Serwadda v Nanteza (Civil Application 663 of 2022) [2023] UGCA 360 (27 April 2023)

Full Case Text

## THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

## CIVIL APPLICATION NO.663 OF 2022

(Aising from Ciuil Application No. 662 of 2022)

## NORAH SERWADDA APPLICANT

#### 10

#### VERSUS

ANGELLA PETIT NANTEZA RESPONDENT

## CORAM: HON. MR. JUSTICE CHEBORION BARISHAKI, JA

### (srNGLE JUSTTCEI

#### RULING

This is an application for an order of interim stay of execution of the Court order in MA 568 of 2016, attachment and sale of immovable property comprised in LRV 3610 Folio 23, Plot 11 Katazamiti Road Kiswa Zone 5 Bugolobi until the Civil Application No.662 of 2022 is heard and disposed of and an order that the costs of and incidental to the application abide the result of the Appeal. 15 20

## Background

The applicant was a party in High Court Miscellaneous Cause No.31/2010 in which a consent judgment was entered in respect of immovable property comprised in LRV 361O Folio 23 Plot 11 Katazamiti Road, Kiswa Zone 5 Bugolobi in which it was agreed that the suit property would be transferred

- 5 in the names of the applicant and other two beneficiaries of the estatd of the late Tereza Nalumansi. The respondent later filed High Court Miscellaneous Application No.568/2016 seeking review ofthe said decree and the orders for the sale ofthe suit property. The ruling was given in favour ofthe respondent and the consent judgment was set aside. - The applicant filed Civil Application No.2O of 2022 for extension of time within which to file an appeal having failed to file an appeal against the nlling in Miscellaneous Application No.568 of 2016 in time. She also filed High Court Miscellaneous Application No.367 of 2022 seeking stay of execution in Miscellaneous Application No.568 of 2016 but the same was dismissed by the 10 - High Court. The applicant hled an application for leave to appeal and a substantive application referenced as Civil Application No.662 of 2022. She then filed the instant application seeking for an interim stay of execution. 15

## Grounda of the applicatlon

The grounds in support of the application are contained in the notice of motion and they are elucidated in the affidavits in support. The applicant has premised his application on the ruling of His Lordship Godfrey Namundi in Miscellaneous Application No.568 of 2016 where the consent judgment was set aside. The applicant appealed against the said ruling and liled an application for leave to appeal out of time which application is pending before this honourable Court. 20 25

Further that the applicant has also filed Civil Application No.663 of 2022 for stay of execution of the Court ruling in Miscellaneous Application No.568 of 2016 which application is also pending before this Honorable Court. That the 2lPage

5 pending MA 32 of 2O2O has not yet been fixed for hearing and the respondent commenced execution processes for the said ruling in EMA No.778 of 2Ol9 and is likely to obtain a warrant of sale of the suit property. The applicant stated that if the respondent's acts are executed, the suit land is likely to be sold and the pending application will be rendered nugatory and the applicant 10 will suffer irreparable loss. That it is therefore in the interest of justice that the orders sought for are granted.

## Grounds lu opposition

The application was opposed by the respondent briefly stating that the application was frivolous, vexatious and devoid of merit. He prayed to cross 15 examine the deponent of the affidavit in support of the application. According to counsel, there was no appeal pending before this Court from which the present application would arise and no Notice of Appeal was ever filed in Court. The respondent stated that the alleged pending application for extension of time within which to appeal was improperly before Court because

20 it has never been liled in the High Court.

Further that there was no pending application for stay of execution before this Court and the interim being sought was not pending any other application. That the warrant issued by the High Court expired and there was no warrant for execution against the applicant because the same has never been renewed.

# 25 Repreeentation

At the hearing of the application, the applicant was represented by Mr. David Luswata Kibaanda while Mr. Nsubuga James appeared for the respondent.

# 5 Applicant's eubmissions

Counsel for the applicant submitted that the principles upon which interim orders are granted were laid down in the case of Hutan Sung Industrles V TaJdtn Ilusseln and 2 Ors, Clull Appllcatlon No.79 of 2OO8. He add,ed that the purpose of interlocutory injunctions is to maintain the status quo 10 and the principles considered while granting an application for interim stay of execution include; there must be a substantive application before Court, there must be an eminent threat of execution, the applicant must show a prima facie case with a probability of success and the likelihood of the applicant to suffer irreparable damage and loss. He relied on Theodore

# 15 Sektkubo & 4 Others V The Attorneg General & 4 Others, Supreme Court Constllr,ttlonal Appeal No.4 of 2074.

Counsel submitted that there was a substantive application pending before this Court. He stated that the instant application arises from CA No. 662 of 2022 seeking for the stay of execution of the ruling in High Court in MA 20 No.568 of2016. CA No.662 of 2022 and CA 20 of 2O2O seeking leave to appeal out of time are pending before this Court.

Counsel further submitted that there was an eminent threat of execution. That although the respondent did not have any interest in the suit property, he filed Miscellaneous Application No.568 of 2016 seeking orders for the sale 2s of the property and after the ruling in MA No.568 of 2016 was delivered in her favour, she filed execution proceedings in EMA No.778 of 2079 in the High Court and later EMA 40 of 2O21. He added that a warrant of sale of the suit

5 property was granted and the bailiffs went ahead to advertise the sale in the Daily Monitor Newspaper dated l4e March,2022.

Counsel contended that the sale of the suit property would deprive the applicant of her residential home and hence violates her constitutional right to property. The applicant was likely to suffer irreparable damage and loss in 10 the event that the property was sold. counsel further contended that the

applicant is still in possession of the property and the import of the consent judgment was to have some of the beneficiaries of Tereza Nalumansi benefit as joint proprietors of the property. He added that the respondent would not suffer any inconvenience if the stay was granted. It is only the applicant who 15 would be inconvenienced and suffer irreparable damage and loss of the suit property in the event that the same was sold.

## Respondeat'a submlssions

Counsel for the respondent opposed the application and raised 2 preliminary objections; first that the application did not disclose grounds and submitted 20 that the application did not have any grounds on which it was based and for that reason did not conform to the requirements under Rule 43 of the Rules of this court. He added that this was not a matter of form only but also of law and an application that does not set out the grounds on which it is based ought to be struck out because it undermines the purpose of the Rules 25 governing the Court. He relied on Tororo Cement Co. Ltd V ?roklna

Internatlonal Ltd., Supreme Court Ctvtl Appeal No.2 oJ 2OOl for tine proposition that Article 126 of the constitution was not meant to encourage sloppy drafting of pleadings.

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5 Secondly, that the application was an abuse of Court process because deliberate delays by a party in order to frustrate another was an abuse of Court process which must be condemned. That the applicant had abused the concept of time to delay and frustrate the respondent from ever realizing the fruits of her judgment by filing unsupported Applications; Miscellaneous 10 Application No.568 of 2016 in the High Court and after receiving judgment in

her favour on the 3oft day of August, 2018. She then filed an application for leave to appeal on Stt, February, 2O2O,2 years after the ruling.

Counsel further submitted that the application for stay of execution in High Court vide Miscellaneous Application No.367 of 2022 was filed on 2lst 1s October, 2019 which was 1 year after the ruling in Miscellaneous Application No.568 of 2016. That the applicant never took any steps or showed any diligence as an interested party to have the application heard and determined until 12th May,2022 when she had the same fixed and determined. He added that the applicant had to date not followed up to have its application for leave 20 to appeal out of time fixed and heard since February, 2O2O and has never filed an application for leave to appeal the order of the High court in Miscellaneous Application No.568 of 2016 since an appeal from an order of review that was not before the same Judge is not as of right.

Regarding the conditions that the applicant must satisfy before granting an 25 interim order, counsel for the respondent submitted that the applicant had neither filed a Notice of appeal in this Court nor in the High Court appealing the decision in Miscellaneous Application No.568 of 2016. Counsel further submitted that the applicant averred under paragraph 5 of her affidavit in

SlPage - 5 support of the application that she intended to appeal the decision in MA 56g of 2016 and that she had filed an application for leave to appeal out of time. In counsel's view, this was not proof of a pending appeal or Notice of Appeal. He relied on Laurence Nabbamba l\*onard. dnd Anor v Herbert se'rrro,kula Musoke and 5 Ors, Mlscellaneous Appllcadon No. S44 of 2O2O for the 10 proposition that the existence of a valid notice of appeal is an essential pre- - requisite to the grant of an interim order of stay of execution.

Counsel submitted that the applicant alleged under paragraph 6 of the afhdavit in support that she had Iiled a substantive application however, the purported application was served on the respondent on I 4fr Septemb er, 2022 15 yet the same was never signed by the Registrar and the afhdavit in support of

the application was not commissioned by a Commissioner for Oaths.

As to whether a serious threat of execution exists, counsel submitted that there was no serious threat of execution against the applicant. That the applicant in his application had not attached any proof of a valid warrant of 20 attachment that is executable at the convenience of the respondent. That whenever a party is successful in any proceedings before any court, that party must apply to execute the judgment and realize the fruits of that decision but in counsel's view that does not mean that there is a serious threat of

execution. counsel further submitted that the execution proceedings in EMA 2s No.40 of 2o2l where the warrant of sale of the suit property was granted to the respondent together with an advert of sale in the Daily Monitor newspaper referred to by the applicant lapsed and the respondent has not applied to have the same renewed. He prayed that the application be dismissed with costs.

## 5 Submissions in rejoinder

counsel for the applicant rejoined that it was an oversight the grounds of the application where not mentioned in the Notice of Motion and mistake of counsel should not be visited on the applicant. Counsel prayed that the applicant be allowed to amend the Notice of Motion since the respondent would not be prejudiced by the amendment. He relied on section 100 of the civil Procedure Act cap 7 1 which provides that amendments meant to determine the real issues in court should be allowed and Article 126 (2) (e) of the constitution to the effect that substantive justice shall be administered without undue regard to technicalities.

Regarding the second preliminary objection on whether the application was an abuse ofcourt process, counsel submitted that it was the respondent who unfairly filed Miscellaneous Application No.568 of 201g seeking a review of the consent decree and yet she had earlier expressed lack of interest in the suit property. The delay in filing an application for leave to appeal by the applicant was because the applicant was never notified on when the ruling would be delivered which was delivered without his knowledge and in his absence. 15 20

On whether there is a valid Notice of Appeal, counsel for the applicant submitted that Rule 2(21 of th,e Rules of this court clearly provides that this court has inherent powers to make such orders as may be necessary for attaining the ends of justice or to prevent abuse of court process. The fact that the applicant liled cA No.32 of 2020 meant that she intended to lile a Notice of Appeal and a Memorandum of Appeal once leave was granted.

8lPagc

- Further that to lock the applicant out of court and allow the suit property to be sold and her intended appeal to be frustrated would not be in the interest of justice since the applicant came to realize that the ruling was delivered when she saw the property being advertised for sale in the Newspapers. 5 - As to whether there is a serious threat of execution, counsel for the applicant submitted that mere lack of a valid warrant of sale does not mean that there is no eminent threat of execution and in this case the execution process had reached an advanced stage with the property being advertised for sale and there was a temporary halt of the process when the High Court gave an interim order but this has since lapsed when the same court dismissed the application for stay in Miscellaneous Application No. 367 of 2022. 10 15

counsel further submitted that there is a substantive application and the same has been filed on ECCMIS and served on the respondent who has also Iiled submissions in reply. counsel prayed that the application be granted with costs.

## 20 Court's analysls.

I have carefully studies the submissions of both counsel and considered the evidence on record. Rules 6(2), 42(21 and 43 of the rules of this court give wide discretion to court to grant interim or substantive orders of stay of execution for purposes of preserving the right of appeal where special circumstances exist. See La.urence Muslltwa Kgazze V Eunlce Buslngge, Supreme Court Cfiil Appllcatlon No.18 of 1990.

- 5 counsel for the respondent raised 2 preliminary objections which I wish to dispose of before delving into the merits of this application. First, he argued that the application did not disclose any grounds on which it was based and hence did not conform to the requirements under Rule 43 of the Rules of this court. counsel for the applicant conceded to this fact and submitted that it - was an oversight that the grounds of the application were not mentioned in the Notice of Motion and mistake of counsel should not be visited on the applicant. 10

## Rule 43(1) of the Rules oJ thts Court states that;

" Subject to sub rule (3) of this rule and to ang other rule alloruing informal application, all applications to the Court shall be by motion, which shall state the grounds of the application. "

Attlcle 126 (2) (e) of th,e Constitution provides as follows:

" In adjudicating cases both of a criminal and ciuil nature, the courts shall subject to law, apply the follouing principles: (e) substantiue justice shail be administered without undue regard to teclnicalities. "

Okello, JSC in . Jullus Ruablnuml V Hope Bahlmblsomute, Supreme Court ctvtl Appltcatlon No.74 of 2oo9 stated that, "it utould be a graue injustice to deng an applicant such as this one, to pursue his rights of appeat simplg because of the blunder of his lawgers uhen it is uell settled" that an error of counsel should not necessaily be uisited upon his client."

I agree with counsel for the respondent that indeed the Notice of Motion did not disclose the grounds of the application yet the provisions of Rule 43 of the

5 Rules of this Court are mandatory. Sub Rule (2) of Rule 43 provides a format to be followed.

Going by the applicant's submission would amount to this Court amending the Rules. Rules of procedure have to be followed if the ends of justice are to be met.

ln Utex Industrles Ltd V Attorneg General, Ctvtl Appllcatlon No. S2 oJ I995, the Supreme Court while dealing with an application for enlargement of time where the applicant sought to rely on Article 126(21 (el of the Constitution in support of its case had this to say; 10

"Regarding Article 126(2) (e) and ttre Mabosi case we are not persuaded that the Constituent Assemblg Delegates intended to tuipe out the nies of procedure of our Courts bg enacting Article 126(2) (e). Paragraph (e) contains a causation against undue regard to technicalities. We think that the article appears to be a reJlection of the saging that rules of procedure are handmaids to justice meaning that theg should be apptied with due regard to the ciranmstances of each case. We cannot see how in this case article 126(2) (e) or Mabosi case can assist fhe respondent uho sat on its ights since 18/ B/ 1999 uithout seeking leaue to appeal out of time. It is perhaps pertinent lere to quote paragraph (b) of the same clause (2) of Article 126. It states; "justice shatl not be detayed". Thus to auoid delays, rules of Court prouide a timetable u\_tithin which certain steps ought to be taken. For any delag to be exansed, it must be explained satisfactoilg. "

5 Purther in Kaslrye Bganthanga & co. Aduocates v trgand.a Deoelopment Bank' cfitll Appllcatlon No.2 oJ 1997, t].e applicant also sought to rery on Article 126(21 (e) of the constitution in support of its application. In rejecting the application, the court relied on the Utex case (supra) and stated that:

"a litigant who relies on the prouisions of Article 126(2) (e) must satisfg the court that in the circumstances of the partiatlar case before the court it wos not desirable to pay undue regard to a releuant technicalitg.. Article 126(2) (e) is not a magic wand in the hands of d.efaulting litigants.,'

The application is therefore incompetent and is struck out with costs.

| | I so order | | |----|-----------------------------|------| | | | | | 15 | z:t Dated this day of | 2023 |

Che orion Barishaki

JUSTICE OF APPEAL