Nabagala v Sekabere & Another (Civil Application 260 of 2024) [2024] UGCA 290 (11 October 2024)

## THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

## CIVIL APPLICATION NO. 0260 OF 2024

## (ARTSING OUT OF CIVIL APPEAL NO.288 OF 20231

# (Application arising from the Judgment and decree of the High Court of Uganda at Mpigi (Oyuko Anthony Oiok, J.) delivered on 07 lo3l2o23l

## NABAGALA MARY APPLICANT

## VERSUS

### 1. SEKABERE HENRY 2. KATEREGA DAMIAN RESPON DENTS 10

## CORAM: JUSTICE MOSES KAZIBWE KAWUMI, JA. SINGLE JUSTICE RULING

This application was brought by way of notice motion under rules 5 (21, (b) and 43 of the Judicature (Court of Appeal Rules) Direction S.l. 13-10. The Applicant seeks an order for stay of execution of the decree arising from High Court Civil Appeal No.0025 of 2019 and Chief Magistrate's Court of Mpigi at Nsangi Civil Suit No. 003 of 2017 pending disposal of the appeal and for the Costs of this application to be provided.

## Background

The Applicant and 1't Respondent are siblings and each claim to have inherited a piece of Iand located at Nanziga, Nsangi in Mpigi District (herein after referred to as "the suit Iand") from their late father Erica Kiziri. Later, the Applicant sold the suit land Katerega Damian the znd Respondent on 5th May 2OI5 UGX. 8,500,000/=.

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When Sekabere Henry the 1't protested the sa le, the 2nd Respondent reported the Applicant to police but also demanded that the L't Respondent should buy it back from him since he had already paid consideration for it. On 27th May 20L6, the 1't Respondent bought the suit land from the said Katerega Damian at a cost of UGX. 10,000,000f=

On 30th May, 20L6 the Applicant entered unto the suit land which prompted the L't Respondent to instituted Civil Suit No.003 of 20L7 against her in the Chief Magistrate's Court of Mpigi at Nsangi for trespass. The Lst Respondent's claim was that the Applicant unlawfully entered the suit land, claimed ownership without any color of right since she had disposed herself of any interest through the sale to the 2nd Respondent.

ln defence of the suit, the Applicant admitted selling the suit land to Katerega Damian but put up a defence of rescission of the contract. She contended that the contract between the L't Respondent a nd Katerega Damian was illegal and also counter- claimed against the l-'t Respondent and Kateregra Damian for general damages for the incarceration by police on allegations of obtaining money by false pretense. 15

- The trial Court entered Judgment in favour of the 1't Respondent and dismissed the Applicant's counter claim. Aggrieved with the Judgment of the trial Magistrate, the Applicant lodged a L't appeal to the High Court of Uganda ta Mpigi however, the Appeal was dismissed for want of p rosecution. 20 - The Applicant successfully filed an application for reinstatement of the Appeal and upon re-evaluation of the evidence; the High Court upheld the decision of the trial Magistrate and dismissed the 1" Appeal with costs. 25

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Being dissatisfied with the dismissal of the 1" Appeal, the Applicant filed a Notice of Appeal and applied for stay of execution in the High Court vide Miscellaneous Application No.59 of 2023. The application for stay of execution was dismissed with costs hence the Application.

### 5 Grounds of the application

The grounds of this Application as set out in the Notice of Motion as follows;-

- 1. That the Respondent filed Civil Suit No. 0003 of 2017 against the Applicant which was decided in the Respondents' favour ordering for eviction of the Applicant from the suit land. - 2. That the Applicant being dissatisfied with the whole decision in Civil Suit No.003 of 20L7 appealed against it in the High Court of Uganda at Mpigi vide Civil Appeal No. 26 of 2019 however, the High Court upheld the decision of the Magistrate Court. - 3. That the Applicant being d issatisfied with the whole decision in Civil Appeal No. 26 of 2019 in the Court of Appeal of Uganda at Kampala vide Civil Appeal No .288 pending determination. - 4. That the said Appeal has overwhelming chances of success as the Appellate Judge failed to re-evaluate the evidence and came to <sup>a</sup> wrong conclusion that there was no repudiation of the contract of sale between the Applicant and a one Damian. - 5. That since the date of Judgment, the L't Respondent has threated to storm the suit land to occupy or se!! it and such takeover would amount to execution. - 6. That if execution is carried out, the purpose of the intended appeal will be rendered nugatory and the Applicant will suffer substantial loss and that the application was brought without unreasonable delay.

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## 30

The above grounds are repeated and expounded on in the affidavit of the Applicant, Nabagala Mary filed on April 29,2024.

The Respondents opposed the Application through the affidavit of the L't Respondent, Sekabere Henry. The thrust of his discord with the application is that the appeal has no chances of success as it lacks merit. That this Application is meritless as it was first filed in the High and dismissed for lack of merit. It is contended that the Application is intended to waste Court's time.

The L't Respondent further contends that if the Court is inclined to grant the Application, the Applicant should be ordered to furnish security for due performance of the decrees in the spirit of fairness as the Applicant does not work but keeps filing applications thereby putting the Respondents to unnecessary costs. The L't Respondent argues that the Applicant shall not suffer any irreparable damage if evicted from the suit land as she does not have any interest in it having sold it to the 2nd Respondent.

The Applicant filed an affidavit in rejoinder contending that the averments of the affidavit in reply are premature. That the threat of execution is eminent as execution proceedings were commenced in the lower Courts, that she is in occupation of the suit land and uses it for commercial farming. That she is not precluded from instituting the application for stay of execution in this Court. 20 25

## Representation

Dennis Kwizera appeared for the Applicant while Ms. Nalubega Shamim appeared for the Respondents. Both parties attended Court. Court adopted the written submissions as Counsel's arguments.

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## Submissions for the Appellant

Mr. Dennis Kwizera submitted that rule 6 (2) (b) of the rules of this Court give the Court powers to issue an order of stay of execution on terms as the Court thinks Just. He also cited the authority of Margaret

5 Kato & Joel Kato Vs. Nuulu Nalwoga SC. Civil Application No. LL of 2OL1 to support his argument.

While citing Gashumba Maniraguha Vs. Sam Nkundiye SC. Civil Application No.24 of 20L4, Counse! submitted that the discretion is subject to having filed a Notice of Appeal in accordance with rule 76 and that the discretion to order of stay must be exercised on well-

esta blished principles.

Counsel argued that the principles to be considered in applications of this nature include: -

- a. That the Applicant filed a notice of Appeal - b. That there is a serious threat of execution - c. That the Appeal will be rendered nugatory if execution is allowed to proceed - d. That substantial loss would result if an order of stay is not granted - e. That the Application is made without unreasonable delay. - As regards the filing of a Notice of Appeal, Counsel submitted that this consideration was more than complied with, ds the Applicant also filed an Appeal vide Civil Appeal No. 288 of 2023. He prayed that Court finds that the principle was complied with. 20

On seriousness of the threat of execution, Counsel submitted that the 1't Respondent threatened to storm the suit land and occupy it forcefully. Counsel further submitted that execution proceedings have already been commenced by the l-'t Respondent. He invited Court to find that the threat of execution is real and serious. 25

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Counsel further submitted that the appeal would be rendered nugatory if the application is not granted. Counsel invited Court to note that the subject matter is land and that if execution is not stayed; it will be lost permanently. !t was also submitted, that the applicant is in occupation of the suit land and if an order of stay is not granted, it would result in su bsta ntia I loss beca use of the loom ing execution.

Counsel invited Court to find that the Application was filed without unreasonable delay at the time when the L't Respondent issued threats of execution. Court was also urged to find that the Applicant satisfied all the requirements for the grant of an order of stay of execution.

## Respondent's su bmissions

Counsel for the Respondents relied on the authority of Katungulu John Matovu & 2 Ors Vs. Godfrey Rwabuganda SC. Civil Application No. 9 of 2O2L and submitted that an Applicant for a grant of an interim order has to prove that there is a substantive application and a serious threat of execution.

On that premise, counsel submitted that the Applicant failed to prove that her application is substantive. Further that the Applicant first filed a similar one in the High Court of Uganda at Mpigi, which was dismissed for lack of merit. Counsel submitted that the Applicant did not attach any evidence to prove a serious threat of execution as the bill of costs has not been taxed, nor is there a threat to storm the suit land as alleged. Counsel prayed that the Court finds that this application is not su bsta ntive.

As regards the requirement of substantial !oss, Counsel submitted that the Applicant did not prove that she is likely to suffer substantial loss but rather that it is the Respondents who sta nd to lose since the Applicant does not have any interest in the suit land. 25

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q Counsel invited Court to find that there would be no substantial loss to the Applicant if this Application is not granted.

Counsel further submitted that the Applicant has to prove that she has given security for due performance of the decree. While citing the authority of Lawrence Misitwa Kyazze Vs. Eunice Busingye SC. Civil Application No. 18 of 1990, Counsel submitted that the Applicant must satisfy the following conditions before the grant of an order of stay of executio n: -

L. The applicant must establish that his appeal has high chances of <sup>10</sup> su ccess.

- 2. lt must also be established that the irreparable damage or that the appeal nugatory if a stay is granted. Applicant will suffer will not be rendered - 15

3. lf l and 2 above are not established, Court must consider where the balance on convenience lies.

WAS 4. The Applicant must also establish that the Application instituted without delay.

Counsel prayed that the Court orders the Applicant to pay security for due performance of the decrees in both the Chief Magistrates Court of Uganda at Nsangi and the High Court of Uganda at Mpigi.

25 Counsel submitted that the essence of paying security for due performance of the decree was not to fetter the right of appeal but to ensure that Court does not assist litigants in delaying execution of decrees through filing vexatious and frivolous appeals. She cited Kawanga Vs. Namparo & Anor Misc. Application No. L2 of 2OL7 for this proposition. Counsel proposed UGX. 50,000,000/= to be paid by the Applicant as security for due performance costs. 30

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Counse! finally submitted that the Applicant failed to prove the existence of the grounds required for the grant of an order of stay of execution, but in the event that the application is granted, dr order be made for payment of security for due performance of the decree.

## 5 Submissions in rejoinder

I

Counsel for the Applicant submitted in rejoinder that the Respondent's submission that there is no substantive application is misplaced as this application is for an order of stay not an interim order, that as such there was no need for a substantive application.

As regards the argument that there is an application already filed in the High Court of Uganda at Mpigi and dismissed, it was rejoined that it is the law and practice that applications for stay of execution should first be filed in the High Court which has concu rrent ju risdiction with the Court of Appeal in matters of this nature. To support his argument, Counsel cited Augustine Mukiibi Vs. Hosana Evangelistic Mission & Ors CA. Civil Application No. 295 of 2OL7. 10 15

As regards the serious threat of execution, Counsel rejoined that the Applicant provided sufficient evidence showing proof thereof. Counsel referred Court to the Notice to show cause why execution should not issue marked as annexture ttX" attached to the Applicant's affidavit in rejoind e r.

On substantial loss, counse! rejoined that if the execution is not stayed, the Applicant will Ioose her land which is the subject of the Appeal. Counsel submitted that loosing the suit land would in effect defeat the Applicant's statutory right of appeal, as it would render the appeal nugatory. He cited Francis Hansio Micar Vs. Nuwa Walakira SC. Civil Application No. 09 of 1990 to support his argument.

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As regards security for due performance, Counse! for the Applicant rejoined that the Applicant is ready to furnish security for due performance but that the UGX. 50,000,000f = was baseless. Counsel finalized by praying for the application to be granted.

## 5 Consideration by Court

lhave reviewed the Notice of Motior, the affidavits in support, in reply as well as the one in rejoinder. The submissions and relevant authorities cited by Counsel and others not cited but relevant to this application have been considered. lhave also carefully perused the Court record of the tria! Court and the 1't Appellate Court.

The law governing applications for stay of execution in this Court is rule 6 (2) (b) of the rules of this Court which provide as follows: -

"6 (2) "subject to sub-rule (1) of this rule, the institution of on appeal sholl not operote to suspend ony sentence or stoy execution but the Court moy-

o) .........

b) ln qny civil proceedings, where a Notice of Appeol hos been lodged in occordance with Rule 76 of these Rules, order a stoy of execution..... os the Court may consider just."

The general rule is that where an unsuccessful party is exercising an unrestricted right of appeal, it is the duty of Court to make such orders for stay of execution so as not to render the Appeal, if successful nugatory. See

Lawrence Musitwa Kyazze Vs. Eunice Busingye SC. Civil Application No. 18 of 1990. 25

It was propounded in Hon. Ssekikubo & Anor Vs. Attorney General & Ors, CA. Constitutional Application No. 03 of 2OI4 that the principles on which Court relies to grant a stay of execution are the following; -

- L. The Applicant must establish that his or her Appeal has chances of success. - 2. That the Applicant will suffer irreparable damage or that the appeal will be rendered nugatory if the stay is not granted. !f the 1 and 2 above have not been established, the Court must consider; - 10

- 3. Where the balance of convenience lies - 4. That the Application was instituted without unreasonable delay. - As to whether the Applicant established that his or her Appeal has chances of success, the Court has to investigate this but considering in mind that at this stage, it is not within its purview to delve into the merits of the Appeal. 15

The Applicant was faulted for claiming ownership of the suit land, which she had already sold to the 2nd Respondent (Katerega Damian) who in turn sold it to the 1't Respondent (Sekabere Henery). In rebuttal, she refuted the allegation that at the time the 2nd Respondent sold the suit land to the 1't Respondent, she had already repudiated the contract. This is one of the grounds of Appeal that she seeks the Court to consider on a second Appeal. 20

Additionally, the Applicant filed the Appeal in accordance with rule 75 of the rules of this Court. I therefore find that the Applicant has a prima facie Appeal.

Secondly, the Applicant is required to prove that she will suffer irreparable damage or that the appea! will be rendered nugatory if the stay of execution is not granted. The L't Respondent contended that the suit land belonged to him having purchased it from Katerega Damian. 30

The Respondents already applied for execution of the decree of the trial Court. lt is trite that execution is not an end but rather a process. See Osman Kassim Ramathan Vs. Century Bottling Co. LTD SC. Civil Application No. 35 of 2019.

Itherefore, find that the Applicant is likely to suffer irreparable loss and the appeal will be rendered nugatory if a stay of execution is not granted and her application was filed without any delay.

- Rule 2 (21 of the rules of this Court give discretion, in civil proceedings, where a Notice of Appeal has been lodged following rule 76 of the Ru les of this Court, to order a stay of execution in appropriate cases and on terms that the Court may think just. 10 - The Respondents invited Court to order the Applicant to pay security for due performance of the decrees both in the trial Court and the 1't Appellate Cou rt of UGX. 50,000,000/=. On the other ha nd, the Applicant's Counsel submitted in rejoinder that Applicant is ready to deposit security for due performance of the decree as the Court may determine but he did not propose any figure. 15 20

ln the case of Margaret Kato and Anor Vs. Nuulu Nalwoga, SC. Civil Application No. 11 of 2OZL, it was held that;-

"There is no requirement under our rules, for on opplicant to moke o deposit of security for due performonce of a decree, before the Court con exercise its powers under rule 5(2) (b). The court is only required to exercise its discretion os it may consider just. The practice in the post of this Court to impose this condition in some cases is only o rule of proctice based on cose law." 25 30

The concept of security for due performance is intended to protect the judgment creditor in the event that the appeal is unsuccessful.

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I have considered the genesis of the suit that was dismissed with costs, the 1't Appeal that was dismissed with costs, the Application for reinstating the 1't Appeal as well as the application for stay of execution in the 1't Appellate Court that was also dismissed with costs.

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I have also considered the submissions of both counsel and found that it is just that the Applicant should deposit security for due performance of the decree in order to protect the Respondents in the event that the 2nd Appea! does not succeed.

I however find the UGX. 50,000,000f= proposed by the Respondent's Counsel to be rather exaggerated. I accordingly, exercise my discretion and find UGX. 35,000,000f = as a reasonable amount. 10

ln the result, lfind that the Applicant satisfied the conditions for grant of a n order of stay of execution. The a pplication is granted conditionally with the following orders; - 15

- L. An order for stay of execution is granted pending the disposal of Court of Appeal Civil Appeal No .288 of 2023. - 2. The Applicant shall deposit UGX.35,000.000/= on the account of this Court, being security for due performance of the decree within thirty (30) days from the date of this ruling failure of which the Respondents shall be at liberty to execute the orders of the lower Courts. 20 - 25 - 3. The costs of this application shall abide by the outcome of Court of Appeal Civi! Appeal No.288 of 2023. .l{,\

Dated and detivered at Kampala this...t.(...day of... 024.


Moses Kazibwe Kawumi JUSTICE OF APPEAL