Nzeirwe v Orikiriza (Miscellaneous Application 21 of 2023) [2024] UGHC 836 (5 September 2024)

# 5 **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KABALE MISCELLENEOUS APPLICATION NO. 000021 OF 2023 (Arising from Execution Miscellaneous Application No. 0017 of 2023) (Arising out of Civil Appeal No. 0001 of 2022)** 10 **(Arising from Land Suit No. 0086 of 2019) NZEIRWE ENID**:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::**APPLICANT VERSUS**

## 15 **ORIKIRIZA FRANK alias ORIJA**:::::::::::::::::::::::::::::::::::::::::::::**RESPONDENT BEFORE: HON. JUSTICE SAMUEL EMOKOR**

#### **RULING**

The Applicant brings the instant application by Chamber Summons under Section **98** of the **Civil Procedure Act Section 33 (**now **Section 37)** of the **Judicature**

- 20 **Act**, **Order 22 Rule 23(1), 26** and **89 (1)** of the **Civil Procedure Rules** seeking an order for stay of execution restraining the Respondents, their agents/servants or any employees and any one acting rightly under them from executing the decree in Civil Appeal No. No. o0o1 of 2022 until the final determination of Civil Appeal No. 0079 of 2023 and that provisions be made for costs. - 25 The application is supported by the affidavit of the Applicant who avers that she is dissatisfied with the Judgment and decree of this honourable Court issued in Civil Appeal No. 0001 of 2022 and that she has instructed her lawyers to lodge an appeal against the said Judgment in the Court of Appeal and that a memorandum to this effect has been filed, and the appeal has a likeyhood of success. That the - 30 Respondent intends to execute the decree in Civil Appeal No. 0001 of 2022 and

- 5 has filed and served the Applicant with a notice to show cause why a warrant of arrest/attachment and sale of property should not issue. That unless the execution is stayed the Applicant shall suffer substantial loss as her property is likely to be attached and the Respondent will alienate her land which is subject of the said appeal in the Court of Appeal. - 10 The Respondent in his affidavit in reply opposed the application averring that there is no competent notice of Appeal on record and that the memorandum of Appeal is incompetent as it does not comply with the rules of Court of Appeal of Uganda and that there is no likelyhood of success of the Appeal as it is incurably defective and cannot stand the test of law. That the Applicant has not explained - 15 how she will suffer substantial loss should the stay of execution not be granted. Further that the Applicant has not provided any security for costs yet it a requirement of the law.

The Applicant was represented by Messrs Onyango & Co. Advocates while the Respondent was represented by Messrs Bikangiso & Co. Advocates.

20 The Counsel in this application proceeded by way of Written submissions. Counsel for the Respondent raised a preliminary objection that I will deal with before delving into the substantive application.

#### **Preliminary objection.**

It is the contention of Counsel that the instant application is incompetent having 25 been brought under **Order 22 Rule 23 (1)** of the **Civil Procedure Rules** which provides that the Court to which a decree has been sent for execution shall upon sufficient cause being shown stay the execution of the decree for a reasonable

5 time to enable the Judgment debtor to apply to the Court by which the decree was passed or to any Court having appellate jurisdiction of the decree, for an order to stay the execution. Counsel argues that this section is wrong and the correct provision of the law applicable is **Order 43 Rule 4** of the **Civil Procedure Rules**. Further Counsel argues that the instant application should have been by Notice 10 of Motion and not by Chamber Summons. It is the submission of Counsel that it is trite law that where a specific law is provided then one cannot evoke **Section 98** of the **Civil Procedure Act**, Counsel for the Respondent also attacks the Chamber Summons on the basis that it does not state the grounds upon which the instant application is premised nor does the Applicant expressly state that the 15 grounds are contained in the supporting affidavit.

The Respondent did not rejoin to these submissions.

#### **Determination.**

I would agree with the submissions of Counsel for the Respondent that the instant application that seeks for stay of execution pending determination by the Court 20 of Appeal against the decision of this Court in HCCA No. 0001 of 2022 ought to have been commenced under **Order 43 Rule 4** of **Civil Procedure Rules** and not under **Order 22 Rule 23(1)** of the **Civil Procedure Rules** I would also agree with the submissions that by proceeding under **Order 43 Rule 4** of the **Civil Procedure Rules** the instant application would have been commenced by a notice of motion 25 and not Chamber Summons.

The above notwithstanding, Courts have stated that citation of the wrong law or procedure does not in itself invalidate proceedings.

5 The Court of Appeal in **Saggu versus Road Master Cycles (U) Ltd [2002] 1 EA 258** held that wrong citation of the law or wrong procedure does not invalidate proceedings. It does not go to jurisdiction or cause prejudice to the opposite side. The general rule is that where an application does not cite any law at all or cites the wrong law but jurisdiction to grant the order sought exists then, the 10 irregularity or omission can be ignored and the correct law instilled.

It therefore follows that the Applicants failure to institute this application by Notice of Motion under **Order 43 Rule 4** of the **Civil Procedure Rules** is not fatal. The preliminary objections shall therefore be overruled.

I will now proceed to deal with the substantive application.

#### 15 **Order 43 Rule 4 (3)** of the **Civil Procedure Rules** provides:

"*No order for stay of execution shall be made under Sub Rule (1) or (2) of this act unless the Court making it is satisfied: -*

- *a) That substantial loss may result to the party applying for stay of execution unless the order is made.* - 20 *b) That the application has been made without reasonable delay and;* - *c) That security has been given by the Applicant for the due performance of the decree or orders as may ultimately be binding upon him or her"*

A perusal of the Court record reveals that pursuant to the Judgment of this Court delivered on the 16/08/2022 in HCCA No. 0001 of 2022 the Applicant 25 filed a notice of appeal and the same was endorsed on the 23/08/2022 by the Deputy Registrar of this Court.

5 The Applicant has also since filed her Memorandum of Appeal before the Court of Appeal as per annexure 'B' to this application received on 20/02/2023 and endorsed by the Registrar of the Court on the 13/03/2023.

The Court record also shows that the Respondent applied for execution of the decision in HCCA No. 0001 of 2022 for the Applicant to give vacant possession of

10 the Suit property and a notice to show cause why execution should not issue against the Applicant was fixed for the 18/05/2023. The record reflects that the execution proceedings were stayed pending the outcome of this application.

I would in the circumstances agree with the averments of the Applicant that if the Instant application is not granted then she will suffer substantial loss, land 15 especially in the Kigezi Region is a scarce resource and I have no doubt that the

Applicant would find it difficult to replace the same even if she were successful in the Appeal.

The instant application was filed less than one month after the Respondent commenced execution proceedings against the Applicant and 9 months after the 20 delivery of this Courts' Judgment, I find the time taken to institute this application to be reasonable.

The Applicant has therefore satisfied the first 2 considerations.

The 3rd consideration relating to the Applicant giving security for due performance of the decree has not been complied with by the Applicant.

25 The purpose of an order for security for costs on an appeal is to ensure that a Respondent is protected for costs incurred for responding to the appeal and defending the proceedings.

### 5 **See DFCU Bank Ltd versus Dr. Ann Persis Makate Lussejere. CACA No. 0029 of 2003**.

I find it to be in the interest of justice that the Applicant is given the opportunity to deposit security for due performance of the decree.

A perusal of the Court record reveals that at the hearing of this appeal the 10 Respondents' bill was taxed and allowed at UgX 5,154,200/=.

I will consider this sum sufficient to cover security for due performance of the decree.

In the result the instant application is allowed with the following orders issuing.

- 1) An order of stay of execution is issued restraining the Respondents, their 15 agent/servants or any employees and any one acting rightly under them from executing the decree in HCCA No. 0001 of 2022 until the determination of Court of Appeal Civil Appeal No. 0079 of 2023. - 2) The Applicant shall deposit in this Court security for due performance of the decree HCCA No. 0001 of 2022 of UgX 5,154,200/= within 45 days of 20 this ruling. - 3) In the event of any default in regard to the order in (2) above, execution of the decree in HCCA No. 0001 of 2022 shall commence.

4) The costs of this application shall abide the outcome of the appeal.

It is so ordered.

Before me,

10 …………………………………

**Samuel Emokor Judge 05/09/2024**

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