Orute and Others v Alupo (Miscellaneous Application 4 of 2023) [2023] UGHCFD 26 (16 August 2023)

Full Case Text

The Republic of Uganda High Court of Uganda at Soroti Miscellaneous Application No. 0004 of 2023 (Arising from EMA No. 0044 of 2022) (Arising from Civil Suit No. 0003 of 2017)

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## Versus

Alupo Esther (Administrator of the estate of the late Seno Aaron ::::::::::::::::::::::::::::::::::::

$20$

## Before: Hon. Justice Dr Henry Peter Adonyo

## **Ruling**

## 1. Background:

This application is brought by notice of motion under Order 43 rule (3), Order 52 rule 1, 2 & 3 of the Civil Procedure Rules, section 98 of the Civil Procedure Act, and section 33 of the Judicature Act for orders that execution of the judgement/decree in Civil Suit No. 0003 of 2017 be stayed pending the determination of the applicants' appeal and costs of this application be provided for.

2. Grounds: 30

$\mathsf{S}$

- The grounds of this application as set out in the application and in a $\mathsf{S}$ supporting affidavit sworn by Osenyi Sam, the 4th Applicant, are briefly that the applicants have lodged an appeal against the decision of the Hon. Dr. Justice Peter Adonyo given in Civil Suit No. 0003 of 2017 to the Court of Appeal and are in imminent danger of being evicted from the suit land by - the respondent. 10

That the pending appeal shall be rendered nugatory because the Respondent has intentions of selling off the suit land once it is handed over to her and the applicants shall suffer substantial loss if the application is not granted. That the application has been brought without undue delay and it is in the interest of justice and equity that the application is granted

to maintain the status quo till the disposal of the pending appeal.

The respondent in reply opposes the application and state that the application is incompetent, devoid of merit and does not disclose any good or justifiable reason why she should be deprived of her success in Civil Suit

No. 0003 of 2017. 20

That after judgement in Civil Suit No. 0003 of 2017 was entered in her favour she made several reminders to the applicants to vacate the suit land, however, they refused prompting her to file EMA No. 0044 of 2022 and this application is an afterthought calculated at avoiding execution and causing miscarriage of justice to her by protecting the applicant's illegal 25 stay on the land. That it is not true that the applicants will suffer substantial loss as they have their own land separate from the suit land and it is her who will continue suffering loss from continued deprivation of use of her father's land. That the averment that she should not take control of her late father's land because they fear she will sale it is inconsequential and 30 they have not demonstrated to this court that if she disposed of her

inheritance they will suffer substantial loss that cannot be atoned by $\mathsf{S}$ damages.

That the applicant's appeal has no likelihood of success and the applicants have not shown how execution by eviction is likely to affect their intended appeal.

In rejoinder, the applicants stated that they will be prejudiced if the 10 respondent sells off the suit land to third parties before the determination of the appeal and the appeal has high chances of succeeding.

3. Representation.

The applicants were represented by M/s Henry Kunya & Co. Advocates while the respondents were represented by M/s Danrich Advocates.

4. Determination.

The conditions that the Court should consider before allowing an application to stay execution are given in Order 43 rule 4(3) and espoused in the case of Lawrence Musiitwa Kyazze Vs Eunice Busingye, Supreme Court

- Civil Application No 18 of 1990, but more pronounced in the Supreme Court 20 case of Hon Theodore Ssekikubo and Ors Vs The Attorney General and Ors *Constitutional Application No 03 of 2014* and these include: - 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 due performance of the decree or order as may ultimately be binding upon him. - a. Notice of appeal. - The applicants stated that they have lodged an appeal against the 30 judgement in Civil suit no. 0003/2017. A copy of this notice filed in this

court on the 9th of November 2022 was attached to the application and as $\overline{5}$ such this ground has been met.

b. Unreasonable delay.

Judgement in CS No. 0003/2017 was delivered on the 26th of October 2022, notice of appeal was filed on the 9th of November 2022, the execution

application was filed on the 17th of November 2022 and this application 10 was filed on the $3^{rd}$ of February 2023.

Counsel for the applicant submitted that they were not served with the Notice to show why execution should not ensue and they only picked it up in late January 2023.

- I find that since EMA No. 0044 of 2022 was filed on 17th November 2022, 15 that filing was within the knowledge of the applicants and so this filing this application on the 3rd February 2023, which is a period of approximately two and a half months later without reason, amounts to unreasonable delay. This ground has thus not been met. - 20 c. Substantial loss.

Counsel for the applicants submitted that the 1st,3rd and 4th applicants are presently in occupation of the suit land which they use for cultivation of crops, the 2nd applicant has a family home on the suit land besides also using it for cultivation purposes and the respondent is threatening to evict

25 them from the suit land.

Counsel further submitted that substantial loss does not represent any particular amount or size and it cannot be quantified by any particular mathematical formula. Rather it is a qualitative concept which refers to any loss, great or small that is of real worth or value as distinguished from a loss without value or a loss that is merely nominal.

Counsel for the respondent countered the argument by the applicants and $\mathsf{S}$ their counsel that it is misconceived and lacks any basis as it was akin to taking this court backwards.

That already there is a judgement that has been passed in favour of the respondent in which court has declared the suit land to be hers and its

therefore ridiculous and without justification for the applicants to keep 10 contending that it is their right to continue cultivating or staying on the land.

That the applicants having lost the case in court no longer have any legitimate legal interest in the suit land which was protectable in their

favour. 15

Counsel further submitted that the intending appeal shall not be rendered nugatory or the applicants suffer any loss since there is no evidence that the respondent wishes to dispose of the suit land.

Counsel further submitted without prejudice to his earlier submissions,

- that even if the applicants were to succeed in the intended appeal, any 20 damage occasioned can still be compensated for in monetary terms. Counsel additionally submitted that if the execution of the decree in CS No. 0003 of 2017 is stayed the respondent shall be frustrated from enjoying the fruits of her judgement in the head suit and will continue being denied - the use of her late father's land. 25

It is the position of the law that once an appeal is pending and there is a serious threat of execution before the hearing of the appeal, the court intervenes to serve the purpose of substantive justice. See: Hwang Sung Industries Ltd. vs. Tadjaudin Hussein & others SCCA No. 79 of 2008.

- Substantial loss giving rise to stay of execution only arises where there is $5$ imminent threat of execution of the decree, which execution would change the status quo, in such a manner that the appeal would be rendered nugatory if the execution is not stayed. - In the instant application, the respondent is the successful party in Civil Suit No. 0003 of 2017 which declared the suit land as belonging to the estate 10 of her late father with the respondent being declared as the lawful sole beneficiary.

The other final orders in Civil Suit No. 0003 of 2017 were that the defendants now applicants were trespassers on the suit land and an order

of eviction and a permanent injunction were issued against the applicants. 15 The applicants, however, refused to vacate the land prompting the respondent to file an application for execution vide EMA No. 0044 of 2022 for eviction orders which is yet to be determined.

The applicants, by this application now seek to stay that execution in EMA

No. 0044 of 2022 on grounds that there is imminent threat of execution as 20 the applicant seeks to evict them and should the land be handed over to the respondent she intends to dispose it off.

While the essential requirement of presence of a formal application for stay for execution has been field by the respondent, I find that in this

instant case, this is not sufficient to warrant stay of execution. 25

In Baguma Paul T/A Panache Associates v Eng. Karuma Kagyina (Civil Miscellaneous Application No. 460 of 2020) [2021] UGHC 27 Justice Ssekana was of the view that;

"The party intending to appeal and is applying for a stay of execution should be able to persuade court that he will be unable to recover the sums he is required to pay if the appeal succeeds and this is major

consideration upon which the court may order stay. While exercising the discretion conferred under the law of stay of execution, the court should duly consider that a party who has obtained a lawful decree is not deprived of the fruits of that decree except for good and cogent reasons. So long as the decree is not set aside by a competent court, it stands good and effective and should not be lightly dealt with so as to deprive the holder of the lawful decree of its fruits. Therefore, a decree passed by a competent court should be allowed to be executed unless a strong case is made out on cogent grounds no stay should be granted. Where the stay is to be granted, it must be on such terms as to security so that the earlier decree is not made ineffective due to lapse of time."

I share the above view. This is because, the applicants herein have intentionally refused to vacate the suit land despite the existence of the lawful orders granted in Civil Suit No. 0003 of 2017.

The respondent to whom the judgement in Civil Suit No. 0003 of 2017 is in 20 her favour is not using the land that was decreed as belonging to her on account of the applicant's insistence on using the same.

The threat of eviction as averred by the applicants is yet to materialise as EMA No. 0044 of 2022 is yet to be determined and furthermore no

evidence has been led to show that the respondent intends to dispose of 25 the suit land especially given that the applicants are the ones on the suit land and are yet to vacate the same despite the presence of court orders to that effect.

The applicants have also failed to show that should execution ensue and the intended appeal is successful the respondent is unable to restore the 30 status quo before the appeal yet the respondent, on the other hand, avers

$\mathsf{S}$

in her affidavit in opposition to this application that the applicants can $\mathsf{S}$ easily be compensated by her in monetary terms should the intended appeal go against her.

Furthermore, the averments by the respondent that the applicants each have their own pieces of land separate from the suit land from which they

10 derive sustenance were neither denied nor rebutted by the applicants. The presumption thus here is that it is admitted as a true fact. See *Massa Vs* Achen [1978] HCB 297. This further negates the alleged substantial loss claimed by the applicants.

Invariably, I would find that the applicants have not established how the

- intended execution by the respondent will cause them substantial loss, for 15 which she cannot compensate them in the event their appeal succeeds. I further find that given that fact that to date the applicants have refused to vacate the suit land despite the existence of a lawful order, the grant of this application would be unjust to the respondent given that it would - further deny her the fruits of her judgement without cogent reason. 20 In Pan African Insurance Company (U) Ltd v International Air Transport Association (HCT-00-CC-MA 86 of 2006) [2008] UGCommC 24, Justice Lameck Mukasa found that:

"It is now settled that Court can only exercise the discretion to grant a stay of execution if there are special circumstances and good cause to justify a stay. The inability of the victorious party to be able to refund the decremental amount in the event of a successful appeal is one of such special circumstances if proved. The Applicant has not adduced any evidence to show that the Respondent will not be able to restore it to the status quo ante if its appeal succeeds."

He relied on the Tanzanian Case of Tanzania Cotton Marketing Board Vs 5 Cogecot Cotton Co SA (1995 – 1998) IEA 312 Lubuva JA cited with approval the Indian case of Bansidhar Vs Pribku Dayal AIR 41 1954 where it was stated:

> "It is not enough merely to repeat the words of the code and state that substantial loss will result; the kind of loss must be specified, details must be given and the conscience of the Count must be satisfied that such loss will really ensure."

It was further observed: -

"The words substantial cannot mean the ordinary loss to which every judgment –debtor is necessarily subjected when he loses his case and is deprived of his property in consequence. That is an element which must occur in every case and since the code expressly prohibits stay of execution as an ordinary rule, It is clear the words 'substantial loss' must mean something in addition to all different from that."

I agree that substantial loss cannot mean the ordinary loss to which every 20 judgement-debtor is necessarily subjected when he loses his case and is deprived of his property in consequence. The applicants herein were the defendants in Civil Suit No. 0003 of 2017 and there was always a probability that they would lose the case, as is the possibility in every civil suit, their subsequent lose therefore which ended in amongst others orders of 25 eviction cannot be used solely as the basis for substantial loss. I thus find that this condition has not been met.

d. Security for due performance of the decree.

The applicants in their affidavit expressed willingness to pay security for due performance of the decree. 30

The respondent on the other hand stated that execution of the decree in $\mathsf{S}$ Civil Suit No. 0003 of 2017 is sought by way of eviction which cannot be atoned by furnishing security for due performance of decree.

While the applicants are willing to furnish security for due performance of the decree, I find that in the current circumstances this will only serve as

an injustice to the applicant who to this date has been denied the fruits of 10 her judgement by the applicants.

Further the applicants having failed to prove substantial loss it is unnecessary to make orders as to security.

5. Conclusion and Orders:

- Consequently, I do find that this application has been brought, not only in 15 defiance of an existing court decision and orders but have been brought to deny the respondent the fruits of the judgment which was made in her favour in Civil Suit No. 0003 of 2017. Court orders and decisions are never made in vain. The applicants do not believe that they have lost Civil Suit No. - 0003 of 2017. Their intended appeal is merely being used to buy time since 20 this application was even filed out of time for no good reason. They were only awaken to the fact that they need to vacate the suit land when the respondent filed in court EMA No. 0044 of 2022. This application overall is found to lack merit and is accordingly dismissed with costs to the

respondent. 25

I so order.

Hon. Justice Dr Henry Peter Adonyo

Judge

16th August 2023