Ongom Vs Sebunya (Reference No. 50 of 2013) [2015] UGCA 43 (12 June 2015)

# THE REPUBLIC OF UGANDA

#### IN THE COURT OF APPEAL OF UGANDA

#### AT KAMPALA

## CIVIL REFERENCE NO.50 OF 2013

(ARISING FROM MISCELLANEOUS APPLICATION NO. 84 OF 2013)

(ARISING FROM MISCELLANEOUS APPLICATION NO. 83 OF 2013) $10$

(ARISING FROM NAKAWA HIGH COURT CIVIL REVISION NO. 05 OF 2012)

(ARISING FROM NAKAWA CHIEF MAGISTRATES COURT CIVIL SUIT NO. 23 $OF 2008)$

BENSON ONGOM ::::::::::::::::::::::::::::::::::::

**VERSUS**

SEBUNYA ROBERT ::::::::::::::::::::::::::::::::::::

# Coram: Before Hon. Justice A. S Nshimye, JA (Single **Judge)**

$20$

$25$

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$\mathsf{S}$

### **RULING OF COURT.**

## Background of the Appeal.

This reference is in a way an appeal challenging the ruling of the learned Registrar of 8.4.2013 in which he dismissed the appellant's application for an order of interim stay of execution pending the hearing of Misc Appl.83/2013 a substantive application for stay pending appeal.

The appellant was sued by the respondent at Nakawa for vacant possession, a permanent injunction, general damages, mesne profits and for a declaration that he was

the rightful owner of the suit property. In his written statement of defence, the appellant denied the claim and included a counter claim of shs. 31,000,000/- The counter claim was dismissed and the prayers of the respondent were granted including an eviction order.

Being dissatisfied with the outcome of the suit, the appellant filed an application for revision in the High Court at Nakawa. His grounds were that the learned magistrate had no jurisdiction to handle a suit where the value of the subject matter was above Twenty Millions shillings. The application for revision was dismissed.

The appellant being further dissatisfied with the ruling, filed a notice of appeal in the High Court on 20.3.2013. He 45 filed two applications in this court, one for stay of execution and another for an interim stay of execution, vide Miscellaneous Applications NOs. 83 and 84 of 2013 respectively.

Miscellaneous Application NO. 84 of 2013 for an interim order of stay was heard and dismissed by the Registrar of this court as earlier stated hence this reference.

This reference is premised on four grounds namely;

1. That the Registrar erred in fact and law in 55 refusing to grant the orders of stay of execution of the decree in High Court Civil Suit NO. 5 of 2012.

- $2.$ That the Registrar erred when he failed to hold that this was a proper case for the grant of an interim order. - 3. That the Registrar erred when he exercised his discretion wrongly before reaching his decision.

4. That the learned Registrar erred in law and fact in awarding costs.

## Representation.

Mr. Alfred Okello Oryem represented the appellant while 70 Mr. Mafabi Godfrey represented the respondent.

Submissions for the appellant.

On the first and second grounds, counsel submitted that in the affidavit in support of the application for an interim stay of execution, the appellant stated that after losing his $75$ application for revision in Nakawa High Court, the respondent has consistently threatened to execute the decree of the Grade one Magistrate through eviction. He referred court to annexure "C" which was a notice to the appellant to vacate the suit property or face eviction. 80

The appellant stated in paragraphs 8, 9 and 12 of his affidavit that he was confronted by the respondent who assured him that he would evict his tenants and continues to do so.

Counsel faulted the learned Registrar for failure to apply the law to the facts, otherwise he should have found that there was actual threat by the respondent which is a condition precedent for granting an interim order for stay of execution.

That execution had already been granted by the Executions Division of the High Court but was stayed by Justice Arach Amoko, JA in Civil Application No. 140 of 2013.

On the third ground on exercise of discretion by the **Registrar**, counsel contended that the Registrar failed to judiciously exercise his discretion and reached a wrong conclusion.

He submitted that this Court can interfere with the decision of the Registrar if it is found that he misdirected himself in some matter and as a result arrived at a wrong decision or if it is manifest from the case as a whole that 105 the Registrar was wrong in the exercise of his discretion and as a result there had been miscarriage of justice, as was held by Newbold, P. in the case of **Mbogo and Another** Vs Shah (1968) EA 93.

He invited Court to interfere with the exercise of discretion by the Registrar in order to meet the ends of justice and grant an order of an interim stay of execution.

On the fourth ground on the award of costs, counsel 115 submitted that, they should abide the outcome of the substantive application for stay of execution.

In conclusion, counsel prayed that the reference be allowed and the orders sought in **Civil Application NO. 84 of 2013** be granted.

## Submissions for the respondent.

briefly highlighted the $\quad\text{ of }\quad$ Counsel background the application and stated that the applicant applied for an 125 interim order of stay which application, was dismissed on the ground that there was no threat of execution. In support, counsel cited Rule 55 of this court's rules which provides that the court has only got to look at the record and nothing else. 130

He argued that the applicant had made no application to adduce additional evidence which meant that he would rely only on the evidence on record. In support of his submission, referred to the case of **Goodman Agencies** 135 Ltd. Vs Hasa Agencies (K) Ltd, Supreme Court Civil **Reference No. 1 of 2011** where it was held that the court is mandated only to look at materials on the file hence this court ought to restrict itself to the application and the reply in order to determine whether the reference has merit or 140 not.

On the first ground on whether the Registrar erred in fact and law in refusing to grant the orders of stay of execution of the decree.

Counsel argued that in Civil Suit No. 05 of 2012 the applicant and the respondent were not parties to it and the matter was not before the Registrar. That the parties were bound by their pleadings.

He prayed that ground one be rejected because it was not before the Registrar to determine.

## Regarding the second ground whether or not the Registrar erred when he failed to hold that this was a 155 proper case for the grant of an interim order of stay,

Counsel invited court to look at the application and note that there was no evidence to show any threat save for a statement that the person in the house was a tenant which was denied by the respondent. That there was no affidavit in rejoinder to prove that the respondent made any threats.

Counsel submitted that the applicant relies on the letter by a lawyer issued before Civil Division. He stated that the execution was concluded in accordance with annexure ' $L$ ' a "consent" on the affidavit in reply. That the respondent asked the applicant to give him time to remove his tenant and vacate on 24<sup>th</sup> October 2012.

Counsel submitted further that the applicant did not 170 demonstrate any threats at the time of the hearing and that there was no application or warrant of execution. That this court has inherent powers to prevent abuse of court process and the Registrar was alive to the facts and law and was right to dismiss the application. He referred to the 175 case of Hwang Sung Industries Ltd. Vs Tajdin Hussein & 2 others, Supreme Court Civil Application NO. 19 of **2008** which laid down the conditions for the grant of such interim orders.

Counsel also referred to the case of **Orient Bank Ltd. Vs F.** J. Zaabwe and five others, Supreme Court Civil **Application NO. 19 of 2012** where it was held that it was not proper to institute an application for stay when there is no evidence of an order and that a Registrar of the Supreme Court could not issue a warrant without an order.

That the failure to file an affidavit in rejoinder was evidence of admission of the contents in the respondent's affidavit. He relied on section 14 of the Evidence Act.

On the third ground on whether the Registrar exercised his discretion in correctly reaching his discretion, counsel argued that the Registrar's exercise of his discretion was within the law. He adopted his submission in ground two. He also referred to the case of **Mbogo and** 195 Another Vs Shah (supra).

**On costs**, counsel stated that they follow the event and the Registrar was right to award costs. In support, he cited section 27 of the Civil Procedure Act.

In conclusion, counsel prayed for the dismissal of the reference with costs to the respondent.

#### Submissions in rejoinder. 205

Counsel stated that the appellant's case was that there was threat of execution of the decree in Civil Suit No. 23 of 2008 and referred to annexure 'L' to the affidavit in reply $\mathbf{L}$ dated $10^{th}$ October 2012 and annexure 'C' a letter dated $5^{th}$ October 2012 directing vacant possession to the occupant of the house in days yet according to his learned friend, this issue was concluded.

$w = \frac{w}{w}$

That the appellant filed an affidavit in support and the threats were included therein as directed to his tenant. $215$ That the respondent's denial had no effect in respect of threats from court bailiffs and the Registrar should have found this letter a threat, worth granting of the application.

That although all matter relating to whether a threat 220 existed had been overtaken by subsequent events, under section 38 of the Evidence Act, it is a principle that court takes judicial notice of judgments and that **Civil Application NO. 140 of 2013** between the same parties, Justice Arach found as a fact that execution had been 225 issued by the Execution Division of the High Court.

That execution should have been carried out if it were not for the application for its stay the consequence of which would have been, to render Miscellaneous Application NO.3 as well as the appeal nugatory. That this Court under **Rule** 1 (2) of its rules; does not have to ignore the facts. Doing so would cause a miscarriage of justice.

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In reply to the submission of counsel for the respondent, counsel admitted that the matters were not part of the pleadings, but they were in the judgment although they were not brought in the evidence.

On ground one, counsel stated that the record before Court clearly demonstrates that the dispute arises from Civil Reference NO. 5 of 2012 and the ruling of Justice Arach gave a detailed reference and a mere technicality should not based on to deny substantial justice. He cited 245 Article 126 (2) (e) of the Constitution of the Republic of Uganda.

He further argued that they did not dispute the fact that the Registrar was alive to the law but instead, he failed to 250 apply it to the facts while evaluating the evidence.

That although the threat was directed to his tenant, it also affected the appellant.

Counsel submitted that since there was warrant of execution and had lapsed by the time the matter came before the Registrar, it was consistent with the threat. The threatened by that warrant hence appellant was subsequent actions. In support he referred to the case of Hwan Sung Industries Ltd. v. Tajdin Hussein & 2 others, Supreme Court Civil Application NO. 19 of 2008.

- Counsel prayed that Court exercises its inherent power, 265 overrule the Registrar's orders and grant the interim order because there was evidence before the Registrar which he failed to evaluate. - On existence of a decree, counsel agreed with the authority 270 of **Freidrick Zaabwe** and that indeed there were Civil Suit No.23 of 2008 and Civil Revision No. 5 of 2012. There was a decree for execution.

The Court should ensure that no miscarriage of justice takes place since the arguments as advanced by counsel 275 for the respondent were for the main appeal and not for an interim order. it should be shown that:-

- 1. A Notice of appeal was filed. - 2. A Substantive application for stay is pending hearing. - 3. There is a serious threat of execution.

These were not considered by the Registrar hence he improperly exercised his discretion.

**On costs,** counsel faulted the Registrar and cited **Section** 27 of the Civil Procedure Act to support his submission that costs follow the event of the dispute between the parties. Counsel reiterated his earlier prayers.

## Findings of court.

## Ground one, two and three.

Whether the learned Registrar erred in fact and law in refusing to grant the interim order of stay of execution of the decree in HCCS No. 05 of 2012 when he ruled that there was no serious threat of execution, whether or not the Registrar erred when he failed to hold that 295 this was a proper case for the grant of an interim order and whether the Registrar exercised his discretion in reaching his discretion.

The appellant's application is as a result of the Registrar's 300 ruling of declining to grant an interim stay of execution because he found no threat of execution.

On the propriety of the application, the appellant relied on the threat of execution by the respondent and in his 305 affidavit in support of his application for an interim order; he stated that ever since he lost Civil Suit NO. 23 of 2008, he has been threatened with execution.

On $10^{th}$ October 2012, there was a letter between the 310 appellant and respondent where it was agreed that the

appellant would vacate the suit property on 24<sup>th</sup> October 2012. This letter was attached as annexure "L".

- On $17<sup>th</sup>$ May, counsel for the appellant was issued with a 315 copy of a warrant of vacant possession of the suit property by His Worship Muwata. The warrants of execution were annexed as " $B$ " and " $C$ ". - Basing on those threats, the learned Justice Arach Amoko, 320 JA (as she then was) granted stay of execution.

At the time of hearing of this application, nothing was highlighted on the current status of the suit property which I would like to imagine is as it was.

This Court is alive to the fact that a successful litigant should not be deprived of the fruits of his litigation. Equally an appellant should not be deprived of his right of appeal otherwise the appeal would be rendered a nugatory.

Although the respondent relies on annexure "L" to defend his interest in as much as he considers it as an agreement, this was however followed by various events as highlighted above.

The Registrar in his ruling found no threat of execution basing on Civil Revision NO. 5 of 2012 yet this was arising out of **Civil Suit NO. 23 of 2008**. The revision was in relation to jurisdiction of the trial Magistrate which in

the end was dismissed and various orders were made. They included the enforcement of the orders made by the Magistrates Court in **Civil Suit NO. 23 of 2008.** This was a re- affirmation of the first trial court's orders hence execution of which would mean execution of **Civil Suit NO.** 23 of 2008 and the respondent cannot claim that there was no application for execution since it was clearly on the file as annexures " $B$ " and " $C$ ".

There are wealth of authorities to be followed by courts 350 before stay is granted. Some of these authorities were rightly quoted by both counsel for example in the case of Hwang Sung Industries Ltd vs Tajdin Hussein and others, Supreme Court Civil Application NO. 19 of **2008**, it was held by G. M Okello JSC (as he then was) that 355 for an application for interim order it suffices that a substantive application is pending **and that there is some** threat of execution before the hearing of the pending **substantive application**. It is not necessary to pre-empt consideration of the matters necessary in deciding whether 360 or not to grant the substantive application for stay"

In the case of Akright Project v. Executive Property Holding and 12 others Supreme **Civil** Court $\mathbf{5}$ Application No. 3 of 2011 Justice Kitumba (JSC) held that the Court in addition to considering that a notice of 365 appeal has been filed and that there is a substantive application has to consider whether there are special circumstances to warranty such an interim order. An

example of that would be the immediate destruction of the suit property"

National Enterprise Corporation versus **Mukisa** $\mathbf{In}$ Foods Miscellaneous Application No. 7 of 1998 this Court held that;- "The Court has power in its discretion to grant stay of execution where it appears to be equitable to do so with view of temporarily preserving the status quo. As a general rule the only ground for stay of execution is for the applicant to show that once the decretal property is disposed of there is no likelihood of getting it back should the appeal succeed.

$370$

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The Registrar in exercising his discretion should have considered the law and the circumstances of the case as a whole with the evidence available. I find that there was actual threat of execution evidenced by extracted decrees, 385 warrants of execution and written eviction letters.

I therefore find that the learned registrar erred in finding that there was no evidence of threat of execution then.

## On the fourth ground on whether the learned Registrar erred in law and fact in awarding costs.

I would like to associate myself with finding of the learned Judge in Civil Application No. 140 of 2013 where she ordered that the costs do abide the outcome of the 395 substantive application, that ground also succeeds.

The application succeeds; the order of the Registrar dismissing the application for an interim order of stay is set aside

- I grant an interim order of stay which will be valid for 60 400 days from the date hereof. I direct the Registrar to fix the main application before a full panel in the current Constitutional Civil Session before the said before 60 days expire. - I so order. 405

Before I take leave of this matter, let me state that in the course of writing the ruling, I called for the court file containing the substantive application from the registry and I was disappointed to discover that the applicant has not taken any step since 18.3.2013 when the application 410 came for conferencing. Neither himself nor his counsel have the main application fixed. appeared to The respondent appeared. The dilatory conduct of the appellant has greatly contributed to the clogging of our court system. I also found out that apart from the Notice of Appeal that 415 was filed on 20<sup>th</sup> March 2013, our Court Registry does not have an appeal file containing a court record from the High Court upon which the appeal is premised.

This again shows that after writing a letter requesting for the record, he has not bothered to persue the matter and have the record filed in the court.

Though the reference has succeeded, I have no doubt that the applicant is using delaying tactics to frustrate the respondent's victory in the lower court. That is more the 425

reason that the main application should be fixed and disposed of as soon as possible.

DATE AT KAMPALA THIS....................................

HON. JUSTICE A. S. NSHIMYE, **JUSTICE OF APPEAL**

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Mafabi Godfrey for respondents Karwani Ronard for applicant Resp. par

App. about

Amur Mboliya court clark

Mr. Mafabi The Metter in for main and we are ready to receive le (It Auting delivered in Chambers 16 12/06/15