Nsubuga v Nakigudde (Miscellaneous Application 1251 of 2024) [2024] UGHCLD 184 (9 July 2024)

### **THE REPUBLIC OF UGANDA**

#### **IN THE HIGH COURT OF UGANDA AT KAMPALA**

#### **(LAND DIVISION)**

#### **MISCELLANEOUS APPLICATION NO.1251 OF 2024**

# **(ARISING OUT OF MISCELLANEOUS CAUSE NO.53 OF 2024)**

**FRED NSUBUGA :::::::::::::::::::::::::::::::::::::::::: APPLICANT**

#### **VERSUS**

#### **MARGARET NAKIGUDDE TEBANDEKE :::: RESPONDENT**

# **BEFORE HON. LADY JUSTICE NALUZZE AISHA BATALA RULING**

#### *Introduction;*

- 1. This is an application by Chamber Summons brought under section 98 of the Civil Procedure Rules, Section 33 of the Judicature Act, Order 43, Rules 4(1), (2), (3) and (5) of the Civil Procedure Rules for orders that; - i) The execution of the Orders in Civil Suit No.104 of 2018 be stayed pending the determination and Final conclusion of Miscellaneous Cause No.53 of 2024 for leave to appeal out of time.

ii) Costs be provided for.

#### *Applicant's evidence;*

- 2. The grounds of the Application are contained in the Application and supporting Affidavit of Fred Nsubuga, the Applicant herein which are; - i) That in 2018, the Respondent and her late husband filed Civil Suit No.104 of 2018 against the Applicant herein seeking to declare the suit land matrimonial property. - ii) That subsequently after hearing, Court gave a judgement on the 17th day of January, 2024 declaring the suit land matrimonial property and issuing an eviction Order which is due for 29th May 2024. - iii) That being dissatisfied with the decision in Civil Suit No.104 of 2018, the Applicant intends to Appeal to the High Court. - iv) That through his former lawyers, he filed his Notice of Appeal and applied for typed and certified record of proceedings an indication that he intends to file an appeal against the decision of the Court vide Civil Suit No.104 of 2018 without delay.

- v) That he has also filed Miscellaneous Cause No.53 of 2024 seeking for leave to Appeal out of time in this Honorable Court which is pending hearing and determination. - vi) That there is threat to evict him from the suit land in execution of the said judgement and decree. - vii)That this Application has been brought without unreasonable delay. - viii) That Execution of the orders in Civil Suit No.104 of 2018 will render his application vide Miscellaneous Cause No.53 of 2024 and the intended Appeal nugatory and as such should be stayed pending the hearing and final determination of his application for leave to appeal out of time.

# *Respondent's evidence;*

3. Margaret Nakigudde the Respondent replied to the Application through her Affidavit in Reply and stated that; i) That she has been advised by her lawyers to raise a preliminary objection that this Application that it is frivolous, vexatious and calculated to abuse court process.

ii) That there is no guarantee that the Application for leave to Appeal out of time vide Miscellaneous Application No.85 of 2024 will be concluded in favor of the Applicant.

iii) That the Applicant filed an application for leave to appeal out of time and the subsequent application for stay of execution was filed on the 5th of April, 2024 and 20th of May, 2024 respectively which was approximately 84 days after the notice of eviction was given.

iv) That this Application was brought in bad faith with the intention of preventing the Respondent from reaping the fruits of the judgement given under Civil Suit No.104 of 2018.

# *Affidavit in Rejoinder;*

4. The Applicant rejoined to the Respondent's Affidavit in Reply and stated;

i) That Miscellaneous Application No.1251 of 2024 is seeking for stay of execution of the decree in Civil Suit No.104 of 2018 pending the hearing and determination

of Miscellaneous Cause No.53 of 2024 which is pending determination.

ii) That the Application is not frivolous, vexatious and not an abuse of court process as it aims to stay execution of the decree in Civil Suit No.104 of 2018 pending the hearing of Miscellaneous Cause No.53 of 2024 which will be rendered nugatory if execution is not stayed.

iii) That upon acquiring of the suit property, the Applicant constructed a church called Hosanna Miracle Center, and we use it to carry out services and fellowships.

iv) That through his former lawyer's M/S Barungi Baingana & Co. Advocates, the Applicant filed a notice of appeal and requested for typed record of proceedings on 24th of January 2024 which is seven days after the delivery of the judgement in Civil Suit No. 104 of 2018 which was delivered on the 17th of January 2024 and thus there's no delay in filing this Application.

v) That the Applicant has been informed by his new lawyers M/S Kimanje Nsibambi Advocates that the time

within which to appeal had elapsed and through them, he filed Miscellaneous Cause No.53 of 2024 for leave to Appeal out of time.

vi) That this Application is intended to protect his right to Appeal and interest in the suit property.

## *Representation;*

- 5. The applicant was represented by Babirye Vicky of M/S Kimanje, Nsibambi & Co. Advocates whereas the respondent was represented by Mutonyi Fiona of M/S Nabwire & Co. Advocates and legal consultants. - 6. Both Counsel filed written submissions which have been relied on in the determination of this application.

## *Issues for Determination;*

*i) Whether execution in Chief Magistrates Court of Kajjansi at Kajjansi in Civil Suit No.104 of 2018 should be stayed pending the hearing and final determination of Miscellaneous Cause No.53 of 2024?*

#### **Resolution and Determination of issue 1**

Whether execution in Chief Magistrates Court of Kajjansi at Kajjansi in Civil Suit No.104 of 2018 should be stayed pending the hearing and final determination of Miscellaneous Cause No.53 of 2024?

- 7. Counsel for the Applicant cited Section 98 of the Civil Procedure Act which grants this Honorable Court inherent powers to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of Court. - 8. He further cited that Order 43 rule 4(1) of the Civil Procedure Rules stipulates that an appeal to the High Court shall not operate as a stay of proceedings under a Decree or Order appealed from except so far as the High Court may order nor shall execution of a Decree be stayed by reason only of an appeal having been preferred from the Decree; but the High Court may for sufficient cause order stay of execution of the Decree. - 9. Counsel submitted that the Chief Magistrates Court of Kajansi at Kajansi issued a Decree in Civil Suit No.104 of 2018 which Decree is appealable as of right and selfexecuting in nature as it orders the Applicant to vacate the

suit land within 90 days after being served with a notice of eviction.

- 10. That this Honorable Court has the powers to stay the execution of the Decree pending the hearing and determination of the Applicant's Application vide Miscellaneous Cause No.53 of 2024 for leave to Appeal against the judgement and Decree in Civil Suit No.104 of 2018. - 11. That the conditions for the grant of this Application for stay of execution as enumerated in numerous cases are stated in Order 43 Rule 4(3) of the Civil Procedure Rules to include;

i) That substantial loss may result to the party applying for stay of execution unless the Order is made.

ii) That the Application has been made without unreasonable delay.

iii) That security has been given by the Applicant for the due performance of the Decree or Order as may ultimately be binding upon him or her.

12. He therefore submits the Applicant satisfies the above conditions due to the following reasons;

i) That substantial loss may result to the party applying for the stay of execution unless the order is made.

ii) That the Application has been made without unreasonable delay.

iii) That security has been given by the Applicant for the due performance of the Decree or order as may ultimately be binding upon him or her.

- 13. In reply to the Applicant's submissions, Counsel for the Respondent cited Order 43 rule 4(3) of the Civil Procedure Rules. - 14. He submitted that whereas the Applicant filed a notice of Appeal against court's decision on the 23rd of January 2024 he did not file a Memorandum of Appeal within the thirty (30) days stipulated by section 79(1)(a) of the Civil Procedure Act even though the record of proceedings was availed to him on the 29th day of January, 2024. - 15. He cited the case of **Geoffrey Nangumya vs Security Plus (U) Limited M. A No.0858 of 2021** the Hon Justice Stephen Mubiru found that; "*A notice of appeal does not commence an appeal in the High Court from the judgement*

*of the Magistrate's Court. An appeal is commenced by a Memorandum of Appeal lodged in the High Court."*

- 16. He stated that given that the Applicant did not file a Memorandum of Appeal he forfeited his right to appeal. - 17. He further cited the case of **Formula Feeds Vs KCB Bank** where court found that Applications for a stay of execution ought to be made within a reasonable time. - 18. In his submissions in Rejoinder, Counsel for the Applicant submitted that Counsel for the Respondent alleges in his submissions that "Order 43 rule 4(3) of the Civil Procedure Rules stipulates that an application of stay of execution must be made after notice of appeal has been filed…" - 19. That however the said statement is false aimed at misleading this Honorable Court because the law on stay of execution as stated in Order 43 Rule 4(3) of the Civil Procedure Rules does not state that filing a notice of appeal is a pre-requisite for applying for stay of execution and he prays this Honorable court rejects the Respondent's submission with the contempt it deserves. - 20. He further rejoined on the Respondent's submission that he did not file a Memorandum of Appeal to commence this Application and rejoins as follows; - 21. That the right of the Applicant to Appeal shall be determined by this Honorable Court in Miscellaneous Cause No.53 of 2024 wherein the Applicant is seeking enlargement of time within which to appeal against the decree in Civil Suit No.104 of 2018 and not in this Application.

## **Analysis by court;**

- 22. The position of the law regarding stay of execution is set out under Order 43 rule 4 of the Civil Procedure Rules. Under rule 4(3) thereof, it is provided that; "No order for stay of execution shall be made under sub rule (1) or (2) of this rule unless the court making it is satisfied – - i) that substantial loss may result to the party applying for stay of execution unless the order is made; - ii) that the application has been made without unreasonable delay; and

- iii) that security has been given by the applicant for due performance of the decree or order as may ultimately be binding upon him or her." - 23. The power to grant or refuse to grant a stay of execution is discretionary and court ought to act judiciously when exercising the discretion in such applications. - *24.* The purpose of an application of this kind is to preserve the subject matter in dispute so that the rights of the appellant who is exercising his/her undoubted right of appeal are safeguarded and the appeal if successful, is not rendered nugatory. (*See; Lawrence Musiitwa Kyazze vs. Eunice Busingye SCCA NO. 18 of 1990 [1992] IV KALR 55.)* - 25. In the Supreme court case of **Hon. Theodore Ssekikuubo & Others Vs A. G & Others, Constitutional Application No. 3/2014** the court laid down the considerations for an application for stay of execution pending appeal to include the following; - i) The Applicant must show that he lodged a notice of appeal.

- ii) That substantial loss may result to the applicant unless the stay of execution is granted. - iii)That the application has been brought without unreasonable delay. - iv) Whether the Applicant has given security for due performance of the decree or order as may be ultimately be binding upon him.

### **Whether the applicant has filed a notice of appeal?**

- 26. On record annexure "B" onto the affidavit in support of the application which is a notice of appeal and annexure "C" which is typed request for the record of proceedings of the lower court. Counsel for the respondent contends that an application for stay of execution has to be made after a notice of appeal has to be filed. He added that a notice of appeal does not commence an appeal in the High Court from the judgment of a Magistrates Court. - 27. In **A. G Vs E. A Law Society & Another EACJ Application No.1 of 2013 cited with approval in Equity Bank (U) Ltd Vs Nicholas Were H. C. M. A No. 604/2013**, it was held that; *"A notice of appeal is a sufficient expression of an intention to file an appeal and that such an*

*action is sufficient to find the basis for grant of an application for stay of execution"*

- 28. However, in the instant case the applicant filed a notice of appeal on the 23rd day of January 2024 but then did not file a memorandum of appeal. I disagree with Counsel for the applicant that Order 43 should be read to exclude filing a notice of appeal as a pre-requisite for applying for stay of execution pending appeal. - 29. I believe stay of execution pending appeal stands as so mainly because there is a competent appeal filed in court or some intention to file an appeal in this case a notice of appeal. - 30. To that end filing an appeal in absence of an appeal or intention to appeal is an abuse of court process. I will return to this point later in this ruling.

# **Whether the applicant is likely to suffer substantial loss unless the application for stay of execution is granted?**

31. In **Tanzania Cotton Marketing Board Vs Cogecot Cotton Co. S. A (1995-1998) E. A 312**, *"The words substantial loss cannot mean the ordinary loss to which every judgment debtor is necessarily subjected when he* *loses his case and is deprived of his property in consequence. That is an element which must occur in every case and since the code expressly prohibits stay of execution as an ordinary rule, it is clear the words "substantial loss" must mean something in addition to and different from that."*

- 32. The applicant should go beyond the vague and general assertions of substantial loss even if a stay of execution is not granted. - 33. The applicant states under paragraph 10 of the affidavit in support of the application that he will suffer substantial loss if the application for stay of execution is not granted. However, the respondent did not contest this particular part of the affidavit to assert otherwise. The applicant attached photos on the affidavit in rejoinder to demonstrate the church and developments on the land as well. - 34. I find that if the applicant is evicted from this place and dealt with by the respondent, he will suffer substantial loss that is over and above the ordinary loss resulting from litigation.

# **Whether the application has been brought without unreasonable delay?**

- 35. The respondent contends that the applicant is guilty of dilatory conduct. That judgement was entered against the applicant on the 17th day of January 2024 and the record of proceedings availed to the applicant on 23rd January 2024. That the applicant filing the application in April 2024 indicated he had abandoned the appeal for all intents and purposes. - 36. The applicant averred under paragraph 6 and 7 of the affidavit in rejoinder that after his former lawyers filed a Notice of appeal, his new lawyers brought it to his attention that he was already out of time within which to file an appeal hence the application to extend time within which to appeal. - *37.* It is now trite that the mistakes, faults, lapses or dilatory conduct of Counsel should not be visited on the litigant *(See; the Supreme Court decisions in Andrew Bamanya v. Shamsherali Zaver, S. C. Civil Appln. No. 70 of 2001.)*

*38.* In light of the above, I do not find any evidence of dilatory conduct on the part of the applicant.

### **Payment of Security for due performance**

- 39. In granting an order of stay of execution pending an appeal, the court has to balance the need to uphold the respondent's right to be protected from the risk that the appellant may not be able to satisfy the decree, with the appellant's right to access the courts. **(See: Junaco (T) Limited and Ors v DFCU Bank Limited MA No 0027 of 2023)** - 40. In this case, am inclined not to order the applicant to furnish security for due performance of the decree given the fact that the respondent has not insisted on it. - 41. I will now turn back and add on the first requirement as to lodgment of the notice of appeal. - 42. In the case of *National Enterprise Corporation Vs Mukisa Foods (Miscellaneous Application No. 7 1998)* the Court of Appeal held as follows;-

*"The Court has power in its discretion to grant stay of execution where it appears to be equitable so to do with a view to temporarily preserving the* *status quo. As a general rule the only ground for stay of execution is for the applicant to show that once the decretal property is disposed of there is no likelihood of getting it back should the appeal succeed."*

43. Like in the decision of the Supreme Court in **Giuliano v Calaudio 2013 UGSC 17**, where court exercised its inherent jurisdiction to order for stay of execution where it found it just to do so pending determination of an application to validate an appeal, this court finds the instant case as one of those cases where it should exercise its inherent jurisdiction to avoid the application to file an appeal out of time being rendered nugatory. The respondent in this case is armed with a decree containing self-executing orders among others which can be set in motion at any point in time as the respondent already did.

44. I have also considered the fact that this application is not for stay of execution pending appeal per se but rather stay of execution pending determination of a substantive application to file the appeal out of time.

- 45. I am of the view that it is just and equitable that the execution of the decree in Civil Suit No. 104 of 2018 be stayed until court determines the main application to file the appeal out of time. - 46. In the premises the application succeeds with the following orders; - i) The execution of the decree and orders in Civil Suit No. 104 of 2018 in the Chief Magistrates Court of Kajansi at Kajansi is hereby stayed until determination of Miscellaneous Cause No. 53 of 2024 for leave to appeal out of time. - ii) The costs shall abide the outcome of Miscellaneous Cause No 53 of 2024.

# **I SO ORDER.**

#### **NALUZZE AISHA BATALA**

#### **JUDGE**

#### **09/07/2024**