Mutonyi & 3 Others v Byabagambi & Another (Civil Application 12 of 2013) [2013] UGSC 27 (10 July 2013)

## THE REPUBLIC OF UGANDA

# IN THE SUPREME COURT OF UGANDA AT **KAMPALA**

# Civil Application No. 12 of 2013

(Coram: Tumwesigye, Arach-Amoko, JJ. S. C; Odoki, Tsekooko, Kitumba;

$Aq. JJ. S. C.$ )

1. NORAH MUTONYI 2. M. NASSOZI **APPLICANTS** 3. I. NABUKEERA 4. SAIDA SEKABIRA

AND

1. ABEL K. BYABAGAMBI

2. DAVID SEBA

**::::::::::::::::::::::::::RESPONDENTS**

(Application arising from the orders of the Court of Appeal (A. E Mpagi Bahegeine, DCJ; Kavuma and Nshimye JJA) delivered on the 25<sup>th</sup> *February, 2012 in Civil Appeal No. 36 of 2010).*

#### **RULING OF THE COURT**

This is an application filed by the applicants for an Order of Stay of Execution to issue against the respondents in respect of the orders obtained by the applicants in Court of Appeal Civil Appeal No. 36 of 2010, until the final disposal of the appeal before this Court and costs to be provided for.

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The brief history of the application as can be gathered from the scanty information availed to us is that the applicants filed High Court Civil Suit No. 330 of 2009 against the respondents in the High Court in Kampala for declaratory orders that they were the bonafide occupants of land comprised in Kyadondo Block 243 Plot 2248. The High Court dismissed the suit with costs to the respondents. The applicants appealed to the Court of Appeal vide Civil Appeal No. 36 of 2010, but their appeal was dismissed with costs to the respondents in the Court of Appeal and the High Court. The respondents' bills of costs were taxed and awarded at shs. $122,050,000/$ = in the Court of Appeal and shs.161,468,500/= in the High Court, respectively. The respondents have secured a warrant of arrest in execution and are seeking to arrest the applicants. The 1<sup>st</sup> applicant was actually arrested and detained pursuant to a warrant of arrest issued on the 25<sup>th</sup> July, 2013.

The applicants have brought this application under Rules $2(2)$ , $6(2)$ , (b), $41(1)(2)$ and $43(1)$ of the Supreme Court Rules and the main grounds set out in the Notice of Motion are that:

- 1. The applicants are aggrieved by the judgment of the Court of Appeal. - 2. *The applicants have instituted an appeal in the Supreme Court.* - 3. *The appeal discloses triable issues* - 4. It is fair and equitable that the application is granted.

The application is supported by the affidavit sworn by the 2nd applicant on the 30<sup>th</sup> September, 2013. There is an affidavit in reply on record sworn by the $1^{st}$ respondent on the $24^{th}$ June, 2014.

At the hearing, the applicants were represented by Mr. Kenneth Munungu and Mr. Mohammad Mbabazi represented the respondents.

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Mr. Munungu presented the application based on grounds $1,2,3$ and 6 of the application and paragraphs 7,8 and 9 of the supporting affidavit and submitted that the bills of costs were taxed by the Court of Appeal at shs. $122,050,000/$ =. That the respondents have secured a warrant of arrest and are seeking to arrest the applicants any time. That the applicants' are aggrieved by the decision of the Court of Appeal and have filed a Notice of Appeal in this Court and the appeal has a high likelihood of success. Therefore, if the respondents are allowed to execute the judgment of the Court of Appeal, their appeal will be rendered nugatory and the applicants will suffer irreparable injury. The justice of the case thus requires that this application is granted to enable the applicants to pursue remedies in this Court. He prayed that the application be granted with costs in the cause.

Mr. Mbabazi opposed the application and limited his submissions to the following points of law:

One, that the application is bad in law and incompetent as the decision of the Court of Appeal sought to be stayed is not annexed to the application.

Two, that according to Rule 41 of the Supreme Court Rules, this application should have first been made in the Court of Appeal which made the decision, not in this Court.

Three, that a stay of execution is granted at the discretion of Court where it is just. The respondents have obtained taxation awards and the $1<sup>st</sup>$ applicant has even paid her portion already. For the applicants to be granted a stay, in the circumstances, they should deposit security for the due performance of the costs. The amount and the mode should be determined by the Court.

Mr. Munungu in his brief rejoinder disagreed with Mr. Mbabazi and submitted that there is no legal requirement for attaching a copy of the judgment to the application. He submitted further, that the

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Rules only require security for costs when you apply for leave to appeal. It was also his contention that security for due performance is not required under the Rules of this Court. That it is Rule 101 which provides for security for costs and it is specified at shs. $400,000/$ = only. Otherwise, he, on behalf of the applicants, first made an application for stay of execution to the Court of Appeal but it was rejected. This application is, therefore, competent and should be granted as prayed.

We have carefully perused the pleadings on record and considered the submissions by both learned counsel and the law.

The test which the Court must consider in order to determine an application of this nature is spelt out in Rule $6(2)(b)$ of the Supreme Court Rules which reads:

#### "(2)...the Court may-

$(a)$ ...

(b) in civil proceedings, where $a$ notice of appeal has been lodged in accordance with rule 72, order a stay of execution, an injunction, or a stay of proceedings as the court may consider just."

This Court has considered this provision in a number of applications including National Housing & Construction Ltd vs Kampala District Land Board & Anor, SC Civil Application No. 6 of 2002.

In a similar application, Margaret Kato and Joel Kato vs Nuulu Nalwoga, Civil Misc. Application No. 11 of 2011, this Court restated this position in the following very clear words:

"Rule $6(2)(b)$ of the Rules of the Supreme Court Rules, which is the applicable law to this matter, empowers this Court to order a stay of execution in any civil proceeding."

From the above provisions and authorities, it is clear that this Court is empowered to use its discretion to grant a stay of execution of a decree or order to suspend the operation of a judgment or an order, in apposite circumstances.

Regarding security for due performance, this Court stated at page 6 of the ruling in Margaret Kato and Joel Kato vs Nuulu Nalwoga (supra) that:

"There is no requirement under our Rules for an applicant to make a deposit of security for due performance of a decree, before the Court can exercise its powers under Rule 6(2)(6). The Court is only required to exercise its discretion as it may consider just. The practice in the past of this Court to require this condition in some cases is a rule of practice based on case law."

We are still of the same view.

Further, and as Mr. Munungu rightly pointed out, the rule which requires deposit of security for costs is Rule 101 of the Supreme Court Rules which provides for a party instituting a civil appeal to lodge in court on the institution of the appeal shs. $400,000/$ = as security for costs. We note, however, that counsel for the respondent did not make his request under this Rule and we accordingly make no order for security for costs under this Rule.

On the issue of attaching a copy of the judgment to the application raised by Mr. Mbabazi, we agree with the applicants' counsel that there is also no such legal requirement under the rules of this Court, although it is good practice in our view, since it would assist the Court in determining the seriousness of the appeal. Failure to do so is thus not fatal to the application.

Regarding Rule 41 of this Court, Mr. Munungu informed Court during his submissions from the bar that he first made an application to the Court Appeal, but the Court of Appeal dismissed

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the application, prompting him to apply to this Court. Mr. Mbabazi did not refute the statement. That means it is truthful. The issue does not, therefore, arise in those circumstances.

We are also satisfied that the respondents are in the process of executing the orders of the Court of Appeal by arresting the appellants and have by their own admission, actually arrested and detained the $1^{st}$ applicant and forced her to pay part of the money. In our view, the applicants, as individuals, are definitely finding it onerous to pay shs. $122,050,000/$ = plus shs. $161,468,500/$ = as taxed costs in the Court of Appeal and the High Court, respectively, as deponed in the affidavit in reply. This is no doubt, an enormous sum of money and if the respondents are not restrained from executing the orders of the Court of Appeal, it will have the effect of blocking the applicants from pursuing their right of appeal before the final appellate court because of their failure to pay these costs. This would in effect, render the appeal nugatory.

In conclusion, and for the reasons above, we are satisfied that this is a case where the order of stay of execution should issue without depositing security for the due performance of the orders of the Court of Appeal.

Although neither counsel informed Court, we have learnt from the court record that on the 25th October, 2013, Tsekooko Ag. JSC granted an interim stay of execution after hearing Supreme Court Civil Application No. 13 of 2013 between the same parties, pending the outcome of this application. That order now lapses.

We accordingly grant the application with the following orders:

a) An order of stay of execution of the orders of the Court of Appeal in CA No. 36 of 2010 and High Court Civil Suit No. 330 of 2009, until the final disposal of the applicants' appeal to this Court.

b) The interim order issued to the applicants by this Court (Tsekooko, Ag. JSC) vide Civil Application No. 13 of 2013, hereby lapses.

c) The costs of this application shall abide the outcome of the appeal.

Dated at Kampala this....................................

J. TUMWESIGYE

## JUSTICE OF SUPREME COURT

**M. S ARACH-AMOKO**

JUSTICE OF SUPREME COURT

anci

**B. J. ODOKI**

AG. JUSTICE OF SUPREME COURT

J. W. N. TSEKOOKO,

# AG. JUSTICE OF SUPREME COURT

CNG Éctuada

C. N. B. KITUMBA

### AG. JUSTICE OF SUPREME COURT

maly 114