Sewaalinte v Kayizzi (Civil Miscellaneous Application 237 of 2023) [2024] UGCA 131 (29 May 2024)

Full Case Text

#### THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT KAMPALA **CIVIL MISCELLENEOUS APPLICATION NO. 237 OF 2023** (ARISING FROM EXECUTION MISC. APP NO.71 OF 2021) (ARISING FROM CIVIL APPEAL NO.87 OF 2022)

(ALL ARISING FROM HIGH COURT CIVIL SUIT NO. 438 OF 2013) $10$

JUMA SEWAALINTE::::::::::::::::::::::::::::::::::::

#### **VERSUS**

VICTORIA KAYIZZI::::::::::::::::::::::::::::::::::

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

#### (SINGLE JUSTICE)

#### **RULING**

This Application was brought under the provisions of Rules $2(2)$ , $6(2)$ (b), $42(2)$ and 43 of the Rules of this Court and Section 98 of the Civil Procedure Act. It 20 is for orders that: -

a. An order for stay of Execution doth issue restraining the Respondent, his servants, Agents, Attorneys or any person acting on their behalf from

executing the Judgment and orders of the High Court Land Division delivered on the 29th day of June ,2017 in Civil Suit No.438 of 2013 pending 25 determination of the Appeal.

*b.* Costs of the Application to abide the results of the Appeal.

#### **Background**

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5 The background to the Application can be discerned from the record is that the Respondent frled a suit against Applicant in t1e High Court -Land Division; Civil Suit No. 438 of 2O13 and judgment was delivered in favor of the Respondent.

Dissatisfied with this Judgment, the Applicant frled an Appeal in this Court, seeking to challenge the decision of the trial Judge and also filed an Application seeking stay of execution. 10

The grounds of the Application are contained in the Notice of Motion and affrdavit in support sworn by Juma Sewaalinte. Briefly the grounds are;

al That on the 29th dag of June,2o17, judgment utas giuen in fauor of the Respondent in Ciuil Suit No. 438 of 2O13 and the Applicant dissatisfied uith the decision of the learned tial Judge filed a Notice of Appeal in this Court. The Applicant then filed Miscellaneous Application No.2144 of 2021 and tLe same utos dismissed hence the instant Application. 15

b) Thnt the execution of the Judgement is alreadg undenuag because some of

tlre self-executing orders are being implemented like entering into tte suit land for the Respondent to surueg off the decreed portion of 5 acres. 20

c) Ttnt the Respondent filed a Notice to Shotu Cause Whg Execution Should not issue which uas fixed on th.e 3oth dag of Mag 2O23 and

Adjourned for Mention on the 22nd dag of August 2023

d) That tle Applicant has filed Ciuil Appeal No. 87 of 2022 in the Court of Appeal challenging tlrc judgment in the main suit of Ciuil Suil I{o 438 of 2O13 uith Iike liln o d o.;f su ccess. 25

e) Tlnt if this Application is not granted it utill cause a miscarriage of justice since the .judgment uas passed u-tithout proper eualuation of euidence on record on wlrcther or not there utas a ualid sale of the suit land and not putting into

- consideration the interest of Bibanja Lolders on the decretal suit propertg. 30 - fl. Tlnt the Application has been made uithout undue delag - g). Tlnt th.ere is a seious risk as the louer Court dismissed the Application for 2lPage

staA of exedttion of the decree and this utill lead to a great loss and ineparable damage to me the Applicant and this mag render tLrc Appeal a moot or nugatory.

The Respondent opposed the Application and filed an affidavit in reply and deponed by James Samuel Zeere. The grounds in opposition are:

a) That on 29 June 2O1 7, Honourable ladg Justice Eua Lusuata entered judgment in fauour of the Respondent.

- b) The Respondent thereafier filed a bill of costs dated 11 August 2O17 to claim the costs of tle suit a utarded and the same uas taxed inter parties and allouted at UGX 5,5OO,0OO. (A copg of the taxed bill of costs rs attacled and morked "'R2") - c) That despite knouledge of the judgment and orders entered in Ciuil Suit No. 438 of 2O13, the Applicant refused and/ or neglected to complg with tle decision of the Court. - d) The Respondent consequentlg issued numerous letters to tte Applicant demanding that he complies with the tenns of the judgment. - e) The Applicant receiued the letters but continued to uiolate the Court's orders despite making commitments to tLE Respondent that the orders tuould be fulfiUed. (Copies of the correspondences are attach.ed and marked "R3") - fl That the Applicant uill not suffer substantial loss if the order for stay of execution is not granted since ang loss occasioned can be compensated in damages uhich the Respondent has the abilitg to pag. - g) Thnt tle Applicant has not deposited seanitg for due performance of the decree issued in Ciuil Suit No. 438 of 2O21 to merit the grant ofthe orders sought. - h) Tlat the Application for stag of exeantion has been brought utith inordinate delag consideing that the judgment and orders of the Court in Ciuil Suit No. 438 of 2021 Lnd immediate effect.

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## 5 Represe[tatlott

At the hearing of the Application, Ms. Lydia Mwebaze and Mr. Richard Semwanga appeared for the Applicant while the Respondent was represented by Ms. Josephine Muhaise.

#### Submlsslons

10 Counsel for the Applicant submitted that the instant Application was brought under Rules 2,2]r,612l (bl,42l2l and Rules (1) and (2) of the Judicature (Court of Appeal Rules) Directions.

He submitted that the Applicant first applied for stay of execution of the judgment and orders in the High Court Misc. App No. 576 of 2O2l and the 15 sarne was dismissed and as a result the instant Application was filed before this Court.

According to Counsel the purpose of granting an Application for stay of execution was to ensure \*rat the successful party does not execute tl1e judgment until the Court of Appeal pronounces itself on the pending Appeal

- 20 before it. That in that case the Applicant must establish that his Appeal has a likelihood of success, that the Applicant will suffer irreparable damage or that the Appeal will be rendered nugatory if a stay is not granted and if 1 and 2 have not been established then Court must consider where the balance of convenience lies and lastly that the Applicant must also establish that the - 2s Application was instituted without delay. He relied on Dr. Ahmed Mohammad Klsule V Green,lrrnd Ba;nk (In llquldatlon SCCA IVo. 7 of 20 1O and Lawrence lfrusltua Kgazze v Eu lce Buslngge Ctril Appllcatlon No 18 of 1990 to support his submission.

It was Counsel's submission that the Application was lodged before this Court 30 because there is a serious threat of execution by the Respondent. There was a pending notice to show cause why execution should not issue which if this Application was not granted.

Counsel further submitted that if the execution of the decree is not stayed till Appeal No.87 of 2022 is heard, the Applicant will suffer irreparable loss which cannot be atoned by monetary compensation.

Counsel submitted that the Appeal had a likelihood of success in the memorandum of Appeal which highlights that the Lcarned High Court Judge grossly erred both in law and fact because there was no proper evaluation of the evidence on record to establish whether there was a valid sale of the suit land and failure to take into consideration tlte interests of Bibanja holders on the decretal suit property.

Counsel contended that if this Application was not granted and the execution proceeded, t].e subject matter of the Appeal would no longer be available, hence rendering the Appeal which has a likelihood of success a nugatory' 15

Counsel submitted tJ:at substantial loss may occur to the Applicant, unless Affidavit in support of the Application, his livelihood hinges on the suit land

- and he has Legal and Equitable interests on the land unlike the Respondent who has never stepped even on it notwithstanding that he has commenced execution process and there was still a pending notice to show cause why execution should not issue. That if the Court does not grant his Application, substantial loss will result to the Applicant. 20 - It was Counsel's submission that this Court is empowered to issue orders to ensure that the Appeal is not rendered nugatory. The power is granted by Rule 2l2l of the rules of this Court in order to achieve the ends of justice. Counsel implored Court to judiciously exercise tttat power in favour of the Applicant and referred to the decision of this in lfon, Sseklkubo Theodre and olthers - V Attonvg General Constltutlonal Appllcatlon No. O4/2O74, where t}te Court emphasized that rule 2(21 of the Rules of this Court gives a wide discretion to make such orders as may be necessary to achieve the ends of justice and one of the ends ofjustice is to preserve the right of Appeal. 30

He submitted that the Application was made wittrout undue delay and was solely premised on the looming tttreat of execution which was initiated by the 35

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5 Respondent vide a Notice to show cause in Miscellaneous Application No.071 of 2027 from which an order for execution was issued by the High Court' He prayed that the Application be allowed.

### Respondent's case

In reply, Counsel for the Respondent submitted that the power of this honorable Court to order a stay of execution pending Appeal is provided under Rule 6(2)(b) of the Judicature (Court of Appeal Rules) Directions Si 13-10. 10

The conditions that must be fulfilled for the grant of an order of stay of execution are expounded in the Supreme Court decision of Hon. Theodore Sseklkubo and Others Vs The Attorneg General and Athers Constltutlondl Appllco:tlort No. 3 oJ 2O74 cited with approval by this honorable Court in tlganda Reuenue Authorltg us Na,tlonal Soclal Sec'urltg Fwnd, Clvll Appllcatlon No. 43 oJ 2O23. The Applicant must satisfy Court that: there is a pending Appeal with a high likelihood of success; substantial loss may result to the Applicant unless tle order is granted; the Application has been made without unreasonable delay and security for due performance of the decree or order has been given as may ultimately be binding upon him. 15 20

- Counsel submitted that the Applicant had failed to fulfill any of the fundamental conditions necessary for the grant of an order of stay of execuLion. Counsel submitted that the pending Appeal does not have the slightest likelihood of success. Ground 1: The Learned Trial Judge erred in law and fact when she held that the Respondent was entitled to recovery of hve acres of land against the Appellant after the twelve-year limitation period 25 - and denied the Respondent from enjoying the benefit of utilising her property. In his view the issue of limitation did not have the slightest chance of success as it was neither pleaded nor was there evidence adduced on it during trial. 30

Counsel submitted that the Applicant claimed that he would suffer great loss if aI order for stay of execution was not granted. However, he did not lead any evidence to support this claim so as to justify a frnding in that regard. He 6lPage 5 added that any loss occasioned can be compensated in damages and in his opinion the Respondent had the ability to pay. He relied on Haruna Sentengo us l&Ifi Bank (Ul Llmtted (Court oJ Appeal Clvll Appllcatlon No.773 oJ 2023) to support this submission.

He contended tlat to succeed on the ground that an Appeal will be rendered nugatory, the Applicant must show that there is pending and imminent threat of execution. He referred llganda Reuenue Authorltg Vs Na,tlonal Socldl Sectrltg Fwnd (supra) to support this assertion. In the present case, the Respondent has not commenced execution proceedings in High Court Civil Suit No. 438 of 2013 against the Applicant. The execution proceedings brought by the Respondent are in respect of the contempt ruling in Miscellaneous Application No. 576 of 2019, which is not the subject of Civil Appeal No. 87 of 2022. 10 15

It was Counsel's further submission that the Application had been brought with inordinate deiay considering that the judgment and orders of the Court

- in Civil Suit No. 438 of 2013 had immediate effect. He added that Paragraph 26 of the affidavit in reply show that the Applicant being fully aware of the orders of tl:e Court in Civil Suit No. 438 of 2O13 delivered on 29 June 2077 and he filed a notice of Appeal on 3 July 2017. 20 - He further submitted that for a stay of execution to be granted, the Applicant must provide security for due performance of the decree or order as may ultimately be binding upon him or her as was held in the case of Laurence Muslltua Kgar.ze os tf.tnlce Buslngge (supra). 25

Counsel prayed that this Court finds that the Applicant has not fulltlled the conditions necessary for grant of the order of stay of execution and the Application should be dismissed with costs to the Rspondent.

In rejoinder, Counsel for the Applicant submitted that it is in the interest of justice that the Application is granted so as not to render the Appeal a nugatory. That the Application followed the dismissal of t1le Application for stay of execution in the High in 2O21 which left the Applicant exposed to the effects of execution of the decree. That the execution was underway including

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5 aresting t. Ile Applicant as shown in Paragraph M of the Applicant's affidavit in support of the Application.

Counsel submitted that the Applicant will suffer substantial loss if the Application is not granted because the judgment ordered the defendant (Appellant) to allow surveyors, survey the suit land and mutate off ltve acres

and transfer it to the Respondent. He cited the decision of Ogola J (as he then was) in Tvoplcal Commodltles Suppllers Ltd and Others Vs Intenratlonal Credlt Bank Ltd (ln Llqutdatlon) (2OO4)2 EA 337 where it was held that substantial loss does not represent any particular amount or size for it cannot be quantified by any particular mathematical formulae. It refers to any loss, great or small that is of real worth or value or that which is merely nominal. 10 15

He submitted that the Applicant is ready and willing to provide security for due performance of the decree if so ordered by this Court since it has the sole discretion to order the same.

## Court's determination.

20 I have carefully considered the affidavits liled in this Applicaion and the submissions of the parties and tJle authorities availed to Court by both parties.

The jurisdiction of this Court to grant a stay of execution is set out in the law governing Application for stay of execution in this Court and is provided for under Rules 6(2) (b), 42(21 and 43 of the Rules of this Court which give wide discretion to Court to grant orders of stay of execution for purposes of preserving the right ofAppeal where special circumstances exist.

Where an unsuccessful party is exercising an unrestricted right to Appeal, Court must make such orders for staying proceedings in t}re judgment so as not to render the Appeal nugatory as was held in the Supreme Court decision

of Laurence Muslltua Kgazze u Eunlce Busllgge SCCA iYo. I8 oJ 7990 (1992) rV nAr,R s5. 30

- 5 The Supreme Court set out the requirements that ought to exist before a stay of execution can be granted in IIon. Theodore Ssekikubo and Ors V The Ataorneg General and Ors, Constltutlonal ApPllco:tlo'l No. O6 oJ 2O73 cited with approval in Go'shumba Manltaguha V So,m Nkudlge' SuPreme Court Cfittl Appllcatlon No.24 of 2O75 to include; - 1. The Applicant must establtsh that his Appeal has a likelihood of success; or a pima facie case of his right to Appeal. - 2. It must also be establisled that thE Applicont will suffer irreparable d.amage or that the Appeal toill be rendered nugatory if a stog is not granted. - 15

3. If 1 and 2 aboue haue not been established, Court must consider where the balance of conuenience lies.

4. That the Applicant must also establishthat tle Application uas instituted utithout delag.

Based on the above authorities, I will therefore proceed to determine whether the Applicant has established reasonable grounds to justify the grant of the Application. 20

As to whether tJ:e Applicants' Appeal has a prima facie case with a likelihood of success, Counsel for the Applicant submitted that the memorandum of Appeal highlights that the learned trial judge grossly erred both in law and fact when he failed to properly evaluate evidence on the record as to whether there was a valid sale of the suit land and secondly failing to consider the

interests of Bibanja holders on the suit property. In reply, tJre Respondent submitted that grounds 2, 3, and 4 of the Appeal

were too general and thus wrong in law and had no chance of success.

ln the case of Stanleg Kang'ethe KlnganJul V Tonng Ketter and 5 Ors (2O13) e KlR, the Court ofAppeal of Kenya stated that; 30

> "uii) an arguable Appeal is not one u-thich must necessailg succeed, but one which ought to be argued fullg before the Court; one which is not fiuolous. Viii) in consideing an Applicotion brought under Rule 5(2) (b)

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5 tle Court must not make definitiue or final findings of eitler fact or law at that stage as doing so mag embarrass th,e ultimate heaing of the main Appeal."

In the instant case, the Applicant attached the Memorandum of Appeal and went ahead to lay out the questions for this Court to determine. Although at this stage this Court cannot dive into the merits of the Appeal. I frnd that the Applicant has established that he has a prima facie case on Appeal.

As to whether the Applicant will suffer irreparable damage or whether the Appeal will be rendered nugatory if a stay is not granted, Counsel for the Applicant submitted that there was an imminent threat of execution against

- the Applicant because the Respondent had a date frxed for t.l"e notice to show cause why execution should not issue. He added that the suit property is where the Applicant and his family hinge a livelihood and if evicted they will lose sustenance. Counsel for the Respondent replied that the Applicant will not in any way suffer irreparable loss if this Court declines to grant the stay 15 - because the Applicant had ample time (four years) to Appeal or seek a stay of execution but failed to do so until ttre Respondent started the execution process. 20

In the case of T'roplcal Commodltles Suppllers Ltd & Ors Vs Intentc:tlonal Credlt Bank Ltd (ln llquldatlon) [2OOa] 2 EA 33I, Substantial loss was defined as loss that cannot be quantified by any particular monetary compensation, or that there is no exact mathematical formula to compute. Court went furtl:rer to clarify that it is not enough to simply repeat the words of the code and state that a substantial loss will result. The specihc tlpe of loss must be clearly identified, and the court's conscience must be convinced that such loss will occur. 25 30

It is clear that there is imminent threat of execution which includes the transfer of the property where the Applicant and his family derive a livelihood from. To allow this to happen is inequitable and unjust, certainly the Applicant will suffer irreparable damage as a result

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- 5 The last consideration is whether the Application was instituted without undue delay. Counsel for the Applicant submitted that the Application was filed without delay, citing the imminent threat of execution initiated by the Respondent's Notice to show cause vide Miscellaaeous Appllcatlon I{o. O71 ol2O2l and subsequent order for execution. He highlighted the swift frling of an Application for stay of execution in the High Court, followed by the current Application upon its dismissal. In response, Counsel for the Respondent challenged the Applicant's claim of timely action, suggesting a lack of evidence to support tJre ongoing pursuit of the Appeal over the preceding four years to show interest in progressing the Appeal. 10 - I find that the period from when the Notice to show cause why execution should not issue was issued to and when an Application for stay was frled did not in my view amount to inordinate delay on the part of the Applicant. 15

In the result, the Applicant has satisfied the conditions required for the grant of an order of stay of execution. I allow the Applicalion and make the following orders: -

- 1. A stay of execution is granted staying the orders in the High Court Civil Suit No.438 of 20 13 pending determination of the Appeal. - 2. The costs of this Application shall abide the outcome of the Appeal.

I so order

25 Dated in Kampala this .. .. Day of ... ,rrfu ...2024

C eborion Barishaki

JUSTICE OF APPEAL

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