Serere District Local Government v Omiat (Civil Application 292 of 2024) [2024] UGCA 314 (12 November 2024)

### THE REPUBLIC OF UGANDA

## IN THE COURT OFAPPEAL OF UGANDAAT KAMPALA

lCoram: Egonda-Ntende, JAI

CIVIL APPLICATION NO. 292 OF 2024

(Arisingfrom Court of Appeal Civil Appeal No. 475 of 2022)

(Arisingfrom High Court Civil Suit 010 of 20lQ

#### BETWEEN

SERERE DISTRICT LOCAL CANT

#### ANT)

## RULING OF FREDRIK EGONDA. NTENDE. JA

- tl] This is an application for stay of execution of the judgment and decree of the High Court in Civil Suit No. 010 of 2016, pending the hearing and final disposal of Court ofAppeal Civil Appeal No. 475 of 2022. The application also seeks that provision be made for costs of this application. - I2l The grounds upon which this application is premised are elaborated in the affidavit in support of the motion, deponed by Mr. Otiira Gabriel, a Principal Assistant Secretary of the applicant. - t3] The said affidavit states in part as hereunder

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'3. That the Applicant being dissatisfied with the whole Decision/Judgment and Orders of this honorable Court in Civil Suit No. l0 c,f 2016 filed a Notice of Appeal and thereafter effectively served the same on counsel for the Respondent.

4. That after obtaining the above said certified copies of the record of proceedings in High Court Civil Suit No. l0 of 2016, the applicant filed the record of Appeal and the Memorandum of Appeal in the Court of Appeal of Uganda at Kampala.

Page 1 of 8

5. That I know that the intended Appeal in Court of Appeal against the decision and orders entered against the Applicant in HCCS No. 10 of 2016 has a likelihood of success.

6. That I know that the Orders issued by Court in HCCS No. 10 of 2016 are inherently self-executing and there is need to stay the said orders pending the determination of Civil Appeal No. 475 of 2022 in Court of Appeal of Uganda filed by the applicant.

7. That I know that by the nature of the orders issued in HCCS No. 10 of 2016, there is an eminent threat that the Respondent intends to execute the orders of the Court by compelling the Applicant to comply with Orders as directed by the Hon. Court.

8. The applicant filed an application for stay of execution of the orders in HCCS No. 10 of 2016 in High Court of Uganda Holden at Soroti vide Misc. Application No. 134 of 2022 which application was dismissed. Following the dismissal of the application for stay of execution by High Court at Soroti, the applicant has filed this instant application in Court of Appeal for stay of execution.

9. The applicant will suffer substantial and or irreparable loss if this application is not granted as the execution of the orders in HCCS No. 10 of 2016 will lead to loss of land in possession of the applicant and the applicant will lose the Veterinary house/offices which are operational on the suit land and which were constructed by the applicant before the respondent filed HCCS No. 10 of 2016 and will also lead to displacement of Government activities /services being carried out on the suit land which is the subject of the intended Appeal.

10. THAT I know that if the orders issued in HCCS No. 10 of 2016 are not stayed, the Appeal in Court of Appeal shall be rendered nugatory.

11. THAT I know that the Applicant will suffer substantial and or irreparable loss if this application is not granted as the execution of the orders in HCCS No. 10 of 2016 will lead to an irreparable loss of the Applicant's right to a fair hearing and loss of land as there is a possibility of the respondent selling or disposing the suit land.

12. That the Justice of the case calls for stay of execution of the Orders in HCCS No. 10 of 2016 to maintain the status

quo and preserve the applicant's right of appeal which is as of right in this case.'

- $[4]$ The respondent opposed this application and swore an affidavit in reply to the application. - $[5]$ The salient matters therein are contained in paragraphs 2 to 17 which I set out here below.

'2. THAT in reply to the contents of paragraph 8 of Otiira Gabriel's Affidavit, I have been informed by my Advocate, Renato Kania, which information I verily believe to be true, that it is not true that the Applicant's Appeal has any likelihood of success.

3. THAT the contents of paragraph 9 and 10 of Otiira Gabriel's Affidavit are false as not all the orders entered against the Applicant in HCCS No. 10 of 2016 are selfexecuting as alleged.

4. THAT in further reply to the contents of paragraphs 9 and 10 of Otiira Gabriel's Affidavit, I was well within my rights to file an application for an order of contempt of Court against the Respondent for its violation of the Orders contained in the Decree in HCCS No. 10 of 2016.

5. THAT the contents of paragraph 11 of the Otiira Gabriel's Affidavit are false as the Applicant hasn't used the Veterinary House/offices on the suit land to perform or offer any veterinary activities or services since the year 2000 or thereabout and will not suffer any loss or injury by its continued non-use of the said Veterinary House/Office.

6. THAT in further reply to the contents of paragraph 11 of Gabriel's Affidavit, Otiira the said Veterinary House/Office's environs are bushy, it is in a derelict state and it has been non-operational for more than 20 (twenty) years.

7. THAT still in further reply to the contents of paragraphs 11, 12 and 13 of Otiira Gabriel's Affidavit, the Applicant shall not suffer any irreparable injury or loss if it ceases to cut trees growing on the suit land for timber, ceases to use the suit land for dumping non-biodegradable waste matter during market days and restrains the livestock vendors in the market from letting their livestock loose and amok to stray into the suit land to destroy my crops being grown thereon.

8. THAT the Applicant's application for stay of execution has been brought with inordinate delay, considering that Judgment in Civil Suit No. 010 of 2016 was delivered by High Court Soroti on 15<sup>th</sup> June, 2022.

9. THAT the Applicant hasn't deposited any security for due performance of the Decree that may ultimately be passed against it on Appeal.

10. THAT still in further reply to paragraph 11, 12 and 13 of Otiira Gabriel's Affidavit, the Applicant is causing the Respondent irreparable damage on the suit land by dumping non-bio-degradable refuse/rubbish/garbage from its market thereon, which is environmentally hazardous and may render the same non-usable for farming and Agriculture.

11. THAT the status quo between the parties is that the Applicant has been Decreed as a trespasser and has been permanently restrained from continuing with its trespass on the suit land, which orders its continuously violating by utilizing the same as a market, by felling of trees on the suit land to build market stalls and by dumping nonbiodegradable refuse on the suit land.

12. THAT in further reply to the contents of paragraphs 11, 12 and 13 of Otiira Gabriel's Affidavit, I know that no Government activities shall be disrupted if the Applicant ceases its contemptuous activities on the suit land.

13. THAT in specific reply to the contents of paragraph 12 of Otiira Gabriel's Affidavit, which are false, there's no danger that the subject matter of the Appeal, to wit; 150 acres of customary land is in danger of being destroyed, sold or in any way disposed of.

14. THAT in specific reply to the contents of paragraph 13 of Otiira Gabriel's Affidavit, I have been informed by my Advocate, Renato Kania, which information I verily believe to be true that the Decree in HCCS No. 10 of 2016 is not executable by attachment and disposal or sale of the suit property since it is self-executing.

15. THAT in further reply to the contents of paragraph 12 of Otiira Gabriel's Affidavit, execution to recover the monetary awards in HCCS No. 10 of 2016 from the Respondent shall not in any way render the Appeal nugatory.

16. THAT in reply to the contents of paragraph 14 of Otiira Gabriel's Affidavit are false as the status quo is that apart

from having constructed a veterinary house on the suit land, the same is not in use, which status quo should be maintained.

17. THAT the Applicant's application is filed in bad faith to deny me the fruits of my Judgment in HCCS No. l0 of 2016.'

#### Legal Representation

t6] At the hearing, the appellant was represented by Mr. Mukisa Eric from the Attorney General's chambers while the respondent was represented by Mr. Kania Rosato.

#### Submissions

l7l Counsel for both parties filed written submissions in support of their respective positions, upon which the hearing proceeded.

#### Analysis

t8] Rule 6 (2) (b) of the Judicature (Court ofAppeal Rules) Directions, S. I 16- 13 provides that;

> 'Subject to sub rule I (l ) of this rule, the institution of an appeal shall not operate to suspend any sentence or to stay execution, but the court may - (a) (b) 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, otr injunction, or a stay of proceedings on such terms as the court may think just.'

t9] The principles upon which this court may apply the foregoing rule are well established. These are that there must be an appeal before this court which is likely to succeed or at least shown to be arguable. Secondly that in the absence of a stay of execution the applicant would suffer irreparable loss, or the appeal would be rendered nugatory. And lastly, if in doubt, the court may consider where the balance of convenience lies in whether or not to grant an order for stay of execution. See Gashumba Manirugaha v Sam Nkudiye [201s] UGSC 7.

## Likelihood of success of the appeal

- [0] The applicant asserts in paragraphs 2,3 and4 of its supporting affidavit that being dissatisfied with the decision of High Court in Civil Suit No. 010 of 2016, they filed a notice of appeal. Annexure B to the affidavit is a copy of the notice of appeal, dated 28th June,2022. In paragraphT, the applicant confirms that they lodged an appeal before this Court, a copy of Memorandum was annexed thereto as Annexure E. I am satisfied that not only has the applicant filed a notice of appeal but it has also lodged an appeal from which this application arises. - [11] It is, however, not sufficient to simply demonstrate the existence of an appeal. The applicant must show that the appeal bears a likelihood of success. In other words, the merits of the appeal must be arguable. - ll2) The main contention of the applicant is that the leamed trial judge did not evaluate the evidence before it evenly. There appears to be an arguable case as to whether or not the evaluation of the evidence of the trial Court was conducted in a wholesome manner. I am satisfied that there is an arguable appeal for determination that prima facie does not appear to be either frivolous or vexatious. The applicant has established this ground

# Whether the applicant will suffer irreparable loss if order is not granted

- [3] As far as this consideration is concerned, the applicant has to show that the damage bound to be suffered is such that it cannot be undone or be compensated for in damages. - [4] The applicant in paragraphs l0-13 of the supporting affidavit claims that there is an imminent threat of execution and a likelihood of irreparable harm if the order sought in this application is not granted. It is the applicant's case thata denial of the order will lead to loss of land in possession of the applicant and that the applicant will lose the Veterinary house/offices which are operational on the suit land and which were constructed by the applicant before the respondent filed HCCS No. l0 of 2016 and will also lead to displacement of Government activities/services being carried out on the suit land which is the subject of the intended Appeal.

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- [15] The respondent on the other hand asserts that the said veterinary house/offices'environs are bushy; in a derelict state and have been nonoperational for more than20 (twenty) years. - [ 16] The applicant in paragraphs 9 and l0 of its affidavit in support stated that the respondent intends to execute the orders of the trial Court. The respondent in paragraph l7 of his affidavit in reply and in his submissions intimated that the orders in the decree were self-executing and that an order of stay would simply prop the applicant to violate the permanent injunction. - llTl It is evident throughout the affidavit in support that the applicant's principal concern is loss of its veterinary offices due to eviction. Indeed, the trial Court in its decision issued an eviction order against the applicant. See paragraph o'g" of the decree (Annexure F of the affidavit in support). An order of eviction is not self-executing, it requires the input and assistance of Court. Section 38 of the Civil Procedure Act, Order XXII, rules 7 and 8 of the Civil Procedure Rules all point to the fact that execution of orders, such as an eviction order requires the involvement of Court. The Constitution (Land Eviction) Practice (Directions),2021 requires that Court issues eviction notices and timeframes for service of such notices. It also mandates Court to issue eviction warrants before any eviction takes places. - [18] In his affrdavit in reply the respondent averred that the applicant does not occupy the said buildings which are dilapidated in nature and have been abandoned. This averment is unchallenged. - [19] The applicant has actually not indicated in the affidavit in support how much land the applicant occupies out of the 150 acres of land decreed to the respondent, given that there are other defendants in respect of the said 150 acres of land. During the hearing counsel for the applicant in response to a question from the court stated that the applicant uses the land for a holding ground for cattle during vaccinations or mass treatment of animals. This information is not contained in any affidavit. Neither is an affidavit sworn from the staffof the alleged user department who would indicate what kind of use, if any, is made of the suit land and probable loss, if any, the applicant would suffer if an order for stay of execution is not granted.

- I am satisfied that the applicant has failed to establish that it would suffer $[20]$ irreparable harm if an order for stay of execution was not granted. - The applicant has failed to establish the requisite grounds upon which Court $\lceil 21 \rceil$ can exercise its discretion to grant an order of stay of execution. It suffices to state that the application is without merit. - [22] However, in the interests of justice it is important that the suit land is available for any orders that may be made on appeal by this court. A conservatory order shall issue. The respondent, in case he obtains possession of the suit land before the appeal in this matter is disposed of, is ordered not to alienate the suit land, or mortgage the same, or other deal with it, in such manner, as would create an incumbrance against the same, pending the hearing and resolution of this appeal.

## **Decision**

- In the event of execution of the decree in the court below, during the $[23]$ pendency of this appeal, the respondent is ordered not to deal with the suit land in such a manner as would affect the ownership thereof, including by way of sale, mortgage, alienation, parting with possession, or creating any other encumbrance or interest whatsoever. - Subject to the conservatory order herein made, this application is dismissed $[24]$ with costs.

Signed, dated and delivered at Kampala, this. ...................................

Fredrick Egonda-Ntende<br>Justice of Appeal