Sekandi v Administrator General (Miscellaneous Application No. 457 of 2022) [2022] UGCA 198 (29 July 2022)

Full Case Text

# THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

# MISCELLANEOUS APPLICATION NO 457 OF 2022

oF 2022) (Arising From Civil Application No (Arising From Civil Suit No.04 2018)

#### BETWEEN

KELSPO SEKANDI LUSANGWA ... APPLICANT

AND

ADMINSTRATOR GENERAL RESPONDENT

#### 15

# RULING BY GASHIRABAKE CHRISTOPHER JA

# (SINGLE JUSTICE)

#### Introduction

This is an application seeking for an interim order for stay of proceedings in the High Court vide Civil Suit No.04 of 2018, pending hearing and determination of Miscellaneous Application No. 325 of 2021 for leave to appeal and Miscellaneous draft application No. 60 of 2022, for stay of proceedings in this

court.

The Respondent filed Civil Suit No.04 of 2018, as administrator of the estate of the late Kayafa Solo Lusangwa for cancellation of lefters of Administration issued

to the Applicant on allegation of fraud. The Applicant filed Miscellaneous Application No. 215 of 2019, arising from Civil Suit No. 04 of 2018, on grounds that: 25

- a. Civil SuitNo. 04 of20l8 does not disclose a cause of action against the Applicant - b. Civil Suit No. 04 of 2018 is barred by limitation of time.

c. Civil suit No.04 of20l8 is frivolous and vexatious and an abuse ofcourt.

When Miscellaneous Application 215 of 2019, came up for hearing the trial judge summarily dismissed the application on ground that the letters of Administration held by the Applicant were null and void. Dissatisfied with the dismissal the Applicant filed Miscellaneous Application No. 369 of 2020, arising from Miscellaneous Application No. 215 of 2019 and Civil Suit No. 04 of 2018 for leave to appeal against the ruling in Miscellaneous Application No. 215 of 2019, but the Application was granted with a condition to deposit security for costs of UGX 70,000,000/: within two months. This was done without hearing the merits ofthe application.

15 20 Upon failure to get leave to appeal in the High Court before Justice Batema N. D. A the Applicant filed Civil Appeal No. 325 of 2021, in the Court of appeal arising from Misc. Application No.369 0f 2020, Misc. Application No.215 of 2019 and Civil Suit No. 04 of 2018, for leave to appeal the ruling and orders of the High Court Judge in Miscellaneous Application No. 215 of 2019, issued on the 27fr November 2020.

The High Court Judge proceeded with the hearing of the Civil Suit No. 04 of 2018, which compelled the Applicant to file Miscellaneous application No 122 of 2021 in the High court for stay of proceedings pending the application for leave to appeal in the court ofappeal.

- 25 The Applicant moved this court by Notice of Motion under Rules 2(2), 6(2Xb),42(1),44,50 of the Judicature ( Court of Appeal Rules S. I 13-10) for Orders that: - An interim order doth issue staying the proceedings in High Court Civil Suit No.4 of 2018 pending the hearing and determination of

Miscellaneous Application No. 325 of 2021 for leave to appeal and the subsequent Appeal in the court of appeal.

2. Costs of the application be provided for.

The grounds in support of the application were laid down in the affidavit of Mr.

**Kelspo Sekandi Lusangwa.** He averred that;

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1. The Applicant is a Defendant in Civil suit No.4 of 2018, which is 10 pending hearing on the $16$ th May 2022 at 9.00am. 2. The Applicant filed Miscellaneous Application No. 215 of 2019, raising several preliminary points of law. 3. The Applicant being dissatisfied with the Ruling of Justice David Batema delivered on 27th November 2020 in **Misc. Application No. 215** 15 of 2019 filed an application seeking leave of court to appeal the decision of the trial Judge. 4. The application for leave to appeal Misc. Application No. 369 of 2020 was not granted which forced the Applicant to file an application for leave to appeal in the court of appeal vide Civil Appeal No. 325 of 2021 20 which is pending hearing. 5. The Applicant filed **Miscellaneous Application No.325 of 2021**, seeking leave of court to Appeal. 6. The Applicant filed an application for stay of proceedings in the High Court in Miscellaneous Application No. 122 of 2022, pending the 25 hearing and determination of Miscellaneous Application No.325 of **2021,** in the Court of Appeal. 7. The applicant served the Respondent with the application for stay of proceedings on the 21st December, 2021 but no reply opposing the said application was filed in court. 30 8. The High Court scheduled the hearing of the application for stay of proceedings on the 1st March 2022 and submissions were filed on the 21st February 2022. 9. The day the Applicant filed the submissions for leave, it was discovered 35 that the trial Judge had called the application for stay of proceedings on the 15th February 2022 a day which was never scheduled by court for hearing and none of the parties was present in court and dismissed the application for stay of proceedings which is against the principle of natural justice. 10. The trial Judge David Batema, J dismissed the application for stay of 40 proceedings and while dismissing the application held that ' since the Applicant was granted leave to appeal but failed to deposit UGX $70,000,000/$ = (Seventy Million shillings only) as security for costs, this application for stay fails too' 11. The Applicant filed a Notice of Appeal and letter requesting for the typed 45 record of the proceedings in the High Court. 12. The Applicant received the proceedings and the order dismissing the application for stay of proceedings on the 14th March 2022 when his counsel was appearing in **Miscellaneous Application No. 589 of 2021**,

Com

| Rosette Zawede Mutesasirr and others vs. Van Rooyen Elizabeth | |------------------------------------------------------------------------| | Huibrecht, | | 13. On the l7'h March 2022, lhe Applicant's lawyer was served with a | | Hearing Notice scheduled for l6'h May 2022, whereas there is a pending | | application for leave to appeal pending in the Court ofAppeal. | | 14. Thal the Applicant has filed Miscellaneous Application No | | of 2022 of stay of proceedings pending the hearing of Civil appeal No. | | 325 of 2O2l for leave to appeal a decision made in Miscellaneous | | |

- Application No. 215 of 2019. - 15. The balance ofconvenience lies in staying proceedings in the High Court until the application for leave to appeal is heard and disposed of - 16. The application has been brought without undue delay. - 17. Il is only fair, just, equitable and in the inlerest of justice that this application be allowed and the Applicant's appeal be safeguarded.

The Respondent opposed this application through the Affidavit of Ms. Nakimuti

Isabella Janet on grounds that, the High court at Mukono granted the Applicant leave to appeal but with a requirement that he deposits security for costs to a tune of Shs.70,000,000/:. The Applicant instead chose to appeal against the orders on ground that the order was unfair to him. However, the Applicant does not demonstrate the unfaimess. The High court was justified to refuse to stay proceedings of a case that has stayed for I I years in court. That Civil Suit no 04 of 2018 was first registered as Civil Suit 036 of 2011 before Jinja High Court but was transferred to Mukono after the High Court in Mukono became operational and it was re-numbered No. 04 of 2018. The Respondent argued that a stay of proceedings on a case that has stayed I I years will occasion a miscarriage of justice to the Respondent and beneficiaries ofthe estate. 20 25 30

Representation.

The applicant was represented by Mr. Solomon Ssebowa and Mr. Samuel Ssemwogerere. The Respondent was represented by Mr. Robert Bogere.

# Submissions of counsel for the Applicant.

Counsel for the Applicant submitted that the Applicant seeks the intervention of this court to stay all proceedings in High Court vide Civil Suit No. 04 of 2018 pending the hearing of Miscellaneous Application No. 325 of 2021. Counsel argued that Rule 2(2) and 6 (2)(b) of the Court of Appeal Rules gives this honourable Court powers to make orders for attaining the ends of justice or to prevent abuse of the process of any such court. See Theodore Ssekikubo and others vs. The Attorney General and another Constitutional Application No. 06 of 2013, where the Supreme Court held that Rule 2(2) of the Judicature Supreme Court Rules give court very wide discretion to make such orders as may be necessary to achieve the ends ofjustice.

Counsel cited Wilson vs. Church (No.2) (1879)12 CH. D.454 and Somali Democratic Republic vs. Anoop S. Sunderlal Tran Civil Application No.ll of 1988(SC) which was cited with approval in National housing and Construction Corporation Civil Appeal No.06 of 2002. Where it was held that:

" where an unsuccessful party is exercising an unrestrained right of appeal , it is the duty of the Court in ordinary cases to make such orders for staying proceedings under the judgment appealed from as will prevent , if successful, from being nugatory"

Counsel further submitted that the Applicant has to satisff court that there is a;

- l. Competent notice of appeal - 2. Substantive application ofstay and; - 3. Serious threat of execution.

Counsel submitted that the Applicant had adduced evidence in paragraph 4 ofthe affidavit in support of the application to show that he filed a Notice of Appeal. In paragraph 8 and 17 of the affidavit in support he demonstrates that there is a

pending substantive application. In paragraph 15 the applicant averred that the proceedings are ongoing in high court at Mukono. 5

Counsel additionally submitted that the Applicant has fulfilled all the requirements for grant of an interim Order.

# Submissions of Counsel for the Respondent.

It is the submission ofcounsel for the Respondent that the applicant has shown that there are two applications in the court ofappeal that are both ready for this type of application for stay of proceedings. That court should not entertain such endless litigation. Counsel averred that courts have objected to appeals during hearings. Counsel cited Sanyu Lwanga Musoke vs. Sam Galiwaango U9971 KALR 47. and DFCU LTD vs. Begmohamed Ltd , Court of Appeal, Miscellaneous Application No. 65 of 2005, where this court held that ; 10 15

> "We are uncomfortable to stay the proceedings, as that would increase backlog of cases in this Court.

This kind ofendless litigation, in our view, is an abuse ofcourt process"

Counsel submitted that in the affidavit in reply that the Respondent demonstrated that the Applicant was being monstrous, immoral and outrageous in suggesting that he will be inconvenienced if the application is not granted. The Applicant has not demonstrated how he would be inconvenienced. Counsel further submitted that the Respondents and the Beneficiaries would be inconvenienced by staying a case that is already long overdue since it has been in court for 1l years. Counsel cited Commodity Export International and Anor vs. MKM Trading Company Ltd and Anor Civil Application No. 96 of 2005. Where court refused staying proceedings because it found it unnecessary considering the backlog at High Court. 20 25

C-Grt

5 Counsel prayed that this application to be dismissed with costs.

The Applicant did not file rejoinder to the submissions.

# Consideration of Court.

I have carefully perused the record and considered the submissions by both leamed counsel. I have also read a number of authorities from this Court and Supreme Court on interim orders. This Court may in exercise of its discretion grant an interim stay of proceedings whenever it considers it equitable to do so. Under Rules 6(2) (b) of the Judicature (Court of Appeal Rules) Directions, provides that:

In any civil proceedings, where a notice of appeal has been lodged in accordance with rule 76 of these Rules, order a stay of execution, an injunction, or d stay ofproceedings on such terms as the court may lhink just.

In Hwan Sung Industries ltd vs Tajdin Hussein and 2 others Civil Application No. 19 of 2008, Okello JSC, stated some of the principles to be considered in granting interim orders of stay of execution, thus:

> "For an application for an interim order of stay, it suffices to show that a substantive application is pending and that there is a serious threat of execulion before lhe hearing ofthe pending substantive application.

> It is not necessary to pre-empt consideration of matters necessary in deciding whether or not to grant the substantive application for stay."

Rule 2(2) of the Judicature (Court of Appeal Rules) Directions grants this court powers to make such orders inter alia as may be necessary for achieving the ends ofjustice.

5 (2) Nothing in these Rules shall be taken to limit or otherwise affect the inherent power of the court, or the High Court, to make such orders as may be necessary for attaining the ends ofjustice or to prevent abuse of the process of any such court, and that power shall extend to setting aside judgments which have been proved null and void after they have been passed, and shall be exercised to prevent abuse of lhe process of any court caused by delay.

In National Enterprise Corporation Vs Mukisa Foods Miscellaneous Application No. 7 of 1998, this court held that;

> "The court has power in its discretion to grant stay of execution where it appears to be equitable with a view to temporarily preserve the status

The first requirement for grant of an interim stay of execution is the existence / pendency of a Notice of Appeal. The Supreme Court in the case of Dr. Ahmed Muhammed Kisuule vs. Greenland Bank (In liquidation) Miscellaneous Application no. 7 of 2010 stated that;

> "For an application in this Court for a stay of execution to succeed the applicant must first show subject to other facts in a given case, that he/she has lodged a notice of appeal in accordance with Rule 72 of Rules of this Court..."

25 30 According to paragraph 4 of the affidavit in support of the application, the Applicant filed a Notice of Appeal on the I lm December 2020. I take cognizance of the fact that this application raises from an appeal which is not of right. However, According to Rule 41(1) of the Court of Appeal Rules, it is not necessary for the Applicant to first obtain leave before lodging a Notice of Appeal. Accordingly the Applicant has satisfied this requirement.

The second condition that needs to be satisfied is the existence of a substantive Application. In the Submissions of the Applicant, it was submitted that under

- 5 10 paragraph 8 there is evidence of a substantive application. The application that is required is a substantive application for stay. The one referred to in paragraph 8 is Miscellaneous Application No.325 of 2021,, seeking leave to appeal. Miscellaneous Application No. 325 of 2021, does not qualify as a substantive application for stay. The Applicant referred to Miscellaneous Application 60 of 2022 for stay of proceedings. However the application before this court is Miscellaneous Application No. 60 of 2022 in the names of Beyendeza Edward vs. Abdul Rajab Kalule. The Applicant did not attach any documentary evidence to prove that there is a substantive application before this court. The Applicant has therefore failed to satisff this condition. - Lastly, the Applicant has to satisfi court that there is imminent threat. Counsel submitted that under paragraph 15 of the affidavit in support, the Applicant's counsel was served with a Hearing Notice scheduled for 16th tr'4Lay 2022, whereas there is a pending Application for leave before this court. This paused as a threat to the Applicant. It is true that the ongoing hearing pauses a threat to the purpose of the appeal before this court. This is because as the proceedings are ongoing, they may be concluded before the Appeal is heard. This defeats the purpose of the 15 20

Appeal.

It has to be noted that for this court to grant an interim stay of proceedings the three conditions must be fulfilled to the satisfaction of court. In this case the Applicant has not proved the existence ofa substantive application.

In conclusion, I find that the Applicant has not met the conditions for the grant of an interim stay of proceedings. I am fully aware that Rule 2 (2) of the Rules of this Court confers on the Court discretionary powers in the pursuit and fulfillment of the exercise

5\* of the substantive justice and avoidance of abuse of court process. However the discretion is exercised within the ambits of the law.

This is a case that has stayed in court for 10 years now because of unending Applications; it would be unfair for this court to stay such a case. The multiplicity of applications could be a deliberate attempt to delay and deny Justice to the other party.

I do not see any inconvenience that the Applicant would suffer if the matter is heard 10 on its merits.

This application is dismissed with costs to the Respondent.

I so order

| <table> Dated at Kampala this</table> | | | | |----------------------------------------|-----------------------|--|--| | | | | | | | $2 \times 52$ | | | | | | | | | | C. GASHIRABAKE | | |

**JUSTICE OF APPEAL**

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