Rwavira v Kuteasa (Civil Application 225 of 2023) [2023] UGCA 270 (17 October 2023)

## THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

# ClVl L APPLICATION No. 225 OF 2023

(Arising from Civil Applicotion No. 2a7 of 202j)

(Arising from Civil Appeol No. 020 of 2023)

RWAVIRA PATRICK:::: APPLICANT

## VERSUS

KUTEASA RICHARD:::::: RESPONDENT

CORAM: HON. MR. JUSTICE GEOFFREY KIRYABWIRE, J. A.

## RULING

## INTRODUCTION.

This is an Application brought under Rules 2 (2),6(2),43 (1) and (3) of the Judicature (Court of Appeal Rules) Directions (hereinafter referred to as the "Rules of this Court").

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The Application seeks Orders that: -

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- a) An interim order staying execution of the Judgment and Decree in HCCS No. 049 Of 2012 be issued pending hearing and determination of substantive application pending before this Court. - b) Costs of the Application be provided for.

# BRIEF FACTUAL BACKGROUND.

The Applicant lost Civil Suit No 49 of 2072 delivered at the High Court at Masaka in favour of the Respondent. Among the Orders of the made against the Applicant was to vacate the suit.

The Application is supported by the affidavit of the Applicant, Rwavira Patrick which briefly states: -

That the Respondent filed High Court Civil Suit No 049 of 2Ot2 against the Applicant for trespass and also sought compensation for loss of property. Judgment was rendered in favour of the Respondent and the costs therein were taxed. Dissatisfied with the Decision of the High Court, the Respondent appealed the said Decision to this Court.

It is further deponed that the Respondent has applied for the execution of the Decree and Orders by way of warrants of arrest and eviction from the Suit land. There is as a result imminent threat of execution against the Applicant as well as eviction and demolition of the Suit property.

Furthermore, the Applicant has filed a substantive Application of stay of the High Court Decision now pending before this Court. The Applicant states that this application has a high likelihood of success.

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That the Applicant in lVliscellaneous Application No 139 of 2OI7 applied to the trial Court for stay of executlon which was granted with Conditions. The Applicant then filed in the trial Court an Application for Review of the said conditional grant of stay of execution in [\4iscellaneous Application No272 of 2017 which was dismissed and execution was Ordered to continue.

It is further pleaded that it is just and equitable that this applicatlon be granted

The Respondent opposed this Application and filed an Affidavit in Reply. The Respondent deponed that whereas the Applicant filed a Notice of Appeal in this Court on the 15th May 2017, the said Notice was not served on the Respondent.

The Respondent further depones that the Record of Proceedings of the trial Court was certified on the 19th September,2022 but that the Applicant did not file the lVemorandum of Appeal and Record of Appeal within thirty days as required by law. The Respondent has therefore failed to take an essential step in the prosecution of his proposed appeal and therefore has no valid Appeal on Record.

Furthermore, the Application is brought after a significant delay of six years after the determination of Miscellaneous Application No. 139 of 2017. That lf this Court is inclined to grant this Application then it should be on the condition that the Respondent should pay the entire amount of damages and costs due to the Respondent.

#### HEARING

This Application is determined solely on the basis of the written submissions filed by the Parties this Court having read them and found no area for further clarification necessitating the Parties physical appearance.

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### APPLICANT,S SU BM ISSIONS

For the Applicant, it is submitted that the Applicant is in occupation of the suit land and it is this state of affairs that the Applicant wants to preserve. lf the interim stay is not granted, then the Applicant's substantive Application and Appeal shall be rendered nugatory.

That the Applicant has filed a Notice of Appeal and has since Filled Civil Appeal No 020 of 2023. Counsel also argued that the Applicant has filed a substantive Application for stay of execution in CivilApplication No. 248 of 2023 which is pending in this Court.

It is also argued that there is an imminent serious threat of execution as a warrant was issued to gailiffs to possession of the suit land and carry out demolitions thereon.

Counsel referred me to the cases of Hwang Sung lndustries Limited V Tajdin Hussein & Ors CA No 19 of 2008 (SC) and Zubeda Mohammad & Anor V Laila Kaka Wajja & Anor Civil Reference No 07 of 201,6 (SC) as authority that this Application should be granted.

Counsel also prayed for costs.

### RESPON DE NT'S SU BM ISSIONS

It is the case for the Respondents that this Application is incompetent. lt is also argued that this Appeal has been filed out of time and yet no application has been made for the enlargement of time. Counsel submitted that the Appeal should

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therefore be struck out and relied on the case of lVayende V Ochieng Election Petition Application No 33 of 2012.

It is further argued that a substantive application for stay at the trial Court was dismissed and therefore this application is superfluous. Counsel referred us to the case of Hon. Anifa Kawooya V Attorney General CAIMA No 479 of 201,1, where it was held: -

"...in conclusion, we strongly reiterote the provision of the low thot on interim order should only be gronted subject to well settled conditions, for o short time until o nomed doy or further order of the Court, pending the determinotion of the moin Applicotion..."

It is further argued that the Applicant does not stay at the suit land and that there are no developments on the suit land. ln any case it is further argued that the Applicant has not shown this Court any evidence of execution.

Counsel submitted that it is the practice of Court that judgment debtors should provide security for costs and referred us to the decision of Amon Bazira V Maurice Peter Kagimu lViscellaneous Application No 1123 of 2Ot6 where Henry Kaweesa J. held:-

"...it hos been trite that due performonce of the decree con only be secured by the provision for security for costs..."

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The respondent prayed that this Application be dismissed with costs.

### RESOLUTION BY THE COURT.

#### THE PRINCIPLES

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Rule 6 (2) (b) of the Rules of this Court provides: -

"... in ony civil proceedings where o Notice of Appeol hos been lodged in accordonce with rule 76 of these Rules, order o stoy of execution, on injunction, or o stoy of proceedings on such terms os the court moy think just..."

The Supreme Court [vide The Judicature (supreme Court Rules) Directions Sl 13-11 has Rule 6 (2) (b) which is in pari materia with the above Court of Appeal Rule. ln this regard, the Supreme court in the case of Theodore Ssekikubo and 3 others vs The Attorney General and others Constitutional Appeal No. 01 of 2075 held that: -

"... Considerotions for the gront of on interim order of stoy of execution or interim injunction is whether there is o substontive Applicotion pending ond whether there is o serious threot of execution before heoring of the substontive Applicotion. Needless to soy, there must be o Notice of Appeol..."

ln Alcon lnternationa! VS New Vision Newspaper SCCA No. 4 of 2010 Okello JSC held that: -

"...1)pon being sotisfied thot the notice of Appeol hos been lodged in occordonce with Rule 72 of the Rules of this court, it is only necessory for the court to satisfy itself, on evidence, thot a substontive Applicotion is pending ond thot there is o serious threot to do the oct complained of before the substontive Applicotion is heord ond determined. Lodgment of the notice of Appeol in occordonce with Rule 72 ensures the competence of the pending

a a substontive Applicotion. There is therefore no need to pre-empt considerotion of matters of substonce, necessory for the success of the substontive Applicotion..."

The Supreme Court further held in the cases of Yakobo Ssenkungo and others vs Crensio Mukasa Civil Application No. 5 of 2013 and Guilliano Gariggio vs Claudio Casadio Civil Application No. 2 of 2013 held that;

"the gronting of interim orders is meont to help porties to preserve the stotus quo ond then hove the moin lssues between them determined by the full court os per the Rules."

It would therefore appear to me that the grant of an interim Order is a matter of judicial discretion the purpose of which is the preservation of the Status qou pending the hearing of the substantive application. The main test to be met by the applicant is that there is a serious threat to do the act complained of before the substantive Application is heard and determined. The onus of proof in this regard lies squarely with the applicant.

## Consideration of the merit of the Application

I have read the Motion in this Application and the Affidavits for and against it. I have also addressed my mind to the submissions of both Counsels and the authorities supplied to Court for which I am grateful.

<sup>I</sup>have noted that at the Trial Court in Miscellaneous Application No 139 of 2OI7 ,lhe Judge found that the "...onticipotion thot execution moy ensue therefore is not forfetched...".

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The Trial Judge then made the following Orders: -

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'o. Execution of the decree in this motter will be stoyed pending the determinotion of the oppeal;

b. The Applicont sholl deposit 20,000,000/= (twenty lVlillion Shillinqs) os security for due performonce of the decree within 30 doys from the dote of issue of this Order

c. Costs of this Applicotion will obide the outcome of the Appeol..."

This Order was made on the 29th September 2OI7. That is six years ago. There is no evidence that the Applicant deposited the money so Order. The Applicant does not even specifically protest this amount in the lVotion or its supporting affidavit.

An attempt to vary the above Order under lViscellaneous Application 212 of 2017 was dismissed with costs to the Respondent. That was on the 30th November,2021.. Again this was two years ago. Evidently this is a long time without execution.

From the Affidavit in Reply (Annexture "C") there is evidence from the Registrar of the trial Court that the Record of Appeal was ready and certified on the 13th September 2022. That is one year ago.

A review of this present Motion shows that it was filed on the 6th June 2023 (three months ago) but does not attach the alleged filed Appeal. Perhaps that may give credence to the submission of the Respondent that if the Appeal was filed, then it was out of time. The onus is on the Applicant to prove that his paperwork is in order. The Applicant has not done so.

I have also perused the Motion and sighted the warrant referred to in para 7 to the affidavit in support of the affidavit (supposed to marked as"A" but is not). The said

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warrant is not dated nor signed. An unsigned and undated warrant cannot be evidence of an imminent or serious threat of execution.

Looking at the above findings as a whole I find it difficult to exercise my discretion and grant the application for an interim stay.

I am therefore not satisfied that a case has been made for the grant of an interim Order. Given my findings above I hereby Order and Direct as follows: -

- 1. An interim Order staying the execution of the Judgment and Decree in HCCS 049 of 2Ot2 is denied. - 2. Costs to the Respondent.

! so Order.

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,. Dated at Kampala this....... day of .,....,V.9t1) 2023.

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JUSTICE GEOFFREY KIRYABWIRE, J. A