Obomba v Ovon (Miscellaneous Application 141 of 2023) [2024] UGHC 801 (29 August 2024)

### THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA HOLDEN AT ARUA

### **LAND REGISTRY**

# **MISCELLANEOUS APPLICATION NO. 0141 OF 2023**

# (ARISING FROM CIVIL APPEAL NO. 0028 OF 2023)

$\mathsf{S}$

# (ALL ARISING FROM CIVIL SUIT NO. 0031 OF 2018)

OBOMBA CEASER...................................

#### VERSUS

OVON MARCELO::::::::::::::::::::::::::::::::::::

#### 15 **BEFORE: HON JUSTICE COLLINS ACELLAM**

#### **RULING**

### **Introduction**

This application is brought by chamber summons under Section 98 of the Civil Procedure Act, Order 43 Rule (1), (3), (4), and (5) of the Civil Procedure Rules S. I 71-1 as amended and Section 33 of the Judicature Act for stay of execution seeking for orders that;

- a) The execution of the Decree and orders in land suit No. 0031 of 2018 be stayed until the disposal of the Appeal, - b) That the Respondent or any of his assignees be immediately restrained from unlawfully evicting the Applicant from the Suitland until the final disposal of the appeal or such other orders of this court as may be directed to meet the ends of justice

#### 25

c) Costs of this application be provided for.

#### Grounds

The grounds of this application are set out in the affidavit in support sworn by the Applicant but briefly they are;

- 30 1. That the Applicant has filed an Appeal against the judgement of the learned Magistrate Grade 1 of Nebbi in land suit No. 0031 of 2018 in the High Court of Uganda Holden at Arua vide Civil Appeal No.0028 of 2023 which has not yet been heard and disposed off. - 2. That there is a real threat to execute the decree and orders in land suit No. 0031 of 2018 by the Respondent before the Disposal of the Appeal. - 3. That the Appeal has high chances of succeeding on the merits as the learned trial Magistrate Grade 1 erred in law and fact when he failed to judicially evaluate the evidence on record thereby arriving at erroneous decision against the Appellant

ANA

4. That the Appeal is likely to be rendered nugatory if this Application is not granted.

- 5. That the Applicant is ready to furnish security for costs as shall be determined pending the determination of the Appeal. - 6. That it is just, equitable and in the interest of justice that this Honourable Court grants the Application to enable the determination of the matters in issues between the parties on Appeal. - In opposition of the Application, the Respondent stated that; 10 - 1. That the Appeal has no likelihood of success, and that it has been brought to delay the Respondent from realizing the fruits of litigation. - 2. That he has been advised by his lawyers that being the successful party, he is entitled to execute the order of court and as such the intended eviction is in no way illegal - 3. That no loss shall be occasioned to the Applicant if the order is not made and execution proceeds - 4. That the Applicant has not yet deposited security for taxed costs of UGX 2,695,000/= as per the certificate of Taxation - 5. That since the Applicant has not complied with the above provisions, he prays that the Application is dismissed with costs to the Respondent.

In rejoinder, the Applicant reiterated the averments the affidavit in support of his application.

### <u>Representation and hearing</u>

At the hearing of this application, the Applicant was represented by the Legal Aid Project of Uganda Law Society and the Respondent was represented by *M/s Manzi & Co. Advocates*.

$25$ Both parties proceeded by way of written submissions as directed by court.

### Issues for Determination.

- 1. Whether or not Applicant can be granted the Application for stay of execution? - 2. Whether or not the Applicant should furnish security for costs? - 3. Whether or not there is remedy available to the parties?

#### 30 Applicant's case

It is the Applicant's case that the application for stay of execution be granted to the Applicant since he has valid grounds. That the conditions that should be considered before allowing an application for stay of Execution are given under Order 43 Rule 4(3) of the CPR and are as follows;

#### 35

- a) The Applicant must show that he lodged an Appeal - b) That substantial loss may result to the Applicant unless stay of execution is granted. - c) That the application has been made without unreasonable delay - d) That the Applicant has given security for due performance of the decree or order as may ultimately be binding upon him. - 40 Counsel relied on Lawrence Musiitwa Kyazze vs Eunice Businge, Supreme Court Civil Application No. 18 of 1990 and the case of Honourable Theodora Ssekikubo & others *Constitutional Application No. 03 of 2014* to fortify his submissions.

## 20

$\mathsf{S}$

$\Delta$ $\Lambda$

In respect to the first condition Counsel submitted that, there is a notice of appeal and $\mathsf{S}$ memorandum of appeal as stated under paragraph 5 of the Applicant's Affidavit and the Appeal is pending hearing. Counsel then submitted that in respect to the 2nd condition, counsel submitted that the Applicant was ordered to give vacant possession of the suit land which is the subject matter of the Appeal, and a notice of Eviction issued and that the Respondent is threatening to carry out execution of the Decree and Orders in land suit No. 0031 of 2018 as 10 the court had pronounced before the Disposal of the Appeal.

Counsel further submitted that the Appeal has a likelihood of success. To substantiate his submission, Counsel relied on the case of Gapco Uganda ltd Vs Kaweesa & Another (MA No. 259 of (2013) UGHCLD 47 wherein court defined likelihood of success of a case to be one that, " the court is satisfied that the claim is not frivolous and vexatious and that there is serious question to be tried and that the Appeal which has high chances of succeeding on the merits as learned trial Magistrate Grade 1 erred in law and fact when he failed to judicially evaluate the evidence on record thereby arriving at an erroneous decision against the Appellant.

- As to whether the Applicant should furnish security for costs, Counsel submitted that Order 26 Rule 1 of the CPR provides that the court may if it deems it fit order a Plaintiff in any suit to 20 give security for payment of all costs incurred by any defendant. Counsel further submitted that the following principles must be considered by court while exercising the discretion to order for security for costs; - 1. Whether the applicant is being put to undue expenses by defending a frivolous and vexatious suit - 2. That he has a good defence to the suit; - 3. Only after these factors have been considered would factors like inability to pay come into account.

Counsel then submitted that this honourable court be pleased to grant this application for stay of execution since the Applicant has met all the conditions grant of stay of execution. 30

### <u>Respondents Case.</u>

As to whether the Applicant has proved any grounds for this court to issue an order stay execution of the decree in Civil Suit No. 0031 of 2018, Counsel for the Respondent, submitted that the Applicant has not proved that if the execution is not stayed, they will suffer substantial

- loss. Counsel submitted that they concede that the application was indeed made without any 35 delay. Further that the Respondent's / Plaintiff's bill of costs was taxed at UGX 2,695,000/= but the Applicant did not deposit/ has not deposited any security for the taxed costs which is a condition to be complied with for stay execution to be granted as was illustrated in the case of Hon. Theodore Sskikubo and Ors Vs Attorney General and Ors, Constitutional application - No. 03 of 2014. Counsel then submitted that the Applicant does not meet this condition to 40 satisfy court to grant an order for stay of execution, and thus prayed that court finds that the grounds have not been satisfied. Thus dismiss the application with costs.

#### 5 Determination by Court

Section 98 of the Civil Procedure Act gives the High Court inherent powers to take decisions which are pertinent to the ends of justice; and an order for stay of execution is one of them. See Singh vs Runda Coffee Estates ltd (1996) EA 263

An Applicant seeking stay of execution must meet the conditions set out in Order 43 Rule 4(3) 10 of the Civil Procedure Rule. The conditions were substantiated in the Supreme Court case of Hon. Theodore Ssekikubo and Ors Vs the Attorney General and others Constitutional Application No. 03 of 2014 to include;

- a) The applicant must show he lodged an appeal - b) That substantial loss may result to the applicant unless the stay of execution is granted - c) That the application has been made without unreasonable delay - d) That the applicant has given security for due performance of the decree or order as may ultimately be binding upon him.

I will now proceed to consider if each of the requirements in Order 43 Rule 4(3) of the Civil Procedure Rules has been complied with by the applicant.

#### 20 a) The Applicant must show that he lodged an appeal

Under paragraph 5 of the affidavit in support of the Applicant, the Applicant stated that being aggrieved and dissatisfied by the Judgement in Civil Suit No. 0031 of 2018, he filed an Appeal against the said Judgement vide Civil Appeal No. 0028 of 2023 and annexed a copy of the Memorandum of Appeal and marked C and served the same on the Applicant.

The Respondent on the other side does not dispute the fact that an Appeal was lodged. The position of the law under Order 43 Rule 1 of the CPR is that an appeal is commenced by a notice of appeal and Memorandum of Appeal.

And in this regard, I find that the Applicant has satisfied this ground.

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

The phrase substantial loss does not represent any particular amount or size; it cannot be qualified by any particular mathematical formular but rather refers to any loss great or small: of real worth or value as distinguished from a loss that is merely nominal as espoused in the case of *Tropical Commodities Supplies Ltd & 2 others Vs International* Credit Bank ltd (in liquidation) (2004) 2 EA 331

Counsel for Applicant submitted that the Applicant was ordered to give vacant possession of the suit land which is the subject matter of the Appeal, and a notice of Eviction issued and that the Respondent is threatening to carry out execution of the Decree and Orders in land suit No. 0031 of 2018 as the court had pronounced before the Disposal of the Appeal.

$\Delta \omega$

| $\mathsf{S}$ | | Counsel for the Respondent on the other hand submitted that as it was averred in<br>paragraph 7 of the affidavit in reply, that it is a waste of time and that it is intended to<br>delay the Respondent from enjoying the fruits of the judgement in civil suit No. 0031 of<br>2018. | |--------------|------|---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------| | 10 | | It is the position of the law that once there is a pending Appeal and a serious threat of<br>execution before hearing the Appeal, the court should intervene to serve the purpose of<br>substantive justice. See Hwang Sung Industries Ltd vs Tadjaudin Hussein & others<br>SCCA No. 79 of 2008 | | 15 | | In the present case, I find that there is a threat of execution which if not stopped will<br>render the appeal moot and as such cause a substantial loss to the Applicant. Therefore,<br>this ground is also satisfied. | | | $c)$ | That the application has been made without unreasonable delay. | | $20$ | | In respect to this ground both Counsel agreed that the application has indeed made<br>without any delay. | | | | Therefore, this ground too succeeds. | | 25 | | d) That the applicant has given security for due performance of the decree or order as<br>may ultimately be binding upon him. | | 30 | | The Applicant in his affidavit, stated that he is willing to furnish security for due<br>performance of the decree. | | | | Counsel for the Respondent on the other hand submitted that the Respondents bill of<br>cost in civi suit No. 0031 of 2018 was 2,695,000 and the certification of Taxation was<br>attached and marked A to the respondent's affidavit in reply in paragraph 10, however | | 35 | | the Applicant did not deposit and has not deposited any security for the taxed costs which<br>is a condition to be complied with for stay of execution to be granted. Counsel relied on<br>the case of Hon. Theodore Ssekikubo and others Vs Attorney General and others<br><i>Constitutional Application No. 03 of 2014</i> to fortify his submission. | | | | |

$\sim$

In this case however, the applicant hasn't yet paid the security for costs as there is no evidence 40 on record to prove the same.

Security must be given for the due performance of the decree. Courts have however held that each case must be looked at according to its merits. See. John Baptist Kawanga vs Namyalo Kevina & Another Miscellaneous Application No. 12 of 2017.

$\mathbb{A}^{\mathbb{A}}$

The Applicant has satisfied most of the grounds and conditions. I will therefore look at this case on its merits and allow this application on condition that the Applicant pays security for the due 45 performance.

#### Orders<sub></sub> $\mathsf{S}$

$10$

- 1. In the result I allow this application and an order for stay of execution issued on condition that the Applicant gives security for due performance of the decree binding on him in Civil Suit No. 0031 of 2018. - 2. Costs of this Application shall abide the outcome of the Appeal.

I so order

$975$ day of August 2024 Dated this ....

Hon. Justice Collins Acellam **JUDGE**