Mukwaya and 2 Others v Twaha Kizito and Another (Civil Application 63 of 2022) [2022] UGCA 329 (25 August 2022)

Full Case Text

# THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

### **CIVIL APPLICATION NO.63 OF 2022**

(Arising out of Misc. Civil Application No 68 of 2021) (Arising out of Misc. Civil Application No. 627 of 2020)

(Arising out of Misc. Civil Application No. 426 of 2019)

(Arising out of Misc. Civil Application No. 762 of 2011) (Arising from Civil Suit No. 160 of 2012)

| 1. MUKWAYA JOSEPH | |-------------------| | 2. HAJI SEKYANZI | | 3. SEWAYA |

#### **VERSUS**

- 1. TWAHA JAFARI KIZITO - 2. YUSUFU MUTAGAYIKA...................................

#### 20

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### RULING BY CHRISTOPHER GASHIRABAKE JA (SINGLE JUSTICE)

The Applicant filed this application under Rules $2(2)$ , $6(2)$ , $(5)$ , $43(1)$ & $44(1)$ of the Judicature (Court of Appeal Rules) Directions S. I 13-10, for orders that;

1. This honorable Court be pleased to grant an interim order staying the execution of the ruling and all orders of the High Court made as against the Applicants in Miscellaneous Application No. 426 of 2019; Twaha Jafari Kizito Yusufu Mutagayika vs. Mukwaya Joseph & 3 others until the hearing and final disposal of Civil Application No. 68/2021 filed by the Applicants for leave to appeal and stay of execution pending before this court.

2. Costs of the application be provided for.

The grounds in support of the Notice Motion are laid down in the affidavit of Mr. Mukwaya Joseph, where he averred that;

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- 35 l. The Applicants arc aggrievcd with the rrrling and all orders ofthc l-ligh Court vide; High Court Misccllaneous Application No. 426 of 2019; Twaha Jafari Kizito Yusufu Mutagayika vs. Mukwaya Joscph & 3 othcrs holding lhcm to be in contempt and ordcring them inter alia to pay colossal sums of money and are desirous of appealing against thc said orders to this honourablc court. - 2. 'lhc applicants havc since filcd a r.voticc ol'Appcal and writtcn a lctlcr rcquesting l'or thc rccord ol- proceedings bcfore thc lligh Court. 'l'he applicants souglrt leave to appcal and stay of cxccution from the IIigh Court which was declined. - 3. 1'hc Applicants havc sincc filcd an ornnibus application lirr lcavc to appcal against thc orders and soLrght a substantivc stay of thc cxccution of thc same, norv pending before this honorablc court vidc: Civil Application No. 68 of 2021 Mukwayn Joscph and 2 othcrs v. 'l'waha Jafari Kizito & Yusufu Mutagayika. - 4. 'fhc said application was filcd in ll'r, March, 2O2l but has not yct bccn lixcd hy this court for hearing and dctcrrnination, rcndering it irnpossiblc lbr thc Applicarrts to obtain a stay olcxccrrlion. - 5, 'l hc said subslant;vc application fcrr lcavc and stay ol'cxccution and thc intcndcd appcal bclorc thc Court has a high likclihood ol'succcss and raiscs scrious qucstions of law and fact rclating to tho application of thc Iaw on contctnpt , thc cxcrcise of thc discrctionary powcrs ol a court in contcmpt procccdings and asscssmcnr of damagcs in a contcmpt application. - 6. In the mcan timc, thcrc is irrmincnt dangcr ofcxecution o['thc [)ccrcc of thc I Iigh Courl by thc Rcspondcnts u,ho havc takcn stcps to havc thc said cxccution sanctioncd by thc lligh Courl and havc jn lhct obtaincd a Noticc to show causc why cxccutiorr should not cnsuc against tllc Applicants slatcd for 21" March,2022. - 7. If thc intcrim order of stay of cxccution is not grantcd by this I lonorablc court thc applicant's applications tbr lcavc to appcal, substant.ivc application lor stay of cxccution and thc intcndcd appcal will all bc rcndcrcd nugatory, as the vcry ordcrs sought to bc challcnged on appcal bcforc this Court will have bcen exL'cutcd, thcrcby rcndcring thc rclicl'.s

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sought in the subslantive applicatiou lor stay of cxecution and thc appcal nugatory.

8. It is in the interest ofJustice that this court be pleased to grant thc rcliels sought herein by the Applicants.

15 80 85 In response to the Motion the Respondent swore an affidavit in reply by Mr. Twaha Jafari Kizito where he averred that this application is incompetent, frivolous, vexatious, misconceived bad in law and an abusc ofcourt process. IIe averred that the application should be dismissed with costs.'l'hat there is no injury or irreparable loss that will be suffered by the Applicants if the application is nor granted by court. That there is undue delay on the side ofthe applicants in bringing the present application and as such the present application is time barred and an abuse ofcourt process. That the Applicants have no pending appcal in this court as of now as such the presentation of the application is misconceived and mercly a delaying tactir:. '['he applicants have not fulfillcd any grouncls to warrant an ordcr ol'stay of exccution and pray that court dcems it tlt to disrniss thc Application. 't hc applicants havc not deposited any security lor due performancc ol'thc dccrcc and have not demonstrated any intention to do so.

In rejoinder Mr. Mukrvaya Joseph averred and statcd that thc application is ncithcr illcompetcnt, lrivolous, vexatious, misconceived, bad in law nor an abusc ol court process. IIc maintained that thcrc is a threat ofexecution o[thc orders of thc IIigh Court, sincc thc Respondents have secured a datc lor taxation of'thc bitl of costs vide Miscellancous Application No. 627 of 2020. That the taxation hcaring has been fixed bclbre the Rcgistrar of the Family l)ivision of thc I-ligh Court otr 25rr, May, 2022. If not granted the applicant will suflcr irreparable loss of colossal surns ol money or imprisonment.

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Further that this application has not been brought with undue delay as the nccessitate to bring thc same was only instigated by reason that thc Rcspondents have filed a Notice to show cause why execution should not ensue. Prior there was no eminent threat to execute to necessitate rnaking this application. '[hat since their appeal does not lie as of right under the law, it was inevitable to seek leave to file the Appeal. They later filed a notice of appeal at the High Court and it was transmitted to this court. That counsel has since fiied Civil Application No. 68 of 2021, which is pending endorsement by this court.

#### llackground of this Application.

105 In 20ll the Respondenr instituted civil suit vide FI. C. C. S No. 160 ol 2012 formerly II. C. C. S No. 230 ol 201t against the l'', 2"d and 3''r Applicants. In thc suit thc Itespondents sought a declaration that suit property flormed part of thc cstate olthc late Kasaka and 1hc laler I{ajjati Salirna Nampande and ought to be prcserved and administcred in trust lor the beneliciarics.

'l'he I{cspondents filcd lvliscellarrcous Application No. 762 ol- 201 [, arising fiom Civil SLrit No. 160 ol 2012 against the applicants.'l-hc said application was sccking a tcmporary ordcr o[ injunction restraining the Applicants liom dcaling with or transacting in the suit land.

llpon the grant ol the purportcd order, thc I{cspondents did not scrvc thc sarne on thc Applicants nor thcir lcgal counscl at thc lirnc. At a latcr stagc, thc Rcspondcnts chose to file Miscellaneous Application No. 426 of 2019 secking to hold thc Applicants in contempt of orders of the Cout despite having nevcr scrycd on thc Applicants the orders of thc Court in that Contcxt. 'i.he said application was hcard and determined in lavor of thc R.espondents.

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'l'he above ruling and orders were on such terms as to direcl the Applicants who were in contempt of the said Court orders to; pay the Respondcnts rental income of t2o UGX 100,000,000/: ( Uganda Shiltings One hundred Million Only) every month from l't October,20l5 which would be shared in accordance with cntitlcment at the time the orders were given. Directing the Commissioner Land Registration to cancel and revert the Cerlificatc of Title to the names of Idi Kali and Zalika Nantembera as at the time of the temporaq, injunction which vi,as issued on 0tl, 7zs F'ebruary,2012. That the Applicants herein pay to the Respondents punitivc damages in the sum of UGX 100,000,000/: (one hundred million shiilings only) within a period of 30 days flrom the date of the order which would otherwisc attract a monthly interests a court rate. A finc of UGX 50,000,000/- (fifty rnillion shillings only) into Court within 30 days from the date of the ruling which would 130 otherwise attract a monthly iuterest at Court rate and costs of the application bc bornc by thc Applicants.

Aggricved by the above .rling and orders of the Court, the Applicants lrrcd a Noticc oi- Appcal and lcttcr rcqucsting lbr a rccord ol procecdings as wcll as an omnibus application in the Iligh cour.t vicle; Misc. Application No.627 <tf 2020 seeking leave to appeal to the court of Appeal against the said orders o[ the I ligh Court in Misc. Application No. 426 of 2020. Unlbrtunatcly the application was dcnicd by thr- IIigh Court.

#### Considcration of thc Application.

14a 'l'he law governing applications lor in.junctions or stay ol cxccution is set or.r[ in Ilulc 6(2) (b) of the Ilulcs of Lhis Courl .,vhich reads as lollows:

> 2) Subjcct tu srrb rrrlc (l) ol-this rulc, thc instil. Lrtion of arr a-ppcal shall nor opcfatc to suspcnd any scntcncc or to stay cxcctrtion, but tllc court

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may-

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

(b) In any civil proceedings, where a notice of appeal has been lodged in accordance with rule 76 of these Rules, order a stay of execution, an injunction, or a stay of proceedings on such terms as the court may think just.

The Power to stay execution under the above Rule is derived from Rule 2(2) of the Rules of this Court, which gives this court inherent power to make such orders 150 as it is necessary to attain ends of justice, the Rule provides,

> "Nothing in these Rules shall be taken to limit or otherwise affect the inherent power of the court, or the High Court, 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 that power shall extend to setting aside judgments which have been proved null and void after they have been passed, and shall be exercised to prevent abuse of the process of any court caused by delay."

In Hon. Theodore Ssekikubo & Ors vs. AG & Ors, SC Constitutional Application No. 04 of 2014, this Court said: 160

> "Rule 2(2) of the Judicature Court Rules gives this Court very wide discretion to make such orders as may be necessary to achieve the ends of Justice. One of the ends of Justice is to preserve the right of appeal".

Court in Hwang Sung Industries Limited v Tajdin Hussein & Others, SC Civil Application No. 19 of 2008, cited by both learned counsel, Justice Okello JSC 165 held that;

> "For an application for an interim stay, it suffices to show that a substantive application is pending and that there is a serious threat of execution before hearing the substantive application. It is not necessary

to pre-empt the consideration of matters necessary in deciding whether or not to grant the substantive application for stay."

In Zubeda Mohammad & Anor vs. Laila Kaka Wajja & Anor, SC Civil **Reference No.07 of 2016,** relied on by learned counsel for the respondent, this Court summarized the conditions for grant of an interim order and held that:

"In summary, there are three conditions that an applicant must satisfy to justify the grant of an 175 interim order:

- 1. A competent Notice of Appeal; - 2. A substantive application: - 3. A serious threat of execution.

#### Submissions by counsel for the Appellant. 180

It was the submission for counsel for the Applicant, that it is now settled law that. for an application for an interim stay of execution to succeed, the applicant must first show, subject to the order of facts in a given case that;

- 185 - 1. There is a competent Notice of Appeal - $2.$ There is a substantive application of stay of execution pending in this Court - 3. There is a serious threat of execution before the hearing of the pending substantive application.

#### Whether there is a Notice of Appeal.

It is the submission of counsel for the appellant that the applicant must show that he/she has lodged a Notice of Appeal in accordance with Rule 72 of the Rules of this Court. He cited Themi Nakibuuka Sebalu vs. Peter Sematimba and others 190 Supreme Court Civil Application No 15/2014. That the applicants duly lodged a Notice of Appeal, and the letter requesting for the proceedings, in the court of appeal. The Notice was transmitted to this court in accordance to Rule 72 (1) & (2) and Rule 73 of the Rules of this Court. ### Submissions of counsel for the Respondents. 195

Counsel for the Respondents restated the position of the law in granting an interim stay of execution as stated by the Applicant.

He however submitted that the Notice of Appeal lodged by the applicant, is incompetent under the law because no right of appeal exists in the court of Appeal from an interlocutory matter without leave of court. He cited China Henan International Cooperation Group Co Ltd vs. Justus Kyabahwa S. C. C. A No. 30 of 2021 and Zubeda Mohamed and Anor vs. Liala Kaka Walia and Another (Supreme Court Civil Reference No. 07 of 2016.)

He argued that the Notice of Appeal and the letters requesting for proceedings have never been served on the Respondents as required under Rule 83(3) of the Rules of this Court. That the Notice of Appeal on the Application annexure "F" is not signed by the Deputy Registrar of the High Court which demonstrates further that it is incompetent and cannot be a basis for a claim of a competent appeal.

In Rejoinder Counsel for the Applicant submitted that for purpose of an interim order of stay and even stay of execution Rule 6 (2) (b) of the Rules of this Court requires that Notice of Appeal be lodged in accordance with Rule 76 of the Court of Appeal Rules. Under Rule 76(4) a Notice of Appeal can competently be lodged by the aggrieved party even before they obtain the grant of leave to appeal. That according to Rule 41(1) of the Court of Appeal Rules, it is not necessary to first obtain leave.

Additionally, the Applicants in this case have a pending Civil Application No. 68 of 2021 which seeks leave to appeal against the orders of the High Court in Miscellaneous Application No. 426 of 2019. That this court is therefore enjoined to exercise its discretion under **Rule 42(2)** in allowing to entertain the application for

220 an interim order of stay of execution, the Applicants having duly filed a Noticc of Appeal in the High Coufl.

It was the argume nt of counsel for thc Respondents that thc Noticc of Appeal was incompetent on several grounds that:

l. 'fherc was no lcave ofcourt to file Noticc ofAppcal.

2. 'l'hc Notice ofAppeal was ncvcr scrved on thc llcspondcnts according to Rulc 83(3)

3. 'l-he anncxurc Noticc ofAppcal rvas not signed by thc Dcputy [{cgistrar

In Response to the above averments counsel fbr the Applicant submitted that under Rule 76(4), it is not nece.ssary to get leave olcourt before filing Noticc of Appeal. This Rute provides that;

"Whcn an appcal lics urrly with leavc or on a cenificate that a pclint ol' larv ol'gcncral public importancc is involvcd, it shall not bc ncccssary.to obtain tlrc lcarr: or ccrlificalc bclor,: lodg,ine thc noticc ofaPpcal.t'

'l'he nratrer that the Applicants scek to appeal tiom is an intellocutory matter which l'equilcs lcavc ol- colu1 to appcal. In china flcnan Intcrnational coopcration

2.35 240 Group Co Lttl (Supra) the Supreme Court noted that sincc thc appcal was liom a I'resh application, there was no automatic right of Appeal. 'I'hat as such thc Noticc ol Appeal was incompetent. In Zubeda Mohamed and Anor (Supra) cou( agrecd with the Supremc Clourl decision in l-ukwago Erias v KCCA, Civil Application No.06 of 2014,il was hcld thaL, Where a Notice o.f'.rlppeal has heenfiled but the right of appeal does not cxist, the Notice o.f Appeal is incompetent and cannotform the ba::is./br an applic'rttion Jbr sta), of cxe(.tttion pcneling ultpeal, as tltre i.\ ,to pentling uppeul.

on whethcr the Notice of Appcal was scrved on thc Ilcspondcnts as providcd lor undcr Rulc 83 counsel lbr thc Applicants conccdcd that thcy had not scrvcd tlrc

Respondents because the Deputy Registrar had not yet endorsed the said Notice of 245 Appeal as submitted by Counsel for the Respondent. The fact that the Notice of Appeal had not been endorsed by the Deputy Registrar, the Notice of appeal is incompetent. It has been held that the process of lodging a Notice of appeal is concluded when the Registrar endorses the same. In Global Capital save 2004 Ltd and another v. Alice Okiror and Anor, Supreme Court Civil Application 250 No. 57 of 2021, Justice Mike Chibita held that;

> "It is safe to say that the process of filing the notice of appeal started on 7th with the payment of the requisite fees, receiving and stamping the documents with the court stamp and culminated in the final act of being dated and signed by the Registrar as duly lodged on 9th July 2020. The date that is of essence, therefore, is the final date of the process, which in the instant case is the $9th$ of July, 2020."

The absence of the Registrar's signature on the Notice of appeal makes it defective and cannot be upheld by this court. It is therefore my finding that there is no competent Notice of Appeal before court.

## Existence of a substantive Application.

Counsel for the Applicants submitted that the Applicants had filed Civil Application No.68 of 2021 in this court seeking leave to appeal and a substantive order for the stay of execution.

Counsel for the Respondents on the other hand submitted that the Miscellaneous 265 Application No. 68 of 2021 is a substantive application for leave to appeal and not a substantive application for stay. He cited Zubeda Mohamed and Another vs. Liala Kaka Waila and Anor (Supra) and China Henan International Cooperation Group Co. Ltd vs. Justus Kyabahwa (Supra).

270 In rejoinder counsel lor the Applicants submittcd that civil Apptication No. 6g of 2021 is an omnibus application seeking leave to appeal and stay of execution. 'l-hat the second prayer in this application is lor stay of execution of the orders and Ruting in HCMA No.42612019

215 It is rny finding that the annexture "H" is an omnibus application where thc applicant prayed fbr oldcrs that;

- I. 'l'hat tlris Ilonourablc Court be plcascd kr grant thc Applicants lcavc to appcal against the ruling and ordcrs ofthc IIigh Coun in Misccllaneous Application No. 426 of 2019;'fwaha Jalari Kizito , Yusulu Mutagayika vs. Mukwaya Joscph and 3 othcrs (aiising out ol' lll isc. Application No. 762 ol 20 | I ) rcndcrcd on I 6rr, Octobcr 2020, - i. tt rt this flouoroblc Court bc plcascd to graul (hc Applicants, an order staying thc cxccution of lhc ortlcrs of thc lligh Court madc as itgainsl thc ,\pplicants in Mist:cllancous Application No. 426 of 2019; 'I'rvaha .lafari Kizito Yusrrfu Mutag:ryika vs. Muknzrya Joscph anrl 3 ol hc rs.

I see no law that bars an Applicant lrom filing an omnibus application as long as that court has jurisdiction to handle the matter before it. It is therelore nry considercd opinion that,sincc this court hasjurisdiction to hcar both thc applicarion lor lcavc Lo fiic an appcal and stay ol exccution, then thcrc is a substantil'c application fbr stay of cxecution vide; Civil Application No. 68 of'2021.

# Inrmincnt / scrious thrcat of cxccution.

cor.rnsel lor the Applicauts submittcd that, thc status qlro is that thc Applicarrts havc neitherpaid thc colossal sums decreed by lligh court Vide 426 or' 2019, nor has thc cornnrissioncr Land [tcgistration actcd upon thc or.dcr.s thcrcin. Ilc

submitted however that the said orders stand to be effected by way of execution if an interim order of stay is not issued to deter the Respondents from execution.

Additionally, that the Respondents have moved the High Court family Division and the Applicants have been issued a notice to show cause why execution should not ensue.

Counsel for the Respondents on the other hand submitted that contempt of Court orders must be complied with strictly because they arise from abuse of court process. He argued that a person who is in contempt of court should not be given the protection by any court until and unless he has purged him or herself of the contempt. Counsel cited Jingo Livingstone Mukasa vs. Hope Rwaguma Civil Appeal No. 190 of 2015.

Counsel further submitted that the Applicants are not entitled to any other court order since they abused the High Court orders to maintain the status quo of the suit land and when the court ordered them to comply and pay fines and damages they have failed to pay.

In rejoinder counsel for the Applicant submitted that the Respondent counsel has not denied taking steps towards execution of the orders sought to be appealed from. The Applicants opted to appeal against the findings and orders of court on alleged contempt. That denying this application would amount to determining the appeal itself.

Annexure "J" to the Notice of Motion is a Notice to show cause why execution should not issue. This demonstrates that the Respondents have started the process of execution. This in itself is a serious threat that the Applicants have proved on the balance of probabilities. But this is not a standalone ground on which the court

can base itself to grant the Application. It has to be coupled with the others as above seen.

On whether the Applicants are entitled to the remedies sought for, I am guided by the holding in **Zubeda** (Supra) where the Supreme Court held that in considering a grant of an application for interim stay of execution the applicant must prove on the balance of probabilities the existence on a Notice of Appeal, substantive Application for stay of execution and serious threat of execution. In this case the applicant has only proved two ingredients and has failed on the existence of a competent Notice of Appeal.

This application is hereby dismissed with costs. 330

Dated at Kampala this. .2022 day of

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# **C. GASHIRABAKE**

## **JUSTICE OF APPEAL**

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