Ongwen v Bazanya (Civil Application 523 of 2024) [2024] UGCA 333 (3 December 2024)

# THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

## Before: Margaret Tibulya, JA

# CIVIL APPLICATION NO. 0523 OF 2024

### (Arising from Civil Appeal No. 1582 of 2023)

ONGWEN MEDARD FREDRICK .......r..o.....ooooo..o....o.o............... APPLICANT

### VERSUS

BAZANYA JUSTINE .... RESPONDENT

## RULING OF MARGARET TIBULYA. JA

This is a ruling in an application brought under rule 6 (2),43(l) & (2), rule 44(l) of this court's rules seeking for orders that:

- I. An order for stay of execution and decree of the High Court Civil Suit No. OO2 of 2019 be granted pending the hearing and determination of Civil Appeal No. 1582 of 2023. - II. Costs of the application to be provided for.

a

The grounds of the application are contained in the affidavit in support but briefly they are that: -

- i. the applicant filed an appeal, vide Civil Appeal No. 1582 of 2023, r,,hich has a high likelihood of success. - ii. on the lSth day of July 2o24,the applicant sought and was denied an order for stay of execution by the trial Court.

iii. That the applicant shall suffer substantial loss ifthe application is not granted. The application is supported by the affidavit of the applicant expounding on the above grounds.

The respondent filed an affidavit in reply opposing the application. It was submitted that the application is speculative and premature. Further that it does not raise grounds that would warrant the grant of an order of stay of execution.

It was also argued that the application is overtaken by events and that it constitutes an abuse to the court process. The respondent further contends that the balance of convenience weighs heavily in favour of the third parties who are in possession of the suit property.

The applicant filed an affidavit in rejoinder reiterating his averments in the affidavit in support of the application.

### Analysis.

Rule6 (2) (b) of the Judicature (Court of Appeal Rules) Directions, provides that;

"subject to sub rule 1 (l) of this rule, the institution of an appeal shall not operate to suspend any sentence or to stay execution, but the court may - (a) (b) in any civil proceedings, where a notice of appeal has been lodged in accordance with rule 76 of these Rules, order a stay of execution, an injunction, or a stay of proceedings on such terms as the court may think just."

The principles upon which this court may apply the foregoing rule are well established. These are that there must be an appeal before this court which is likely to succeed or at least shown to be arguable. Secondly, that it must be proved that a

absent an order of stay of execution the applicant would suffbr irreparable loss, or the appeal would be rendered nugatory. In the event of any doubt, the court may determine the matter on a balance of convenience. See: Theodore Ssekikubo & others vs. Attorney General & anothero SCCA No. 06 of 2013.

### Likelihood of success of the appeal.

o

The key issue before the lower court was whether there had been a subsisting marriage between the late Cissy Bazanya and the Applicant. The Trial court answered this issue in the negative. The Applicant now contends that the learned trial judge erred in law and fact when she held that there was no subsisting marriage between him and the late Cissy Bazanya.

In arriving at the above conclusion, the learned trial judge considered the evidence of a forensic examiner, that the signature which was attributed to the deceased in the impugned marriage certificate did not tally with the deceased's undisputed signature in other documents which she had signed. The examiner therefore opined that the signature on the marriage certificate does not belong to the deceased.

There is no indication that there exists other compelling evidence upon v'hich this court would base to depart from the lower court's decision. The Applicant has therefore not shown that his appeal has any likelihood of success.

## Whether the applicant will suffer irreparable damage.

The finding that the appeal has no likelihood of success negates the assertion that the applicant will suffer irreparable damage if the order of stay of execution is not granted. It also negates the submission that the Applicant will lose his interest in the suit property if the application is not granted

Moreover, there is compelling evidence that this application has been overtaken by events, and that the status quo which the applicant seeks to preserve has since changed. This is based on the Applicant's averment that some of the properties in issue were sold to third parties and on the respondent's submission that third parties are now in occupation of the suit property. Since both parties agree that there is no status quo to preserve, an order of stay of execution would be superfluous.

In conclusion, I find that the applicant has failed to establish the grounds upon which this Court may exercise its discretion to grant an order of stay of execution. In the result, the application is dismissed with costs.

Dated at Kampala this $03^n$ December 2024.

Margaret Tibulya **Justice of Appeal.**