Oryonga v Etanu (Civil Appeal No. 679 of 2022) [2022] UGCA 291 (15 December 2022)

Full Case Text

### THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

### **CIVIL APPLICATION NO.679 OF 2022**

(Arising from Civil Application No.678 of 2022)

(Arising from HCCS No.22 of 2015)

#### 10 ORYONGA MOSES:::::::::::::::::::::::::::::::::::

### **VERSUS**

# ETANU OSULEK THOMAS:::::::::::::::::::::::::::::::::::: CORAM: HON. MR. JUSTICE CHEBORION BARISHAKI, JA

### (SINGLE JUSTICE)

#### **RULING** 15

The applicant brought this application by Notice of Motion under the provisions of Rules $2(2)$ , $6(2)$ (b) and $43(1)$ of the Judicature (Court of Appeal Rules) Directions S. I 13-10 seeking for orders that; an interim order for stay issues; staying the execution and/ or implementation of the Decree of the

20 High Court of Uganda at Soroti in Civil Suit No.22 of 2015 until the final determination of Civil Application No.678 of 2022 and that costs of the application be provided for.

The application is supported by an affidavit sworn by Oryonga Moses, the applicant and opposed through an affidavit in reply sworn by Etanu Osulek Thomas, the respondent.

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# 5 Background

The rcspondent sued thc applicant in HCCS No.22 of 2O15 for rcvocation of Letters of Administration to thc cstatc of thc late Yoana Obukui granted to the applicant in High Court Administration Causc No.48 of 20O8. The respondent claimed that hc was a beneficiary and successor of Obukui's estatc as his ncphcw and customarily adoptcd son and that the applicant fraudulcntly got letters of administration to thc samc. Thc applicant on the othcr hand claimed that the land that formed the latc Obukui's estate bclongcd to his fathcr the latc Ekubu Vinccnt and that hc was the customary heir to thc same. The applicant further claimed that the respondent as a matcrnal nephew to the latc Obukui could not inhcrit the estate undcr the customs and culturcs of the lteso. Judgment was givcn in favour of the respondcnt.

Dissatisfied with the judgment, thc applicant appcalcd to this Court in Civil Appcal No. 119 of 2022. Hc thcn filcd Miscellancous Application No.06O of 2022 for stay of execution in thc High Court of Uganda at Soroti and an application for an intcrim stay of cxccution, Misccllancous Application No.061 of 2022. The intcrim ordcr of stay of cxccution was granted whereas thc substantive application for stay of execution was dismissed. He has now fi1ed thc instant application.

#### Grounds of the application 25

Thc grounds in support of the application are contained in the Notice of Motion and thcy arc cxpoundcd in thc affidavit in support. Thc gist of thc grounds is that thc applicant is dissatisfied with the judgment and decree of 2lP,lge

5 thc High Court in Civil Suit No.22 of 2O 15. Hc has filcd a Notice of Appeal and Misc. Applications No.0O61 ot 2022 and 0O6O of 2022 for interim stay of execution and stay of cxecution rcspcctively. That Miscellaneous Application No. OO61 ot 2022 was grantcd whilc Misc. Application No.0O6O of 2022 was dcnicd. Thc applicant further contcndcd that he had hlcd a substantive Application No.678 of 2022 which is pending hcaring and dctermination in this Court. That the applicant's appcal raiscs important lcgal issues and he wiil suffcr substantial loss and damagc if thc application is not grantcd. The applicant furthcr contends that the application has been made without undue dclay and it is in thc intcrcst of justicc that thc application is allowed. 10 15

# Grounds of opposltion

The application is opposcd by thc rcspondent and thc gist of thc rcspondent's opposition is set out in the affidavit in reply of Etanu Osulek Thomas stating that thc application did not mcet thc rcquircd test for grant of an interim ordcr of stay. That rcfcrcncc to Rule 212) of Lhc Rulcs of this Court is inapplicablc and that thc rcspondcnt has not been scrved with a substantivc application and whilc it is true that the applicant frled Civil Appcal No.ll9/2O22 bcforc this Court, thc said appcal has no chanccs of success. Thc rcspondcnt furthcr contcndcd that ttrcre was no serious threat or immincnt danger of cxecution that has been dcmonstrated by the applicant and thcrc is no fairncss, justicc or cquity in interfcring with the cnjol.rnent of thc rcspondcnt's rights as thc successful party.

# Representatlon

At thc hcaring of the application, tJ.c applicant was reprcsentcd by Mr. Calcb Alaka, Bcn Ikilai and Racheal Asiimwe while the respondcnt was rcprescntcd by Mr. Echipu Johnson Elvis.

#### 10 Applicant's submlsslons

Counsel for thc applicant raiscd a prcliminary objcction to the effcct that thc affidavit in reply deponcd by thc rcspondent offended S.2 of thc Illitcratcs Protection Act CAP 78 which provides tJlat any person who writcs thc name of the illitcratc shall also writc his name and address on the document as a witncss. L{c addcd that in thc instant casc, therc was no cvidcnce of any

person providing his namc and addrcss as a witness to such affidavit and hcnce the samc affidavit offcndcd S.1 of thc Oaths Act CAP 19 which makes provision on how oaths should bc in thc First Schedule to the Act.

20 25 Counscl further submittcd that Echipu Johnson Elvis who purportcd to have made a dcclaration that hc had rcad and cxplaincd thc contcnts of the affidavit to thc rcspondcnt did so aftcr thc Commissioncr for Oaths had alrcady commissioncd thc affidavit of the respondent. In counscl's vicw, such affidavit commissioncd bcfore the Commissioner for oatl-rs before the contcnts had bccn cxplaincd to thc dcponcnt cannot stand in thc cyes of the law. He addcd that the conduct of Advocate Echipu Johnson of representing thc rcspondent whosc affidavit hc had prepared without rcading it ovcr and

explaining thc contcnts to thc dcponcnt made him personally involved in thc

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5 Clicnt's case contrary to Rcgulation 9 of thc Advocatcs Profcssional Conduct Rcgulations.

Counscl contended that all thc anncxtrrrcs attachcd to thc respondcnt's affidavit in rcply could not bc rclicd upon sincc thcy offcndcd thc third schedulc Rule 9 of thc Commissioncr for Oaths (Advocatcs) Act CAP 5. That cxhibits which are not ccrtillcd by the Commissioncr for Oaths before whom thc affidavit is sworn cannot bc rclicd on. Hc rclicd on Chelbel Fred. & Anor V Masal Labu, Court oJ Appeal Mlscellaneous Appllcatlon No.14O of 2OI O. Counsel praycd that his prcliminary objcction bc uphcld and tJle rcspondcnt's affidavit in rcply bc struck out.

- Counscl furlher contcndcd that thc conditions for thc grant of an intcrim ordcr of stay includc a compctcnt Noticc of Appcal, a substantive application and a scrious threat of cxccution as was statcd in Zubeda Mohamed & Anor V Laila Krrka Wallla & Anor, Supreme Court Clull Reference No. O7 oJ 2O76. Hc addcd that thc applicant avcrrcd undcr paragraph 2 of his affidavit in support of thc application that hc had lilcd a Notice of Appcal, a letter requcsting for thc rccord of procccdings in Civil Suit No.22 of 2O15, a Memorandum of Appcal and a Rccord of Appcal attached as anncxturcs "C", "D", "E" and "F" to his aIfidavit. 15 )o - Counscl further submittcd that hc had hlcd a substantivc application for stay vidc Civil Application No.67fl ot 2022 which was pcnding hcaring and dctcrmination in this Court. Rcgarding cxistcncc of a scrious threat of cxecution, counscl submittcd that the nature of the ordcrs granted by the High Court embeddcd in thc Dccrcc attachcd as anncxturc "B" to thc 5lP,r 1i L' 25

5 applicant's affidavit in support to thc Noticc of Motion wcrc self-cxecuting in naturc. Hc rclied on SBf Intentational Holdlngs AC (U) Ltd V COF Intenlatlonal Cotnpang Ltd, Mlscellaneous Appllcqtlon No.783 oJ 2O7a whcrc this Court hcld that in addition to considcring whethcr a notice of appcal and a substantivc application have bccn filcd, this Court may also considcr othcr spccial circumstanccs to warrant issuancc of an interim ordcr. Counsel praycd that thc application bc allowcd. 10

# Respondent's submisslon

Counscl for the rcspondcnt submitted that thc prcliminary issucs raiscd by counscl for thc applicant wcrc misplaccd and ought to bc ignored and substantive justicc must bc administercd without unduc regard to tcchnicalitics. Hc thcn citcd thc casc of Uganda Creannerl.es Ltd. ond. Another V Rerrma'torr Ltd. CACA No.44 oJ 7998 Lo dcmonstratc thc distinction betwccn cxhibits and anncxtures. Hc furthcr submitted that Rulc 9 of thc Commissioncr for Ozrths (Advocates) Act did not apply in thc instant casc bccause thc ccrtillcation shows that thc intcrpretation was donc bcfore thc affixation of the thumb mark. That a simplc rcading of thc certification confirmcd the samc. In counscl's vicw, it was mislcading to say that bccause thc Commissioner's stamp appcarcd before the ccrtihcation meant ttrat it was thc samc ordcr in which thc cvcnts occurrcd. 15 ?o

Rcgarding l}re conditions to bc fulfillcd bcforc an intcrim ordcr of stay can bc grantcd, counscl submittcd that thc said conditions must bc satisficd in cntircty and not in thc altcrnativc. Hc concedcd that thc applicant had filcd a compctcnt Noticc of Appcal and a substantivc application was pending 5ll'.rtjc 25 5 hcaring bcforc this Court. Howcvcr, hc addcd that thc applicant had not dcmonstratcd 1]rat thcrc was a scrious thrcat of cxccution. In counscl's vicw, the applicant only intcnds to dclay thc rcspondcnt from cnjoying thc fruits of the judgmcnt and furthcr that thc argumcnt by counscl for thc applicant that thc ordcrs sought to bc staycd wcrc sclf-cxccuting was mislcading becausc a sclf-cxccuting dccrcc cannot bc staycd as it is dcemcd to have becn cxccutcd. Counscl rclicd on Karaglra Francls V Eogers Bosco, 10

Supreme Court ReJerence No.23 oJ 2O76 for thc proposition that an intcrim stay of cxccution is prcvcntivc than corrcctivc.

## Analysis

The jurisdiction of this Court to grant an interim stay of execution is set out in Rulc 6(2) (b) and Rulc 2(2) of thc Rulcs o[ t]ris Court. 15

## Rule 6(2) (b,f providcs that:

" Subject to sub-rule (1), tLLe institution of on appeal shall not operate to suspend anA senlence or staA execution but the Court maA in ang ciuil proceedings, u.there a notice of appeal has been lodged in accordance with rule 76 of these Rules, order a slay of execution, an injunction, or a stag of proceedings on such terms as the courT mag think just"

Rule 2 (2) of thc Rulcs of this Court givc this Court inhcrent powcrs to do whatcvcr is ncccssary to attain thc cnds of justicc and prcvcnt abuse of process.

Thc applicant raiscd a prcliminary objcction.

5 Hc contcndcd that thc affidavit in rcply dcponcd by the rcspondent offended S.2 of thc Illitcratcs Protection Act Cap 78. That no cvidcnce of any such person providing his namc and addrcss as a witncss to such affidavit had bccn furnishcd hcncc offending thc provisions of S. 1 of the Oaths Act CAP 19 which makes provision for Oaths to bc takcn as sct out in thc First Schcdulc to the Act. Furthcr that Echipu Johnson Elvis who purportcd to have madc thc dcclaration l. Ilat hc had rcad and cxplaincd the contents of thc affidavit to thc dcponcnt did it aftcr thc Commissioncr for Oaths had alrcady commissioncd thc affidavit of thc rcspondcnt. 10

## Sectlon 2 oJ the Illlterates Protectlon Act CAP 78 provides as follows;

- "No person shall turite the name of an illiterate by wag of signattre to ang document unless such illiterale shall haue Jirst appended his or Lrcr mark lo il; and ang person utho so urites the name of tLte llliterate shall also uite on lhe document his or her ou.tn lrue and full name and address cs urifness, and his or her so doing shall imply a statement that lrc or she turote lhe name of the illiterate bg utag of signature after the illiterate had appended his or her mark, and that he or she uas instructed so to wite bg the illiterate and that pior to the illiterate oppending his or her mark, the document uLas read ouer and explained to lhe illiterate. " 15 20 - Sectlon 7 of the Oaths Act, CAP 79 providcs that the oath which shall be takcn as occasion shall dcmand shall bc thc oath sct out in thc First Schedulc to the Act. 25

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5 Form B of thc l"t schcdulc to thc Act providcs for thc form ofjurat whcrc l^trc Commissioncr has rcad thc afhdavit to thc deponcnt.

I have looked at the said affidavit in reply and find that although it did not match thc format sct out in Form B of thc Oaths Act CAP 19, a declaration was attached signcd by Echipu Johnson Elvis confirming that the contents of the aflidavit had becn read and cxplained to the rcspondent who was unablc to rcad and writc owing to advanccd agc. Furthcr that tllc affrdavit had been explaincd to thc rcspondcnt in Ateso languagc by Echipu Johnson Elvis who is fluent both in Atcso and English languages and the respondent had confirmcd the contents thcrcof as bcing truc and corrcct bcfore appending his thumb print thcrcon.

Although thcrc was a variancc bctwccn the certification in tJle affidavit in reply and the format providcd by law, I find the variancc minor because the law was complicd with. Scction 43 of thc Intcrprctation Act CAP 3 providcs that whcre any form is prcscribcd by any act, an instrumcnt or documcnt which purports to bc in such form shall not bc void by rcason of any dcviation from that form which docs not affcct thc substance of the instrumcnt or document or which is not calculatcd to mislcad.

Further, counscl for thc applicant did not avail cvidcncc showing that Echipu Johnson Elvis who purportcd to havc donc thc declaration that he

had read and explaincd thc contcnts of thc afildavit to the rcspondent did so aftcr thc Commissioncr for Oaths had commissioned thc affidavit of thc respondcnt. Whcrcas it is true that thc signaturc of the Commissioner for Oaths appcarcd bcforc thc Dcclaration/ Certification by Echipu Johnson 25

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5 Elvis, I cannot concludc that the Commissioner for Oaths commissioned the affidavit before or aftcr thc dcclaration by Echipu Johnson Elvis.

counscl furthcr submittcd that all anncxturcs to thc rcspondent's affidavit in reply could not bc rclicd upon since they offcnded thc Third Schcdule to the Rules (Rule 9) of thc Commissioncr for Oaths (Advocatcs) Act Cap5.

Articlc 126 (2) (c) of thc Constitution providcs that in adjudicating cascs of both a civil and criminal naturc, substantivc justice shall be administered without unduc rcgard to tcchnicalities. 10

In Colonel Dr. Kiiza Besigge V Museueni Yoweri Ka.guta. Election Petitlon No.7 oJ 2OO7, Lhc Suprcmc Court that rcliancc on tcchnicalitics is not dcsirablc and offcnds Articlc hcld 126 of thc Constitution. This was aftcr t-l.e Court had bccn askcd to strikc off affidavits which did not disclosc thc name and addrcss of thc jurat. 15

Thc applicant's prcliminary objcction is thcrcforc ovcrrulcd and I will procecd to dctcrminc the application on its mcrits.

Rulcs 6 (2), 42 (21 and 43 of thc rulcs of this court givc widc discrction to this Court to grant intcrim or substantivc ordcrs of stay of cxccution for purposc of prcscrving thc right of appcal. 20

In Zubeda Mohamed. & Sadru Mohanned V Lalla Kaka Wallia & Anor, Suprerne Court Clall ReJerence No. O7 oJ 2O76 which citcd with approval Hwan Sung Industrles Ltd. us. TaJdln Husslen clnd 2 others SCMA No. 79 of 2OOa, thc Suprcmc Court statcd as follows;

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5 "Considerations for the grant of an interim order of stag of execution or inteim injunction dre uthether there is a substantiue application pending and uhether there is a seious threat of execution before hearing of the substantiue application. Needless to sag, there must be a Notice of Appeal. See llwan Sung Industries Ltd. us. Tajdtn Ilzssien dnd 2 others SCMA No. 79 oJ 2OO8.

> In summary, there are three condiLions lhal an applicant must satisfg to justify the grant of an interim order:

- 1. A compelenl Notice of Appeal; - 2. A substantiue application; and

3. A seious threat of execution."

Thc cvidcnce on record shows that thc applicant had filcd a compctent Noticc of Appeal marked as Anncxturc "C" and attached to the applicant's afftdavit. The applicant also fi1cd a Memorandum of Appeal marked as annexturc "E" as wcll as a Rccord of Appcal markcd as Annexture "F". Secondly, the applicant has Iiled a substantive application vide Civil Application No.678 of 2022 pcnding hearing and detcrmination by this Court.

Regarding a serious threat of execution, counscl for the applicant submitted that the nature of the ordcrs granted by the High Court cmbedded in the Dccrcc attachcd as anncxturc "8" to t.l.c applicant's affidavit in support of

the Notice of Motion wcre sclf-executing in nature. In response counsel for the respondcnt submittcd l]rat the applicant had not proved lJeat thcre was a serious thrcat of exccution. In counscl's vicw, thc applicant only intends to 11 lPage

5 delay thc rcspondcnt from cnjoying thc fruits of the judgmcnt and further that thc argumcnt by counscl for thc applicant that thc ordcrs sought to be stayed werc self-cxccuting is misleading because a self-cxccuting dccree cannot be stayed as it is dcemed to have been executed.

Thc applicant attachcd a Dccrce markcd as anncxture "B" and I am positivc that the respondent is desirous of executing thc said decree.

I thercforc find that the applicant is facing an eminent threat of execution of thc dccrce.

I am therefore satisfied that the applicant has satisfied the conditions required for grant of an intcrim order of stay. I allow thc application and makc thc following ordcrs: -

- 1. An interim ordcr is hcreby issucd staying the execution and or implemcntation of thc Dccrcc of thc High Court of Uganda at Soroti in Civil Suit No.22 of 2O15 until thc final dctermination of Civil Application No.678 of 2022 pending bcforc this Court. - 2. The Rcgistrar of this Court is hcrcby dircctcd to fix Civil Application No.678 of 2022 for hcaring in lhc next convenicnt session. - 3. The costs of this appiication shall abidc the outcome of tle substantive application for stay of cxccution

I so order

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25 Datcd at Kampala this.. .. ..t +. day of !.-.- .......2022 cborion Barish:.rki JUSTICE OF APPEAL

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