Nansubuga & 2 Others v Nakanjako & 3 Others (Miscellaneous Application 139 of 2021) [2023] UGHC 417 (17 May 2023)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MASAKA MISCELLANEOUS APPLICATION NO.139 0F 2021 (ARISING FROM CIVIL SUIT NO.40 OF 2011)**

# **1. NANSUBUGA JULIET**

# **2. NALULE MARY IMMACULATE**

**3. PETER GODFREY SENTONGO:::::::::::::::::::::::::::::::::::::::::::APPLICANTS (Administrators of the Estate of the late Kamulegeya Joseph)**

# **VERSUS**

**1. NAKANJAKO TEOPISTA**

**2. CONSTANCE NANTONGO**

## **3. KATO JOSEPH**

**(Administrators)**

**4. COMMISSIONER LAND REGISTRATION:::::::::::::::::::::::::::::RESPONDENTS**

# *Before; Hon. Justice Victoria Nakintu Nkwanga Katamba*

# **RULING**

This Application was brought under Sections 34 and 98 of the Civil Procedure Act, Order 22 Rule 26 and Order 52 Rules 1, 2 and 3, Order 43 of the Civil Procedure Rules and Section 33 of the Judicature Act seeking the following orders;

1. Substantial stay of execution doth issue against the Respondents staying the decree in HCCS.

No.40 of 2011 pending the determination of an Appeal to the Court of Appeal.

2. Costs of the Application be provided for.

The grounds in support of this Application are contained in an affidavit deponed by the 3rd Applicant, Kato Joseph where he states as follows that;

1. The Applicants were the Defendants vide HCCS. No.40 of 2011.

2. The case was determined against them in favor of the Respondents in this Application and being dissatisfied with the decision of the Court, they have since lodged an appeal in the Court of Appeal.

3. The Appeal raises serious questions of law and that the Appeal has a high likelihood of success.


4. The Respondents have filed a bill of costs in a bid to pursue execution.

5. The Respondents have also, through their lawyers, issued eviction notices against the Applicants and have also written to the 4th Respondent to effect changes to the certificate of title of suit land that is subject to the civil suit.

6. If the Application is not granted, the Appeal shall be rendered nugatory since the land will be alienated upon being distributed by the Administrator General.

7. The Applicants will suffer substantial loss because if the Application is not granted, they will lose out on their shares in the estate as beneficiaries.

8. The Application was brought without delay.

An affidavit in reply was deponed by the 3rd Respondent, Kato Joseph where he stated as follows that;

1. The Application does not disclose the substantial loss that shall be suffered by the Applicants.

2. The Applicants are guilty of inordinate delay in bringing the Application.

3. The Applicants have not furnished any security for due performance of the decree.

4. The Court should be inclined to require the Applicants to furnish security of Shs. 1,011,732,000/= as security for due performance of the decree.

5. The Beneficiaries have been locked out of use of the land for more than 10 years.

6. The Applicants have been utilizing the land for the more 10 years to the detriment of the Respondents.

In rejoinder, it was stated as follows that;

1. The Affidavit in reply offends the Rules of Procedure.

2. There was no inordinate delay in bringing the Application and the Application discloses sufficient grounds to warrant a stay of execution.

3. The requirement to furnish Shs. 1,011,732,000/= as security would occasion and injustice and hinder the Applicants right of Appeal and that payment of security is not mandatory.

4. The Respondents are trying to alienate the land to the detriment of the Beneficiaries.

Both Parties filed written submissions and two issues were raised for determination;

1. Whether there are sufficient grounds that warrant grant of the Application.

2. What remedies are available to the Parties.

The Applicants also raised a point of law which is to the effect that;


1. The affidavit in reply by the Respondents were filed out of time and without first seeking leave of Court as the same ought to have been filed within 15 days from the date of service.

2. The affidavit in reply contains evasive replies and offends Order 6 Rules 8 and 10 of the Civil Procedure Rules.

#### **Submissions for the Application.**

#### **1. The Affidavit in reply was filed out of time.**

It was submitted that the reply to the Application ought to have been filed within 15 days but in this Application, the Respondent filed the affidavit out of time and the reply ought to be struck out. It was further submitted that the reply was filed on 1st March 2022 despite the fact that the Respondents were served with Court process on 15th February 2022.

Counsel relied on the cases of Stop and see (U) Ltd Limited versus Tropical Africa Bank Ltd HCMA No.333 of 2010 and Utex Industries Ltd Versus Attorney General SCCA. No.15 of 1995.

Counsel prayed that the affidavit in reply be struck out with costs and that Application proceeds unopposed and that the Court is bound to hold as such in light of previous decisions. Counsel relied on the cases of Namatovu Victor and Another versus Nakanjako Teopista and 2 others, HCMA No.137 of 2020 and Attorney General versus Uganda Law Society SCCA. No.1 of 2006.

#### 2. **The Affidavit in reply contains evasive replies and offends Order 6 Rules 8 and 10**.

It was submitted that the affidavit does not disclose any specific answer to the averments as contained in the affidavit in support which violates Order 6 Rule 8.

Counsel relied on Namatovu Victor and another versus Nakanjako Teopista and others (supra), to support his submissions that affidavit that contain evasive denials out to be struck out.

## 3. **Whether there are sufficient grounds that warrant grant of this Application**.

Counsel relied on Theodore Ssekikubo and others versus Attorney General and others, Constitutional Application No.6 of 2013 and Gashumba Maniraguha versus Sam Nkundiye SCCA. No.24 of 2015 to establish the prerequisites to granting a stay of execution.

It was submitted that the Applicants duly filed a notice of appeal and a memorandum of Appeal. On whether the appeal raises questions to be determined and is frivolous, Counsel referred Court to the Memorandum of Appeal. Counsel invited Court to consider the decision of Court and the grounds of appeal as raised. Counsel relied on the case of Shem Mpanga and another versus Kiiza Classy Banya, HCMA. No.479 of 2021.

On irreparable loss or damage, Counsel relied on Tropical Commodities supplies Ltd and 20 others versus International Credit Bank Limited (in Liquidation) [2004] 2 EA 331 and submitted that the Applicants have been occupying and utilizing the land and in the event that execution issues, the land may be sold off and cause incidents of bonafide purchasers for value without notice which would render the Appeal nugatory.

It is also stated that the Applicants are facing a threat of execution and that the Application was filed immediately after service of the Memorandum of Appeal and as result was brought without any inordinate delay.

On security for due performance, Counsel relied on Kawanga versus Namyalo and another, MA No.12 of 2017 and China Henan International Group Co. Ltd versus Justus Kyabahwa HCMA. No.815 of 2022 and submitted that Court ought to determine each Applications based on its own facts and that Court should exercise its discretion to require payment of security judiciously. It was submitted that requiring the Applicants to pay exorbitant fees would hinder the Applicants right of Appeal. Counsel prayed that Court be pleased to grant an unconditional stay.

#### **Submissions for the Respondents**.

It is my observation that Counsel for the Respondent argued both points of law simultaneously.

# **1. The Affidavit in reply having been filed out of time without having sought leave of Court.**

Counsel submitted that this is no longer the position of the law and Courts are currently inclined to administer justice without undue regard to technicalities. Counsel referred this Court to the case of Dr. Lam Lagoro James versus Muni University MCC. No.07 of 2016. Counsel submitted that matters should be heard and determined on the merits.

Counsel submitted that the cases as cited by the Applicants in support of the Application with regards to striking out the affidavit in reply or not binding but persuasive on this Court. Counsel then submitted that the affidavit in reply does not offend any rules of procedure. Counsel prayed that the preliminary objections be overruled.

## **On whether the Application should be granted,**

Counsel reiterated the conditions that warrant a grant of stay of execution. Counsel conceded that there was pending appeal.


On whether the appeal is not frivolous and that the Appeal raises serious questions of law, Counsel submitted that the mere averment that the Appeal serious questions does not in itself show that the Appeal raises serious questions. It was further submitted that the Applicants as Appellants, intend on relying on the will where it is stated that a trust was to be formed but the will does not disclose any where that a trust was to be informed. Counsel submitted that if the Applicants intended on relying on the will, they could have formed that trust in the 90s but are instead seeking to form a trust now almost 13 years after the suit was brought and also having occupied the suit land for almost 31 years since the late died and as such, this points to the fact that the Applicants are simply devising means to deprive beneficiaries of their respective shares.

On irreparable loss, it was submitted that though the Applicants have been in occupation of the land, they have wasted the estate property and that they have sublet and mortgaged the estate property benefiting from the same illegally which is also to the detriment of other beneficiaries. It was further submitted that the Applicants are assuming that the Respondents will sell the land and the Court does not make decisions based on assumptions.

On undue delay, it was submitted that the Application was simply an afterthought. It was submitted that the judgement was delivered on 26th June 2020 and the Application was brought on 22nd September 2021. Counsel relied on Mabu Commodities Limited versus Sophie Nakitende, MA. No.530 of 2020.

On security, it was submitted that the Applicants have not furnished any security for due performance of the decree.

## **Rejoinder.**

Counsel reiterated that the affidavit in reply ought to be struck out. Counsel submitted that the case of Dr. Lam Goro James versus Muni University (supra) is distinguishable from this Application. It was submitted that the above case concerned judicial review and also that Respondent had a justification for the delay in response but in this case, the Respondents have given no justification for filing the affidavit in reply out of time. In relying on a wealth of authorities, Counsel submitted that Article 126(2)(e) should not be used to flout the rules but that a party that seeks to rely on the same should justify its use.

It was further stated that the Applicants have furnished sufficient grounds to warrant a grant of stay of execution. It was further stated that the Application was filed in time. It is my observation that Counsel largely reiterates his submissions in support.


Having carefully considered the affidavit in this Application and the submissions of both Counsel. I now proceed to determine the Application.

#### **Determination of the Application.**

# **1. Whether the affidavit in reply should be struck off the record for having been filed out of time.**

It is my observation that Court's in exercising their discretion under Section 98 of the Civil Procedure Act, have gradually been lenient in regards to affidavits in reply filed out of time. Courts have on many circumstances have considered affidavits that have been filed out of time, in the interest of justice and when sufficient reason is given for failure to file the affidavit in reply within the time stipulated. (see; *The Ramgarhia Sikh Society and others versus the Ramgarhia Sikh Education and others, HCMA. No.352 of 2015*).

I have also considered the authority of *Dr. Lam Lagoro versus Muni University, HCMC. No.07 of 2016* as relied on by the Respondent, and it is my observation that though the matter was about judicial review, the affidavit in reply in the cause was filed out of time. The Court while observing that it was in the interest of justice that the affidavit be admitted despite having been filed out of time, noted that there was sufficient reason given as to why the affidavit in reply was filed out of time and as such, the circumstances warranted exercise of Court's discretion to admit the affidavit. In both cases above, the Courts exercised their discretion in light of existence of reasons that necessitated admission of the affidavit in reply that is; sufficient reason for failure to file the affidavit in reply in time and interest of justice.

In considering the affidavit in reply in this Application, it is my observation that the Respondent in his submissions conceded that the affidavit in reply was filed out of time but prayed that Court exercises its discretion in admitting the affidavit though the same was filed out of time. The Respondent never advanced any reason as to why the Affidavit in reply was not filed within 15 days from receipt of the Application has required by law and yet the affidavit was filed almost 4 months late. The Court cannot exercise its discretion blindly because this will encourage default in complying with timelines.

I already observed in *Namatovu Victor and another versus Kato Joseph and others, HCMA. No.137 of 2020*, that where a Respondent has not advanced a reason as to why an affidavit in reply is not filed in time, the Affidavit ought to be struck off.

 I therefore find that the affidavit in reply was filed out of time and no sufficient reason has been advanced for the delay. As a result, the affidavit in hereby struck off the record. The Application shall therefore proceed unopposed.

Having struck out the affidavit in reply, I do not consider it necessary to address the issue of whether the affidavit in reply contains evasive averments.

# **Determination of the Application.**

In turning to the merits of this Application, the case of *Hon. Theodore Ssekikubo and others versus Attorney General and others, SCCA. No.3 of 2014* establishes the requirements Court considers to grant a stay of execution which are;

1. The Applicant must show that they lodged a notice of Appeal.

2. The Applicant must show that substantial loss may result if stay of execution is not granted.

3. That the Application for stay has been brought without reasonable delay.

4. That the Applicant has given security for the due performance of the decree or order.

The case of *Kyambogo university versus Prof. Isaiah Omollo Ndiege, COAMA. No. 341 of 2013* adds to the considerations in Hon. Theodore Ssekikubo and others versus AG and others (supra) and these other considerations are ;

1. Eminent threat of execution.

2. The appeal not being frivolous and having a high likelihood of success.

3. Infliction of more hardship in the stay is not granted.

To the affidavit was attached a memorandum of appeal filed on 3rd September 2021 in the Court of Appeal registry. A Notice of appeal was also attached.

It is also my observation that attached to the affidavit in support is plaintiff's bill of costs filed in the High Court registry on 29th June 2020 and a letter dated 3rd September 2020 addressed to the Commissioner Land Registration and copies to the Administrator General, wherein the Counsel for the Plaintiffs' requests the Commissioner Land Registration to make alterations to the certificates of title to land forming part of the estate of the late Tadeo Kafero in agreement with the findings of Court.

In considering the above, it is my observation that the Applicants have fulfilled the requirements of eminent threat of execution and a notice of appeal having been filed.


What remains to be considered is whether the Application was brought without undue delay, whether the Applicants will suffer substantial loss or if stay is not granted, the Appeal will be rendered nugatory and whether the Appeal is not frivolous.

On whether the Applicants will suffer substantial loss, in *Tropical Commodities Suppliers Ltd and Ors Vs International Credit Bank Ltd (In Liquidation) (2004)2 EA 331***,** it was held that substantial loss does not represent any particular amount or size for it cannot be quantified by any particular mathematical formulae. It refers to any loss, great or small that is of real worth or value as distinguished from loss without a value or that which is merely nominal. It was further held that the Court ought to consider substantial loss claimed by an applicant in light of the particular facts raised by each case.

In order to amount to substantial loss, the deprivation must be over and above the ordinary loss resulting from litigation as was held in *Pan African Insurance Co. (U) Ltd Vs International Air Transport Association H. C. M. A No.86/2006*.

The Deponent, the 3rd Applicant stated that if execution issues, he will lose out on his share in the estate property together with other beneficiaries including grandchildren on account of the Respondents wanting to deprive them of the estate.

If execution is to issue, my first observation is that the Administrator General shall be required to distribute the remaining estate property according to will, making the assertion that beneficiaries will miss out on their shares in estate quite speculative. The Applicants were duty bound to adduce evidence of what the status quo is, how the status quo is in the Appellants favor and how an alteration in the status quo will negatively affect them pending the Appeal. The Appellants simply state that they will lose out on the shares and the land shall be alienated. I find all of these depositions speculative. The Appellants did not furnish any evidence to support what shares they have and neither did they adduce sufficient evidence to support the fact that they will miss out on the past, current or future shares, as beneficiaries if the estate is distributed.

Substantial loss cannot mean ordinary loss or the decretal sum or costs which must be settled by the losing party but something more than that. The Applicant should go beyond the vague and general assertion of substantial loss. (see: *Andrew Kisawuzi versis Dan Oundo Malingu HCMA. No.467 of 2013*)


It is therefore my finding that the Applicants have failed to prove substantial loss.

### **Appeal has a likelihood of success.**

Likelihood or probability of success was addressed in *GAPCO Uganda Ltd v Kaweesa & Another, HCMA No. 259 of 2013,* where it was held that the Court must be satisfied that the claim is not frivolous or vexatious and that there is a serious question to be tried. It was further observed that the Law does not require Court to delve into the merits of the appeal. All that is required to be proved is that there is a serious issue to be tried by Court and that, that issue is neither frivolous nor vexatious.

The Appellants in their memorandum of Appeal raises the following grounds;

1. That Learned Trial Judge erred in law and fact when he required the Appellants to account for the misdeeds of the late Kamulegeya Joseph in his personal capacity thereby occasioning a miscarriage of justice.

2. That the Learned Trial Judge erred in law and fact when he held/canceled the administrators of the estate of the late Joseph Kamulegeya on the certificates of title in absence of fraud and attributing the fraud to the Administrators of the estate of the late Joseph Kamulegeya thereby occasioning a miscarriage of justice.

3. That the Learned Trial Judge erred in law and fact by ordering for the distribution of the estate of the late Tadeo Kafero contrary to the will thereby occasioning a miscarriage of Justice. My general observation with regards to the grounds of appeal as raised is that they are not novel and secondly in considering each ground specifically, it is my observation that ground 1 does not raise a serious issue. The Appellants allege that the Court erred when it asked the administrators of the estate of late Kamulegeya to account for actions of the late thereby occasioning a miscarriage of justice. It is trite that the administrators act as representatives of the deceased and they ought to be aware of the deceased's affairs and as such as they can best submit an account of behalf of the deceased's estate.

In considering ground 2, without delving into the merits, it is my observation that fraud was neither raised in the pleadings nor mentioned in this Court's judgement.

On ground 3, it is my observation that the Learned Trial Judge never ordered distribution contrary to will. The Learned Judge upheld the will and further observed that the Administrator General should take over management of the remaining estate and distribute it to the rightful beneficiaries according to the law and the law provides for distribution of property according to a will where one exists. The deduction from this Court's holding is that the estate shall be


distributed according to the will and not that the Administrator General should distribute the property under any other specific scheme.

Considering the above, it is my finding that although finding merit in the grounds of appeal is the duty of the Appellate Court, this Court also has a duty to protect litigants against frivolous appeals and the grounds of appeal as raised by the Appellants did not raise serious questions to be tried and are in my opinion weak with close to no likely hood of success.

# **On whether the Application was brought without inordinate delay**.

The decision of Court was delivered on 26th June 2020. The Plaintiffs' bill of costs was filed on 29th June 2020, the eviction notice to the Appellants was issued on 20th August 2020 while the letter addressed to the Commissioner Land Registration to effect changes to the certificates of title to the various lands was issued on 3rd September 2020.

On the other hand, the Application for stay of execution was filed on 22nd September 2021 which is more than a year after the Respondents commenced the execution process. It is my finding that the Applicants are guilty of inordinate delay and no reason has been advanced as to why there has been such an inordinate delay.

# **On furnishing of security for due performance of the decree.**

In *John Baptist Kawanga versus Namyalo Kevina and another, HCMA. No. 12 of 2017***,** this court held that every application should be handled on its merits and a decision whether or not to order for security for due performance should be made according to the circumstances of each particular case. It was further held that the objective of the legal provisions on security was never intended to fetter the right of appeal. It was intended to ensure that courts do not assist litigants to delay execution of decrees through filling vexatious and frivolous appeals.

The Applicants have neither exhibited any willingness to furnish security nor the ability to satisfy the decree once issued. As a result, this Court shall not consider the requirement for depositing security for due performance.

Considering the fact that the Civil Suit was filed in 2011 and determined in 2020 with the appeal most likely to be determined a while later, the Respondents would be unable to enjoy the fruits of litigation for close to 13 years. This Applicants were therefore duty bound to exert themselves in proving that the circumstances warranted an order staying execution however they fell short doing so.


### **Conclusion***.*

Having made a finding that the Applicants are guilty of inordinate delay in bringing this Application and also failed to prove substantial loss or high likelihood of success of the intended appeal, it is my observation that this Application is without merit and is hereby dismissed. The matter is one that involves family members and in the spirit of promoting reconciliation, each party shall bear its own costs.

I so order.

Dated and delivered electronically at Masaka this 17th day of May 2023.

**Victoria Nakintu Nkwanga Katamba. Judge.**