Male v Nsubuga and Another (Miscellaneous Application 915 of 2023) [2023] UGHCLD 240 (11 August 2023)

#### THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT KAMPALA

## (LAND DIVISION)

## **MISCELLANEOUS APPLICATION NO.0915 OF 2023**

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# (Arising from Civil Suit No.240 of 2008)

BENEDICT MALE::::::::::::::::::::::::::::::::::::

#### **VERSUS**

## 1. NSUBUGA SAMUEL

2. GEORGE WILLIAM SEMIVULE::::::::::::::::::::::::::::::::::::

Before: Lady Justice Alexandra Nkonge Rugadya. 10

## Ruling.

The applicants by way of notice of motion brought this application under the provisions of **Sections 33** & 38 of the Judicature Act cap.13, Sections 64 (e) & 98 of the Civil Procedure Act cap.71, and Order 22 rule 23 (1) & Order 52 rules 1 & 2 of the Civil Procedure Rules SI 71-1 seeking orders that the execution of the decree or orders arising from the judgment and orders in Civil Suit No.240 **of 2008** be stayed pending appeal, and costs of the application be provided for.

#### Grounds of the application:

The grounds of the application are contained in the affidavit in support of the application deponed by Mr. Benedict Male, the applicant but briefly are that the applicant was the plaintiff in Civil Suit No.240

of 2008 wherein he sought a declaration that he was the lawful owner of the suit land comprised in 20 **Busiro Block 314 plot 448 & 340,** a permanent injunction against the respondents, general damages, and costs of the suit.

That this court in its judgement in Civil Suit No.240 of 2008 delivered on 31st May 2022 among other things, ordered that the 2nd respondent's purchase of the land comprised in **Busiro Block 314 plot**

Julos P.

448 from the respondent was lawful and that the applicant being dissatisfied with the said decision lodged an appeal contesting the orders of this court.

That the respondents are threatening to execute the decree against the applicant by disposing of the suit land, which actions will be detrimental to the applicant thereby causing irreparable loss and

5 suffering.

> That the applicant's appeal shall be rendered nugatory if the execution oI the orders and decree of this court in Clu{l Sult No.24O of 2OO8 is not stayed yet the applicant's appeal has high chances of success in the court of appeal.

> That the applicant is prepared to abide by any conditions that may be made by court including furnishing security for due performance of the decree and that as a requirement of the Court of Appeal,

the applicant has paid security for costs thereby showing his intention to prosecute his appeal.

That not only is it just, but also equitable that an order of stay of execution be granted pending the hearing and disposal of the appeal.

The respondents opposed the application through the aflidavit in reply deponed by the 1st respondent,

Mr. Nsubuga Samuel who stated inler alia that the respondents were the defendants in Ciuil Suit No.24O oJ 2OOB which was heard and determined on 3lst May 2022. 15

That while the respondents are aware that the applicant filed this application seeking to stay the execution of the judgement and decree ol this court, the execution thereof has nothing to do with the respondents since the said decree made it clear that the estate property reverts to the estate of the late

Erinesti Nsubuga and that the respondents are not administrators thereof and that no threats to execute the said decree have been made against the applicant by the respondent

Additionally, the administrators of the estate of the late Erinesti Nsubuga are known to the applicant and that that from 3l st May 2022, this court vested the suit land in the hands of the said administrators who have since taken possession from the 2nd respondent.

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That neither the applicant nor his agents are in possession of the suit land as was found in the judgement of this court since the applicant admitted that he had since relocated to another area in 2008 as the 2nd respondent had chased away his people.

5 That the administrators took the judgement and orders of this court with a lot of vigilance, took possession of the suit land, registered themselves as the proprietors thereof, subdivided it, and they have since sold off parts thereof to other third parties as well and that the applicant has at all times known that the administrators of the estate were not only in possession, but were also enjoying the fruits of the judgment which prompted the applicant's son, a one Erick Male to break down the buildings on the property that did not belong to him.

That the eminent threat or danger that the applicant seeks to protect himself against through an order oI stay of execution passed the moment the land moved into the hands of the administrators who have since subdivided it and sold it off. 10

Thus an order against the respondents shall be useless and that this application is not only fundamentally flawed, but also incompetent as it reveals no grounds for grant of the orders sought.

Further, that the applicant was paid the debt of Ug. Shs. 6,600,000/= (Ugsadq Sftitllngs slx milllon slx hund.red thousand. onlg, by the administrators of the Estate of the late Erinesti Nsubuga as ordered by court which amount he received through his mobile money account. 15

That while there is no order of the Court of Appeal requiring the applicant to pay security for costs, the applicant has no competent appeal before the Court of Appeal, and that the applicant shall suffer no

irreparable loss in the event that this application is not granted. 20

# Determlnatlon af the o,Dpllcq,tlo .

Sectlon 98 o.f the Clvil Procedure nules S, 7I-I gives this court inherent powers to take decisions which are pertinent to the ends ofjustice; and an order of stay of execution is such a decision. (See,' UJaga.r Stngh vs Rund(l Collee Estates Ltd [19661 I EA 263)

In . Frcncis M. Mlco.h vs. Nuwq W@lo.klra (1992-93) IICB 88 court held that there is no specific provision enabling the High Court to grant a stay of execution of its decree pending an appeal. 25

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The same court advised however that such mandate is present through the inherent powers of court, for example to preserve the status quo pending an appeal.

In the spirit of Order 43 rr. 4(2 , therefore, and in respect of every court to which an application for stay of execution is filed, powers to stay execution of its decree is allowed where sufficient cause is

5 shown by the applicant.

An applicant seeking stay of execution must meet the conditions set out ,n O. 43 r.4 (3) of the ctoll Procedure Rules and those as espoused in the case of Laurence lfruslltutq Kgqzze Vs Eunlce Buslnge, Suplelrne Court Clull Appllcatlon No 7a of 1990.

They include: The applicant must show that he lodged a notice of appeal; That substantial loss mag result to the applicant unless the staA of execution is granted; That the application hos been made wtthout unreasonable detag; That the applicant has giuen secuitg for due perfonnance of the decree or order as mqg ultimatetA be binding upon him.(See also; Hon Iheodore Sseklkubo a.nd Others Vs Attorneg Generql and Ors: Con,stltu'tlon,(Il Appllcdtlon No 03 of 2074).

# a,. An apoeal Dendlnq:

Regarding the first requirement, it is not in dispute that the applicant lodged an appeal in the Court of Appeal and that the same has not yet been fixed for hearing, and is pending determination. 15

The applicant adduced in evidence a copy of the notice of appeal lodged in this court on lTth June 2022, and transmitted to the Court of Appeal on 20th June 2022.

The applicant then ftled Ckttl Appeal No.198 o! 2023 in the Court of Appeal on the same day. Attached to the affidavit in support of the application is a copy of the Memorandum of Appeal detailing the grounds upon which the appeal is premised. 20

It is the finding of this court therefore that the applicant satisfied the lirst requirement.

# b. Ltkellhood. of lncu nq substa tldl loss:

Secondly, the applicant is required to prove that substantial loss may result to the applicant unless the

stay of execution is granted. 25

The phrase does not represent any particular amount or size; it cannot be qualified by any mathematical formula. It relers to any loss great or small; of real worth or value as distinguished from a loss that is merely nominal. (see: Troplcdl commodltles suppltes Ltd, & 2 others as ln.ter.7?.o'tlonq.l ctedlt Bd.nk Ltd (In Ltqulddtlon) I2OO4| 2 EA 331)

5 In the case of P,r( Sengendo us. Susutura Lawrence & Another CACA 2O7 oJ2OI4 the Court of Appeal in its mling observed that where the subject matter was property capable of permanent alienation and therefore capable of causing the appeal preferred to be nugatory, then the court will exercise its discretion in favour of the applicant, for the appeal to be attended to on its merits.

In the present case, the respondents in their afhdavit in reply clearly stated that the suit land has since 10 been transferred into the names oI the administrators of the estate oi the late Erinesti Nsubuga who have since sold off the same to third parties.

It was also the respondents' undisputed evidence that the applicant is not in possession of the suit land. The lst respondent further averred through affidavit evidence that the applicant has since been paid Ug. Shs, 6,600,000/= (Ilgo.nda Shitlings slx mlllioa slx hundred thouso,nd onlg,f by the 15 administrators of the estate of the late Erinesti Nsubuga, being payment of the debt accumulated by the estate owing to the borched sale of the suit land to the applicant.

Evidence to that effect was presented to show that the applicant on 9th May,2023 received money on his mobile account, which was paid to him in two instalments. On loth May, 2023 Mt. Israel Njajaba one of the administrators ofthe estate of the late Erinesti Nsubuga wrote to this court iniorming it about ZO the said money received by the applicant in settlement of the monies, as per order of this court.

This court on the 1st June, 2023 received the rejoinder by the applicant which was ltled on ECCMTS on 4th August, 2023 in which he refuted the contents of the affidavit in reply. The applicant while admitting that he had received the money however presented evidence in his rejoinder to prove that he had returned the money on lOth May, 2023, t]ne same day on which Mr. Njajaba had written to court 25 to notify it that the money had been paid to the applicant, as directed by this court in its judgment.

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The administrators of the estate were neither parties to the suit nor to this application and therefore could not respond to these assertions. But also noted of course was the fact that the respondent were not able to respond to the assertions which were presented in the rejoinder.

Suf6ce to note however, that Annerture D was sufficient proof of such refund transaction, bearing a 5 stamp of MTN, dated 18th MaY,2023.

The applicant relying on various attachments: Annexlures A, 81, 82, E;3, and C further claimed that the respondents had mutated the suit land, causing various purchases / transfers, despite being aware of the existence of the notice of appeal which had been served onto their lawyers on 2oth June, 2022 (Clvtl Appeql No. 198 oJ 2023).

- 10 To show his seriousness in challenging the decision of this court, the applicant also went ahead to present a copy of a cheq\e (Annerture E/ by which he claimed to have paid a sum of Ugx 2OO,OOO/= La this court through DFCU bank, as security for costs, Court could not however readily ascertain the truthfulness of this claim since the copy of the cheque attached by the applicant (Annerture E) had' neither a date nor signature and was not certified by the bank. - 15 But be that as it may, the evidence by the applicant demonstrates that the application was filed as soon as the applicant got to realise that there was on going execution of the court decree, a few days after he had received money from Njajaba and transfers made between the period of 2nd May, 2023 and 12th May,2023, which proved that there was serious threat of execution.

lo Kgambogo V'/.lversltg tts Prol. Isolo,h Onolo Ndtege CA No. 347 ol2073 cotrt held that serious 20 or eminent threat of the execution of the decree or order rendering the appeal nugatory is another ground which justifles the grant of an order of stay.

In light of the above Iindings as highlighted, I am inclined to agree therefore that there is serious and eminent threat of execution of the orders of this court which may render the appeal nugatory, It is for those reasons that I would allow this application for the stay of further execution of the orders made by ZS this court vide: Clull Su{t No. 24O ol2OO8.


Since furnishing security of costs is a pre-requisite to the granting of this application, in exercise of the court's discretion as granted by law, the applicant is to pay a sum of *Ugx 2,300,000/=* within a period of 30 days, from date of delivering this ruling.

No further transfers for the land, the subject of the pending appeal are to be made by the respondents

or their agents, till court orders otherwise. $\mathsf{S}$

Each party to bear its own costs.

I so order.

Alexandra Nkonge Rugadya

$Judge$ $10$

$\mathcal{L}_{\mathcal{L}}$

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11th August, 2023.

Delivered by enail<br>11/08/2023<br>Alabot

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