Sheikh Mayanja v Mubiru Kisingiri (Civil Application 502 of 2022) [2022] UGCA 332 (26 August 2022)

## THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA **CIVIL APPLICATION NO. 0502 OF 2022**

(Arising from Court of Appeal Civil Application No. 501 of 2022; itself arising from Court of Appeal Civil Appeal No. 294 of 2018)

SHEIKH HUSSEIN MAYANJA::::::::::::::::::::::::::::::::::

#### **VERSUS**

# MUBIRU CHRISTOPHER KISINGIRI::::::::::::::::::::::::::::RESPONDENT CORAM: HON. LADY JUSTICE ELIZABETH MUSOKE, JA

#### RULING OF THE COURT

The applicant filed this application in this Court seeking the following:

"(a) An interim order of stay of execution doth issue against the respondent and his agents restraining them from executing the orders and decree of His Lordship Justice Henry I Kaweesa in High Court Civil Suit Number 129 of 2010 pending hearing and disposal of the main application for stay of execution and the appeal.

(b) Costs of the application be provided for in the main cause."

#### **Background**

The applicant filed, in the High Court (Land Division), Civil Suit No. 0129 of 2010, against the respondent, seeking a declaration that he was the owner of certain land described as Bulemezi Plot 65 Block 1026, situated at Namaliga, for which he held a certificate of title. The respondent denied the allegations and counter-claimed that the applicant's certificate of title was fraudulently obtained and sought its cancellation. In its judgment of 2<sup>nd</sup> May, 2018, the High Court (Kawesa, J.) entered judgment in favour of the respondent and ordered, interalia, for cancellation of the certificate of title for the suit land, held by the applicant. The applicant was dissatisfied with the decision of Kawesa, J. and appealed to this Court, vide Civil Appeal No. 294 of 2018, which is still pending in this Court. The applicant also filed an application for a substantive order of stay of execution of the decision of Kawesa, J. pending the hearing and determination of his appeal in this Court. He also filed this application for an interim order of stay of execution of the

decision of Kawesa, J. pending hearing and determination of the substantive application.

In support of this application, the applicant relies on grounds set out in the Notice of Motion, which are briefly as follows: 1) On the 16<sup>th</sup> day of May, 2018, Justice Henry I. Kawesa of the High Court Land Division delivered a judgment in Civil Suit Number 129 of 2010 in favor of the respondent; 2) Being dissatisfied with the whole of the said judgment, he took the necessary steps to appeal against the decision to the Court of Appeal of Uganda; 3) He will suffer substantial and irreparable loss and the substantive application for stay of execution and the appeal shall be rendered nugatory if execution is not stayed; 4) The appeal he filed in this Court is at advanced stages of hearing and is pending judgment and final disposal; 5) The respondent is threatening to carry out execution of the judgment and evict the applicant and other persons claiming from him, from the suit land; 6) It is in the interests of justice that this application is granted.

The evidence to substantiate on the grounds of the application is contained in an affidavit of the applicant sworn in support of the application, and another sworn in rejoinder to the respondent's affidavit in reply.

The respondent filed an affidavit in opposition to the application, in which he averred that the application has no merit and ought to be dismissed. He averred as follows: 1) The application was filed in abuse of court process and offends the lis pendens rule in that the issues raised therein are similar to issues raised in several applications filed by the applicant in the High Court, that are pending hearing; 2) The applicant's affidavit contains falsehoods, alleging that the applicant's appeal in this Court had been heard whereas the same had never been fixed for hearing, and thus ought to be struck out; 3) The application is meritless and ought to be dismissed with costs.

## Representation

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The hearing of the application was, following my directives, entertained before the learned Registrar of this Court for purposes of giving the parties timelines for filing written submissions. At the hearing, Mr. Najib Mujuzi, learned counsel, represented the applicant. Mr. Kizza Moses Kikomeko,

learned counsel, represented the respondent. The learned Registrar gave the parties a schedule for filing written submissions which was adhered to. However, only the respondent adhered to the schedule. The respondent's written submissions have been considered in this ruling.

#### Applicant's submissions

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Counsel for the applicant submitted that this Court has powers, pursuant to Rule 2 (2) and Rule 6 (2) (b) of the Judicature (Court of Appeal Rules) Directions, S. I 13-10, to make an interim order of stay of execution of a judgment of the High Court. Counsel submitted that the conditions for grant of an order of interim stay of execution were set out in Hwansung Industries Ltd vs. Hussein and 2 Others, Supreme Court Civil Application No. 19 of 2008 (unreported) and are as follows: 1) that the applicant has filed a competent Notice of Appeal; 2) that the applicant has also filed a substantive application for stay of execution; and 3) that there is a serious threat of stay of execution. Counsel further referred to the case of Afaro vs. Uganda Breweries Ltd, Supreme Court Civil Appeal No. 12 of 2008 (unreported) where the Court stated that an interim order is necessary to preserve the status quo until the substantive application for stay is heard and disposed of. Counsel pointed out that the applicant in the present case has filed Civil Appeal No. 294 of 2018, and has also filed Civil Application No. 503 of 2022, a substantive application for stay of execution. Counsel further contended that there is evidence of a serious threat of execution of the decree of the trial Court, in that the respondents have sought the arrest of the applicant in execution and have also sought to attach the suit land for sale. Counsel submitted that the applicant is at an advanced age of 77 years and has lived on the suit land for 30 years, and will suffer irreparable damage if execution is carried out. Furthermore, counsel pointed out that it is in the interests of justice for this Court to make an order staying the execution of the High Court judgment and decree to avoid rendering the applicant's appeal and the substantive application nugatory.

## **Respondent's submissions**

Counsel for the respondent submitted that this application violates the lis pendens rule and is barred by Section 6 of the Civil Procedure Act, Cap. 71. He relied on the authority of Springs International Hotel Ltd vs. Hotel Diplomate and Another, High Court Civil Suit No. 227 of 2011 (per Bashaija, J.) (unreported) for the principles on the lis pendens rule to the effect that the filing of multiple suits touching on the same subject matter is an abuse of court process as it creates the possibility of having conflicting decisions of different courts on the same matter. Counsel contended that prior to filing the present application, the applicant filed two applications in the High Court, Miscellaneous Application No. 560 of 2021 and Miscellaneous Application No. 947 of 2018, both seeking stay of execution of the decision of Kawesa, J, and that both the highlighted applications were still pending hearing and determination at the time of filing the present application. Applicant's averment that the applications were dismissed are false. Counsel pointed out that whereas the applicant claimed that the Miscellaneous Application No. 947 of 2018 was dismissed on 18<sup>th</sup> May, 2018, that claim was false. In support of his submissions on this point, counsel pointed out that the said application was filed on 21<sup>st</sup> June, 2018, and could not have been dismissed on 18<sup>th</sup> May, 2018 before it was filed. Moreover, the applicant did not adduced evidence of a dismissal order for the said application.

As for Miscellaneous Application No. 560 of 2021, counsel mentioned that the applicant claimed in his affidavit in rejoinder that the said application was withdrawn on 6<sup>th</sup> June, 2022 according to a withdrawal letter of that date, but he contended that the withdrawal letter must have been forged by the applicant in connivance with the registry officials, since by the time the respondent filed his affidavit on 7<sup>th</sup> June, 2022, the applicant had not mentioned having withdrawn the said application. In those circumstances, counsel urged this Court to find that Miscellaneous Application No. 560 of 2021 is still pending in the High Court.

Furthermore, counsel submitted that this application was filed in abuse of court process. He cited the authority of Attorney General vs. James Mark

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vide, Civil Application No. 503 of 2022 (correct no. is 501 of 2022); and that there is a serious threat of execution of the judgment and decree of the trial Court, as the respondents are seeking arrest and are also trying to sell the suit land. None of these averments were challenged by the respondent and I take it that they are true.

I noted that the respondent challenges the application on the ground that it offends the lis pendens rule and avers in this regard, as follows:

- That I have been advised by aforesaid lawyers which advice $\mathbf I$ "З. verily believe to be true and correct that the application herein is so defective in material particular, frivolous and vexatious and it is an abuse of court process as the same offends the Lis Pendens Rule; and is barred by Section 6 of the Civil Procedure Act, Cap. 71 since this applicant seeks for the same remedies as in Miscellaneous Application No. 560 of 2021 (Arising from Misc. Application No. 559 of 2021); in addition to another Application which (sic) Miscellaneous Application No. 947 of 2018 (Arising from Misc. Application No. 946 of 2018); both Applications seeking for the interim Order to Stay of Execution of a Decree in Civil Suit No. 0129 of 210 filed at the High Court Land Division which Applications are still pending hearing. [Attached hereto is evidence to that effect jointly marked "A" & "B" respectively] - That further to the above; on the 23<sup>rd</sup> day of March 2022, the 4. applicant's counsel applied for a hearing date in Misc. Application No. 560 of 2021...and also filed written submissions in Misc. Application No. 947 of 2018 arising from Misc. Application No. 946 of 2018 at High Court Land Division. [Attached hereto is a copy of the letter to that effect and the said written submissions marked "C" & "D" respectively]."

Section 6 of the Civil Procedure Act, Cap. 71 provides:

"6. Stay of suit.

No court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where that suit or proceeding is pending in the same or

## any other court having jurisdiction in Uganda to grant the relief claimed."

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The rule established under the above provision is what counsel for the respondent referred to as to the lis pendens rule, and operates to bar a court from considering a suit concerning a certain subject matter when a previously filed suit touching on the same subject matter is still pending before another Court. Counsel contended that the applicant had earlier filed several suits in the High Court seeking an interim order of stay of execution of the same judgment and decree, as the present application. Counsel for the respondent urged this Court to dismiss the present application for offending the provisions of Section 6 above.

On the other hand, the applicant in his affidavit in rejoinder, averred that whereas he filed the applications alluded to by the respondent, those applications have been disposed of and are no longer pending. He averred as follows:

- That unknown to my current lawyers of Mujuzi & Co. Advocates, $"4.$ my previous lawyers had filed Miscellaneous Applications Number 947 and 946 of 2018 for both interim and main stay of execution and all were dismissed on 18<sup>th</sup> May, 2018 and also Miscellaneous Applications Nos. 560 and 559 of 2021 before the High Court were consequently withdrawn and they are not pending at all. (A copy of the withdrawal letter is attached and marked annexure "Y" - That my lawyers filed in this Court because the previous 5. applications were dismissed by the Court and also the lower court refused to stay the Notice to show cause proceedings because there was no stay order from the Court of Appeal. - That the Deputy Registrar advised that they would only stay the 6. proceedings once an order is issued by the Court of Appeal and the said proceedings are still ongoing with a scheduled hearing date of 20<sup>th</sup> June, 2022."

The respondent filed no further affidavit to refute the above averments, and I believe them. I find that all the applications filed by the applicant in the High Court seeking interim orders of stay of execution of the relevant decision have been concluded and are no longer pending.

The other objection to the present application is that it is supported by an affidavit containing falsehoods, in that the applicant falsely claims that the hearing of his appeal in this Court has been concluded with judgment on notice, whereas not. My view, is that it is not a condition for granting an interim order for stay of execution, that the hearing of an applicant's appeal must have been concluded. All the applicant needs to have done is to file a Notice of Appeal. In any case, the applicant moved quickly to clarify in his affidavit in rejoinder that the hearing of his appeal in this Court is pending, and only the scheduling conference has been concluded. I take this to be the true position.

In view of the above analysis, I conclude that that the applicant has satisfied all necessary conditions and I hereby grant an interim order staying the execution of the judgment and decree of Kawesa, J. in High Court Civil Suit Number 129 of 2010, pending the hearing and determination of the applicant's substantive application for stay of execution. The costs of the application shall abide the outcome of the applicant's appeal in this Court.

#### It is so ordered.

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| Dated at Kampala this $\frac{2}{2}$ day of $\frac{1}{2}$ day of $\frac{1}{2}$ 2022. | | |-------------------------------------------------------------------------------------|--| | | |

**Elizabeth Musoke** Justice of Appeal