Nassuna v Kamoga & Others (Civil Application 45 of 2024) [2024] UGCA 59 (19 March 2024)

Full Case Text

# THE COURT OF APPEAL OF UGANDA AT KAMPALA Coram: Irene MulgagonJa, JA (Sttttng as a Slngle Judge) CIVIL APPLICATION NO. O45 OF 2024 ARJSING FROM MISCELLANEOUS APPLICATION NO 1269 OF 2023

#### BETWEEN

### CHRISTINE NASSUNA ::::::::::::::::::::::::::::::::::::::::::::::::::APPLICANT

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#### RULING

The applicant brought this application under the provisions of section 33 of the Judicature Act and rules 2 (2lr, 6 (21 (bl, 42 (2l,, 43 and 44 of the Judicature (Court of Appeal Rules) Directions, SI l3- 10.

25 She sought an order to stay execution of the judgment and decree/orders in High Court Civil Suit No 378 of 2OL3, Civil Suit l{o 17 of 2022, Miscellaneous Application No 26O0 of 2023 and Miscellaneous Application No LO24 of 2023, till final disposal of her application for leave to appeal now pending hearing before this court. She sought a further order restraining the respondents and their servants or agents from evicting her or otherwise dispossessing her and taking possession of the land registered in Leasehold Register Volume 2220 Folio I Plot 13, Kome Drive al Luzira, Nakawa Division in Kampala disposal gf her application for leave to appeal. 30

The application was supported by an affidavit deposed by the applicant on 30th January 2024. The 1st respondent did not oppose the application but the $2nd$ and $3rd$ respondents did in an affidavit deposed by Jaspal Singh Birdi, the 2nd respondent, on 13th February 2024.

- The facts as can be deduced from the affidavits are that in 2009, the $\mathsf{S}$ applicant bought and took possession of a piece of land from the 1st respondent. A copy of the agreement of sale was attached to her affidavit and marked as **Annexure C**. Thereafter, she constructed a residential house on the land without any disturbance from any one and she lives - 10 in the house with her family. That while she was in possession, the $1^{st}$ respondent filed a suit against the $2nd$ and $3rd$ respondents as **HCCS No.** 378 of 2013 in respect of the said land but judgment was entered against him, with orders that he was a trespasser on the land who should be evicted therefrom. - She further averred that being aggrieved by the orders against the $1^{st}$ 15 respondent, she filed HCMA No. 476 of 2022 for review and orders to set aside the judgment in **HCCS No 378 of 2013**. She also filed an application to stay execution of the orders in the said suit as **HCMA No 475 of 2022** pending the determination of the application for review, and **HCCS No 17 of 2022**, in order to protect her interest in the land. 20

The applicant further averred that **HCMA No. 475** and **476 of 2022** were stayed when they were called on for hearing, pending the determination of **HCCS No. 17 of 2022** on its merits. However, the suit was dismissed on 6th April 2022 on the ground that it was *res judicata*.

HCMA No. 475 of 2022 was accordingly also dismissed. She further 25 averred that because she was aggrieved by the decision in **HCCS No 17** of 2022, she filed an application for review, as HCMA No. 1024 of 2023 but it too was dismissed. She thus filed an application in the High Court seeking leave to appeal against the decision in the review, but it was also dismissed. 30 $a$ on:

$\overline{2}$

It was then that she filed Court of Appeal Civil Applicatioa No 1269 of 2o23 seeking leave to appeal against the orders of the trial judge in the application to review the decision in HCCS No. 17 of 2o22 and subsequent orders therefrom. She now comes to this court on an application to stay execution of the same orders pending the hearing and determination of her application for leave to appeal.

On their part, the 2'd and 3'd respondent are husband and wife, Kenyan and the registered proprietors of land registered in LRV 222O Folio l, Plot 13 Kome Drive inLuzira, Kampala District. In his affidavit in reply to the application, the 2"d respondent averred that the 1"t respondent admitted in HCCS No. 378 of 2O13 that before he bought the land in dispute, he did not carry out due diligence as to its ownership. He also did not know the description thereof when he bought it in 2010. That as a result, the applicant could not have known the description of the land that she bought from the 1"t respondent.

The 2"d respondent further averred that the applicant and the l"t respondent here are one and the same person. That the applicant confessed that he lives in the contested property with his family, during the hearing of HCCS No. 378 of 2O13. He denied that he applied to execute the orders in that suit. And that as a result, the applicant need not worry for she is in possession of the lald in dispute.

In her rejoinder, the applicant averred that there is a danger of execution against her because the respondents filed in the High Court an application for execution of the decree. That notice to show cause why execution should not be effected upon her was issued, dated 24tt January 2024 and attached to the affidavit in rejoinder. It showed that the respondents sought to execute to recover costs in HCCS No. 17 of 2o22 and the applications subsequent to it that were filed by the applicant and dismissed.

At the hearing of the application, the applicant was represented by Mr James Muhwezi Rwakoojo. Mr Moses Mulira represented the 2"d and 3.d respondents, while the l"t respondent was represented by Mr Ivan Musinguzi. All parties, except the 1"t respondent, fiIed written submissions which I have considered.

### Submissions of counsel

Counsel for the applicant submitted that the grounds upon which applications for stay of execution are issued were stated in Akankwasa Damian v. Uganda, Constitution Application No. 7 and 9 ol 2OlL, which was cited by the court with approval in Theodore Ssekikubo & 3 others v. Attorney General, & Others, Ciwil Application No 6 of 2O13, as follows:

- I The applicant must establish that his/her appeal has a likelihood of success - 15 11 The applicant will suffer irreparable damage or that the appeal will be rendered nugatory if the stay is not granted; - 111. If the conditions in i) and ii) have not been established, court must consider where the balance of convenience lies; and - 1V. The application was filed without delay.

20 25 With regard to the l"t criterion above, counsel for the applicant submitted that the pending application for leave to appeal has a strong likelihood of success because in HCCS No. 17 of 2022, the applicant was not heard on the merits of the suit. It was dismissed on a preliminary objection that it was res judicata; neither was her case heard in the application for review. That the right to fair hearing is non derogable and for that reason, the application for ieave to appeal in this court has high chances of success.

As to whether the applicant will suffer irreparable damage if the application is not granted, counsel submitted that, if the appeal is successful, it will be rendered nugatory. He again adverted to the fact that in the application for leave to appeal, the applicant seeks to enforce her right to be heard on the merits of her case. That the applicant will suffer irreparable damage because the eviction from her home on the land in dispute will traumatise her and her children. That she will suffer further loss if the buildings on the land are demolished.

10 15 Counsel further submitted that there is an imminent threat of execution of the decree because the respondents filed an application for execution of the decree, EMA No O462 ol 2023, Annexure Ll arrd L2 to t]:,e affidarrit in support. Counsel further submitted that the balance of convenience lies in favour of the applicant because she is in possession of the property in dispute. He further asserted that the application was filed without delay and prayed that it be granted.

In reply, counsel for the 2'a and 3'd respondents agreed with counsel for the applicant on the criteria upon which this court considers applications for stay of execution. He asserted that the most important one of them is that the applicant must demonstrate that the appeal has a likelihood of success; or a prima facie case of his/her right to appeal.

Counsel then submitted that the applicant filed a Notice of Appeal in the High Court to appeal against the decision in a ruling handed down by Busingre Byaruhanga, J on the 17th day of November 2023. That the Notice of Appeal that was lodged does not arnount to the notice that is

- required under rule 76 of the Court of Appeal Rules, sub rule (1) of which provides that arry person seeking to appeal to this court shall give notice in writing which shall be lodged in duplicate with the Registrar of the High Court. That whereas the applicant's purported notice bears a heading that it is a Notice of Appeal, the applicant is appealing to this 25 - court to rehear her application for leave to appeal which was dismissed 30

in Misc. Application No 26OO of 2023. Further that the Notice of Appeal was filed in this court, not in the High Court.

Counsel went on to submit that an order for stay of execution in this court is granted to one who has filed an appeal in this court. He referred

5 to the decision in Dr. Ahamed Kisuule v. Greenland Bank (In Liquidation) SCCA No. O7 of 2O2O and Gashumba Maniraguha v Nikundiye, SCCA No 24 of 2015.

Counsel went on to submit that the applicant is fully aware that she has no right to appeal to this court. And that while she filed an application for leave to appeal in this court which has not taken off, the applicant did not provide evidence to show that it is likely to succeed. That the application for leave to appea-l therefore does not satisfy the requirement of a prima facie case to be heard by this court and for that reason the application should fail. 10

Counsel further submitted that the applicant did not satisfy the requirement that she will suffer irreparable damage or that her appeal will be rendered nugatory if the order she seeks is not granted. That the respondents had not commenced the execution process and what exists is an effort to execute to recover costs. He went on to submit that the term irreparable damage is defined to mean damage that cannot be easily ascertained because there is no fixed pecuniary measurement. He referred to Black's Law Dictionary, 9th Edition for that definition. He pointed out that the applicant in this case states in her affidavit in support that she will be inconvenienced and that does not amount to irreparable damage. 15 20 25

With regard to the balance of convenience, he submitted that it lies with the respondents who will suffer if they are denied recovery of the partial nominal decretal sum which the applicant had agreed to pay. He

concluded that the applicant failed to make out a case for the grant of the order sought arld her application should be dismissed with costs.

# Determination

5 The principles upon which orders to stay execution are granted by the appellate courts were re-stated by the Supreme Court in Theodore Ssekikubo & Others v. AG, SC Constitutional Application No. 6 of 2O13 as follows:

- I The applicant will suffer irreparable damage or the appeal will be rendered nugatory if the order is not granted; - The appeal has a strong likelihood of success, or a prima facie case ofthe right to appeal; 10 II. - If 1 and 2 criteria have not been established, the court must consider where the balance of convenience lies; and 111. - The application has been brought without delay. lv. - 15 The power of this court to grant orders to stay execution is provided for in rule 6 (2) (b) of the Rules of this Court as follows:

(2) Subject to subrule (1f of this rule, the institution of an appeal shall not operate to suspend any sentence or to stay execution, but the court may-

(a) ...

(b) in any civil proceedlngs, where a notice of appeal hae been lodged in accordance with rule 76 of these Rules, order a stay of execution, an injunction, or a stay of proceedings on such terms as the court may think just.

25 Rule 76 of the same Rules provides, in part, as follows:

76. Notice of appeal in civil appeals.

(11 Any person who deslres to appeal to the court shall give notlce in wrltlng, which shall be lodged ln duplicate with the registrar of the Hlgh Court,

1t/n

(2) Every notice under subrule (1) of this rule shall, subject to rules 83 and 95 of these Rules, be lodged within fourteen days after the date of the decision against which it is desired to appeal.

$(3)$ ...

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

#### {*Emphasis added*}

Counsel for the respondent challenged the notice of appeal that was filed by the applicant on the ground that it did not comply with rule 76, 10 and that it was filed in this court, not the High Court. I carefully perused the said notice of appeal. It was entitled in its body as a "Notice of Appeal (From the Ruling of Honourable Lady Justice Immaculate Busingye Byaruhanga) handed down at Kampala on 17th day of November 2023."

- In its heading, the Application is stated to be in respect of 15 "Miscellaneous Application No 2600 of 2023, Arising from Miscellaneous Application No. 1024 of 2023; Arising from a Ruling of 6th April 2023 by Hon Lady Justice Immaculate Busingye Byaruhanga, from Civil Suit No 17 of 2022." - The appeal to which the notice was intended to apply was stated in the 20 body thereof as "the whole of the decision of the Court that was passed on 17th November 2023." In paragraph 12 of her affidavit in support of the application, the applicant stated that Misc. Application No. 2600 of 2023 was an application for leave to appeal, and it was dismissed by Busingye Byaruhanga, J. Although the applicant further indicated that 25 the decision was attached to the affidavit as **Annexure J**, it was not. **Annexure J**, was a copy of the application in **HCMA No. 1267 of 2023**, for leave to appeal to the Court of Appeal against an order of the same Judge delivered on 18th August 2023, in **Miscellaneous Application** No. 1024 of 2023. 30

Iron. The document that corresponded with what was stated in paragraph 12 of the affidavit in support was marked as Annexure "I". It was an application for ieave to appeal to the Court of Appeal again st orders issued by Busingre Byaruhanga, J on 6tt' April 2023. Though the decision itself was never attached to the affidavit, it is evident that there is no notice of appeal filed in court against the decision of Busirye Byaruhanga delivered on 17th November 2023 at a-11. As a matter of fact, it is not even clear what that decision related to because it was not in evidence in the a-ffidavits of the applicant. Neither is there evidence that a Notice of Appeal was filed in respect of the decision in respect of which the applicant seeks to appeal to this court, which was stated to be the dated 18tt August 2023 and in Miscellaneous Applicatlon No. 1O24 of 2023.

I observed that what is pending in this court as the main application is

Court of Appeal Civil Application No 1269 of 2023. The applicant seeks leave of this court to appeal against the orders and ruling of Businrye Byaruhanga, J in HCMA No 1O24 of 2023, an application for review of the decision in HCCS No l7 of 2022. The applicant chose to apply for review when the suit was dismissed on 6tt April 2023 on the ground that it was res judicata. 1( 20

Section 82 of the Civil Procedure Act provides for the power of review as follows:

82. Review.

Any person considering himself or herself aggrieved-

(af by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or 25

> (b) by a decree or order from which no appeal is allowed by this Act, may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order on the decree or order as it thinks fit.

Order 46 rule I of the CPR provides for applications for review in almost the same terms as follows:

## l. Application for review of judgment.

(1| Any person considering himself or herself aggrieved-

(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or

(b) by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter of evidence which, after the exercise of due diligence, was not within his or her knowledge or could not be produced by him or her at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reaaon, desires to obtain a review ofthe decree passed or order made against him or her, may apply for a review ofjudgment to the court which passed the decree or made the order.

(21 A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party, except where the ground ofthe appeal is common to the applicant and the appellant, or when, being respondent, he or she can present to the appellate court the case on which he or she applies for the review.

The applicant had an automatic right to apply for review of the order of Busingre Byaruhanga, J which was rendered on lSth August 2023. However, she had no automatic right to appeal against the order denying the review because Order 46 rule (1) (t) provides that appeals may only be preferred frorn "an order under rule 4 of Order 46 granting an application for reuiew." Order 46 rule 2 of the CPR goes on to provide that: 25

(2| An appeal under these Rules shall not lie from any other order except with leave ofthe court making the order or ofthe court to which an appeal would lie if leave were given. 30

The applicant applied for leave to appeal against the order of Busirye Byaruhanga, J in the High Court but she denied her leave to appeal against her order dismissing her application for review in Misc.

A/\*^

Application No 260O of 2023. She nou, comes to this court to seek leave to appeal against the order that was issued in HCMA LO24 of 2O23, vt'hich was the application for review of the decision in HCCS No L7 of 2023. I therefore find that this court has the power to consider her application for leave to appeal against the said order under Order 46 rule (2) CPR.

As to whether the applicant will suffer irreparable loss if the application to stay execution is not gra-nted, or the appeal wili be rendered nugatory if the order is not granted, the applicant averred that there is an imminent threat of execution and/or eviction because the respondents have extracted a notice to sho',r' cause why execution should no issue. This was attached to the aflidavit in rejoinder as Annexure A and it showed that the proposed execution was for the recovery of UGX 22,206,500, being taxed costs in TA No. 34O of 2o23 and TA No. 766

of 2023. 15

The 2",1 respondent denied that there was any attempt to evict the applicant from the land. He asserted, in paragraphs 21-23 of his affidavit that he has not commenced the process of execution to evict the applicant. That the applicant did not furnish court with evidence of execution in that regard and her allegations are redundant, premature and speculative. The respondent's assertions are credible because indeed the NTC is in respect of costs, and there are most likely the efforts ofthe respondents' lawyers to recover them, not the respondents.

Counsel for the respondent explained the partial execution in his submissions, in paragraph 33, that when the notice to show cause why execution should not issue came up for hearing on 3l"t J anuary 2024, the applicant proposed a voluntaqr payment plan through her lawyers. She was ready to pay the costs in eight (8) instalments and she did not oppose the notice to show cause why execution should not issue. 25

11, 1/o,-

I therefore find that the applicant has not made out a case that she will suffer irreparable damage if this application is not granted. And there being no evidence to show that she is about to be evicted from the premises before her application for leave to appeal is heard and disposed of, I am further unable to find that the application for leave to appeal would be rendered nugatory if the order is not granted to her.

It must now be considered whether the appeal, in this case the application for leave to appeal, has a strong likelihood of success, or whether there is a prima facie case of the right to appeal against the order in the application for review.

It will be recalled that the decision that the applicant seeks to appeal against, the ruling in which the trial judge dismissed the application for review, was not provided to court though it was stated that it was attached to the affidavit in support as $Annexure I$ . This annexure was

- 15 actually a copy of the application in **HCMA No 2600**, the application for leave to appeal against the trial judge's order in **HCCS No. 17 of 2022**. Since that is available together with the decision that the applicant sought leave to appeal against, I believe the court can from that perspective make a decision whether the application for leave to appeal has a likelihood of success. 20 - In her ruling in **HCCS No. 17 of 2022**, the trial judge at pages 7 and 8

of her opinion stated thus:

"Civil Suit No 17 of 2022 is res judicata since the plaintiff in Civil Suit 17" of 2022 claims to have got her interest from the plaintiff in Civil Suit 378 of 2013 which was finally determined in 2022. Counsel for the plaintiff *indicated that he was conceding to the preliminary objection in respect of* res judicata as raised by counsel for the $2^{nd}$ and $3^{rd}$ defendants in Civil Suit No 17 of 2022.

$\mathsf{S}$

$\cdots$

According to the record, Counsel for the plaintiff has conceded that Civil Suit No 17 of 2022 is res judicata since the plaintiff in Civil Suit No 17 of

LKM

2022 claims her interest in the suit land from the plaintiff in Civil Suit No 378 of 2013 who lost the case in respect of the suit land after final determination of Civil Suit No 378 of 2013. Hence Civil Suit No 17 of 2022 is res judicata and accordingly dismissed under section 7 of the Civil Procedure Act."

$\mathsf{S}$

The applicant contends in the main application, that the lawyer who is said to have conceded to the point of law that the suit was res judicata was not known to her. He did not represent her and was therefore fraudulently in court. However, as to whether a suit is res judicata or

not is determined on the basis of the judgment in the previous suit. 10

Section 7 of the CPA provides for the defence of res judicata partly as follows:

7. Res judicata.

No court shall try any suit or issue in which the matter directly and 15 substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try the subsequent suit or the suit in which the issue has been subsequently raised, and has been heard and finally decided by that court. 20

> Explanation 1. —The expression "former suit" shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior to it.

Explanation 2. —For the purposes of this section, the competence of $a$ 25 court shall be determined irrespective of any provision as to right of appeal from the decision of that court.

> Explanation 3. —The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.

30 Explanation 4. —Any matter which might and ought to have been made a ground of defence or attack in the former suit shall be deemed to have been a matter directly and substantially in issue in that suit.

In Mansuklal Ramji Karia & Crane Finance Co Ltd v. Attorney General & 2 Others, Supreme Court Civil Appeal No 20 of 2002, the

court considered the doctrine of res judicata. The Honourable Justices 35 of the court had recourse to the decision in Ismail Karshe v. Uganda

Ixan

Transport Ltd, HCCS No 553 of 1966 reported in Cases on Civil Procedure and Evidence, Vol. 3 page 1. They observed that Sir Udo Udoma, then Chief Justice of Uganda, held that once a decision has been given by a court of competent jurisdiction between two persons over the same subject matter, neither of the parties would be allowed to relitigate the issue again or deny that a decision had in fact been given, subject to certain conditions.

The applicant here admits that she bought the land in dispute from the l"t respondent, Moses Kamoga Matovu who was a party to the previous 10 suit, Civil Suit No 378 of 2022 between him and the lnd 41d Jrd respondent. There was an agreement between the applicant and the 1"t respondent, Annexure C to her affidavit in support of the application. She also admits that the land that she claimed in HCCS No 17 of 2o.22 is part of the land that is held by the 2na and 3'a respondent and 1s comprised in Leasehold Register Volume 2220 Folio 1, Plot 13 Kome Drive, Luzira Nakawa Division, Kampala District. Although this is not the description given to the land in the agreement, it is clearly admitted by the applicant that the land she claims is a portion of that which is covered by the 2'd and 3.d respondent's certificate of title.

The l.t respondent who sold her the land does not oppose this application, meaning that he has no intention of continuing the dispute over the land for it would clearly go against him. He is no doubt her predecessor in title and she litigated in HCCS No. 17 of 2o22 as his successor in title. The issues between her predecessor in title and the 2.d and 3.d respondents having been finally adjudicated upon by a court with competent jurisdiction. The applicant's main application for leave to appeal the decision of the trial judge that her suit was res judicata would have no chance of success, in my view. 20 25

As to whether this application was filed without delay, the decision that is sought to be appealed was handed down by the lower court on lSth 30

1,4

August 2O23. Civil Application No. L267 of 2023, from which this application a-rose was Iiled in this court on 1"t December 2023, while the instant application was filed on 30,h January 2023. Given that the applicant sought to exhaust her remedies in the lower court first, where she filed several applications before coming to this court, I find that this application was filed without unreasonable delay.

With regard to the issue whether the balance of convenience lies in favour of the applicant that the application be granted, there is first of all no action to stay since the respondents have not at any one time tried to evict her from the land in dispute. In the circumstances, an order to that effect would be superfluous, in my view.

This application is therefore hereby dismissed and the costs shall abide the disposal of Civil Application No, 1267 of 2o23 now pending hearing in this court.

15 Dated at Kampala this day of V\c...-. L 2024. L+'

20 Irene MulyagonJa JUSTICE OF APPEAL