Ninyambungira v Mugabe (Civil Application 36 of 2023) [2023] UGSC 76 (12 October 2023)

Full Case Text

### THE REPUBLIC OF UGANDA.

## IN THE SUPREME COURT OF UGANDA AT KAMPALA

#### CIVIL APPLICATION NOS 36 OF 2023

### ARISING FROM CIVIL APPLICATION NO 35 OF 2023

# ARISING FROM COURT OF APPEAL CIVIL APPEAL NO. 59 OF 2023

NYINAMBUNGIRA DIANNE SHEBA LORETTA} ................................... 10

### **VERSUS**

MUGABE DAVID} ....................................

## RULING OF CHRISTOPHER MADRAMA IZAMA, JSC

- The applicant's application is for an interim order to issue staying the execution of the Judgment and decree of the Court of Appeal of Uganda at 15 Kampala in Civil Appeal No. 60 of 2020. Secondly, for an interim, order staying the proceedings of the High Court Family Division Divorce Cause No. 117 of 2021 between the applicant and the respondent. Lastly for any other remedies in addition to the one the court deems fit to grant. - The application is brought pursuant to the provisions of Rule 2(2), 6 (b), 42 20 (1) of the Judicature (Supreme Court Rules) Directions.

The grounds of the application are that on 4th January 2021, the High Court of Uganda delivered judgment in favour of the applicant granting a decree nisi and subsequently a decree absolute against the respondent in High Court Family Division Divorce Cause No. 117 of 2021. Further on 17th April, the 25 Court of Appeal set aside the said Judgment and decree nisi and ordered a retrial before another judge. The applicant being dissatisfied with the Judgment of the Court of Appeal filed a notice of appeal and a memorandum of appeal before this court. However, owing to the busy schedule of the court, the appeal is yet to be determined. The appeal is entitled as Civil 30 Appeal No. 60 of 2022.

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5 The respondent has taken steps to execute the judgment of the Court of Appeat and is proceeding with the High Court Famity Division Divorce Cause No. 117 of 2021. Further that there is a serious threat of execution that exists. The applicant contends that it is necessary for this court to make orders for the purpose of achieving the ends of justice. This court has inherent power to make necessary orders for achieving the ends of justice and that the ends of justice dictated that this court stays execution of the Court of Appeal Judgment referred to above as wet[ as staying proceedings in the High Court Famity Division in Divorce Cause No. 17 of 21. 10

The appticant seeks for an order that the costs of and incidental to this apptication abide the outcome of the apptication.

The apptication is supported by the affidavit of Nakabuubi Ctare and others to be retied on in the apptication. Nakabuubi Ctare, (hereinafter referred to as the first opponent) deposed that she is a femate adutt of sound mind and an advocate of the High Court working with Messieurs Simon Tendo Kabenge and advocates who are the advocates of the appticant and conversant with the facts retevant to the apptication. She deposed that on 4th January 2021 the High Court of Uganda del.ivered Judgment in favour of the appticant. ln other words, she repeats the averments in the notice of motion and atso attaches the retevant Judgment and decree nisi as wel.[ as the order of the Court of Appeat ordering retrial before another judge. She deposed that the appticant being dissatisfied with the Judgment of the Court of AppeaL instructed them to fite a notice of appeat and a memorandum of appeal in the Supreme with copies attached to her affidavit. Secondty that the respondent took steps to execute the judgment of the Court of Appeat and is proceeding with the High Court Famity Division Divorce Cause No. 1,l7 ot 2021 according to copies of hearing notices attached to her affidavit. SecondLy, the appticant fited a substantive appLication for stay of execution and stay of proceedings but owing to the busy schedute of the Supreme Court, the apptication is yet to be heard and determined. She deposed that there is a serious threat of execution which exists and that it is necessary for this court to make orders for the purpose of achieving the ends of 20 25 30 35

5 justice. The rest of the deposition repticate the averments in the notice of motion.

The apptication is atso supported by the affidavit of the appticant Dianne Sheba Loretta which repeats facts averred about the Judgment of the High Court, the Judgment of the Court of Appeat and the fact the proceedings commenced afresh before the Famity Division of the High Court pursuant to the decision of the Court of Appeat. The evidence is that on 20th September 2023, the High Court Famity Division proceeded in an apptication for interim custody of minor chitdren and it was adjourned to 26th October 2023 at 2:30 PM. Further the court in High Court Famity Division Divorce Cause No. 117 of

- 2021 drrected the parties to fite a joint scheduting memorandum, separate trial bundtes and witness statements by llth October 2023. The scheduting conference and hearing was fixed for 26th of October 2023 at 2:30 PM. ln the premrses she fited a substantive apptication for stay of execution and stay of proceedings in Civit Apptication No. 35 ot 2023 but owing to the "busy 15 - schedute" of the Court the apptication is yet to be heard and determined. Further she states that there is a serious threat of execution of the decision of the Court of Appeat in the manner stated above. For that reason, she states that it is necessary for the court to make orders for the purpose of achieving the ends of justice by issuing a stay of execution and stay of proceedings order in the circumstances. 20 25

The respondent, Mr David Mugabe, deposed to the contents of an affidavit in reply opposing the apptication. He deposed that with the hetp of his advocates, Messrs J Byamukama & company advocates, he read and understood the contents of the apptication and the affidavit in support and was of the opinion that the apptication lacked substance. That the lawyers woutd object to the apptication on the ground that it was incompetent for being supported by the affidavit of Nakabuubi Ctare, the appticant's lawyer who is not the applicant. Additionatty, the lawyer did not appear as counsel of the appticant in the lower courts and the account in her affidavit shoutd

be struck out for containing fatsehoods. The respondent reties on attached copies of proceedings in the High Court and in the Court of Appeat. 35

-s ln repty, he deposed that the appticant's appeaI before this court is incompetent on the ground that the appticant and her lawyers are guitty of gross ditatory conduct in that they had sufficient materiats to fite an appeal by 5th June 2023 but did not do so within time. ln the premises there is no lustifiabte excuse for the betated fiting. He contended that there was a letter ro from the Court of Appeat confirming readiness of the certified judgment and proceedings annexure "8" which shows that first of June ?023, a certified copy of proceedings and Judgment requested for by the intending appel,tant were ready for cottection upon payment of the requisite fees. The record also shows that the certified copy proceedings was received by the ls appticants advocates on 5th June 2023. That his Lawyers have instructions to fil.e an apptication to have the appeat struck out with costs and this was fited on 3'd October 2023 as annexed to the affidavit. The respondent's counse[ contends that it was a tegal tactic by the appl.icant meant to frustrate the hearing of the divorce petition and the apptication for interim 20 joint custody of their two minor chitdren aged five and six years. Further that the apptication had atready been entertained by the High Court, Famity Division and was scheduted for hearing on 26'h 0ctober 2023. He contended further that the appticant's appeat is incompetent and cannot form the basis of the apptication. He contends that the court cannot be bLamed for the detay 25 in hearing the appeat when it took the appticant atmost hatf a year to f inatise its what it fited in this Court. Further, the orders of the Court of Appeal. are not capabte of execution and the apptication for stay of execution is unfounded and premature. Mr Mugabe contended that the test of where the batance of convenience law does not appl.y in the circumstances as it is 30 predicated on the outcome of the divorce petition that is pending before the High Court, Famil.y Division. Further, the directives given by the High Court to the parties was not objected to and the appticant cannot now turn around to use the court to frustrate the proceedings.

The respondent contends that both apptications for stay of execution and 3s stay of proceedings are founded on an incompetent appeal.. Further that the appl.icant has not come to the court with ctean hands but is in a systematic campaign to estrange him with his minor chitdren who are currentty in her

5 physicat custody. He contends that the appticant, contrary to the wetfare of the minors, has atready changed their names and schooI without consutting him and continues to be unreasonabte, and evasive whenever he reached out regarding the wetfare of their chitdren. Contrary to the attegations in the divorce petition, the appticant is in a resotute defamatory campaign to tarnish his reputation among his ctose friends, famities and whoever cares to give her attention. He states that he is afraid that the appticant has stretched the differences they had to the extent of having an effect on the wett-being of the minors who are currentty being deprived of the loving and present father contrary to the wetfare of chitdren principte. ln the premises the respondent states that if the court is inctined to grant the prayers of the appl.icant to inter atia stay the proceedings in the High Court Famil.y Division, this shoutd be subject to granting him an interim joint custody of two minor chil.dren order under terms stiputated in his apptication. 10 15

When this apptication was brought to my attention, I gave the registrar directions for the parties to adhere to so that they fite written submissions for and against the parties as scheduled in the directions and the apptication was then fixed for hearing or mention on 12th October 2023. The appticant fited written submissions accordingty on 28th September 2023 white the respondent fited written submissions in repty on Srh October 2023. The appticant fil.ed written submissions in rejoinder on the l1th of October 2023. 20 25

When the apptication was mentioned for hearing, learned counsel Mr. Jude Byamukama appearing jointty with [earned counsel Ms. Zahara Tumwikirize represented the respondent. The respondent Mr. David Mugabe was present in court. Neither the appticant nor her counsel were present. Mr. Jude Byamukama prayed that the court proceeds to determine the apptication according to the submissions of the parties fited as directed by court. Having received prior written submissions from the appticant and the respondent, and having considered that the proceedings that the appticants seeks to stay in the High Court have been scheduted for hearing by the High

Court on 13th of 0ctober, 2023, I note that this is an urgent matter and reserved ruling for delivery at '12.00 Noon. 35

a serious threat of execution before hearing of the substantive application? and $(3)$ that there is a notice of appeal.

Further the applicant relies of on the affidavit of the applicant and that of counsel Nakabuubi Clare. From the facts deposed to in those affidavits, counsel submitted that there is a notice of appeal coupled with the memorandum of appeal which has been filed in this court. Secondly, there is an application for a substantive stay of execution in Miscellaneous Application No. 35 of 2023 pending before the court. According to the attachments to the affidavits, there is an imminent threat of execution of the Court of Appeal decree by prosecution of the divorce cause before a new judge. The applicant's counsel submitted that it is not in doubt that the intended appeal numbered as No. 59 of 2023 has been filed and served on the respondent whereupon it will be rendered nugatory and the applicant will suffer substantial loss if the stay of execution is not granted. That the High Court shall hear and determine the divorce cause before the appeal requesting reinstatement of her judgment issued by the High Court. He submitted that the grant of the orders sought is necessary to achieve the ends of justice and to prevent abuse of court process. Counsel prayed that the court finds merit in the application and grants the interim stay of execution and stay of proceedings pending the hearing and determination

of the main application. 25

### In reply, the respondent's counsel submitted as follows:

The parties before this court were parties in the Court of Appeal in Civil Appeal No. 60 of 2022 wherein the court determined the appeal in a judgment dated 17th of April 2023. The Court of Appeal set aside the judgment of the High Court and ordered a retrial before another judge of High Court Divorce Cause No 117 of 2021.

The respondent's counsel submitted that purpose of the application is to prevent the retrial of the divorce proceedings so that the questions of proof of grounds of divorce, interim custody of two minors' quantum of maintenance dues to be paid by the respondent are determined. There is no

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5 order capabte of execution arising from the Court of Appeat decision. ln the premises, the respondent's counsel prayed that the apptication be found without merit and be dismissed with costs.

Secondty counse[ submitted that the retriaI of the Divorce Cause commenced on 20th September, 2023 as ordered by the Court of Appeal. 10 because previousty the divorce cause proceeded in the High Court without a proper hearing as dictated by Order 18 of the Civil Procedure Ru[es. The parties, with the acquiescence of the court, had created their own procedure contrary to the law and did not lead evidence or cross examine witnesses thereby resutting into a mistriat.

1s The respondents counsel further submitted that the judgment ordering retrial was delivered by the Court of Appeat on 17th of Aprit 2023. The appticant fited a notice of appeat on 3'd of May 2023 and the certified proceedings from the Court of Appeat were ready and cottected by the applicant's lawyers on Sth June 2023. No appeat was fited up to 'l2th of 20 September, 2023 and High Court commenced the triat de novo. The respondent fited a notice of motion in the High Court for interim orders to be issued in retation to custody of the two minor chitdren vide Miscetlaneous Appl.ication 771 of 2023 and duty served the appl.ication on 28th August 2023. Hearing notices for the retrial were issued by the High zs Court on 31"t August, 2023 and served on the appticant. The retriat commenced on 20th September, 2023. Betatedty, and in a bid to prevent further proceedings in the retriat, counseI for the appticant fited the instant apptication in this Court. The affidavit supporting the apptication fited on l2th of September 2023 is not that of appticant but that of her counsel and the 30 appticant's own affidavit was betatedly fited on the 27th of September 2023. The respondent submitted that the apptication was not fited with the knowtedge and acquiescence of the appticant who fil,ed an additional affidavit 15 days after the apptication was fited. 0n that score, the apptication is incompetent and ought to be struck out because [ega[ advisor of the 3s appticant coutd not, on her own, move court to stay execution or seek for stay of proceedings in the trial court. Further the appticant's lawyers

5 betatedty compteted fiting of the incompetent appeal on 12th September 2023 by todging a memorandum and record of appeat outside the time stiputated by rute 79 (2) ot the Judicature (Supreme Court Rutes) Directions.

Further, the respondent's counseI submitted that the High Court commenced proceedings for joint interim custody 20th of September 2023 and gave time to the respondent to fite affidavits. The court atso heard the divorce petition and issued timetines for expeditious disposal of the divorce cause which had been fixed for 26th of October 2023 for cross examination of witnesses. The appticant and her lawyers did not object to these proceedings when they appeared in court and it did not intimate to court that they had fited the present appLication. Seven days later and on 27th September 2023 the respondent's lawyer's ctient that the appticant fited the instant apptication in this court which she submitted is to frustrate the proceedings in the High Court. ln those proceedings, the respondent sought interim joint custody but the appticant is engaged in conduct to estrange the respondent and his chitdren. Firstty, she had the chitdren admitted in schoots without any input from the respondent. Secondly, she omitted the names Mugabe from their names to remove any trace of connection to their father. Further the appticant is guitty of ditatory conduct in instituting an incompetent appeat and misteading the trial court on her intentions to

- participate in the retrial. Counsel contended that she atso engaged in unprecedented behaviour catcutated to have the [ong-term prospects of the relationship between the minors and their father. He submitted that the best interest of the chitdren shoutd be borne in mind in considering the appl.ication. 25 - 0n the issue of whether the appl.ication has any merit, the respondent's counsel submitted that the appticant is not entitted to any retiefs in the apptication as she has not satisfied the preconditions to warrant the grant. Firstty, there is no valid appeat in the court and therefore there is no basis for the appl.ication. Second[y there is no order that is capabte of execution 30 - before this court. Thirdl.y, the appl.icant's notice of appeaI is now incompetent on account of the appeat being fited out of time. He contended 35

that it is settled law that an application for interim stay of execution that is $5$ not based on a valid notice of appeal cannot be granted. (See Civil Application No. 14 of 2021 Remegio Obwana vs The Registered Trustees of Tororo Diocese and Civil Application No. 30 of 2021 China Henan International Cooperation Group Ltd vs Justus Kyabahwa). Further, the memorandum of appeal has to be filed within 60 days stipulated by rule 79 10 (1) of the Rules of this Court as an essential step in filing an appeal. For purposes of reckoning time, where an intending appellant indicates in writing that he or she intends to formulate the grounds of appeal after getting the typed record of proceedings, the time of 60 days is reckoned from the time the registrar avails the record to the intending appellant as 15 certified by the registrar under Rule 79 (2) of the Rules of this Court. (See Civil Application No. 23 of 2021 Kansiime K. Andrew vs Himalaya Traders Ltd and Five Others (at page 8)).

On the basis of the authorities and the submission that the notice of appeal is incompetent because the appeal was filed out of time, the respondent 20 prayed that I find the precondition for the grant of an interim order has not been satisfied to warrant granting the orders of stay of execution and stay of proceedings.

On the issue of whether there is an order capable of execution against the applicant, counsel invited the court to find that the present application is 25 incompetent. Even if it is competent, the Court of Appeal order is not capable of execution in that the orders issued is for retrial of the suit from which none of the parties are beneficiaries. In the premises, it is unreasonable for the applicant to contend that the orders issued by the Court of Appeal are capable of execution when there is no judgment creditor 30 or debtor.

On the question of where the balance of convenience lies, the respondent's counsel submitted that it does not favour the applicant. The balance of convenience lay in allowing the trial of the divorce petition in the High Court Family Division; as well as the applications for custody of minor children to proceed. He contended that there is no proof of any damage that the

s appticant witl suffer or any irreparabte harm or injury she would suffer if the divorce petition is determined on the merits. lf anything, it is the respondent and the minor chitdren who woutd be inconvenienced by the detay to commence the triat and determine issues affecting them.

FinatLy, counsel submitted that an interim order of stay of execution or stay 10 of proceedings shoutd onty be granted if the apptication shows that there is a tiketihood of success of the appeat. 0n the basis that the appeal cannot succeed because it is incompetent, then the apptication ought not to be granted. The respondent prayed that the appl.ication be dismissed for want of merit with costs.

ln rejoinder submissions fited on court record on l'lth October 2023, the appticants counsel submitted that rute 79 (2) of the Rutes of this Court provides that it shatl, be the duty of the Registrar of the Court of Appeat to prepare and detiver a copy of the record of proceedings to the appettant. He contended that there is no evidence on record before this court that the said 15

- record was ever detivered to the appettant for the prescribed time of 60 days within which to fite the appeal to begin to run. Further counsel submitted that the Registrar the court had was to detiver it to a person duty appointed to act on behal,f of the appticant or advocate. An advocate is defined under Ru[e 26 (3) of the Rutes of this Court as an advocate who for 20 - the time being is entitted to practice before the High Court. He submitted that a person appointed to act on behatf of a ctient has been defined in the persuasive decision of the Commercial Court in Mugoya Construction and Engineering Ltd Vs Central Etectricats lnternationat Ltd; High Court CommerciaI Division Miscettaneous Apptication No 699 of 2011 (arising from 25 - Civit Suit No 203 of 2009) as a person duty appointed to act in writing or an advocate. That the said Katinda Phitl.ip whose name appears on the impugned letter attached as annexure "B" to the affidavit of the respondent is not an advocate of the appeLtant and no evidence on record exists to this effect. He contended that the signature amounts to nothing in. The registrar 30 - therefore never futfitted her duty to detiver the record to the appticant and the time under rule 79 (2) onty began to run on 5rh September 2023 when 35

5 the appticant's advocates took delivery of the record of appeal and fited the appeat and the instant apptication 7 days later.

The appticants counseI further submitted that they fited Civil. Apptication No /+0 of 2023 to strike out the appeat on the misconceived ground which has to be determined by the futt bench that has a wider discretion and that appLication ought not to be used as a ground to deny the appticant's apptication. ln the premises, he contended that the appeal is competent before the court and given that the respondents do not oppose the apptication on other grounds, he prayed that the appl,ication should be granted. Counsel further distinguish the authorities retied on by the respondent on this basis.

## Consideration of the apptication

I have carefutty considered the apptication and the immediate issue to note is that the respondent contends that the apptication is incompetent inter atia on three grounds arising from three issues. The first issue raised is whether the appticants appeaL was filed out of time and therefore this rendered the notice of appeal incompetent. The argument is that rute 6 (2) (b) attows for an apptication to be fited for stay of execution, injunction or stay or proceedings where a competent notice of appeal has been fited.

Secondty, the respondent raises the issue whether the appticatron is incompetent because it is not supported by the affidavit of the appl.icant. Thirdty the appl.ication was attacked on the ground that the Court of Appeat decree appeated in this court is not capabte of execution and therefore the appLication for stay of execution is incompetent. This does not deat with the apptication for stay of proceedings 25

The f irst ground is based on the contention that the memorandum of appeat was fited out of time and therefore the notice of appeat is rendered incompetent and cannot support an apptication under rute 6 (2) (b) of the Rutes of this court. I note that this fundamentatiy affects the apptication and ought to be determined first. 30

5 As far as the rutes are concerned, rute 6 (2) (b) of the Judicature (Supreme Court Rutes) Directions provides that:

> (2) Sub1ect to subrute (1) of this rute, the institution of an appeat shatl not operate to suspend any sentence or to stay execution, but the court may-

(a) in any criminal proceedings, where notice of appeat has been given in accordance with rutes 56 and 57 of these Rutes, order....

(b) in any civil proceedings, where a notice of appeal has been todged in accordance with rute 72 of these Rules, order a stay of execution, an injunction or stay of proceedrngs as the court may consider just.

Because rul.e 6 (2) (b) atso refers to ru[e 72 of the Rutes, I shatl reproduce the said rute to buitd a comptete context of rule 6 (2) (b) of the Rutes of this Court. Rute 72 of the Rutes of this Court provides that:

72. Notice of appeat

(1) Any person who desires to appeal to the court shatl give notice in writing, which shatl. be todged in dupticate with the registrar of the Court of Appeat.

(2) Every notice under subrule (1) of this rute shatl, subject to rules 80 and 91 of these Rutes, be Lodged within fourteen days after the date of the decision against which it is desired to appeat. 20

> (3) Every notice of appeat shatL state whether it is intended to appeal against the whote or part onty of the decision and where rt is intended to appeat against a part onty of the decision, it shatt specify the part comptained of, state the address for service of the appettant and state the names and addresses of atl persons intended to be served with copies of the notice.

(4) When an appeal lies onty with leave or on a certificate that a point of law of great general or pubtic importance is involved, it shatl not be necessary to obtain the leave or a certificate before todging the notice of appeal.

(5) A notice of appeal sha[[ be substantiatty in Form D in the First Schedule to these Rules and shatl be signed by or on behalf of the appettant.

As far as is retevant to the argument of the respondent on the issue of timelines for fiting appeats, rute 72 (2) of the Rutes of this Court is atso retevant in that it prescribes that a notice of appeal shatt be todged within

s '14 days after the date of the decision it is desired to appeat against. Annexure "D" to the affidavit in support of the apptication which is the judgment of the Court of Appeat is dated 17th April 2023 and the decree extracted annexure "E" shows that the decision of the Court of Appeal was detivered on the 17rh of April 2023. Thereafter a notice of appeat annexure 10 "F" was Lodged in the Court of Appeat under the hand of the Registrar on the 28th of Aprit 2023, within the prescribed 14 days under rute 72 (2) of the Rutes of this Court and the notice of Appeat was [odged in time.

The issue for now is whether the memorandum of appeal was lodged outside time thereby rendering the notice of appeal incompetent on the 1s ground that the appeat was incompetent for being time barred at the time of this apptication. The appticants counsel submitted that the argument cannot be made because it lacks factual basis on record. 0n the other hand, he submitted that time shoutd be reckoned from the time certified by the Registrar under rute 79 (2) ot the Rutes of this Court. The respondents had 20 retied on an annexure "B" to his affidavit in repty which shows in a handwriting of one Kalinda Phiiip that the record was received on the 5th of June 2023 for STEK advocates. This is Simon Tendo Kabenge Advocates, the appticant's lawyers. The appticants counsel argued that this cannot be

retied on because there is no evidence that he is a duty appointed zs representative of the appticant or an advocate duty instructed by the appticant.

The Memorandum of AppeaL annexure "G" to the affidavit in support of the apptication indicates that it was endorsed by counsel for the appettant on l2th June 2023. Annexure "G" does not however indicate that it was todged 30 in the registry of the Supreme Court and therefore it is not certified as todged in court by the registrar. The respondent attached annexure "C" of 0ctober 2023 which is an apptication fited in this court seeking to have Civit Appeat No 59 of 2023 fited in the Supreme Court struck out for having been fited out of time. ln that appticatron it is contended that the 60 days stiputated

3s by the rutes lapsed on or about 4 August 2023 without the appl.icant's lawyers taking the necessary steps to fil,e the appeal in time.

s The question therefore is when was the appeat fited? This is a question of fact that needs to be proved. Annexure "B" to the affidavit of the respondent indicates that the record of proceedings was avaited to the appticant's lawyers on 5th of June 2023. The appticant disputes the authority of the person who signed on the letter acknowtedging receipt of the record. The 10 record of appeal. is a document of the Court fited in court and I have perused it. lt shows that the letter of the appticants lawyers requesting for typed record of proceedings is at page 30 of the record. lt however does not indicate when the record was served. Under rute 79 (2) of the Rutes of this Court, time is reckoned from the time certified by the Registrar as the time ls when the record was avaited to the intending appettant. This was considered by this court in Supreme Court Civit Apptication No. 23 of 2021; Kansiime K. Andrew vs Himataya Traders Ltd, Kamukamu Associates Ltd, Treasure Trove (U) Ltd, Jetwant Singh, Gutzar Singh and Jamil Kiyembe where in the ruting of court it was hetd that:

20 The time of sixty days is reckoned from the time the registrar avaits the record to the intending appettant as certified by the registrar under rute 79 (2) of the Rules of this Court ...

It is necessary for the record of appeal to contatn this information as the registrar has a duty to inform the intending appettant whether or not a document has been fited within time under rute 13 (1) of the Rutes of this Court as fottows:

13. Acceptance of documents todged out of time.

(l) The registrar or the registrar of the Court of Appeat, as the case may be, shatl not refuse to accept any document on the ground that it is Lodged out of time but shat[ mark the document with the words "todged out of time' and inform the person lodging it accordingty.

(2) When a document is accepted out of time by the registrar of the Court of Appeat, he or she sha[[ inform the registrar.

The words lhe "registrar"under rute 3 (n) of the Rutes of this Court means the registrar of the Court and inctudes a deputy registrar and an assistant 35

registrar of the court. The registrar of this court at page 656 of the record of appeal Volume 2 in Civil Appeal No. 60 of 2023 wrote under a wrong title that:

This is to certify that the record of proceedings in the above suit requested for on the 27th day of April 2023 was certified and availed to the intended appellant on the $5$ th of June 2023.

This was endorsed by the registrar of this court. Further, the record of the court in the instant application has the affidavit of Joshua Nasasira, a process server from the chambers of Messieurs Simon Tendo Kabenge and company advocates who states that he served the record of appeal on the respondent's counsel. The attachment for proving service of the memorandum of appeal, annexure "A" is the front page of the memorandum of appeal and it indicates that the record of appeal was received in the Supreme Court on 12th September 2023. It was served on the respondents advocates on 19th September 2023 within 7 days of filing. The affidavit of service is dated 19th September 2023. Sixty days are therefore reckoned from the 5th of June 2023 and lapsed around 5th of August 2023. The memorandum of appeal on the face of it was filed out of time.

The question is whether in the circumstances, this rendered the notice of appeal an incompetent notice at the time of determining this application. In

China Henan International Cooperation Group Co. Ltd vs Justus Kyabahwa, 25 Supreme Court Civil Application No. 30 of 2021 originating from Court of Appeal Civil Application No. 100 of 2021, Arach Amoko, JSC considered whether a notice of Appeal was incompetent because there was no appellate decision of the Court of Appeal for this court to exercise jurisdiction in the matter. The issue was that an appeal to the Supreme 30 Court under the law should arise from a decision of the Court of Appeal under section 6 (1) of the Judicature Act where the Court of Appeal confirms, varies or reverses a judgment of the High Court.

In that matter there was no decision of the High Court which had been varied, reversed or confirmed and therefore no right of appeal to the 35 Supreme Court. In an application for interim stay of execution Arach Amoko

$\mathsf{S}$

5 JSC, found that the notice of appeal was incompetent on that basis and that was sufficient to dispose of the apptication. She retied on several authorities to the effect that the incompetence of the appeat renders any intertocutory apptication in it incompetent. She found that the intended appeat which formed the basls of the notice of appeat did not arise and the apptication was incompetent:

T. f.

However, it is gainsaid that the exercise of that discretion can onty anse where there is a competent matter before court for resolution. Where there is none, as is the case with the instant apptication, Court woutd be indul.ging in an abuse of the due process if it proceeds to exercise the discretion. I accordingl.y dismiss the apptication with costs to the respondent.

ln Remigio 0bwana vs The Registered Trustees of Tororo Diocese; Civit Apptication No. 14 of 2021, the issue before the Supreme Court Singte Justice was whether execution of the Court of Appeal decree shoutd be stayed. Pursuant to objection to the apptication the question for consideration was whether the notice of appeaI was based on a vatid appeat.

Arach Amoko JSC hetd that there was no competent appeat under section 6 (t) of the Judicature Act because the decision of the Court of Appeat was intertocutory and did not arise under the said section which confers jurisdiction on the Supreme Court. Arach Amoko, JSC hetd that:

Since the intended appeal is from an intertocutory order of the Court of Appeat, there is no right of appeal to this court. ln the absence of a Judgment of the Court of Appeal., the intended appeal to this court exists in a vacuum and therefore the notice of appeal upon which this Court can exercise its discretion to grant the interim stay is incompetent as it is not fited in accordance with rute ?2 of the Rutes of this Court.

Thrs criterion alone woutd dispose of this apptication since there is no appeat in this Court which this apptication can be based.

ln Davis Westey Tusingwire vs the Attorney Generat; Constitutionat Apptication No. 0l of 2014 the Supreme Court decided the civit appl.ication on the basis inter atia of the tiketihood of success of the appeat. 35

What would be the likelihood of success of the applicant's appeal in the circumstances where there is no extension of time and the registrar certified that the record was availed on the 5th of June 2023?

In the premises, the authorities show that an interlocutory application will not be granted where prima facie the appeal upon which it is based is incompetent. The applicant's application is based on a notice of appeal 10 under rule 6 (2) (b) of the Supreme Court Rules but is interlocutory to an appeal which was filed on the 12th of September 2023. The registrar of this Court certified that the record of proceedings of the Court of Appeal was availed to the applicant's lawyers on the 5th of June, 2023. Prima facie, the appeal was lodged in this Court outside the sixty days prescribed by rule 79 15 (2) of the Rules of this Court. Unless otherwise determined by a fully constituted Supreme Court composed of a minimum of five justices, this application for an interim order of stay of execution and stay of proceedings of the High Court between the parties has no basis to stand on and is incompetent. I therefore dismiss it with costs to the respondent. 20

Dated at Kampala the 12th day of October 2023

$\sim$ 211.

Christopher Madrama Izama

Justice of the Supreme Court