Nalikka Mpima v Sensalire and Others (CIVIL MISC . APPL. NO 249/99) [1999] UGHC 60 (24 May 1999)

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPAI

CIVIL MISC. APPL. NO. 249/99

MARIA NALIKKA MPIMA. ...... PLAI

**VERSUS**

ERNEST SENSALIRE & OTHERS. ................ DEFENDANT

## BEFORE THE HONOURABLE MR. JUSTICE G. TINYINONDI

## RULING

By this notice of motion application four Applicants sought an order of a stay of execution inclusive of a stay of taxation proceedings of the five Respondents' bill of costs. The application was preferred under s.101 of the Civil Procedure Act; 0.48, rr 1 & 3 of the Civil Procedure Rules; and Rule 5(2)(b) of the Court of Appeal Rules Directions, 1996. The grounds supporting the application were -

- $(i)$ That the Applicants intend to appeal against the whole decision of this Honourable Court dated 15th January 1999 and filed a Notice of Appeal dated 21st January 1999 for the purpose. - (ii) That the Applicants on 19th January 1999 duly applied to this Honourable Court to be furnished with a certified copy of the Record of Proceedings in the matter to enable Counsel prepare a Record of Appeal; which Application was copied to both Counsel for the Respondents as required by Law. - iii) That the Applicants as Administrators intend to renovate and preserve JOSEPH MPINGA deceased's commercial building the first of its kind in Ndeeba Trading Centre erected on

the suit land in 1950 and was popularly known as "KIGAGGA", for HISTORICAL REASONS and ENVIRONMENT PROTECTION.

- (iv) That for reasons particularly set out in para (iii) if the building is demolished by the 5th Respondent as he has threatened to do so upon payment of a paltry sum of only Shs.4,000,000= (Shillings Four Million) to the Applicants, any Order made by the Court of Appeal if the Appeal succeeds will be Nugatory and therefore incapable of enforcement as its effect will not be for the restoration of the buildings. - That the Applicants' intended Appeal is most likely to $(v)$ succeed on merits. Hence, in-justice will be perpetrated against the Applicants if the said commercial buildings are demolished and are forced to pay the Taxed Costs of the Respondents while the intended Appeal is still pending in the Court of Appeal.

The application was accompanied by an affidavit sworn by the third Applicant on behalf of all the Applicants. He deponed, inter alia,

- That I was the 3rd Plaintiff in the above Civil Suit; 1. which suit was heard and Judgment was delivered by HIS LORDSHIP MR. JUSTICE G. TINYINONDI on the 15th January 1999 in which the said Suit was dismissed with costs in favour of the Respondents and the Court Ordered payment to the Plaintiffs the sum of Shs.4,000,000= by the 5th Defendant as compensation for our deceased father's commercial buildings thereon. - 2. That following the dismissal of the said Suit, our lawyers: M/S KULUMBA-KIINGI & CO. ADVOCATES on 21st January 1999 filed in this Honourable Court a formal

NOTICE OF APPEAL dated 21st january 1999 which Notice was acknowledged in the Court Registry on 21st January 1999. (Photo-Copy of the Notice of Appeal dated 21st January 1999 is annexed hereto and marked Annexure "A").

- That by letter dated 19th January 1999 our said Advocates 3. applied to this Honourable Court to be furnished with a certified copy of the RECORD OF PROCEEDINGS to enable our lawyers to prepare a Record of Appeal; which Application was duly copied to both Counsel for the Respondents respectively. (Photo-Copies of the Letter dated 19th January 1999 are annexed hereto and marked Annexures "B1" and "B2" respectively). - That I know that up to now our lawyers have not yet been 4. availed with the certified copy of the Record of Proceedings applied for. - That I have duly been informed by our lawyers and I 5. verily and sincerely believe the same to be true that the intended Appeal is most likely to succeed on the following grounds: - - That payment of compensation of only Shs.4,000,000= for $(a)$ the commercial buildings without evidence on the Record in support of the said amount; the value of which buildings the Professional Valuer (PW1) assessed at Shs.35,000,000= in his Valuation Report dated 21st February 1996 tendered as (Exh. P1) was not only outrageous but had no legal justification and therefore bad in Law. - (b) That the sum of Shs.4,000,000= which the learned Judge apparently adopted was the sum which the Chief Govt. Valuer (who was never called by the 5th Defendant to give

evidence) assessed as the Value of the Land ONLY; which land according to the CONSENT FORM (Exh.p3) was to him "UNDEVELOPED". Hence, the learned Judge's figure of Shs.4,000,000= was un-supported by Oral $and/or$ documentary evidence.

- (c) That having found as a fact that the 5th Defendant told a lie in his Written Statement of Defence that he bought the buildings on the Suit land from one JOSEPH LUTI MUSISI (who was not called by the 5th Defendant to support his claim); whereas the same rightly belonged to JOSEPH MPINGA Deceased, it was legally wrong for the same Judge to hold as he did that the 5th Defendant was a BONA FIDE Purchaser of the Suit land for value without Notice of the Applicants' unregistered Leasehold interest and/or CUSTOMARY TENURE thereon. - That there is no Law under which the learned Judge $(d)$ proceeded to order payment of COMPENSATION to the Plaintiffs for the buildings in light of the clear provisions of: (i) The Constitution of The Republic of Uqanda, 1995 (ii) The Registration of Titles Act and (iii) The Land Act, 1998 which statutes quaranteed SECURITY OF OCCUPANCY of the Suit land to the Applicants. The learned Judge's decision was both illegal and Un-Constitutional. - (e) That the 5th Defendant FRAUDULENTLY bought the Suit land SUBJECT to our Interest as unregistered Lessees and/or Lawful Holders of Customary Tenure as the Law provides, and we could not therefore be EVICTED from the land due to his Fraudulent dealings. - That I have duly been informed by my said lawyers and I 6. verily and sincerely believe the same to be true that

$\overline{4}$

where a party loosing a case shows an Express Intention to Appeal against the decision of the Trial Court (like in our case) the normal practice is to wait until the hearing and final disposal of the Appeal; which if allowed will entitle the Applicant to the award of Costs both of the Appeal Court and in the Court below and the Appellant's bills of Costs will then be Taxed by the Courts concerned.

- That if we are forced to accept the sum of Shs.4,000,000= $\frac{1}{2}$ 7. for the commercial buildings which the 5th Defendant have at all times threatened to demolish great injustice will be perpetrated against our family before the intended Appeal is heard and disposed of. - That this Affidavit is made in support of our APPLICATION 8. FOR STAY OF EXECUTION including the demolition of the commercial buildings situate on the Suit land AND the Taxation Proceedings leading to Execution until our intended Appeal is heard and disposed of.

The fifth Respondent swore an affidavit in reply. He deponed -

- 1. That I am an adult male Ugandan of sound mind and the 5th Defendant/Respondent in the above application and as such swear this affidavit. - 2. That my attention has been drawn to the application for stay of execution and taxation of the 4th and 5th Respondent's Bills of costs brought by the applicants and I have understood them well. - 3. That I am the registered proprietor of land comprised in Kibuga Block 7 Plot No.89 as evidenced from the certificate of title to the said land a copy whereof is

$\overline{5}$

attached hereto and marked Annexture "L".

- That the above suit brought by the applicants claiming an 4. interest in the said land was dismissed by this Honourable court on the 15th day of January 1999 but it was ordered that I pay to them a sum of Shs. 4,000,000= as compensation for their structures on the land. - 5. That at all material time I am willing to pay the said compensation after determining the taxed costs in my favour. - That it is true that the applicants filed a Notice of 6. Appeal against the decision of this court on the 21st day of January 1999. - 7. That I am informed by my advocates that the said Notice of Appeal was served onto them on the 7th day of February 1999. Copy of the served Notice of Appeal is attached hereto and marked "Annexture L2". - That I am further advised by my advocates and I also 8. verily believe that the intended appeal against me and the 4th defendant/respondent is incompetent. - $9.$ That even then the court adequately addressed the question of the applicant's interest on my land and properly came to a finding that they do not hold any lease thereon and accordingly their appeal has not any slight chance of success. - That the adequacy or inadequacy of compensation as 10. awarded by the court cannot bar me from getting possession of my land.

- 11. That I have observed that the applicants have brought building materials on my land with the intention of either renovating the existing structures or erecting new ones in flagrant disregard of the decree of this court. - 12. That besides I intend to erect onto the land a modern commercial building and hence I stand to suffer irreparable injury if this court grants the applicants a stay of execution pending an incompetent appeal against me.

At the commencement of the hearing Counsel for the 1st and 3rd Respondents raised preliminary objections. First, that no execution had taken place and therefore there was none to stay. Secondly, the application was brought under a wrong law because Rule 5(2)(b) applied to the Court of Appeal but not the High Court. Thirdly, that no security for costs had been provided as required under 0.39, $r.4(3)(c)$ of the Civil Procedure Rules. Counsel for the Applicant replied. I summarily overruled Counsel for the 1st and 3rd Respondents in a bid to avoid adjournment for a ruling but mainly because I felt these were matters that could be covered on the merits of the main application.

Arguing the application Counsel for the Applicants rehearsed the contents of the affidavit supporting the application. He cited the case of L. M. KYAZZE vs. E. BUSINGYE: CIVIL APPEAL NO.18/90 a n d KAMPALA BOTTLERS LTD vs. UGANDA BOTTLERS LTD. CIVIL APPEAL NO.25/95 as applicable to this case. In both cases it was held that in application for stay of execution the High Court is governed, inter alia, by 0.39, r.4 of the Civil Procedure Rules.

Counsel went on to submit that the Applicants had complied with all the three conditions under the rule. With regard to the second condition under the rule Counsel argued that substantial loss should not be measured in monetary terms only but also on the

$\overline{7}$

sentiments which the Applicants attached to their father's building as disclosed in paragraph (iii) of the notice of motion (ante).

In my considered view this application fails. Neither in the affidavits on the court file nor by any other legally acceptable means has it been proved that there is any execution proceedings commenced since the date of judgment.

There is also no evidence that the Respondents have filed their bills of costs and that taxation hearing notices have issued. Personally I deprecate the practice of applications for stay of taxation proceedings. . This practice amounts, in my view, to uncalled for interference in the court process. The court has not finally determined the matter in issue until costs have been taxed and certified. When a party purports to appeal and simultaneously applies to block taxation of the bill of costs in the matter that party is meddling with due process. When I overruled Counsel for the 1st and 3rd Respondents on this preliminary point I hoped that in presenting the application Counsel for the Applicant would assist this Court on the point. He did not make any useful attempt. This Court cannot be used to make orders in a vacuum. I would dismiss this application on this ground.

The above notwithstanding, let me address 0.39, $r.4(3)$ of the Civil Procedure Rules. It reads:

"(3). No order for stay of execution shall be made under subrule (1) or (2) unless the Court making it is satisfied -

- (a) that substantial loss may result to the party applying for stay of execution unless the order is $made;$ - $(b)$ that the application has been made without unreasonable delay; and - (c) that security has been given by the applicant for the due performance of such decree or order as may ultimately be binding on him." [Emphasis is mine].

sCassion and the train & Anteelan

My interpretation of the above rule is that all the conditions must be complied with by the Applicant. The word "and" is used conjunctively and not disjunctively.

Let me apply the three conditions to this application.

$\mathcal{U}$

Counsel for the Applicants tied to curve substantial loss from paragraph (iii) of the application (ante). There was no reference in the affidavit in support of the application that the said dilapidated building has any historical importance or environmental value. They could have employed the services of "Historical Buildings Conservation $\mathbf{G}$ roup" for this purpose. Counsel's submissions were not evidence. The claim was therefore nebulous.

With regard to the second condition I find that the Applicants have acted without unreasonable delay. However, I wish here to reflect on Counsel for Applicants' reliance on rule 5(2)(b) of the Court of Appeal's Rules Directions, 1996. In summary I would advise Counsel that the High Court has rules of procedure governing it. It is not governed nor can it pretend to implement and apply Rules of the $7550 - 3914$ Court of Appeal.

With regard to the third condition there is no pretence that any of $\mathbb{R}$ ? the four Applicants has furnished any security. It is very clear that the dispute involves five Respondents. When one reads $\sim$ paragraph (iii) of the application one gets the impression that the $\sqrt{2}$ supposed appeal is likely to be against the 5th Respondent. The $\langle \rangle$ Applicants want to nip the Respondents' flower in the bud by blocking the filing and taxation of their bills of costs. Even if $\mathbb{R}^{n}$ this Court were to impose a sum of money to be paid, the basis for it would be hazy. In face of such difficulties I find that the Applicants have failed to comply with all the conditions. $\mathbf{I}$ dismiss the application with costs to the Respondents.

COVER ART TO SIAL forse

G. Tinyinondi JUDGE $24/05/99$

$\overline{9}$

$26/05/99 - 9.30$ a.m.

Kulumba Kiyingi for Applicant - present. Mbogo, Nangwala for Respondent - absent.

$\overbrace{\cdots}^{\bullet\bullet}$

<pre>Kulumba: I presume they were served.<br>All were served.</pre>

<u>Court</u>: As directed by the Hon. the trial Judge, Ruling delivered.

REGISTRAR