Okiro v Ijoku and 3 Others (Miscellaneous Application 190 of 2023) [2024] UGHC 736 (31 July 2024)

Full Case Text

The Republic of Uganda

In the High Court of Uganda at Soroti Miscellaneous Application No. 0190 of 2023 (Arising from Miscellaneous Application No. 0189 of 2023) (Arising from Civil Application No. 0041 of 2020) (All arising from Civil Suit No. 20 of 2015)

Okiror Bob :::::::::::::::::::: **Applicant**

## Versus

**Respondents**

- 1. Ijoku Priscilla Susan - 15 2. Omoding Richard - 3. Shalom Education Trust - 4. Opuya Ltd.

Before: Hon. Justice Dr Henry Peter Adonyo

## Ruling

## 1. Introduction.

This application was brought by way of notice of motion under section 98 of the Civil Procedure Act, Order 43 4(2), (3), (4), (5) and Order 52 rules 1,2 &3 of the Civil Procedure Rules for orders that;

1. Stay of execution of the orders in Civil Suit No. 20 of 2015 be granted pending the hearing and determination of an application for review of

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- the decision and orders of His. Lordship Hon. Justice Tadeo Asiimwe in Civil Application no. 41 of 2020. - 2. By extension, a stay of execution be issued pending the hearing and disposal of Civil Appeal No. 77 of 2020. - 3. Costs of the application be provided for. - 10 2. Grounds.

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The grounds of this application as set out in the application and supporting affidavit sworn by the applicant are that;

- 1. The Applicant filed Civil Application No. 41 of 2020 in this Honourable court for stay of execution of the orders in Civil Suit No. 20 of 2015. - 2. The learned trial judge found that the applicant had demonstrated major grounds for stay of execution pending appeal, but erroneously dismissed the application with costs. - 3. The Applicant being aggrieved with the above decision, has since filed an application for review before this Honourable court. - 4. There is imminent threat to execute the orders of this honourable court in Civil suit no. 20 of 2015 before the hearing and disposal of the application for review of the orders in Civil Application No. 41 of 2020 for the substantive stay of execution pending appeal. - 5. The applicant's substantive application for review has a high likelihood of success which warrants stay of execution. - 6. The applicant is likely to suffer substantial loss if this application is not granted and by extension, the appeal rendered nugatory. - 7. The orders of stay of execution sought are intended to safe guard the applicant's right of review and by extension preserve the viability of Civil

- Appeal No. 77 of 2020 that is already filed before the Court of Appeal of Uganda. - 8. The respondents shall not be prejudiced if the application is granted. - 9. The application has been brought in good faith without any delay. - 10. It is just and equitable that the execution of the orders and judgment arising out of Civil Suit No. 41 of 2020 delivered in this court pending the hearing and determination of the application for review and by extension Civil Appeal No. 77 of 2020.

The 1st respondent and director of the 3rd respondent, Ijoku Priscilla Susan in her affidavit in reply opposed the application on the following grounds;

- 1. That this application is barred by law, filed in total disregard of the law of procedure. - 2. That MA No. 41 of 2020 for stay of execution having been dismissed by High Court, the rightful procedure was to apply for stay of execution at the Court of Appeal not to apply for review. - 3. That the present application together with the main application No. 189 of 2023 it is arising from are barred by law, the law limits applications for review where there is an appeal. - 4. That Civil Appeal No. 77 of 2022 has no merit, it is frivolous and vexatious aimed at frustrating the respondents from enjoying the fruits of their judgment. - 5. That the applicant filed Civil Application No. 41 of 2020 for stay of execution in bad faith with the intention of depriving the respondents the benefits of enjoying the fruits of the judgment and it was dismissed by Justice Tadeo Asiimwe for lack of merit.

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6. That the applicant's intention has for long been to abuse court process, delay and frustrate the execution process.

The applicant in rejoinder prayed that the 1st respondent's affidavit be struck out for being incurably defective to the extent that Ijoku Priscilla who swears the affidavit and Ijoku Priscilla Susan are two different people and that the affidavit under paragraphs 11,15, 17 and 20 are argumentative and full of falsehoods. That the application is rightly before this court since no appeal was preferred against the application for stay of execution.

3. Representation.

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The applicant was represented by M/s Emoru & Co. Advocates while the respondents were represented by M/s Omongole & Co. Advocates. The parties 15 filed written submissions, which have been considered accordingly. While thankful for the submissions, I will refer to them as and when necessary.

## 4. Determination.

- a) Preliminary objection. - Counsel for the respondents' in his submissions raised a preliminary objection $20$ that the application for stay of execution is being brought for the second time as this honourable court already pronounced itself on stay of execution in Misc. Application No. 41 of 2020 by dismissing the same.

Counsel added that the applicant has the option of seeking for stay of execution at the Court of Appeal since he has already filed an appeal vide Civil Appeal No. 25 77 of 2020 at the court of Appeal.

Counsel's 2nd objection is that this application arises from an application for Review vide No. 189 of 2023 which has no likelihood of success since the applicant has already filed an Appeal at the Court of Appeal.

That the High Court has no concurrent jurisdiction with the Court of Appeal and $\mathsf{S}$ as such the application for Review cannot stand in this Honourable court while there is an Appeal at the Court of Appeal.

Counsel added that the applicant has not come to court with clean hands as he seeks to review this court's decision after about 4 years with a different judge who never handled the matter and yet has also appealed the decision at the Court of Appeal.

Counsel for the applicant in rejoinder submitted that the respondents' submissions are not only false but misleading this honourable court.

That this application for stay of execution pending review is very different from the substantive application for stay of execution as the Applicant filed Civil 15 Application No. 41 of 2020, for Stay of Execution of the orders issued in Civil Suit No. 20 of 2015, pending the determination of his appeal before the Court of Appeal; the said application was erroneously denied by this honourable court. That due to the imminent threat of execution posed by the Respondents through application for execution, the Applicant filed this application for stay of the said 20

execution, pending the determination of his review of the decision of this honourable court.

That this application cannot be res judicata since it arises from the substantive Application for stay of execution.

b) Determination of the preliminary objection. 25

This application arises from a series of civil actions that I will summarise hereunder;

The applicant filed Civil Suit No. 20 of 2015 for cancellation of the certificate of title of land comprised in Block 8, LRV 715 Folio 10 Plot 149 Gweri Road in this

court and the same was dismissed with costs on the 28th of March 2019 for lack $\mathsf{S}$ of *locus* standi.

The applicant then appealed this dismissal vide Civil Appeal No. 77 of 2020 in the Court of Appeal.

Civil Suit No. 20 of 2015 having been dismissed with costs, the respondents sought to have the same taxed vide Taxation Application No. 22 of 2019 and the 10 bill of costs was taxed at Shs. 39,950,000/=.

The applicant herein dissatisfied with the taxed bill of costs appealed against the same vide MA No. 55 of 2019 which is still pending, he additionally filed MA No. 41 of 2020 for stay of execution pending the determination of CA No. 77 of 2020

but the same was denied on the ground of inordinate delay. 15

The applicant alleges that while waiting determination of MA No. 55/2019 and MA No. 41/2020 he was arrested and committed to civil prison for 6 months and during this period he lost his lawyer and further lost position of his files.

That upon his release he gave instructions to M/s Spatium Advocates to follow

up all his matters but that, however, on the 1st of November 2023 he was shocked 20 when he was served with a hearing notice for EMA No. 13 of 2022 and his attempts to get any updates from his lawyers were futile leading to change of instructions to his current advocates, M/s Emoru & Co. Advocates.

That it is through these lawyers that he found out that MA No. 41 of 2020 had been dismissed and that the respondents had filed for execution of the court 25 orders in Civil Suit No. 20 of 2015 vide EMA No. 13 of 2022.

The applicant then filed MA No. 189 of 2022 seeking that the orders in MA No. 41 of 2020 be reviewed and set aside and it is from this application that the current application arises.

- From the above recounting of the sequence of events, it can be seen that the $\mathsf{S}$ appeal before the Court of Appeal vide CA No. 77 of 2020 does not arise from the application for stay of execution and as such the application for review of MA No. 41 of 2020 and stay of execution pending review are not wrongfully brought before this court. - However, the applicant also prayed for an order by extension, that a stay of 10 execution be issued pending the hearing and disposal of Civil Appeal No. 77 of 2020.

Given the fact of the applicant having already applied for stay of execution pending his appeal vide MA No. 41 of 2020 and the same was denied, which

dismissal he seeks to review vide MA No. 189 of 2023, this court cannot make 15 any order as to stay of execution pending appeal in this current application for lack of jurisdiction.

c) Merit of this application

The above being the case, I will proceed to determine the merit of this application only on the ambit of stay of execution pending review.

It is a settled position of the law that the court has inherent discretionary power to stay execution of its orders. In doing so, a court weighs the circumstances of each particular case and exercises discretion on whether to stay execution or grant the order sought.

The principles under which an application for stay of execution can succeed has 25 been well espoused in a number of cases but notably in in the case of Lawrence Musiitwa Kyazze vs Eunice Busingye SC Civil Application No. 18 of 1990, Kyambogo University vs Prof Isaiah Omolo Ndiege Civil Application No.341 of 2013 (C. A). - Justice Kenneth Kakuru JA (RIP) citing various decisions including the Supreme $\mathsf{S}$ Court decision in Lawrence Musiitwa Kyazze vs Eunice Busingye Civil Application No. 18 of 1990 restated the conditions for a stay of execution order as follows; - a) The Applicant must show that he has lodged an appeal which is pending hearing. - b) The said pending appeal is not frivolous and it has a likelihood of success. 10 - c) There is a serious and imminent threat of execution of the decree and if not stayed the appeal will be rendered nugatory. - d) The application was made without unreasonable delay. - e) The Applicant is prepared to give security due performance of the decree $and;$ - f) The refusal to stay would inflict greater hardship than it would avoid. - g) The power to grant or refuse a stay is discretionary. - i. The Applicant must show that he has lodged an appeal which is pending hearing and the said pending appeal is not frivolous with a likelihood of

20 success.

> In the instant application it should be noted that there is no pending appeal, rather an application for review.

> I have perused MA No. 0189 of 2023 filed by the applicant for review of the order of this Honourable Court in Civil Application No. 41 of 2020 wherein Hon. Justice

Tadeo declined to stay execution of Civil Suit No 20 of 2015 pending the 25 applicant's appeal.

In this application the applicant seeks review of this decision basing errors which he states are apparent on the face of the record to wit;

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- a. The learned trial judge found that the applicant had filed the application for stay of execution late, basing on the date of the determination of the main suit, instead of the date of the application for execution. - b. Dismissing the application for stay of execution on grounds that the appeal from the Registrar's ruling was filed 19 days late. - c. Finding that the applicant had satisfied all major grounds for stay of execution, but failed to exercise vigilance to file the application and not giving justifiable reasons for the delays. - d. Finding that the applicant had sat on his rights, which negatively impacted the matter, whereas not. - e. Finding that the applicant had failed to satisfy the conditions for grant of stay of execution pending appeal, contrary to the court's earlier findings.

I note that in all these, there is indeed pending a substantive application for review before this court which is anchored on the fact that the trial judge in MA No. 41 of 2020 determined the same based on inordinate delay whilst relying on

- the date of dismissal of Civil Suit No. 20 of 2015 and not the date when the 20 respondents had applied for execution of the decree therein. That being the case, I would agree with the applicant that he has lodged an appeal which is pending hearing and the said pending appeal is not frivolous and has a likelihood of success especially given that legal dispute. Accordingly, I would find that this ground has merit and is thus met. 25 - ii. There is a serious and imminent threat of execution of the decree.

Regarding imminent threat of execution and substantial loss, the applicant states under paragraph 22 of his affidavit in support that there is imminent threat of execution as the respondents have indicated their intentions to execute the orders of court despite knowledge of the existence of his appeal. He attached a

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copy of the NTC dated 10th of May 2023 and hearing notice for 22nd November $\overline{5}$ 2023 as annexures "K" and "G".

Counsel submitted that the applicant will suffer irreparable damage if an order of stay of execution is not granted and that the appeal will be rendered nugatory. Counsel further submitted that it was the applicant's uncontested testimony is

that he was arrested and committed to civil prison for 6 months before his two 10 applications appealing the award of costs and stay of execution were heard and thus he was incapacitated in handling his matters.

Counsel for the respondent on the other hand submitted that the applicant failed to lead any affidavit evidence to prove that he will suffer irreparable loss not compensable by damages.

In Tropical Commodities Supplies Ltd & 2 others v International Credit Bank Ltd (In Liquidation) [2004] 2 EA 331, Ogoola J (as he then was) held that;

"The phrase substantial loss does not represent any particular amount or size; it cannot be qualified by any particular mathematical formula.

It refers to any loss great or small: of real worth or value as distinguished from a loss that is merely nominal".

Substantial loss giving rise to stay of execution only arises where there is eminent threat of execution of the decree, which execution would change the status quo in such a manner that the appeal would be rendered nugatory if the execution is not stayed.

In this instance there is an application vide EMA No. 13 of 2022 for execution, a copy of which was attached as annexure 'I' to the application where the respondents seek to execute the decree by way of attachment of the applicant's moveable property to wit a motor vehicle Reg. No. UAU 739D.

A further Notice to Show Cause Why Execution should not issue was served on $\mathsf{S}$ the applicant and he attached a copy of the same as annexure $K'$ which notice requires he appears before court on the 19th of June 2023.

The applicant further attached as annexure 'G' a copy of a hearing notice in EMA No. 13 of 2022 which was for $22^{nd}$ November 2023.

I have also noted that the respondents in their application for execution indicated 10 that no appeal had been preferred from Civil Suit No. 20 of 2015, which assertion I find erroneous on their part given that they are clearly aware of the pendance of Court of Appeal Civil Appeal No. 77 of 2020 for which they already been instructed and required to prepare conferencing notes as proven by annexure 'B' to this application. 15

Arising from the facts as related above, I am satisfied that there is indeed a risk of execution against the applicant by way of attachment of his moveable property which I would find would constitutes substantial loss.

iii. The application was made without unreasonable delay.

Regarding unreasonable delay, as noted above Civil Suit No. 20 of 2015 was 20 dismissed with costs on the 28th of March 2019 for lack of *locus standi*.

The applicant then appealed this dismissal vide Civil Appeal No. 77 of 2020 in the Court of Appeal.

Civil Suit No. 20 of 2015 having been dismissed with costs the respondents sought to have the same taxed vide Taxation Application No. 22 of 2019 and the bill of 25 costs was taxed at 39,950,000/ $=$ .

The applicant herein being dissatisfied with the taxed bill of costs appealed against the same vide MA No. 55 of 2019 which is still pending, he additionally filed MA No. 41 of 2020 for stay of execution pending the determination of Civil

Appeal No. 77 of 2020 but the same was denied on the ground of inordinate $\mathsf{S}$ delay.

- 10 That upon his release he gave instructions to M/s Spatium Advocates to follow up all his matters but that on the 1st of November 2023 he was shocked when he was served with a hearing notice for EMA No. 13 of 2022 and his attempts to get any updates from his lawyers were futile leading to change of instructions to his current advocates, M/s Emoru & Co. Advocates. - That it is through these later lawyers that he found out that MA No. 41/2020 had 15 been dismissed and that the respondents had filed for execution of the court orders in Civil Suit No. 20 of 2015 vide EMA No. 13 of 2022.

The applicant then filed MA No. 189 of 2022 seeking that the orders in MA No. 41 of 2020 be reviewed and set aside and it is from this application that the current application arises.

These facts which explain the delay in filing this current application were not disputed by the 1st respondent in her affidavit in reply as she made no reply to them, meaning the same were admitted.

Therefore, while there is indeed perceivable delay in filing the current application and MA 189/2023 from which it arises, I am satisfied that the applicant has given 25 satisfactory and sufficient reason for his delay as narrated above. This ground thus succeeds.

## iv. The Applicant is prepared to give security due performance of the decree.

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The applicant under paragraph 25 of his affidavit in support stated that he is ready and willing to provide security for due performance of the decree, the quantum and type of which are within the discretion of this honourable court. Counsel made no submissions in this regard and the 1st respondent in her

affidavit under paragraph 19 in reply stated that if this court is inclined to grant 10 stay of execution the applicant should be ordered to deposit 50% of the costs in court.

In law, an order requiring an applicant to give security for due performance of a decree is made according to the circumstances of each particular case as the

objective of the legal provisions on security were never intended to fetter the 15 right of appeal rather to ensure that courts do not assist litigants to delay execution of decrees through filling vexatious and frivolous appeals and or in this instance applications for review.

In essence, the decision whether to order for security for due performance must be made in consonance with the probability of the success of the appeal or in this 20 instance application for review.

As seen above this matter arises from a series of civil actions starting in 2015 and while there is a likelihood of success in MA 189/2023 for review the same is only in regard to stay of execution pending the appeal and thereafter the parties still have to wait for the determination of Civil Appeal No. 77 of 2020 which is pending before the Court of Appeal.

While security for due performance of the decree has been found not to be a condition precedent for the grant of stay of execution as was held in *Imperial* Royale Hotel Ltd & 2 Others versus Ochan Daniel Misc Application No.111 of 2012),

I find that in this instance given the history surrounding this matter and the $\mathsf{S}$ willingness of the applicant to pay the same, I would have made an order that the applicant deposits the same.

However, given the fact that the respondents in their application for execution misrepresented to this Honourable Court that there was no appeal pending from

- the decision in Civil Suit No. 20 of 2015 yet they were well aware that the same 10 was appealed vide Civil Appeal No. 77 of 2020 which is still pending before the Court of Appeal, I would hesitantly decline to make an order as to security for due performance. - 5. Conclusion. - This application succeeds and is accordingly granted with the costs to abide the 15 outcome of MA 189 of 2023.

I so order.

Hon. Justice Dr Henry Peter Adonyo

Judge

31st July 2024