Mugerwa v Mugubi & Another (Civil Application 15 of 2022) [2022] UGSC 23 (24 May 2022)

#### THE REPUBLIC OF UGANDA

# IN THE SUPREME COURT OF UGANDA AT KAMPALA CIVIL APPLICATION NO. 15 OF 2022/UGA ECCMIS NO. SUP-0009-2022

# ARISING FROM CIVIL APPLICATION NO...... OF 2022

#### ARISING FROM COURT OF APPEAL NO.84 OF 2021

# ARISING FROM COURT OF APPEAL CIVIL APPEAL NO. 176 OF 2013

# LAWRENCE MARTIN MUGERWA MUSISI.................................. **VERSUS**

### 1. MUGUBI STEPHEN BANJA 2. BANDA ISAAC KYAKWAMBALA..................................

#### **BEFORE MWONDHA JSC (SINGLE JUSTICE)**

#### RULING OF COURT

This Application was brought under Rule $2(2)$ , Rule $6(2)(b)$ , Rule 42(1), Rule 50 and 51 of the Judicature (Supreme Court Rules) SI 13-11. The Applicant was seeking for orders: -

$(1)$ That an interim order to stay execution be granted to stay orders of the Court of Appeal in Civil Application No. 84 of 2021 pending hearing of the main Application to stay execution.

$(2)$ Costs of the Application be provided for.

The Notice of Motion was supported by the affidavit deponed by the applicant Lawrence Martin Mugerwa.

Briefly, the grounds were: -

$\mathbf{a} = \mathbf{a}$

- (1) That the Applicant had filed a Notice of Appeal in this Court (a copy annexed and marked "A") - $(2)$ That an application for stay of execution was filed in this Court (A Copy of the Application was attached marked "B") - (3) That there is a high likelihood that the respondents are in the process of executing the said Ruling and orders before determination of the main Application to stay execution and the appeal itself. - (4) That the main Application for stay of execution is still pending in this Court and if the interim order is not granted, it will be rendered nugatory. - (5) That it is in the interest of Justice, equity and fairness that the applicant is granted an interim order of stay until its main $\aleph$ application for stay is disposed of.

#### **Respondent's Reply**

The respondents filed an affidavit in reply deponed by Mugubi Stephen Banja and stated interalia the following: -

- (1) That the Application was frivolous and vexatious and should be struck out with costs. - $(2)$ That paragraphs 1,2 and 3 were admitted. - (3) That following the Ruling of the Court of Appeal, the lawyer extracted the order and sent to the applicant lawyer for

approval but the order had never been approved by the applicant's lawyer to date.

- (4) That as such, there is no order to be executed and therefore the application is premature. - $(5)$ In specific reply to paragraph 5 of the affidavit which states that the respondents are in the process of executing the said Ruling and orders, the applicants have never made any application of execution because there is no order yet signed by the Court of Appeal to be executed. - (6) That the Application lacks merit and the same should be dismissed with costs.

#### Applicant's Rejoinder Affidavit

The affidavit was deponed by the applicant and he stated as follows interalia: -

- (1) That the Application is not frivolous and vexatious as alleged by the respondents but meritorious. - (2) That he was advised by his advocates that the extracted order $\mathbb{Z}$ arising out of Civil Application No.84 of 2021 had been signed and approved by all parties concerned and forwarded to the respondent's Advocates for further management so this Application can't be held to be premature (Attached was a copy of the Ruling from which the said order was extracted marked " $A$ ") - (3) That the order having been extracted and approved, the respondents are entitled to execute the orders therein on the endorsement of the Court of Appeal and if this Application is not granted, there would be no impediment whatsoever to stop the respondent from executing the same. That this will inflict greater hardship on the applicant and will expose him to a threat of eviction from the suit land.

#### **Representation**

At the hearing, Mr. Niwagaba represented the Applicant. Mr. Kavuma Kabenge represented the respondents.

#### **Submissions of Applicant**

Counsel for the applicant submitted interalia on the conditions which are required to be established before an interim order can be granted. He relied on the case of **Hwansung Industries Limited Vs** Tajdin and others SCCA No. 19 of 2008 which stipulated the following: -

- (1) A competent Notice of Appeal - $(2)$ A substantive Application for stay of execution - $(3)$ A serious threat of execution.

# Counsel relied on the case of **Kyambogo University Vs Prof. Isaiah** Omolo Ndiege CA No.341 of 2013.

As for competent Notice of Appeal, he submitted that the applicant annexed a copy of the Notice of appeal which had been filed on 30<sup>th</sup> March 2022 and the Ruling of the Court of Appeal marked "A" on the affidavit in support of the Notice of Motion.

On substantive Application for stay of execution, counsel submitted that the substantive Application No. 84 of 2022 seeking orders of stay pending disposal of the intended appeal. That earlier, the applicant had filed Civil Appeal No. 14 of 2021 in this Court all concerning the subject matter of this Application. He referred to Annexture marked "B" attached to the affidavit in support.

On serious threat of execution, he submitted that the respondents are likely to execute the orders as they are in the possession of signed/ approved copies of the same by Court. The respondents will be entitled to execute the same since there would be no impediment to stop them.

He also submitted that the order is self-executing without any other process required other than presenting them to the Commissioner land registration and have it executed if this Application is not granted. That therefore, this Application cannot be considered premature.

He further submitted that the respondents are in the process of ensuring execution. Counsel invited this Court to allow the application as the applicant had proved all the conditions required to be complied with and costs.

#### **Respondent's submissions**

Counsel for the respondent raised the issue whether the applicant fulfilled the conditions required to grant the interim order to stay execution. He too pointed out three conditions as laid down in Hwansung Industries Limited Vs Tajdin (Supra)

The applicant has to prove and or establish that:

- (1) That there is a substantive Application filed in Court and pending disposal/hearing. - (2) That the applicant filed a competent Notice of Appeal within Rule 72 of this Court Rules. - (3) There must be evidence to prove the existence of eminent threat to execute the decree or order by the respondent

Counsel argued that there is no substantive application for stay filed in this Court and hence the application is premature and abuse of process of Court. He submitted that the purported Annexture B on the affidavit in support of the application has no number. That it is a document not received by this Court, it was not signed nor sealed by the seal of Court.

Counsel submitted that the purported main Application for stay of execution was legally nonexistent as shown by Annexture B of the applicant's affidavit in paragraph 4. Counsel cited the case of Zubeda Mohammed and anor Vs Laila Kaka Wallia and others **SCCR No.07 of 2016.** The Reference was allowed and the interim order was set aside. This Court said and I quote in part; "the *interim* dated $17$ <sup>th</sup> May 2016 is not open ended but makes a reference to a

non-existent application as well...it was not based on a substantive application for stay of execution and therefore no legs to stand on."

Counsel submitted that basing on the above, the Application in the instant case was incurably defective since the application is not based on the existence of a substantive main Application for stay of execution

On whether there is eminent threat of execution, counsel submitted that there was no evidence to prove eminent existence of the threat or danger. There was no decree or order extracted and filed in this Court neither was there evidence that the respondents had filed an application or was commencing the execution process/proceedings in the Court of Appeal. He further submitted that this Application was filed on imaginations. He prayed this Court dismissed with costs this Application as it has not fulfilled the conditions on which the interim order can be granted.

# Applicant's Rejoinder Submission

Counsel for the applicant reiterated the earlier submissions but added that the substantive Application was filed on 4<sup>th</sup> April 2022 and it was entered as UGA ECCMIS SUP-00-CV-CL009 of 2022.

Counsel argued that the assertion that the Application was not filed, received by this Court, that it has no number and Court stamp was misconceived. That the same is not generated by themselves but ECCMIS which system is open and can be accessed to all court users including the respondents.

Counsel submitted that the order is self-executing and that is why the respondents have not made any Application for execution among others.

## **Consideration of the Application**

Upon careful perusal and consideration of the Notice of Motion and the affidavits for and in reply by both parties and upon careful consideration of the submissions of both counsel and authorities relied on, I found the following: -

(1) The law governing applications for stay of execution and injunctions is set out in Rule $6(2)(b)$ of this Court Rules. It provides:

Subject to sub rule $(1)$ of this Rule, the institution of an appeal shall not operate to suspend any sentence or stay of execution but Court may-

$(a)$ ..........

# (b) In any civil proceedings where Notice of Appeal has been lodged in accordance with Rule 72 of the Rules, order a stay of execution or injunction or stay of proceedings as the Court may consider just.

This Application is seeking for an interim order, and in this regard, Rule $2(2)$ of this Court Rules is invoked to achieve the ends of justice. Such Applications like the instant one can be handled pending determination of a substantive application not an appeal.

The interim order is granted merely to preserve and or ensure that $\frac{1}{2}$ the substantive Application for stay is not rendered nugatory (See Zubeda Mohammed supra)

- $(2)$ It is settled law that for such an Application to be granted, the Applicant has to establish the following: - (a) That there is Notice of Appeal (competent) - (b) That a substantive Application is pending in this Court - (c) That there is a serious threat of execution before the hearing of the substantive Application for stay.

It is not necessary to pre-empty consideration of matters necessary in deciding whether or not to grant the substantive Application for stay (See Hwansung Industries Limited Vs Tajdin Hussein $Supra$

Also, in cases of Yakobo Senkungu and others Vs Cerensio Mukasa SC Civil Application No.05 of 2013 and Giuliano Garigio Vs Claudio Casadio SC Civil Application No.03 of 2013, this Court stated that the granting of the interim orders is meant to

help parties to preserve the status quo and then have the main issues between parties determined by the full Court as per the Rules. However, this is subject to fulfilment of the conditions as stated in the case of Hwansung Industries Limited Vs Tajdin Hussein(supra)

In this Application, it was clear that there was a competent Notice of Appeal filed in this Court on the 30th March 2022. It was admitted by the respondents so that condition was complied with.

In regard to whether there was a substantive Application for stay of execution filed pending disposal by the Court, upon careful examination of the documents attached on the Application particularly paragraph 4 of the affidavit of the applicant, he stated; I have been advised by my advocates MS Niwagaba Advocates and Solicitors that it is necessary to apply for stay of execution and the Application for stay of execution was accordingly filed in Court( A copy of the Application is attached and marked " $B$ ")

Upon careful scrutiny of the copy attached, it was filed in Court on 4<sup>th</sup> April 2022. There was no signature on it, no application No. and no stamp of Court. Indeed, even on the actual Notice of Motion, it's so evident on the space of the particulars of the Notice of Motion, the number of the main/substantive application was not indicated. there are just dots. The Civil Application No.84 of 2022 is no where on the documents uploaded by counsel for the Applicants as shown by the ECCMIS.

I therefore accept counsel for the respondents' submission that there is no competent substantive Application for stay of execution which is the main reason why the instant Application was filed. As I have already stated, the purpose of the interim order is to preserve the status quo of the parties until disposal of the substantive Application so if there is no competent substantive Application, the Application becomes non-compliant on this ground.

I find no merit in counsel for the applicant submission in rejoinder to the effect that the document was generated by ECCMIS and could be accessed by all parties and or court users including the

respondents. I have to point out that the documents are not singularly entered in a vacuum on or by ECCMIS. When, a court user registers or logs in on the platform of ECCMIS, he is given a password and the account so that he or she uploads the same on the platform like it was done on the 14<sup>th</sup> April 2022 by counsel for the applicant. So it is the responsibility of the applicant to ensure that documents uploaded are competent with signature at least in order to be authentic and relied on. Indeed, according to ECCMIS, Counsel uploaded the Notice of Motion on $14/04.2022$ as already stated above though it had been registered and received in the registry on the 4<sup>th</sup> April 2022 as per the stamp on the uploaded Notice of Motion which contained the purported main Application of stay of execution. Though it was clear that No. UGA-ECCMIS system was given as SUP-00-CV -CL-0009-2022 dated the 4<sup>th</sup> April 2022 when the Notice of Motion was filed in the registry. But that number was for the Application for the interim order not for the main Application and much as the substantive was attached, it had not been given a number like it was done for the Notice of Motion and the Registrar had not signed it, so in essence it remained a draft and cannot be pending for hearing in this Court.

In regard to serious or eminent threat of execution, there was no evidence at all to prove that a serious threat existed. The applicant in paragraph 5 of the affidavit in support of the Notice of Motion deponed and stated as follows: "there is a high likelihood that the respondents are in process of executing the said Ruling and orders *before the determination of the main Application for execution.*"

This was a speculation since there was no evidence that the Court had issued Notice that the applicant should show cause why execution should not issue. There was no decree or order of execution.

Again, the applicant deponed and stated among others that his Advocates advised him that the extracted order arising out of Civil Application No.84 of $2022$ had been signed and approved by the parties and forwarded to the respondents' advocates for further management. On that assertion, the order alleged to have been

signed and approved by all parties concerned was not attached for this Court to view.

From the averment of the applicant in the affidavit in support of the application and as submitted by his counsel, it was clear to me that these facts were in the knowledge of the applicant and his counsel. The law on this issue is very clear. Section 103 of the Evidence Act. Cap 6 Laws of Uganda provides:

The burden of proof as to any particular fact lies on that person who wishes Court to believe in its existence unless its provided by any law that the proof of that fact shall lie on any particular $\sqrt{ }$ person.

Failure of the applicant to attach the said signed order showed that there was no eminent danger of execution. Most of the purported assertions were speculations. The condition of eminent danger was not established.

I have no option but to find that the last two conditions were not proved and the Application for interim order is dismissed with costs to the respondents.

| Dated at Kampala this $24$ | | day of Hau | 2022. | |----------------------------|--|------------|-------| | | | | |

Throwd en JUSTICE OF THE SUPREME COURT $24|05|2022$