Musoke v Agard & 2 Others (Civil Application 37 of 2021) [2021] UGSC 51 (17 September 2021)

Full Case Text

#### THE REPUBLIC OF UGANDA

### IN THE SUPREME COURT OF UGANDA AT KAMPALA

# CIVIL APPLICATION NO. 37 OF 2021

(ARISING FROM CIVIL APPLICATION NO. 36 OF 2021)

(ARISING FROM COURT OF APPEAL CONSOLIDATED CIVIL **APPLICATION NO.341 OF 2020 AND 359 OF 2020)**

(ARISING FROM COURT OF APPEAL CONSOLIDATED CIVIL APPEAL NO.46 OF 2016 AND CIVIL APPEAL 134 OF 2017)

CORAM: HON. JUSTICE MUGAMBA, JSC (SINGLE JUSTICE)

#### **BETWEEN**

PADDY MUSOKE ::::::::::::::::::::::::::::::::::::

#### AND

1. JOHN AGARD

2. ANDREA DOERY

3. EVA WINFRED MAYANJA :::::::::::::::::::::::::::::::::::

(Brought under Rules 2, 6 and 42 of the Judicature (Supreme Court Rules) Directions SI 13-11)

### **RULING OF THE COURT**

This application was instituted by Notice of Motion seeking for orders that;

1. An interim order of Stay of Execution doth issues against the Respondents and their agents restraining them from Executing the Orders of the Court of Appeal in Consolidated Civil Appeal Number 46 of 2016 and Civil

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Appeal Number 134 of 2017 pending hearing and disposal of Main Application for Stay of Execution.

2. Costs of the Application be provided for in the main cause.

The application is supported by an affidavit sworn the applicant, **Paddy Musoke,** dated 17th August, 2021. The affidavit in reply was sworn by the first respondent, John Agard, on 9th September 2021.

# **Background**

From the record of the application, I did not find any copy of the Consolidated Civil Application No.341 of 2020 and 359 of 2020. I have been able to trace the scanty background from the High Court Civil Appeal No. 36 of 2012. The Respondents who are neighbours to the Appellant brought an action for damages and trespass on an access road used by them through a plot of land which belonged to the Applicant. The Respondents claimed that the Applicant entered onto the access road and excavated it up to over 2 metres deep so that the Respondents could not access their homes as usual. It was alleged that the respondents had to pass through a bush and that their water supply line was damaged as a result of the applicant's excavation work.

The Applicant on the other hand counter-claimed as being owner and a registered proprietor of the suit land comprised in LRV 3448 Folio 11, Kyadondo Block 268 Plot 140 measuring 0.216 hectares and that he had physical use and occupation of the land where he constructed storey apartments. He contended that the suit land had no access roads passing through it. He contended also that he had given notice to the Respondents to stop passing through

his plot since he was going to use it. He stated that the respondents sued him instead. The trial Court delivered Judgment in favour of the Respondents and the applicant appealed to the High Court. The High Court dismissed the applicant's appeal. Being dissatisfied, the applicant made a second appeal to the Court of Appeal, which also ruled in favour of the respondents. The applicant proceeded to file Civil Application No.341 of 2020 and Civil Application No.359 of 2020 in the Court of Appeal where he sought leave to lodge a third appeal to this court and an order for stay of execution of the Court of Appeal judgement respectively. Both applications were dismissed by the Court of Appeal. The applicant has since filed in this Court, Civil Application No.35 of 2021 seeking leave to a lodge third appeal in this court. Later he filed Civil Application No 36 for main stay of execution out of which this application arises.

# Grounds of the application.

The grounds in support of the Application are contained in the Notice of Motion and the affidavit in support deponed by the applicant. The grounds are stated as follows:

a) On the 10th day of December 2020 the Court of Appeal delivered judgment in Civil Appeals Number 46 of 2016 and Number 134 of 2017 in favor of the Respondents.

(b) That Applicant being dissatisfied with the whole of the said judgment has taken necessary steps to appeal against the decision to the Supreme Court of Uganda.

c) That the Applicant has filed a notice of appeal and also requested for certified copy of the record of proceedings.

(d) That the Applicant also filed Civil Application Number 341 of 2020 and 359 of 2020 for a Certificate of importance to be granted to the Applicant to appeal the decision to the supreme court of Uganda and also stay of execution.

(e) That the said applications were dismissed and also the order of stay was vacated on the ground that there was no appeal pending.

(f) That the Applicant has now filed Civil Application No of 2021 for a Certificate of importance before the supreme Court. (g) That the Respondents are in advanced stages of commencing the re-execution of the lower court orders that had been previously stayed.

(h) That the main Application for stay of Execution shall be rendered nugatory if the interim application is not granted.

(i) That it is in the interest of justice that this order ought to be granted.

## **Representation**

At the hearing of the application, the applicant was represented by Mr. Najib Mujuzi while the respondents were represented Mr. **Alexander Tuhimbise** holding brief for Mr. John Matovu.

# Submissions of counsel for the applicant

Counsel for the applicant submitted that this application was for an interim order of stay of execution against the respondents and their agents retraining them from executing the orders the Court of Appeal in Consolidated Civil Appeal No. 46 of 2016 and Civil Appeal No. 134 of 2017 pending hearing and dispose of the main application for stay of execution. He stated that it was brought

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under Rules 2, 6 and 42 of the Judicature Supreme Court Rules Directions.

Counsel contended that the applicant in his affidavit in paragraph 5 stated he had applied for a Certificate of Importance to appeal to this court in the Court of Appeal, and also he had applied for stay of execution of the previous orders and decrees.

He added that the said applications were dismissed by the Court of Appeal on 11th August, 2021 and that the application for stay of execution was also dismissed.

Counsel submitted that the applicant had filed in this court Civil Application No. 35 of 2021 for issuance of a Certificate of Importance and also filed Civil Application No. 36 of 2021 for substantive stay of execution.

Counsel further relied on paragraphs 7, 8, 10 and 11 and stated that there was a threat to execute the order issued earlier. He added that the applicant was served with an application for execution of the decree vide EMA No. 20 of 2021 arising out of Civil Appeal No. 31 of 2011 High Court.

He further averred that the applicant was served with the Bill of Costs in the Court of Appeal amounting to Ug shs. 126, $312,239/$ = Counsel submitted that the said execution was to be by arrest of the applicant and attachment of the suit property. He added that the threat was real and apparent

He cited the authorities of Hwang Sung Industries vs. Tajdin Hussein & 2 Others, Supreme Court Civil Application No.19 of 2008 and G. Afaro vs Uganda Breweries Ltd, Supreme Court **Civil Application No. 12 of 2008** in support of his submissions.

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Counsel contended that the application was brought without undue delay and prayed that it be granted and that the costs be in the main cause.

# Submissions of counsel for the respondent

In response counsel for the respondent submitted that a successful party should not be denied to enjoyment of the fruits of litigation.

He contended that the case started in the Chief Magistrate's court and that in this court the applicant sought a Certificate of Importance. He added that the respondents had been denied enjoyment of the fruits of the litigation.

Counsel prayed that if court was inclined to grant the application the applicant should be ordered to deposit the money due from the Bill of Costs in this court.

# Submissions of counsel for the applicant in rejoinder

Counsel for the applicant submitted that the respondents had confirmed they would continue with execution of the earlier orders having been successful parties.

Counsel contended that the applicant has a right to pursue his appeal and the main purpose of this application was to stay execution in order to preserve the right to appeal the judgments earlier issued.

On the issue of security for costs, he contended that such order would be overburdening on the litigant whose rights for fair trial has been infringed upon starting with the Magistrate's Court.

# Consideration of the application

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This application is mainly based on Rule $2(2)$ of the Rules of this Court, which states as follows:

Rule $2(2)$ provides:

"Nothing in these Rules shall be taken to limit or otherwise affect the inherent power of the court, and the Court of Appeal, to make such orders as may be necessary for achieving 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 an abuse of the process of any court caused by delay."

The said Rule gives this court inherent powers to make such orders as may be necessary for achieving the ends of justice or preventing the abuse of the process of Court.

This Court has in several cases stated, interpreted and applied the Rule while dealing with interim application such as this one. One such instance is the case of **Zubeda Mohamed & Anor vs. Laila Wallia & Anor, Civil Reference No.07 of 2016** where it was held; "The principles followed by our courts were clearly stated in the celebrated case of Hwang Sung Industries Limited v Tajdin Hussein & Others, SC Civil Application No. 19of 2008 where Okello JSC, as he then, was said:

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

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We also found an instructive summary by this Court in Hon. Theodore Ssekikuubo and others v The Attorney General and others, SC Constitutional Application No. 04 of 2014 where this Court said:

"Rule 2(2) of the Judicature Supreme 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. In the cases of Yakobo Senkungu and others vs Crescensio Mukasa, SC Civil Application No. 5 of 2013 and Ginliano Garigio vs Calaudio Casadio this Court stated that 'the granting of interim orders is meant to help parties to preserve the status quo and then have the main issues between the parties determined by the full court as per the Rules"

Considerations for the grant of an interim order of stay of execution or interim injunction are whether there is a substantive application pending and whether there is a serious threat of execution before hearing of the substantive application. Needless to say, there must be a Notice of Appeal. See Hwang Sung Industries Ltd vs. Tajdin Hussein and 2 Others (SCCA NO. 19 of 2008

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

- **1. A Competent Notice of Appeal;** - 2. A substantive application; and - 3. A serious threat of execution." Underlining for my emphasis.

I will go ahead and determine the merits of this application following the above considerations.

On whether there is a competent Notice of Appeal, the applicant avers in paragraph 4 of his affidavit in support that he filed a Notice of Appeal which he attached to the affidavit.

I note that the applicant's intended appeal in this court is a third appeal given the fact the case emanated from the Chief Magistrate's Court of Entebbe. This is further related to by the applicant in paragraphs 5 and 6 of his affidavit in support, where he states that he was denied stay of execution and leave /Certificate of Public Importance by the Court of Appeal.

It is trite law that appeal is a creature of law and the appeal to this court is normally commenced by filing a Notice of Appeal in accordance with Rule of 72 of the Rules of this Court.

However, Rule $72(4)$ states that:

"When an appeal lies only with leave or on a certificate that a point of law of great general or public importance is involved, it shall not be necessary to obtain the leave or a certificate before lodging the notice of appeal."

The third appeal to this court is deemed constituted fully upon the applicant obtaining a Certificate of Importance either from the Court of Appeal or from this Court. **See Rule 39(1)** of the Rules of this Court and Busulwa Blasio vs Uganda, Supreme Court Criminal Reference No.1 of 2016.

I have noted earlier that the applicant did seek for leave /Certificate of Public Importance from the Court of Appeal which was denied him. He did proceed to seek for the same in this court by filing Civil Application No.35 of 2021.

The applicant does not in effect have an appeal in this court until this court hears the said application and grants him leave to file a third appeal.

It is upon obtaining leave that the applicant's Notice of Appeal will be validated. He will then be deemed to have a competent appeal in this Court borne by a competent Notice of Appeal as was enunciated in Zubeda Mohamed & Anor vs. Laila Wallia & Anor (supra).

Consequently the applicant has no competent Notice of Appeal, a condition precedent for the grant of an interim order by this Court. In light of my finding on the first condition, I see no need to determine the remaining two conditions of whether the applicant has filed a substantive application or whether there is a serious threat of execution.

In the result, this application fails and is accordingly dismissed with costs to the respondents.

Dated at this day....................................

Paul Kahaibale Mugamba **JUSTICE OF THE SUPREME COURT**

Delivered

by the 10

Ryistra on Joseth