Opua v Zawedde (through her lawful attorney Balikudembe Joseph) (Civil Application 694 of 2024) [2025] UGCA 64 (25 February 2025)

Full Case Text

### THE REPUBLIC OF UGANDA

### !N THE COURT OF APPEAL OF UGANDA AT KAMPALA

### crvrr APPLTCATToN No. 0694 0F 2024

#### (ARTSTNG FROM Crvrr APPEAL NO. 0426 OF 20241

# 10 ALEX OPUA EMONGAS

APPLICANT

#### VERSUS

# MARGARET ZAWEDDE KIRYOWA (Through her lawful Attorney Balikudembe Joseph )

RESPONDENT

## Before Hon. Justice Moses Kazibwe Kawumi (sitting as a Single Justice)

#### RULING

This application was brought under Rules 6 (21 (b), 43 and 44 of the Judicature (Court of Appeal Rules) Directions, S.l. 13- L0. The Applicant sought for an order to stay execution of all orders in High Court Miscellaneous Application No.0821 of 2023, pending the determination of Court of Appeal Civil Appeal No. O426 of 2024 anrl for costs to be provided for.

#### Background

The applicant filed Civil Suit No. 660 of 2019 against the Respondent for encroachment on the access road on part of land comprised in Block 195 plot 5025 at Kyanja and also successfully filed Miscellaneous Application No.1193 of 2019 seeking an order of a temporary injunction to maintain the status quo until the determination of the main suit.

5 10 Despite the existence of the order maintaining the status gUo, it was alleged that the Respondent carried out further developments on the fand. Miscellaneous Application No. 821 of 2023 was filed and the Respondent was found to be in contempt of court orders. Aggrieved with the finding of the trial judge, the Respondent filed Civil Appea! No. 0426 of 2024 and this application to stay execution pending the determination of the appeal.

An affidavit deposed by the Applicant on 28th November 2024 supported the application reiterating the grounds in the Notice of Motion in material particulars as here below; -

- 1. That the Respondent filed and was the successful party in High Court Miscellaneous Application No. 0821, of 2023 where it was held that I acted in contempt of Court orders in High Court Miscellaneous Application No. 1193 of 2019. - 2. The High Court delivered its ruling on the L3th day of March 2024. I was ordered to; - a) Restore the suit !and to the status as at the time the Court rendered its order on 2nd Septemb er 2O2O in Miscellaneous Application No. 1193 of 2019 by demolition of the illegal structure erected by me, failure of which I would be arrested and committed to Civil prison after L4 days. - b) Pay exemplary damages of UGX.10,000,000/= with interest of 5 % from the date of the Ruling until payment in full. - c) Pay a fine of UGX. 10,000,000/= for contempt of Court - 35 d) Pay costs of the application. - 3. That the orders issued by the Court cannot be implemented as the wall fence I was ordered me to demolish was constructed by my neighbor.

1,5

- 4. That I have since filed a Notice of Appeal and a letter requesting for the record of proceedings in the trial Court as well as a Memorandum of Appeal in this Court. - 5. That I filed an application for stay of execution in the High Court which was dismissed. The Court directed me to comply with the Orders in Misc. Application No.821. of 2023 which is the subject of Civil Appeal No. 426 of 2024 with arguable grounds and chances of success. - 6. That the status quo of the suit land was determined by the Cou,'t of Appeal in Civil Appeal No. 27 of 202L where it was found thirt the Applicant had an alternative access road and dismissed the lower Court's orders of demolition of the Respondent's developments. - 7. That I have never altered the status quo of the suit land and the ruling in Misc. Application No. 082L of 2023 intended to restore the orders whose status was already determined in Civil Appeal No. 27 of 2021. - 8. That I have no mandate to demolish the gate which belongs to the neighbors on the adjoining land and therefore the orders cannot be implemented. - 9. That there is an eminent threat of demolishing my hotel which was already in existence before the orders to maintain the status quo were issued in Miscellaneous Application No.082t of 2023 and it would render the Appeal nugatory. - 10. That this application was brought in good faith and withotrt unreasonable delay. - 11. That t am ready to comply with any conditions set by this Court

- 5 ln the affidavit in reply deposed by the Respondent's lawful attorney, the Respondent admitted that an application for a temporary injunction was filed and the trial Court lssued the orders the Applicant had violated and was found to be in contempt of the same. - The Respondent contended that it is the applicant who constructed a wall fence while the Court order subsisted and the allegation that it was constructed by a neighbour is not supported by evidence. That the applicant took advantage of the festive season and constructed the wall which blocked her access road and under the guise that the suit had been dismissed by the Court whereas not. 10

That the pending appeal has no merit, its only intended to buy time and that the appeal does not operate as a stay of execution. That the application is premised on material falsehoods that the applicant rs not the one who constructed the perimeter wall.

It is further contended that whereas the Court of appeal found that the Applicant had an alternative access road, it did not sanction him to temper with the status quo maintained by the temporary injunction. She contended that the Court order was for the applicant to demolish the wall he constructed during the subsistence of the Court order but not to demolish the Hote!.

It is argued that Misc. Application No.821. of 2023 dealt with what the Applicant added after tempering with the status quo during the subsistence of the temporary injunction and executing the orders of the trial court will not amount to rendering the Appeal nugatory. 30

The Respondent further contended that the reasons advanced by the Applicant are not in tandem with the orders sought as they are speculative, demonstrate futuristic fears and are insufficient to warrant the grant of the orders sought. 35

4of13

- 5 The Respondent argued that the execution of the decree does not impede the hearing of the Appeal since it is intended to restore the status quo. The Applicant will not suffer any loss and there is no eminent danger of execution since the decree would make good what was earlier prohibited by the trial Court. - 10

The Respondent further argued that the grant of an order of stay of execution is discretionary. The Court cannot grant it to someone who is in contempt of Court orders and it is the interest of justice that the Application is dismissed.

ln rejoinder, the Applicant averred that the construction was carried out by his neighbour Sweet Land Gardens Bar and Restaurant upon closing her former gate and shifting to another place. That the Application fulfils the conditions for the grant of an order for stay of execution.

## Representation

Mr. Muhangi George appeared for the Applicant while Mr. Joseph Kyazze appeared for the Respondent

Counse! filed submissions which were adopted and have been considered in the determination of the Application. 25

## Submissions of counsel

Counsel for the Applicant submitted that the general principle is that where an unsuccessful party is exercising their unrestricted right to appeal, it is the duty of the Court to make such orders for stay of execution as will prevent the appeal from being rendered nugatory. He relied on Lawrence Musitwa Kyazze v Eunice Busingye, SCCA 18 OF 1990 to support his argument. 30

Counsel also cited the case of Orute and 4 Others v. Alupo [UCCA] 24 l3t January 2024!- in which the authority of Theodore Ssekikubo & 3 Others v. Attorney General & 4 Others. UGSC 2l l1:0 October

- 5 2013) for the principles based on to grant of applications for Stay of execution. The principles are that; - - 1) The applicant must establish that his/her appeal has a likelihood of success. - 2) The applicant will suffer irreparable damage or that the appe,il will be rendered nugatory if the stay is not granted; - 3) lf the conditions in (i) and (ii) have not been established, court must consider where the balance of convenience lies; and - a) The application was filed without delay

It was submitted that the Notice of Appeal and a letter requesting for the record of proceedings were duly filed and there is a pendir'g appeal in the Court. That the Applicant is required to prove that the Appeal has a likelihood of success but not to prove its success. Counsel referred the Court to the affidavit in rejoinder where the applicant averred that his Appeal has a high likelihood of success. 20

Counsel further argued that the application is res judicata since the matters raised were already determined in Civil Appeal No. 027 of 202L. He implored Court to find that the appeal raises arguable grounds with chances of success.

It was submitted that the ruling was delivered on L3th March 2024 and he instantly filed the application for stay of execution on 3'd April 2o24. Upon its dismissal on 9th September 2024, the Applicant filed the present application on 28th November 2024. He invited Court to find that the Application was filed without unreasonable delay.

It was submitted that there is an eminent threat of demolishing his hotel which was on the suit land before the order maintaining the status quo was issued which would occasion substantial loss to hinr. It was further submitted, that some of the orders issued by the court

6of13

5 are self-executing and will cause him substantialloss if the applicatio,t is not granted by the court.

### Submissions in reply

Counsel for the Respondent agreed with counsel for the Applicant on the criteria upon which this court considers applications for stay of execution. lt was however argued that the Applicant failed to demonstrate that he fulfilled the conditions to warrant the grant of the orders sought.

The case of Kyambogo University V Professor lsiah Omolo Ndiegr..

- UGCA 354 (6 June 20231was cited for the proposition that it is not the law that wherever there is a pending Appeal ,a Stay of execution must follow as a matter of course. lt was argued that an Appeal may be determined without the Court having to grant a Stay of execution. 15 - Counsel for the Respondents acknowledged that a Notice of Appeal was filed by the applicants and duly served however, the mere filing of a Notice of Appeal is no sufficient reason to grant an order of Stay of execution. lt was argued that the applicant failed to satisfy cou.t that there are compelling reasons for the judgment creditor to postpone the enjoyment of her benefits. He cited Stanbic Bank limited V. Atyaba Agencies Limited. UGCA 23 (16 January 2OO4l. 20 25

As to whether the appeal has a likelihood of success, it was submitted that the Appeal will be considered frivolous if prima facie the grounds raised are without any reasonable basis in law and it has no merit, which is strong evidence that it was filed for delay or not in good faith. It was argued that the applicant failed to demonstrate 0h1l re?sorl upon which the court would make a finding that the Appeal has a likelihood of success as no material was placed before Court. 30

Counsel cited Kassim Ranathan V. Century Bottling Company. UGSC 35 (7 October 2O2Ol to support his argument. He invited the Court to

7 oftS 5 find that the applicant failed to prove that the appeal has a likelihood of success.

As to whether the application was filed without undue delay, it was submitted that the ruling directing the applicant to demolish the illegal structures was delivered on gth September 2024 but the applicant did not do anything until 28th November 2024. Counsel submitted that the filing of an application is an afterthought to further the contemptuous conduct. The Court was urged to find that the Applicant delayed to file the Application. 10 15

It was argued that if the structures complained of in the Application for contempt were not built by the Applicant, then he will not suffer any loss if they are demolished. Counsel relied on the authority of Pa.r 20 African lnsurance Company (U) Ltd v lnternational Air Transport Association. UG CommC 24 (27 March 2008) for the proposition that it is not enough to merely allege that the Applicant will suffer

irreparable injury. The Court was urged to find that the Applicant wil!

not suffer any loss if the appllcation is not granted.

Counsel submitted that the position ,rf the law is that the Applicant must pay security for due performance of the decree and the nature of this application is such that the applicant should be directed to pay security for due performance of the decree in order to ensure that no 30 hardship is caused to the decree holder.

It was submitted that if the Court is inclined to grant the application, the applicant should be ordered to deposit 50 % of the sums provided under the Court order. The Court was invited to dismiss the application.

8of13

## 5 Consideration by the Court

The mandate of this court to grant orders to stay execution is derived from Rule 6 (2l,(b) of the Rules of this Court as follows:

"(2) Subject to sub rule (1f of this rule, the institution of an oppeal sholl not operote to suspend ony sentence or to stay execution, but the court moy:

(b) in any civil proceedings, where a notice of oppeal has been lodged in accordonce with rule 76 of these Rules, order o stay of execution, on injunction, or a stay of proceedings on such terms as the court may think just."

Orders to stay execution of decrees are intended to preserve the status quo to enable the pending appeals to be determined by the full bench. See Lawrence Musitwa Kyazze V. Eunice Busingye Civil Application No. 18 of 1990.

Counsel agree on the conditions to be fulfilled before an order of stay of execution is granted as restated in Theodore Ssekikubo & 3 others V. Attorney General & 4 others UGSC 21 (10 October 2013)

I will examine whether the application meets the conditions for the grant of the reliefs sought and also whether the Applicant who was found to be in contempt of court orders has any right to file any matter before this Court before he purges himself of the Contempt.

## 1. Whether the applicant diligently lodged their Notice of Appeal

The Ruling which is the subject of the Appeal leading to thrs Application was delivered on 13th March 2O24. The Notice of Appeal was filed in the High Court on 15th March 2024 only two (2) days after the ruling was delivered.

Ifind that the Notice of Appeal was filed without any undue delay.

9of13

5 2. Whether the intended appeal raises triable issues with a strong likelihood of success.

It was held in Gashumba Maniraguha V. Sam Nkundiye UGSC 7 (23 April 2015) that the likelihood of success, is the most important consideration in an application for stay of execution.

The applicant is required to avail evidence to aid the Court in the determination as to whether he has an Appeal with !ikelihood of success. At this stage, it is not the duty of the Court to pre-empt considerations of matters for the full bench when determining the Appeal. Obwana Remegio V. The Registered Trustees of Tororo Diocese, UGCA 84 (18 March 202ll.

ln an attempt to prove that the Appea! has a likelihood of success, :t was argued for the Applicant that the allegations in Miscellaneous Application No. 082L of 2023 were res-judicata having been canvassed by the Court of Appea! in Civil Appea! No.027 of 2021. The Memorandum of Appeal is however silent about Miscellaneous Application No. 0821of 2023 being res judicata and/or about such a strong point of Law. 20 25

It is trite to state that the Orders issued by the Court in Miscellaneous Application No. 0821 of 2023 have never been set aside and as sucn are valid, enforceable and binding. The Applicant did not therefore prove that the Appeal has a likelihood of success.

## 3. Whether the Applicant will suffer irreparable damage or that the Appeal will be rendered nugatory if a stay is not granted.

The Applicant averred in the affidavit in rejoinder that the structures the Court ordered to be demolished were built by his neighbour (Sweetland Gardens Bar and Restaurant) which closed its old gatr:. The applicant however contends that he faces an eminent threat of wrongfully demolishing his hote! which was on the suit land.

10 of 13

- 5 ln Geila V. Cassman Brown & Co. [1973] E. A. 358, it was held that by irreparable injury it does not mean that there must not be physical possibility of repairing the injury, but it means that the injury or damage must be substantial or a material one that is; one that cannot be adequately atoned for in damages. - L0

The demolition of the perimeter wal! to restore the land to its original position pending the determination of Civil Suit No. 660 of 2019 does not amount to irreparable injury to the Applicant since the structures were built by a third party as he alleges in his affidavit. The Applicar,t wil! therefore not suffer any loss if the wall was demolished as directed by the Court.

I also hold the view that restoring the status quo will help the trial Court reach a just decision if the Court decided to visit the locus before delivering the judgment in Civil Suit No. 560 of 20t9. ln the circumstances.

Ifind that the applicant failed to prove that he will suffer irreparab:e loss if the application is not granted.

Having found that the applicant failed to prove most of the conditions required for an order to stay execution, it is not necessary to delve into the issue of security for due performance which in my view is not mandatory.

It is imperative to determine whether the applicant who has been found to be in contempt of court orders has any right to file ar,7 matter before this Court before he purges himself of the Contempt.

The Respondent argued that the grant of an order of stay is an exercise of discretion which cannot be in favour of the applicant who acted in contempt of Court orders. ln rejoinder, the Applicant averred that he is ready and willing to comply with any conditions ordered by

11 of 13 tr

5 the court and that it is in the interest of justice that the Application is granted pending the hearing and determination of the appeal.

The position of the law is that a party in contempt of court valid court orders cannot be heard in a different, but related cause or matterr unless and unti! such a person has purged himself or herself of the contempt. See Housing Finance Bank Ltd V Edward Musisi, Court of Appeal Miscellaneous Application No. 188 of 2OlO, Mutungi & Another v Rubadiri & Others, UGCA 63 (19 March 20241, Mabirizi Kiwanuka v Attorney General UGCA 226 l1-9 August 2022!,.

(

The Applicant was found to be in contempt of the court orders in Miscellaneous Application No. No.1193 of 20L9 and he was ordered to perform the following in order to purge himself; -

a)Restore the suit Iand to the status as at the time the Court rendered its order by demolition of the illegal structure, failure of which he would be arrested and committed to Civil prison after L4 days.

b)Pay exemplary damages of UGX.10,000,0001= with interest of 5 % from the date of the Ruling until payment in full.

c) Pay a fine of UGX.10,000,000/= for contempt of Court

d)Pay costs of the application

The applicant instead lodged an Appeal and also filed this Application for stay of execution while the activities declared to amount to contempt of court order still hold.

35 ! am of the view that the inherent powers of the Court cannot be invoked to compound contemptuous conduct but rather to avert it and prevent further abuse of the court process.

t2 of 3

- 5 ln the result, the Application fails and I make the following orders; - 1-. The application is dismissed. - 2. The costs of the application shall abide the outcome of the Appeal. - 10 Dated and delivered at Kampala thls.2(ffiy ot 2025

![](0__page_12_Picture_4.jpeg)

Moses Kazibwe Kawumi JUSTICE OF APPEAL