Ogwang and Others v Okot (Miscellaneous Application No. 223 of 2021) [2022] UGCA 123 (19 April 2022)

Full Case Text

### THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

## **MISCELLANEOUS APPLICATION NO.223 OF 2021**

### (Arising from Miscellaneous Application No.222 of 2021)

(Arising from Civil Appeal No.312 of 2018)

(Arising from Civil Appeal No.021 of 2016)

(Arising from Civil Suit No. KIT-02-CS0014 OF 2014)

- 1. OGWANG DONASIANO - 2. OKWERA MARTINE (AMUKU) - 3. OCAN MARCILIANO - 4. OJERA ALEX 15

$\overline{5}$

- 5. TABO BOSCO::::::::::::::::::::::::::::::::::: - 6. KILAMA JOHN - 7. OYET MICHEAL (OPIO) - 8. APIO NARASISA - 20 9. FAFIYANO ANYING (LUNOO) - $10.$ OLANYA RAY (OTWALA)

#### **VERSUS**

**REGINA OKOT:::::::::::::::::::::::::::::::::::**

# HON. MR. JUSTICE CHEBORION BARISHAKI, JA

### RULING

This application was brought under the provisions of section 98 of the CPA, Order 22 R.26 and 89 of the CPR. It is for orders that:-

- a. An interim order of stag of execution be issued by the Court pending the - 10

trearing and determination of the substantiue application for stay of execution and of ciuil appeal No. 312 of 2018.

b. Costs of the application be prouided for in the cause.

The background to the application is that the respondent sued the applicants jointly and severally in the Chief Magistrate's Court of Kitgum holden at Patongo

for a declaration that she was the owner of the 56 hectares of land under customary tenure, situated at Koroch Village, Atut Parish, Wol sub-county in Agago District. She sought orders of eviction, a permanent injunction and a:r award of general damages and special damages for trespass to the land. Her claim was that she inherited the land in dispute from her late husband, Okot Elizeo in 1991 who in turn had acquired it as a gift inter vivos from his late paternal uncle, Sirayo Okwang who opened it when it was virgin land. 15 20

Having married her late husband during 1968, they moved and settled onto the land in 1970 and utilised it peacefully until the year 2OO7 when the first 8 applicants began their encroachment onto the land by undertaking cultivation

on a massive scale. The last two applicants followed suit during the year 2013, proceeding further to construct a hut thereon. She sued the first applicant before 2l I 25

- the L. C II Court which decided in her favour in 2009 and the lst applicant's appeal to the L. C Court was dismissed but he refused to vacate the land. The first eight applicants contended that they had lived on the land in dispute since 1956 and never left it save for the duration of the period of insecurity. The last 2 applicants contended that they had lived on the land in dispute since 1965 and - the tenth applicant was born on that land. They therefore refuted the respondent's claim that they were trespassers on her land, since she occupies hers and they occupy theirs. 10

Judgment was given in favour of the respondent and the applicants appealed to the High Court of Uganda sitting at Gulu where judgment was still given in favour of the respondent.

Being dissatisfied, the applicants filed Miscellaneous Application No.223 of 2027 in which they seek stay of orders of the High Court in Civil Appeal No. O021 of 2016.

The grounds for this application are set out in the motion as follows;

1. Tlnt the applicants uere the defendants in the oiginal case before the Magistrate Grade 1 Court of Kitgum Magisteial Area holden at Potongo, Ciuil Suit No. O14 of 2O14 in uhich the respondent/ plaintiff sued the Applicants/ defendants herein aboue mentioned, for uhich judgment was passed against the applicants on the 7th of June, 2O16, by Her Worship Akello lrene. 20 25

- 5 2. That the applicants, being aggrieued and dissatisfied with the said judgment, decisions and orders of the Court, instituted the process of an appeal to the High Court of Uganda at Gulu by promptlg filing a notice of Appeal in the High Court uide Ciuil Appeal No. O21 of 2O16, but the applicants' said appeal rzas dismissed and judgment passed against the applicants bg Hon. Justice Stephen Mubiru. 10 - 3. Tlnt the applicants, being further aggieued and dissatisfied with the said judgment or dismissol, decisions and orders of the High Court of tlganda at Gulu again instituted the process of an appeal to the Court of Appeal at Kampala bg promptly filing a notice of appeal in Court, uide Ciuil Appeal No.312 of 2O18, and the applicants' said appeal is nou-t pending hearing and has a high likelihood of success in the appellate Court. - 4. That the respondent llas now threatened to execute the said judgment, decisions and orders of the original Ciuil Suit No. O14 of 2O14 and to that elfect she has already presented in Court the application for execation proceedings and Ltnue ertracted a Notice to show Cause uhy Execution should not issue and also procured Warrants of Attachment and sale of mouable property of the applicants. - 5. Tlnt the respondent uill go ahead and make good her tlveat and execute the judgment of the louter Court despite of the pendency of the appeal in the superior court unless restrained bg this Honourable Court, hence the need for the stag of execution.

- 5 6. That the applicants stronglg belieue that they haue good grounds uith merits in the pending proposed ciuil appeal nou in this Court with a likelihood of success - 7. Tlnt it is in the interest of substantiue justice and the principles of natural justice of hear one side, hear the other side also, that the application be allouted and the execution staged since the proposed appeal hos all the probabilitg and high likelihood o..if success. - 8. Tlnt no injury, injustice, prejudice, damage or loss utill be occasioned to the other partA if the application is allouted.

The motion is supported by the affidavit of the lOth applicant, Olanya Raymond dated 8th June, 2021. The said affidavit repeats and expounds on the notice of motion. I find no reason to reproduce its contents here. 15

The respondent did not file an affidavit in reply.

At the hearing of this application, Mr. Twooto Oba appeared for the applicants while neither the respondent's counsel nor the respondent were present.

The evidence on record shows that the respondent was served through her advocate, Okot Edward of M/S Okot Edward & Co. Advocates who willingly accepted service but declined to acknowledge receipt on the ground that they had no instructions to represent the respondent. 20

There was no Notice of Change of Advocates on Court record therefore M/S Okot

Edward & Co. Advocates was the last known address of the respondent. 25

s This amounted to effective service under O.3 R4 of the CPR which provides that €rny process served on the advocate of any party or left at the office or ordinary residence of the advocate, whether the process is for the personal appearance of the party or not, shall be presumed to be duly communicated and made known to the party whom the advocate represents, and, unless the Court otherwise 10 directs, shall be as effectual for all purposes as if the process had been given to

or served on the party in person.

Counsel for the applicant filed written submissions which they adopted at the hearing. The respondent did not file submissions.

Counsel for the applicant submitted that this Court had powers under Rules 6(2) 15 and, a2Ql ofthe rules of this Court to grant interim stay of execution and in order for the applicant to succeed, he or she must have filed a notice of appeal, there must be a substantive application for stay of execution and an eminent threat of execution. Counsel further submitted that the applicants were the unsuccessful parties in both the High Court of Uganda at Gulu and the Magistrate Grade I 20 Court at Patongo, they have since lodged a Notice of Appeal in this Court vide

Civil Appeal No.312 of 2018 which is pending hearing.

Counsel further submitted that the applicants filed a substantive application for stay of execution which is also pending before Court. According to counsel, in order to safeguard the right of appeal, the decisions of the lower Court must be 25 stayed in order for the appeal process to be meaningful. He added that the attempt by the respondent to have the decisions of the lower Courts executed

5 notwithstanding the prompt filing of the appeal and the Notice of Appeal was an attempt by the respondent to frustrate the appeal.

Regarding an eminent threat of execution, counsel submitted that the respondent had filed an application for stay of execution and a notice to show cause why execution should not issue against the applicants. He added that the

applicants had been served with the said Notice to show Cause why execution should not issue as well as warrants of attachment of movable property and as such, the applicants are living under fear of execution at any moment. He prayed that the application be granted. 10

The jurisdiction of this Court to grant a stay of execution is set out in Rule 6(2)

(b) and Rule 2(2) of the Rules of this Court which grant the Court power to make any orders necessary to achieve the ends ofjustice. 15

ln C:tatl Appllcatlon No. O 79 oJ 2OO8: Huang Sung Industrles Ltd as. Taldln Husseln and 2 Others (SC), Okello, JSC held that:-

'For an application for an interim staA, it suffices to shou.t that a substantiue aoolication is pendinq and that there is a seious threat of exeattion before the hearinq of the pendina su b stanti u e a o olicatio n. It is not necessary to preempt consideration of matters necessarA in deciding uthether or not to grant the substantiue application for stay.

Sulfice to add that the burden lies upon ttrc applicant to proue to Court on a balance of probabilities the requisite conditions that must be satisfied before an interim order is granted." Emphasis added.

7li,ds.

5 F\rther, in E. B. Nyakaana and Sons Ltmtted and Beatrlce Kobuslnge and. 76 Others, Suprem.e Court Mlsc. A7t7t. No.73 of 2017; Lady Justice Dr. Esther Kisaakye in her ruling stated that before Court exercises its discretion to grant an interim order of stay, it must be satisfied that:

- (a) A Notice of Appeal has been lodged in accordance uith Rule 72 of the Rules of this court; - (b) A substantiue application for stag of execution is pending before court; - (c) There is a senous threat of exeattion before the hearing of the sub stantiue application; and - (d) Tlrc application has been filed without undue delay. - Counsel for the applicants submitted that the applicants had filed a Notice of Appeal in this Court vide Civil Appeal No.312 of 2018. I note that the applicants did not avail a copy of the said Notice of Appeal to this Court however the Court Registry file indicates that a Notice of Appeal was filed on 26th September, 20 18 and referenced as Civil Appeal No.312 of 2078. 15 - A substantive application for stay of execution referenced as Miscellaneous Application No. 222 of 2O2l was filed on 26th August 2O2l and the same is pending hearing before this Court. 20

As to whether there is a serious threat of execution before hearing of the substantive application, the record shows that applicants had been served with

the Notice to show Cause why execution should not issue dated 6th April, 2O21 as well as a war.rant of attachment and sale of movable property. In my view, 25

there is an eminent threat of execution because execution can be commenced $\mathsf{S}$ anytime.

Regarding filing this application without undue delay, the judgment of court in HCCA No. 0021 of 2016 was delivered on 20th September, 2018 and the evidence on record shows that this application was lodged in this court in August 2021 which in my opinion was within a reasonable time considering the busy schedule of this Court.

I find that the applicants have satisfied the conditions required for grant of an interim order of stay. I allow the application and make the following orders:-

- 1. An interim order of stay of execution of the orders of the lower Courts is - 15

hereby issued pending the disposal of Civil Application No.222 of 2021 or until further orders of this Court.

- 2. The Registrar of this Court is hereby directed to fix Civil Application No.222 of 2021 for hearing in the next 21 days. - 3. The costs of this application shall abide the outcome of the substantive application for stay of execution.

### I so order

Dated this ........ $\ldots$ 2022. .day of

CHEBÓRION BARISHAKI JUSTICE OF APPEAL

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