Odaga v Onegu (Civil Application 11 of 2023) [2024] UGCA 287 (3 October 2024)

# THE REPUBLIC OF UGANDA

### IN THE COURT OF APPEAL OF UGANDA AT I(AMPALA

#### CIVIL APPLICATION NO. 11 OF 20/23

(Aising from Ciuil Appeal No. 113 of 2022)

ODAGA SILVIO : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : APPLICANTS

#### VERSUS

ONEGU OKELLA LEGAL REPRESENTATIVE OF THE LATE OKELLA O. GEOFFREY ::::::::::: :::: RESPONDENT

# BEFORE: HON. JUSTICE OSCAR JOHN KIHII(4, JA

(Sitting as a single Judge)

#### RULING OF COURT

The Applicant filed this application by Notice of Motion under Rules 6(2) (b), and 43 of the Judicature Court of Appeal Rules. It seeks for orders that;

- 1. The execution of the order in Misc. Application No. No. OO7 of 2OL9 in the High Court at Arua and the decree in Civil Suit No. O22 of 2016 in the Chief Magistrate's Court of Nebbi at Nebbi be stayed pending the final determination of Civil Appeal No. 1 13 of 2022 pending in the Court of Appeal of Uganda at Kampala that arose out of High Court Civil Appeal No. OOLT of 2OI7 in High Court Arua. - 2. Costs of this application be provided for.

The grounds upon which this application is premised are stated in the Notice of Motion and the affidavit in support sworn by ODAGA SILVIO deponed on the 28th of December 2022 and are briefly that;

- 1. The Applicant was the plaintiff in Civil Suit No. O22 of 20 16 in the Chief Magistrates Court of Nebbi but the suit was dismissed with costs on grounds that the suit was res judicata. - 2. Thre Applicant appealed to the High Court at Arua and the appeal was dismissed on 15 l03 l2OL9, two days after receiving the record of proceedings from the trial Court. - 3. The Applicant filed an application for reinstatement of the Civil Appeal but the sarne was dismissed with costs. - 4. The Applicant filed an appeal in the Court of Appeal vide Civil Appeal No. No. 113 of 2022 agarnst the order of the High Court in Misc. Application No . OO7 of 2019. - 5. The Respondent instituted execution proceedings by issuing a demand notice for the pa)rment of UGX LL,682,600 l= being the tored costs in Civil Suit No. O22 of 2OL6. - 6. The Applicant will be evicted from the suit land if execution of the Decree in Civil Suit No. O22 of 2OL6 and High Court Miscellaneous Application No. OO7 of 2019 is not stayed. - 7. Tlne Respondent is likely to cut the Applicant's 6 mature trees for sale in execution of the decree in Civil Suit No. O22 of 2OL6.

The respondent filed an affidavit in reply deponed by ONEGIU OKELLA sworn on the 13th of February 2023 and opposed the application on grounds briefly that;

- 1. Sometime in 2OO4, one Thugitho Geoffrey sued the Respondent's late brother Okella Geoffrey before the LC 1 <sup>1</sup> Council claiming that the suit land belongs to him. - 2. In 2OL3, the said Thugitho Geoffrey again sued the Respondent's late brother in the Chief Magistrates Court of Nebbi claiming owrrership of the suit land and the suit was dismissed for being res judicata. - 3. While the suit was still pending, the Applicant connived \Mith Thugitho Geoffrey and bought from him a portion of the suit land knowing the dispute over the land was still pending in court. - 4. In 2015, the Applicant trespassed on the suit land by sending people to dig the land whereupon he was arrested, prosecuted and convicted of criminal trespass and since then has not attempted to use the suit land again. - 5. After the dismissal of the suit, the Applicant filed a Notice of Appeal but failed to take essential steps to prosecute the appeal and the s€une was dismissed under O. 17 r 6 of the Civil Procedure Rules. - 6. The Applicant filed an application to reinstate the appeal but the sarne was dismissed \Mith costs which were taxed and allowed in the sum of Shs. 6.682,600 f =. - 7. When the matter carne up for notice to show cause, the Applicant's lawyer informed the Registrar that there was a pending application for stay of execution in this court and as such the hearing did not proceed.

8. The claim by the Applicant that he will suffer irreparable damages if he is evicted is baseless since he has never been in possession of the suit land.

#### Representation

At the hearing of this application, both parties were not in court and were unrepresented. However, since both parties had filed written submissions, the ruling was reserved on notice.

### Consideration of the Application

I have carefully considered submissions of both counsel in this application. the affidavit evidence and the

The jurisdiction of this court to grant a stay of execution stems from Rule 6 l2l pf of the Rules of this Court which provides that;

### 6. Suspenslon of sentence and stag of executlon.

(2) SubJect to subntle (1) of thts rttle, the tnsttttttlon of an appeal sho-ll not operate to suspend ang sentence or to stag executlon, but the court fiulg-

(a)...

b) fn ang ctuil proceedlngs, where a notlce of appeal ho,s been lodged ln o,ccotd.o;nce wlth ntle 76 of these Rules, order a stag of executlon, o,tt lnJunctlon, or a stag of proceedlngs on such tertns as the court mqg thtnk Just.

The Supreme Court in the application by Hon. Theodore Ssekikubo & Others vs. The Attorney General and Another, Constitutional

Application No 06 of 2013 clearly re-stated the principles as follows:

"ln order for the Court to grant an application for a stay of execution;

(1) The appltcatlon must establish that his appeal ho,s a llkelihood of s:tccess; or a prlma facle co,se of hts rtght to appeal

(2) It must also be establtshed that the Appltcant wlll suffer iteparq.ble damage or tho:t the appeal utlll be rendered nugatory tf a stag is not granted.

(3) If I and 2 aboae has not been establlshed, Court must, consider where the balance of conaenlence lies.

(4) That the Appltcant must also establish that th,e appltcatlon uro,s lnstltuted wlthout delag."

The issue for determination by the Court is whether the Applicants have adduced sufficient reasons to justify the grant of a stay of execution.

## L. Prlma facle case with likelihood of success

On the issue of likelihood of success, the Applicant's counsel submitted that the Applicant's appeal has a high likelihood of success and referred to Section7g (2) of the Civil Procedure Act which excludes the time taken in preparation of the record of proceedings in calculation of the time within which an appeal should be filed.

However, the affidavit in support of the application does not contain any statement therein averring that the Applicant's appeal has a likelihood of success. There is no material before this court, by way of proof to back counsel's submission on the issue as to whether the Applicant's appeal has a likelihood of success.

The Supreme Court in the case of Gashumba Maniraguha vs Sam Nkudiye Civil Application No. 24 of 2015, held that the likelihood of success is the most important consideration in an application for stay of execution. Therefore, it is incumbent upon the Applicant to avail evidence, or material to the court in order for it to establish whether or not the Applicant has a prima facie case on appeal.

In Osman Kassim Vs Century Bottling Company Ltd Civil Appeal 34 of 2019, the Supreme Court of Uganda stated thus;

" It is trite that in order to succeed on this ground, the Applicant must, apart from filing the Notice of Appeal, place before Court Material that goes beyond a mere statement that the appeal has a likelihood of success........the important questions are not even mentioned in his affidavits so as to give court an idea about the possible ground of his intended appeal. We are in the circumstances unable to establish the likelihood of success in the absence of evidence"

I therefore find that the Applicant has failed to establish a prima facie case with a probability of success.

## 2. Irreparable damage

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The second consideration is whether the Applicant will suffer irreparable damage or that the reference will be rendered nugatory if *a stay is not granted.*

In my understanding, the applicant has to show that the damage bound to be suffered is such that it cannot be undone or compensated for in damages.

In Giella v. Cassman Brown & Co. [1973] E. A 358, it was held that by irreparable injury it does not mean that there must not be physical possibility of repairing the injury, but it means that the injury or damage must be substantial or material one that is; one that cannot be adequately atoned for in damages. Likewise, In the case of American Cynamide vs Ethicon [1975] 1 ALL E. R. 504 it was held;

"The governing principle is that the court should first consider whether if the Plaintiff were to succeed at the trial in establishing his right to a Permanent Injunction he would be adequately compensated by an award of damages for the loss he would have sustained as a result of the Defendant's continuing to do what was sought to be enjoined between the time of the Application $and the time of the trial.\\$

In the instant case, the Applicant's counsel argued that the applicant will suffer irreparable loss considering that a demand notice was served on him in execution of the taxed bill of costs to the tune of UGX 11,682,600/ $=$ . Applying the above to the principals of irreparable damage, I find that the execution against the Applicant is

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<sup>a</sup>specified amount of money, which can be compensated in the sarne monet ary terms, should the Applicant's appeal succeed'

In addition, the Respondent stated that the Applicant is not in possession of the suit land and only attempted to trespass on the land in 20 15 after which he was arrested, charged and convicted of criminal trespass. The Appricant has not filed any rejoinder to rebut this allegation and has not provided this court with any proof that he is in possession of the suit land. I therefore find no threat of eviction of the Applicant from the land.

considering the above, I arn therefore unable to find that the Applicant will suffer irreparable damage'

Having found. as I have above, I find no reason to delve into the issue of balance of convenience for reasons that court should only consider the balance of convenience where it is in doubt'

Given the findings above, I find no merit in the application and order as follows;

- 1. The application is dismissed. - 2. The costs of this application shall abide the outcome of the appeal.

I so order

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Dated this ....................................

$\frac{1}{2}$ . . . . . . . . . . . . . . . . . . . OSCAR JOHN KIHIKA<br>JUSTICE OF APPEAL

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