Ongwen v Bazanya (Miscellaneous Application 304 of 2023) [2024] UGHC 671 (18 July 2024)

Full Case Text

#### THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT JINJA

# **MISCELLANEOUS APPLICATION NO. 304 OF 2023**

## [Arising from Court of Appeal Civil Appeal NO. 1582 of 2023]

### [Arising from High Court Civil Suit No. 2 of 2019]

#### ONGWEN MEDARD FREDRICK::::::::::::::::::::::::::::::::::::

#### **VERSUS**

## JUSTINE BAZANYA:::::::::::::::::::::::::::::::::: **BEFORE: HON. LADY JUSTICE FARIDAH SHAMILAH BUKIRWA NTAMBI RULING**

#### Introduction.

This is an application for an order of stay of execution of the decree in High Court Civil Suit No.02 of 2019 brought under S.83 of the Judicature Act, S. 98 of the Civil Procedure Act, and Order 22 rule 23 (1) & rule 89 (1) of the Civil Procedure Rules (CPR) SI 71-1 as amended.

The grounds of the application are set out in the Notice of Motion and expounded on in the supporting affidavit deponed by Ogwen Medard Frederick but briefly are that;

- a) The Applicant was sued by the Respondent in the High Court for allegedly claiming to be the husband of the late Cissy Bazanya, the Respondent's sister. - b) That the matter was heard and judgment was entered against the Applicant on 17th of November, 2023. - c) That the Applicant having been dissatisfied with the whole decision of court filed a Notice of appeal, a Memorandum of appeal and the Record of appeal via ECCMIS in the Court of Appeal under Civil Appeal No. 1582 of 2023. - d) That the said appeal has a likelihood of success and it will be rendered nugatory if the stay of execution is not granted. - e) That the Respondent and Police had locked out the Applicant and his relatives, who included minors, from the property comprised in Plot 32 Myule Crescent without any execution orders.

- f) That the Respondent with the assistance of Police instead used the Police to prefer charges of criminal trespass upon the relatives of the Applicant. - g) That the Applicant will suffer substantial loss and injury if the stay of execution is not granted. - h) That this Application has been brought without unreasonable delay.

In reply, the Respondent opposed this Application in an Affidavit in Reply deponed by Justine Bazanya wherein she stated that she is the administrator of the estate of the late Cissy Bazanya. She further stated that the prayers sought in the Application have been overtaken by events according to the information from her lawyers as she has since sold the property comprised in Plot 78 Main Street Jinja and Plot 32 Mvule Crescent. That she has equally filed an inventory in this court and that she was informed by her lawyers that the Applicant has not furnished security for the due performance of the decree which is ultimately binding on him. She prayed that the court finds that this Application is incurably defective and the same be struck out with costs.

#### **Representation**

The Applicant was represented by M/S T-Davis Wesley & Co. Advocates while the Respondent was represented by M/S Kajeke, Maguru & Co. Advocates.

#### **Determination by court**

From the onset, it should be noted that whereas this court directed the Applicant to file his written submissions by 13th June 2024 and the Respondent by 20th June 2024, there are no submissions by the Respondent on the court record. As a result, this court shall move to determine this Application based despite the absence of the Respondent's submissions on the court record.

On the part of the Applicant, his counsel filed submissions which were neither signed nor dated. This court shall not rely on submissions whose author I cannot confirm and as a result, I shall move to determine this Application relying on the affidavits on court record.

The law governing applications for a stay of execution such as this one is set out under Section 98 of the Civil Procedure Act cap 71 which grants the High Court inherent powers to stay its orders.

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Further, 0. 22 r. 23 (1) of the CPR SI 71-1 provides that;

"The court to which a decree has been sent for execution shall, upon sufficient cause being shown, stay execution of the decree for a reasonable time to enable the judgment debtor to apply to the court to which the decree was passed, or to any court having the appellate jurisdiction in respect of the decree or the execution of the decree, for an order to stay the execution, or for any other order relating to the decree or execution which might have been made by the court of first instance ..."

The above rule gives this court discretion to stay execution in civil proceedings where it has passed the decree pending appeal in the appellate court.

Several authorities such as **Gashumba Maniraguha Versus Sam Nkundive SSCA NO. 24** OF 2015 & Dr. Ahmed Muhammed Kisuule Versus GREENLAND BANK IIN **LIOUIDATION** have laid down the considerations for the grant of a stay of execution as follows:

- a) The Applicant must establish that his appeal has a likelihood of success, or a *prima facie case of his right of appeal,* - b) The applicant will suffer irreparable damage or that the appeal will be rendered nugatory if a stay is not granted. - c) If 1 and 2 are not established, Court must consider where the balance of convenience lies. - d) That the application was instituted without delay.

The Court of Appeal in Kyambogo University v. Prof. Isaiah Omolo Ndiege, C. A. Misc. Civil Application No 341 of 2013 expanded the considerations to include: -

- a) That 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 appeal is not frivolous and has a likelihood of success; that refusal to grant the stay would inflict more hardship than it would avoid.

From the foregoing authorities, the question for consideration by this Court is to determine whether the Applicant has adduced sufficient reasons to justify the grant of a stay of execution. I will now deal with these considerations/conditions.

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#### a) The appeal is not frivolous and has a likelihood of success

An appeal by itself does not operate as a stay of proceedings under a decree or order appealed from nor should the execution of a decree be stayed by reason only of an appeal having been preferred from the decree. (See Order 43 rule 4 of The Civil Procedure Rules and Rule 6 (2) of The Judicature (Court of Appeal Rules) Directions). In other words, the ordinary rule is that an execution of the decree need not be stayed pending an appeal unless the appellant shows good cause.

Firstly, the court must satisfy itself that there is an appeal in existence warranting that a stay of execution pending appeal should be granted. Under Rule 76(1) of the Judicature (Court of Appeal Rules), appeals from the High Court to the Court of Appeal are commenced by lodging of a Notice of Appeal with the Registrar of the High Court. It follows, therefore, that where a party has lodged a Notice of Appeal in accordance with the law and has applied for a certified record of proceedings from the trial court, such a party is deemed to have filed an appeal to the Court of Appeal and has a right to apply for a stay of execution of the judgment or decree of the High Court. (See Makerere University and Another Vs Ndagire Joyce and others Misc. Application No.1030 of 2023.) In Paragraph 4 of the affidavit in support of the Application, it is clearly stated that the Applicant, upon being dissatisfied with the decision of the trial judge, lodged a Notice of Appeal to challenge the said decision under Civil Appeal No.1582 of 2023 and the same is pending determination. This averment has not been disputed by the Respondent.

The applicant filed a Notice of Appeal and applied for a certified copy of the record of proceedings on 20th November, 2023. This court is therefore satisfied that a notice of appeal was filed and is on court record.

Secondly, the court must be satisfied that the prospects of the appeal succeeding are not remote and that there is a realistic chance of the appeal succeeding. The grounds of appeal should be arguable and should be premised on a sound and rational basis, founded on the facts and the law, with a measure of certainty justifying the conclusion that the appellate court will differ from the court whose judgment has been appealed against; that the appellate court could reasonably conclude differently from that of the trial court.

The appeal will be considered frivolous if prima facie the grounds intended to be raised are without any reasonable basis in law or equity and cannot be supported by an argument in

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good faith. If there is strong evidence to demonstrate that the appeal has no merit, for instance that the appeal was filed in bad faith or intended to delay justice, then the appeal can be regarded as being frivolous. Further, where additional evidence is adduced demonstrating the applicant's conduct of prior litigation which may show that the appeal is merely part of a series of suits, applications and appeals over the same subject matter in which the applicant has engaged with no success or no chance of success, then such appeal qualifies as being frivolous. The prior litigation or procedural history of the appellant can be used to establish the present appeal's lack of merit or the applicant's bad faith in filing the present appeal.

To determine whether the intended appeal has a likelihood of success, the court will rely on the memorandum of appeal. This court has perused the memorandum of appeal on the court record and is satisfied that the grounds of appeal raised do raise a probability of success. The intended appeal is not frivolous and therefore, there is a possibility of success.

### b) There is a serious or imminent threat of execution of the decree or order if the *application is not granted.*

Imminent threat means a condition that is reasonably certain to place the applicant's interests in direct peril. It is immediate and not merely remote, uncertain or contingent. An order of stay will be issued only if there is actual threatened execution. There must be a direct and immediate danger of execution of the decree. There should be unequivocal evidence as proof of the imminent prospect of execution of the decree by the Respondent. Steps that demonstrate a serious expression of intent include; extracting the decree, presenting and having a bill of costs taxed, applying for issuance of a warrant of execution and issuing a notice to show cause why execution should not issue. The Applicant has not adduced any evidence of such steps having been taken by the Applicant in this application.

This Application presents a unique set of facts. Whereas the Applicant is seeking a stay of execution to stop the disposal or sale of the land comprised in Plot 32 Myule Crescent and Plot 78 Main Street Jinja, there is sufficient evidence presented by the Respondent that the said properties were already sold off by the Respondent. Annexure "E" referred to in paragraph 6 of the Respondent's Affidavit in Reply is a land sale agreement in respect of Plot 78 Main Street Jinja between Justine Bazanya (the vendor) and Sarah Mutesi Namusubo (the purchaser) executed on the 24 January 2024. According to paragraph 6 of the Affidavit in Reply, the land located on Plot 78 Main Street in Jinja is currently in the names of Sarah Mutesi Namusubo having been sold to her by the Respondent. Annexure "H" also referred to

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in paragraph 6 of the Affidavit in Reply is a search report from the Ministry of Lands, Housing and Urban Development which clearly indicates the owner of the land comprised in Plot 78 Main Street Jinja as Sarah Mutesi Namusubo Winyi. Similarly, Annexure "I" is a land sale agreement with respect to land comprised in LRV 451 Plot 32 Myule Crescent Jinja District between Justine Bazanya and Kirunda Moses and the said land is currently in the name of Kirunda Moses as indicated in the search report from the Ministry of Lands, Housing and Urban Development marked as Annexure "J"

The orders issued in the decree in Civil Suit No.02 of 2019 where self-executing and as such vested the suit property in the Respondent who is the administrator of the estate of the late Cissy Bazanya. As a result, the Respondent had the powers to distribute the property of the deceased to her beneficiaries and deal with her property as well. In executing her mandate as an administrator of the estate, she sold the suit properties and as such this application for stay execution is over taken by events in respect of those properties that were sold off.

The only pending order of the decree yet to be executed is the one relating to costs. I have noted that there is an application for taxation of costs before this Court vide Taxation Application No.63 of 2023. Much as it has not been heard, it presents a serious and imminent threat of execution. I therefore find that there is an imminent threat of execution in regard to the costs granted.

### c) The appeal would be rendered nugatory; Substantial loss may result to the applicant unless the stay of execution is granted

I wish to state that the term nugatory means "of no force or effect; useless or invalid." In this context, the term "nugatory" has to be given its full meaning. It does not only mean worthless, futile or invalid, it also means trifling. The main purpose of this application is to preserve the status quo that the Applicant's right of appeal is safeguarded pending the disposal of the appeal. See Hon. Theodore Ssekikubo& Others vs. The Attorney General and Another S. C. C. A No.06 of 2013.

The court has to balance the interests of the Applicant who is seeking to preserve the status quo pending the hearing of the appeal so that his or her appeal is not rendered nugatory and the interests of the Respondent who is seeking to enjoy the fruits of his or her judgment (See Alice Wambui Nganga v. John Ngure Kahoro and another, ELC Case No. 482 of 2017 (at Thika); [2021] eKLR).

In doing so, the court has to determine whether there shall be a substantial loss that shall be suffered by the Applicant if execution proceeds before the appeal is concluded. 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 nominal (See Tropical Commodities Supplies Ltd and Others vs. International Credit Bank Ltd (in **Liquidation**) [2004] 2 5 EA 331). "Substantial loss" though cannot mean the ordinary loss to which every judgment debtor is necessarily subjected when he or she loses his or her case and is deprived of his or her property in consequence. The Applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the Applicant as the successful party in the appeal.

It should be noted that the Applicant has not demonstrated to this court the irreparable damage that he will suffer if the execution proceeds. On the contrary, as discussed above, the Respondent has already adduced evidence that the property that the Applicant is interested in has been sold off. The only remaining issue relates to the costs of the suit. The costs of the suit are monetary in nature which means that they can be compensated for. The Applicant has not adduced any evidence to prove that the Respondent will not be in a position or have the ability to pay in the event that the execution of the order as to costs proceeds.

The Court is therefore not convinced that if this Application is not granted, it will cause irreparable damage to the Applicant.

#### *d) The application has been made without unreasonable delay*

An application for a stay of execution should be made within a reasonable time. Whether the delay is unreasonable will depend on the peculiar facts of each case. Delay must be assessed according to the circumstances of each case. The reckoning of time to determine if a delay is unreasonable begins at the time the decree or order is sealed and becomes enforceable. See Kabiito Karamagi & Another v Yanjian (U) Company Limited & Anor, HC Miscellaneous Application No. 1274 of 2023; Junaco (T) Limited and 2 Others v **DFCU Bank Limited Supra.** When examining whether the application was brought without undue delay, the court has to look at the circumstances of the case as there is no statutory stipulation defining reasonable time.

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In some circumstances, courts have held that a period of over a month constitutes reasonable time depending on the facts before the court. (Junaco (T) Limited and 2 Others v DFCU Bank Limited Supra.)

In the instant case, judgment was delivered on 17th November, 2023. The application was filed nearly a month later on 14th December, 2023. I therefore do not find any unreasonable delay on the part of the Applicant in the filing of this application. This ground is made out.

Despite the fact that the Applicant fulfilled most of the conditions required for an application of stay of execution, he failed to prove that there shall be irreparable damage if the application is not granted. This court has on several occasions dismissed such applications where the tenet of irreparable damage has not been satisfied and I do not intend to change the position. See Akright Projects Limited and Another VH & L Exporters Uganda Limited (Supra), Junaco (T) Limited and 2 Others v DFCU Bank Limited(supra).

In the final result, I find that the applicant has not satisfied all the conditions necessary for the grant of an application for a stay of execution. I accordingly dismiss this application with costs to the Respondent.

I so order.

FARIDAH SHAMILAH BUKIRWA NTAMBI

**JUDGE**

Delivered by email on 18th July, 2024