceased's estate, and has <lthcr sitting tcnants who havc bccn in occupation of the same for very 35

many years and if evicted, will suffer inconvenience. The estate therefore risks a suit in damages by the sitting tenants.

## **Representation:**

The applicant was represented by *M/s Alliance Advocates.*; the 1st respondent was represented by M/s Lukwago & Co. Advocates; and the 2nd respondent by M/s Magna Advocates.

## Consideration of the issues:

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. 10 $485/2012$ )

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

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d. That the applicant has given security for due performance of the decree or order as may ultimately be binding upon him.

## Notice of appeal/pending appeal.

Regarding the first principle which stipulates that there should be a pending appeal, as already noted, in reference to the case of Attorney General of the Republic of Uganda versus The East 25 African Law Society & Another EACA Application No.1 of 2013, the holding in that case was:

# '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 instant case, it was the applicant's uncontroverted evidence that he had filed an appeal in 30 the Court of Appeal vide Civil Appeal No. 184 of 2021. He attached a copy of the Notice of appeal filed on 10th February, 2021 and a copy of the Memorandum of Appeal filed on 2nd June, 2021.

Accordingly, this court finds that the first requirement has been fulfilled by the applicant.

## 2. Substantial loss.

Regarding the 2nd principle that substantial may result, reference is made to the applicant's 35 affidavit in support, specifically paragraph 12 wherein the applicant avers that the suit land is developed with a house from which the beneficiaries to the estate of Nyanzi derive income for their livelihood by way of rent and that if the same is demolished, they will all suffer irreparable loss.

The $2nd$ respondent in her affidavit in reply refutes the averments by the applicant on the basis that the applicant has not demonstrated that execution of the decree will either endanger him or cause him irreparable damage since one of the houses situate on the suit land claimed to be a source of income for him and the siblings was found to be dilapidated and inhabitable by this court.

In Andrew Kisawuzi Vrs Dan Oundo Malingu HCMA 467/2013 it was held thus:

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"...substantial loss cannot mean ordinary loss or the decretal sum or costs which must be settled by the losing party but something more than that.....the applicant should go beyond the vague and general assertion of substantial loss in the event a stay order is granted"

On the other hand, Justice Ogola J (as he then was) in Tropical Commodities Suppliers Ltd and Ors Vs International Credit Bank Ltd (In Liquidation) (2004)2 EA 331 opined that substantial loss does not represent any particular amount or size for it cannot be quantified by any particular mathematical formulae. It refers to any loss, great or small that is of real worth or value as distinguished from loss without a value or that which is merely nominal.

In this case, the likelihood that the applicant and his family were likely to suffer irreparable loss is not too remote considering the fact that they are in occupation of the suit land and the respondents intend to evict and demolish the structures thereon.

It is not disputed that the suit land is also occupied by tenants from whom the applicant and his siblings derive sustenance. It follows therefore that if this order is not granted the applicant will suffer irreparable damage also considering the family's emotional and ancestral attachment to the suit land.

#### Unreasonable delay. 25

The third principle that ought to be fulfilled by the applicant is that the application for stay of execution has been made without unreasonable delay,

In Ujagar Singh v Runda Coffee Estates Ltd [1966] EA 263 where Sir Clement De Lestang, Ag. V. P stated;

$\acute{\,}$ ... It is only fair that an intended appellant who has filed a notice of appeal should be able to apply for a stay of execution $\ldots$ as soon as possible and not have to wait until he has lodged his appeal to do so. Owing to the long delay in obtaining the proceedings of the High Court it may be many months before he could lodge his appeal. In the meantime, the execution of the decision of the court below could cause him irreparable loss.'

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The applicant in the instant case filed a notice of appeal on 10th February, 2021 and a memorandum of appeal on 2nd June, 2021. This application itself was brought on 25th April, 2022, soon after receiving eminent threat of execution. In the circumstances I find that there was no unreasonable delay in filing the same.

#### 4. Eminent threat of execution 5

The fourth principle that there is serious or eminent threat of execution of the decree or order and if the application is not granted, the appeal would be rendered nugatory. It was brought to the attention of this court that the 2nd respondent had filed **Execution Miscellaneous** Application No.20 Of 2022 seeking to commence execution of the orders of this court in the main suit. This fact was not denied by either respondents. It is clear that the process of execution has since been commenced. The threat of final execution becomes real and may render the appeal nugatory.

# Security for due performance of the decree or order.

The requirement for payment of security for costs is to ensure that a losing party does not intentionally delay execution while hiding under unnecessary applications. Courts have however 15 held that each case must be looked at according to its merits. The requirement was never intended to fetter the right of appeal.

A balance must therefore be drawn between on the one hand the delay and inconvenience likely to be suffered by the successful party in accessing the fruits of the judgment and on the other hand, the exercise of a party's right of appeal which ought not prohibited by an excessive amount

of security for costs.

In the case of John Murray (Publishers) ltd vs G. W Senkindu Civil Suit No. 1018 of 1997, this court while dealing with the issue of security of costs noted that;

"I think the first consideration in applications of this nature is whether the respondent has goods or chattels of his in the jurisdiction of this court which are sufficient to answer the possible claim of the other litigant which would be available to execution when the court will order him to give security for costs...."

In determining the amount to be furnished by the applicant, this court takes into consideration the fact that the applicant is yet to pay the sum as decreed by court which he owes the respondent.

#### 6. Likelihood or probability of success: 30

While the applicant is required to demonstrate that the appeal is not frivolous and has a likelihood of success, it is not the place of this court to express its opinion as to whether the appeal is likely to succeed or not.

The likelihood or probability of success was discussed in GAPCO Uganda Ltd v Kaweesa & Anor (MA No. 259 of 2013) [2013] UGHCLD 47. Court must be satisfied that the claim is not frivolous

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or vexatious and that there is a serious question to be tried. (See American Cyanamid versus Ethicon [1975] ALL ER 504).

The applicant supplied this court with a copy of the memorandum of appeal lodged in the court of Appeal in which seven grounds of appeal were raised. The applicant raised questions of both law

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and fact to be addressed by the Court of Appeal which sufficiently satisfies the last requirement for the order for stay.

Having fulfilled all the necessary conditions for the grant of an application of this nature, it is the finding of this court that the application merits the prayers sought.

Accordingly, 50% of the costs as decreed shall be paid as security for costs.

10 Each party to meet its own costs.

I so order.

Alexandra Nkonge Rugadya.

15 Judge

6th July, 2022.

Delivered by email Aubsegr $\int 6|7|2020$