Oloit v Abubakar and Another (Miscellaneous Application 145 of 2022) [2023] UGHCCD 212 (7 July 2023)

The Republic of Uganda

In the High Court of Uganda Holden at Soroti

Miscellaneous Application No. 145 of 2022

(*Arising from Civil Appeal No. 33 of 2017*)

(Arising from Civil Suit No. 48 of 2008 of the Chief Magistrate's Court of Soroti at

Soroti)

Oloit John Adipu ::::::::::::::::::::::::: **.....................................**

## Versus

15 1. Abubakar Amulani

> 2. Kigozi Mansul **Respondents**

## Before: Hon. Justice Dr Henry Peter Adonyo

## Ruling

1. Representation:

According to the pleadings, the applicant was represented by M/s Ms. Natala and Company Advocates.

2. <u>Background</u>:

This application was brought by way of a Notice of Motion under Section 33 of 25 the Judicature Act, Cap 13, Section 98 of the Civil Procedure Act, Cap 71 and Order 43 rule 4(1) and (5) of the Civil Procedure Rules SI 71-1 for orders that:

- a) The execution of the decree arising from the judgement and orders against the applicant in Civil Appeal No. 33 of 2017 and Civil Suit No. 48 of 2008 be - 30 - stayed pending hearing and disposal of an appeal to the Court of Appeal. - b) Costs of this application be provided for.


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## 3. Grounds:

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The grounds of this instant application as set out in the application and supporting affidavit, briefly are that;

- a) A decree was issued against the applicant with orders that the applicant and his family, agents and assignees be restrained from using the suit land and pay costs to the respondents. - b) The respondents have commenced the process of execution of the decree in Civil Suit No. 48 of 2008 against the applicants. - c) The respondents filed bills of costs in both Civil Appeal No. 33 of 2017 and Civil Suit No. 48 of 2008 and the Bills were fixed for taxation on 13<sup>th</sup> September 2022 and 5<sup>th</sup> October 2022, respectively. - d) The applicant filed a Notice of Appeal and requested a record of proceedings which was availed to him on 12<sup>th</sup> October 2002. - e) The applicant has filed the memorandum of appeal, but the respondents are moving too fast to carry out the execution before the appeal is disposed of. - f) The applicant has a plausible appeal on the merits, which raises serious legal questions and has a high likelihood of success which warrants a stay of execution. - g) The orders of stay of execution sought are intended to maintain the status - quo and to safeguard the applicant's right of appeal and not to render the same nugatory if the order is not granted. - h) The respondents shall not be prejudiced on the issuance of the order of the stay of execution. - i) The applicant shall suffer substantial loss if the application is not granted. - j) The application has been brought without any delay, and it is in the interest of Justice that the application be granted

- On the other hand, the respondent did not file a reply despite an affidavit of $\mathsf{S}$ service of the application to M/s Ogire and Company Advocates who were advocates on the court record deposed by a one Ecutu Robert c/o Ms. Natala and Company Advocates and filed in court on 30 November 2022. - 4. <u>Submissions</u>:

Only the applicant filed his submissions. It is accordingly considered. 10

- 5. Issues: - a) Whether this application discloses grounds for the grant of an order for a stay of execution? - b) What remedies can be availed to the parties in the circumstances? - 6. Resolution: 15

The applicant brought this application under Section 98 of the Civil Procedure Act, Cap 71. This is the provision of the law grants unlimited inherent powers onto the High Court for it to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.

In addition, the application is brought Order 43 Rules 4 (1) of the Civil Procedure 20 Rules, which provides the High Court with the powers to stay any execution even where an appeal has been preferred so long as sufficient cause has been shown. states that;

Accordingly, an applicant who invokes the High Court to exercise the above powers must prove to the High Court that the invocation of such powers is 25 deserved.

Therefore, an applicant who wishes the High Court to exercise such wide powers in their favour has the burden to prove that the said powers should be exercised in their favour based on sound evidence and reasons within the terms of Sections 101 and 102 of the Evidence Act.

- This application is thus examined in accordance with the above provisions of the $\mathsf{S}$ law in mind to determine whether it complies with the stringent grounds which may convince the High Court to exercise its discretionary powers as invoked. - a. Issue one: Whether there is a proper case for grant of an order for a stay of execution? - In this application, the applicant raises grounds for an order of stay of execution 10 of the decree arising from the judgement and orders made against him in Civil Appeal No. 33 of 2017 and Civil Suit No. 48 of 2008.

In the case of Lawrence Musiitwa Kyazze vs Eunice Busingye SCCA No. 18 of 1990, the Supreme Court of Uganda laid down grounds which a court may consider when confronted with an application of this nature and these are;

- a) The applicant must show that he lodged a notice of 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 the due performance of the decree or order as may ultimately be binding upon him.

The grounds in Lawrence Musiitwa Kyazze vs Eunice Busingye (cited above) were reiterated by the Supreme Court itself in its decision in the case of *Hon Theodore* Ssekikubo and Ors vs The Attorney General and Ors Constitutional Application No.

- 3 of 2014 with the Court of Appeal of Uganda following suit in the case of 25 Kyambogo University vs Prof Isaiah Omolo Ndiege CACA No. 341 of 2013, and even extending the list of the grounds to include; - a) There is a serious or imminent threat of execution of the decree or order, and if the application is not granted, the appeal would be rendered nugatory.


b) That the application is not frivolous and has a likelihood of success.

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- c) That the refusal to grant the stay would inflict more hardship than it would avoid - d) The Applicant must show that he lodged a notice of appeal.

Accordingly, dos this application meet those grounds as above? To answer this question, I will examine the grounds presented by the applicant to decide 10 whether or not a stay of execution can be granted in the favour of the applicant.

a) The applicants must show that they lodged a Notice of Appeal:

This application appears to have been essentially prompted by the fact that taxation of bills of costs in Civil Appeal No. 033 of 2017 and Civil Suit No. 48 of 2008 were set for 13<sup>th</sup> September 2022 and 5<sup>th</sup> October, 2022.

In support of this application, the applicant states in his affidavit in support of the application that he filed a Notice of Appeal to the Court of Appeal and had requested a record of proceedings availed to him on 12<sup>th</sup> October 2022. This averment is reiterated by Counsel for the applicant in the submissions in

- argument of this application with a slight addition that the said notice of appeal 20 had been also filed at the Court of Appeal to safeguard the applicant's right of appeal against the judgement and orders of the High Court. A Notice of Appeal attached as annexure "D" and a request for the record of proceedings and the availing of the same are attached as annexure "E" and Annexure "F", respectively. - The Notice of Appeal was filed in this court on 8<sup>th</sup> June 2022 and also the request 25 for proceedings which were availed to the applicant are evidenced by the letter of the Assistant Registrar of this court dated 12<sup>th</sup> October 2022.

In the case of Attorney General of the Republic of Uganda versus the East African Law Society and Anor EACJ Application No. 1 of 2013 which was cited with approval


in Equity Bank (U) Ltd vs Nicholas Were Misc Application No. 604 of 2013, it was $\mathsf{S}$ held that;

> "A notice of appeal is a sufficient expression of an intention to file an appeal and that such an action is sufficient to found the basis for grant of orders of stay in appropriate cases."

- From the facts a presented in relations to this ground, I would find and conclude 10 that because the applicant has shown by affidavit evidence and attachment that indeed a notice of appeal and request for proceedings have properly been filed in compliance with the holding in Equity Bank (U) Ltd vs Nicholas Were (above), then the finding of this court the first ground required for an application of this 15 nature does exist and is proved by the applicant. - b) That substantial loss may result to the Applicant unless the stay of *execution is granted:*

The next ground to examine is that of whether substantial loss may result to the Applicant unless the stay of execution is granted. In trying to prove this ground, the applicant deposes in his affidavit in support of this application that he will 20 suffer substantial loss if this application is not granted because of the fact that the existing status quo in regard to the dispute between the parties herein is that he has been occupying the suit land since 1994 from which he derives his sustenance while on the other hand the respondents will not be prejudiced if the order of stay is granted since they have not been deriving their livelihood from 25 the suit land.

Counsel for the applicant submits that since the respondents are not occupying the suit land or deriving sustenance from the same, their loss can be atoned through costs and damages.

$\mathsf{S}$ In the case of *Eriab Kabigiza vs Lawrence Sserwanja (1975) HCB 199* it was held that;

"The main criterion for staying execution should be whether the judgement debtor would suffer substantial loss if the decree was executed not withstanding that the decree might subsequently be set aside".

In the case of *Tropical Commodities Supplies Ltd and Others Vs International Credit* 10 **Bank Ltd (in liquidation)** [2004] 2 EA 331, the court was of the opinion that;

"Substantial loss does not represent any particular size or amount but refers to any loss, great or small that is of real worth or value as distinguished from a loss that is merely normal."

- In this instant case, the applicant contends that since 1994 he has been occupying 15 the suit land from which he derives sustenance and to which he shall suffer substantial loss if the stay of execution is not granted unlike the respondents whose loss can be atoned through costs and damages. However, I am not satisfied that the applicant has demonstrated or given any documentary proof to - 20 show his occupation of the suit land or that he has deriving sustenance from the suit land. This is a requirement which must be proved and not merely stated for the courts of law are not, without good reason, envisaged to delay a successful party from enjoying the fruits of his or her judgement as was pointed in **Membe** vs Mayoga [2009]1 HCB 82 except only where the court has been moved by a party to halt the execution any process where the applicant has provided 25 evidence to prove his/her occupation or his/her deriving sustenance from the suit land.

Since neither of these two distinct elements have been proved, I would find the applicant has not proved this ground. c) There is a serious or imminent threat of execution of the Decree or order, and if the Application is not granted, the Appeal would be rendered nugatory.

The applicant, in his affidavit in support of the application, state that the orders of stay of execution sought are intended to maintain the status quo and to safeguard the applicant's right of appeal and not to render his appeal nugatory if 10 the order is not granted.

The applicant also deposed that the respondents were moving very fast to carry out the execution before the appeal is disposed of as they had taken active steps to execute both the High Court and Magistrate Grade One Courts decrees and orders given the fact that they had already filed bills of costs in both courts as

evidenced by annexures "G" and "H".

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The applicant further states that the respondents have, since the delivery of the judgment in Civil Appeal No. 033 of 2017, been seen severally inspecting the suit land and that the applicant had learnt that the respondents intend to sell off the land before the appeal is disposed off.

Counsel for the applicant reiterated these averments in submissions and added that it was crystal clear that the respondents were taking every step to execute court decrees against the applicant which is steps are serious and imminent threat of execution of the decrees against the applicant.

In the case of Hwang Sung Industries Ltd vs Tadjin Hussein [2008] ULR 310 the 25 court highlighted the requirement of serious imminent threat, thus;

> "For a stay of execution to be granted, there should be a serious threat of execution before the hearing of the main application."

While the applicant alludes to the filing of bills of costs by the respondents, which $\mathsf{S}$ are indeed on the court record, there is no application on record of a Notice to Show Cause why execution should issue which in my considered view would be an indication that a serious and imminent threat of execution of a court decree is in the offing. Since no notice to show cause is yet to be filed yet, I would consider this application as being alarmist as mere filing of a bill of cost is not 10 sufficient to prove imminent danger of execution and so this ground has not been satisfied by the applicant.

d) The application has not been made without unreasonable delay:

The applicant, in his affidavit in support of this application states that the application has not been brought without any delay. This ground was not 15 submitted upon by Counsel for the applicant. Nevertheless, in the case of *Ujagar* Singh vs Runda Coffee Estates Ltd [1966] EA 263, Sir Clement De Lestang, Ag. V. P was of the view that:

...it is only fair that an intended appellant who has filed a notice of appeal should be able to apply for a stay of execution... as soon as possible and not have to wait until he has lodged his appeal to do so. Owing to the long delay in obtaining the proceedings of the High Court it may be many months before he could lodge his appeal. In the meantime, the execution of the decision of the court below could cause him irreparable loss. (emphasis mine).

In respect of this application, the perusal of the record show that judgement in $-25$ Civil Appeal No. 33 of 2017, which dismissed the appeal and upheld the orders of the trial magistrate in Civil Suit No. 48 of 2008, was entered on 31<sup>st</sup> May 2022. The notice of appeal was filed on 08<sup>th</sup> June 2022 and this instant application was filed on 14<sup>th</sup> October 2022. Considering the number of days in between the judgment which dismissed the appeal and the filing of this application, one would 30

notice that there were a total 136 days or four months, fourteen days in between $\mathsf{S}$ which evidently according to the case of *Ujagar Singh vs Runda Coffee Estates Ltd* (cited above) is not "as soon as possible". Since no particular reason was preferred as to why such a delay was encountered in making this application, it is my considered view that by filing this application after a period of over four (4) months, which ordinarily should have been made at most within one (1) month, 10 if matters were to be stretched to the limit, then I would find that this application

was delayed.

*e)* <u>That the application is not frivolous and has a likelihood of success:</u>

The applicant states in his affidavit in support of the application that his appeal is plausible, has merits and raises serious legal questions and has a likelihood of 15 success which warrants a stay of execution. The applicant, however, does not elaborate on these by attaching a Memorandum of appeal which this court would satisfy itself that indeed the averred plausibility is valid.

In the absence of a memorandum of appeal, it is not likely that this court can evaluate the merits and the likelihood of success of the applicant's appeal as the 20 applicant would want this court to believe. This is because, as was held in the case of Baguma Paul T/A Panache Associates Vs Engineer Karuma Kagyina High *Court Misc. Application No. 460 of 2020;*

> "... there is ... no material upon which this Honourable Court can act to determine whether there's an appeal in the first place and secondly whether the said appeal if any has any likelihood or possibility of success."

While the applicant state that he filed a memorandum of appeal, the same is evidently absent from the record herein. This is in spite of the fact that the applicant himself deposes to the fact that he was availed and did receive the


certified proceedings upon which he should have been able to formulate the $\mathsf{S}$ grounds of his intended appeal.

Therefore, since this court cannot see the alleged memorandum of appeal where grounds for the intended appeal are stated upon which this court could establish whether the appeal has a likelihood of success or not such that this instant application can be considered, then this court is constrained to find that no 10 foundation has been laid on which this court would make a finding that the intended appeal by the applicant has a likelihood of success. Accordingly, this ground is wanting and is not proved.

f) That the Applicant has given security for due performance of the decree or 15 order as may ultimately be binding upon him:

In relations to whether the Applicant had given security for due performance of the decree or order as may ultimately be binding upon him, Counsel for the applicant while submitting on this ground relied on the case of Kawalya vs Namyalo HCMA No. 12 of 2017, that the payment of security for the due performance of the decree was not mandatory.

Counsel further submitted that the applicant has a plausible appeal which is not frivolous or vexatious and that his inability to pay for security for due performance should not fetter his right of appeal.

In the case of Imperial Royale Hotel Ltd & 2 Others versus Ochan Daniel Misc Application No.111 of 2012, the court was of the similar view like in the case of 25 Kawalya vs Namyalo (cited above) that the depositing of security for costs is not a condition precedent to the grant of stay of execution.

While I do agree with the holdings in the two cases cited above that the depositing of security for costs is not a condition which should be precedent to

- the grant of stay of execution, I would assert, in light of Section 98 of the Civil $\mathsf{S}$ Procedure Act, that the question of whether should applicant deposit or not any security for costs so that the court may grant of stay of execution, is an exercise of discretion by a court which discretion can only be exercised upon viewing the circumstances of each particular case. - In this application, the respondents did neither file an affidavit in reply nor 10 submission. This aspect is thus not raised. However, the applicant has not favored this Honourable Court with the memorandum of his appeal which would enable this Honourable Court to assess whether it should or not exercise its discretion. and as such would not be a roadblock for due performance of the decree. - The default position then would be that the applicant would be required to pay 15 security for due performance of the decree unless the contrary circumstances are demonstrated and proved which in this application have not been so. Therefore, since this ground is wanting in evidence, I would resolve that it is not proved and a such this court would not exercise its discretion for or against the depositing of security for costs. 20

Before I take leave of the matter, I would want to point out that according to the Uganda Civil Justice Bench Book at page 253, a stay of execution only operates to prevent a judgement creditor from putting into operation the legal process of execution and should not be used to deprive a successful holder of a decree from obtaining the fruits of his judgement.

This conclusion is in my view at fours with the holding by the Supreme Court in the case of Wilson Mukiibi vs James Semusambwa Supreme Court Civil Application *No. 9 of 2003* where it was pointed out that;

"It is trite that an intention to appeal per se is not a ground for a stay of execution and instituting an appeal does not operate as a stay of execution. A party seeking a stay of execution must satisfy the court that there is sufficient cause why the party with judgment should postpone the enjoyment of its benefits. It is not sufficient for the judgment debtor to say that he is vulnerable, because the successful party may take out execution proceedings..."

Overall, I find that the applicant has failed to meet all the grounds precedent to the grant a stay of execution.

Accordingly, this instant application for a grant of stay of execution of the decrees and orders in Civil Appeal No. 33 of 2017 of this Honourable Court and Civil Suit 15 No. 48 of 2008 of the Chief Magistrate's Court of Soroti at Soroti, fails.

b. Issue No. 2: What remedies are available to the parties in the circumstances?

Since the application is disallowed, the only remedy available is its dismissal with 20 costs to the respondents.

I so order.

Hon. Justice Dr Henry Peter Adonyo

Judge

7<sup>th</sup> July, 2023

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