Ssajjabi v Muyizzi & Another (Civil Application 7 of 2022) [2022] UGSC 42 (16 August 2022)

Full Case Text

# THE REPUBLIC OF UGANDA

### IN THE SUPREME COURT OF UGANDA AT KAMPALA

## **CIVIL APPLICATION NO. 07 OF 2022**

#### **Arising from Supreme Court Miscellaneous Application No. 05/2020**

#### Arising from Civil Appeal No 05 of 2020

**ARTHUR SSAJJABI :::::::::::::::::::::::::::::::::::: APPLICANT**

**VS**

#### SAMUEL MUYIZZI & ANOTHER :::::::::::::::::::::: RESPONDENT

#### BEFORE PERCY NIGHT TUHAISE JSC

(Single Justice)

### **RULING**

This application was brought under Section 98 of the Civil Procedure Act and Order 52 rules 1 and 2 of the Civil Procedure Rules for an order that an interim order of stay of execution against the respondents in respect of the judgment and decree in Civil Appeal No. 25 of 2017 be issued until the final determination of the main application for stay of execution pending in the court; and for costs of the application.

The application was supported by an affidavit sworn by the Applicant, and was opposed by the Respondents through an affidavit in reply sworn by Ms Rebecca Muyizzi, a donee of powers of attorney by the Administrator of the estate of the 1st Respondent.

The background to this application is that the Court of Appeal delivered a judgment against the Applicant in *Civil Appeal No. 25 of 2017 Arthur Ssajjabi* V Catherine Namutebi Muyizzi and Another, on 27th February 2020. The Court of Appeal judgment, among other things, upheld the High Court orders for

$\mathbf{1}$

canccllation of thc Appcllant's (Applicant) lcaschold land titlc volumc 3013 lblio l0 Illock 425 plot 20, and that thc land bc rcgistcrcd in thc namcs of thc 2nd Rcspondcnt. 'lhc Applicant was dissatisl'icd with thc judgmcnt and hc filcd Civil Appeal No. 05 of 2020 Arthur Ssajjabi V Catherine Namutebi Muyizzi and Another in thc Suprcme Court. IIc thcn filcd Miscellaneous Application No...of 2022 Arthur Ssajjabi V Samuel Muyizzi and Another (main application), for stay of cxccution, togethcr with thc instant application which is lbr intcrim ordcr of stay of cxecution pending detcrmination of thc main application.

'l'he grounds of thc application arc contained in thc alfidavit of thc Applicant Arthur Ssajjabi. 'l'hcy, in part, rcad as follows:-

"3. That lhere is a pending applicalion for stay of execution ( Misce llaneous No... of 2 02 2.

4. That there is o serious threal of execulion of the decree in Civil Appeal No. 25 of 2017 by the Respondents and the land is being lronsferred and sold following the extraclion of the decree.

\GT- 5. That the ResJnndents, districl land board, have changed block and plot for this land, that individuals who were not party to lhis suit got registered on the land which was nol according lo the courl order in both judgmenls, thal surveyors have subdivided off part of the land and the respondents are selling off plots on this land and building on ne\$, fixlures.

6. That the same land cannol be replaced once sold by lhe Respondents.

7. That I am the genuine owner of the land and therefore I have a very good chance of succeeding in lhe aforementioned suit.

8. That if the interim order is not granted, I will suffer damage and loss which cannot be remedied by an award ofdamages.

9. Thal the Respondenls stand to sufer no loss by the grant of an interim order of stay of execution.

'l'hc Applicant was sclf-rcprcscntcd, whilc hc Respondcnt was rcprcscntcd by Mr. Michacl Kaggwa.

Whcn this application was callcd lbr hcaring, thc Applicant raiscd a numbcr o[ objcctions, which arc wcll rcllcctcd in thc rccord of procccdings, the gist of which was that hc contcstcd thc authcnticity oi'thc powcr ol' attomcy, thc signaturc of thc donor ol' thc powcr ol' attomcy, and thc authority of ltcbccca Muyitzi to swcar thc allidavit in rcply.'l'hc Rcspondcnt's Counscl, in rcsponsc, rcqucstcd thc Applicant to submit on thc mcrits of thc application, but also altcmptcd to justily thc documcnts and signaturcs challcngcd by thc Applicant. My ruling to thc obicction, which is in thc rccord of procccdings, was briclly that thc mattcrs raiscd by both sides arc mattcrs of cvidcncc, that thc Applicant can raisc thosc mattcrs in his allidavit in rcjoindcr to thc Rcspondcnt's al-lidavit in rcply, and that thc l{cspondcnts' Counscl's rcsponsc was tantamount to giving cvidcncc liom thc llar. I accordingly put in placc timclincs lbr thc Applicant to l'ilc an alljdavit in rcjoindcr whcre hc would challcngc thc Rcspondcnt's affidavit in rcply, and I grantcd thc ltcspondcnts lcavc to filc an al'lidavit in surrcjoindcr, in casc it was ncccssary, lbllowcd by writtcn submissions.

'['hc timclincs wcrc complicd with by both sidcs.'l'hc Rcspondcnts did not lilc a surrcjoindcr to thc Applicant's allldavit in rcjoindcr. 'l'hc l{cspondcnt's Counscl howcvcr, in his writtcn submissions, addrcsscd thc objcctions raiscd by thc Applicant rcgarding thcir allrdavit cvidcncc. Iwill addrcss thc samc on thc mcrits in thc coursc ol'considcring this application.

Considcration of thc application

I have addressed the application, the affidavit evidence on record, the submissions from both sides, together with all the cited authorities and the law applicable to this application.

I will first consider the issues raised by the Respondents' Counsel in his written submissions, as preliminary objections. The first was that this application was improperly filed in court, in that it is filed in the names of Samuel Muyizzi who died in September 2017; that this fact is well known to the Applicant who is a biological son to the late Samuel Muyizzi. He submitted that proceedings filed in the names of a dead person are a nullity and of no legal consequence. He prayed that the application be struck off the record for having been filed in the names of a dead person. Secondly, learned Counsel for the Respondents submitted that even the laws under which the application was brought do not apply to the Supreme Court. **RA**

Regarding the Respondents' objection that this application was improperly filed in court, in that it is filed in the names of Samuel Muyizzi who died in September 2017, annexure E to the Respondents' affidavit in reply (a photocopy of a short death certificate issued by the sub county chief of Kikingo, Lwengo District) shows that Muyizzi Samuel died on 08th September 2017. The Respondent's affidavit evidence also shows that Catherine Namutebi Muvizzi is the administrator of the estate of late Samuel Muyizzi. Indeed, it is apparent from the record that the appeal before this Court is in the names of the Applicant (Appellant) against Catherine Namutebi Muyizzi and another party.

Regarding the question of whether this application was filed under the wrong laws, I have noted that though the Applicant brought this application under the Civil Procedure Act Cap 71, and the Civil Procedure Rules made under that Act, the said laws do not apply to the proceedings of this Court. Section 1 of the Civil Procedure Act is very clear. It provides that the Civil Procedure Act shall extend to proceedings in the High Court and the magistrate's courts. The law

governing applications for injunctions or stay of execution in this Court, as will be specifically stated later, is The Judicature (Supreme Court) Rules (referred to as "Rules of this Court" in this ruling).

In that regard, this application would clearly be incompetent justifying to be struck out, on each of the objections raised above, as correctly submitted by the Respondent's Counsel. However, I have considered the affidavit evidence that the appeal pending before this Court, from which this application arises, was heard, and is merely pending judgment. I have also considered that the striking out of the application does not bar the Applicant from filing a fresh one reflecting the proper parties. This would, in my considered opinion, lead to unwarranted multiplicity of applications, which would create unnecessary drain on this Court's priorities, especially that of clearing case backlog and urgent deserving matters, with the currently limited number of judicial officers. In any case, and relatedly, this is an application for interim relief and the sooner it is disposed of the better for the progress of the main application on which it is MAX based.

I would, in that light invoke this Court's inherent powers under Rule 2 of the Rules of this Court to make such orders as may be necessary for achieving the ends of justice or to prevent abuse of the process of court. It is solely in this light that I will overlook the very valid objections raised by the Respondents and proceed to consider and resolve the application on the merits.

The law governing applications for injunctions or stay of execution is set out in Rule 6 $(2)$ of the Rules of this Court, which states:-

#### "6. Suspension of sentence, stay of execution, etc.

(1)....................................

*(2) Subject to subrule (1) 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 $\frac{1}{2}$ lodged in accordance with rule 76 of these Rules, order a stay of execution, an injunction, or a stay of proceedings on such terms as the court may think just."

This court, as already stated above, also has inherent powers under rule $2(2)$ of the Rules of this Court to make such orders as may be necessary for achieving the ends of justice or to prevent abuse of the process of any such court, and that power shall, among other things, be exercised to prevent an abuse of the process of any court caused by delay.

In the case of **Zubeda Mohammad and Another Vs Laila Kaka Wajja and** Another, Supreme Court Civil Reference No. 07 of 2016, the Supreme Court stated the nature of an interim order; that it should only be granted subject to the well settled conditions, for a short time until a named day or further order of the Court, pending determination of the main application; and that an interim order can only be granted pending disposal of the main application, not the appeal itself. This Court stated further that, in an application for interim order, the Judge must consider three conditions before reaching a decision whether to grant or dismiss it, namely:-

- *a)* A competent Notice of Appeal; - b) A substantive application; and - c) A serious threat of execution.

Regarding the existence of a competent Notice of Appeal, the Respondents, through the affidavit in reply sworn by Rebecca Muyizzi, the attorney for the administrator of the estate of the 1st Respondent, do not dispute that the Respondent filed an appeal against the Respondents in this Court (*Civil Appeal No. 05 of 2020 Arthur Ssajjabi V Catherine Namutebi Muyizzi and Another)* which was hcard and is pcnding.iudgmcnt. Indccd, thc record shows that a copy of thc Noticc ol'Appcal was lilcd in thc Court ol'Appcal on 3'd March 2020, and thc Mcmorandum of Appcal was filcd by thc Applicant in this Court on 2l't May 2021 .

Itcgarding thc cxistcncc of a substantivc application lor stay o[ cxccution, thc Ilcspondcnts' alfidavit in rcply is silcnt as to whcthcr or not thcrc is such pcnding main application for stay of cxcculion. I lowcvcr, thc rccord shows that thcrc is indccd a pcnding main application lbr stay of cxccution which was filcd by thc Applicant in this Court on 06'hJunc 2022.

On thc qucstion ol' whcthcr thcrc is a scrious thrcat ol' cxccution, thc ltcspondcnts, in paragraphs 5 and 6 ol' thc allidavit in rcply dcponcd by lLcbccca Muyit.ti, avcr that it is not truc that thcrc is a thrcat to cxccutc thc dccrcc in Court of Appeal Civil Appeal No. 25 of 2017 Arthur Ssofiabi V Catherine Nomulebi Muyi:zi and Anolher: and that thcy havc not takcn any slcps to cxccutc the dccrcc. 1ff

I will on this point, howcvcr, lirst addrcss thc Applicant's objcctions to Rcbccca Muyizzi's capacity to dcponc to thc l{cspondcnts' allidavit in rcply. I Ic maintains that Rcbccca Muyizzi nevcr obtaincd powcrs of attomcy from Cathcrine Namutcbi, thc administrator ol thc cstatc ol'thc late Samucl Muyitzi; and that thc pcrson who signcd as Cathcrine Namutcbi on thc powcr of attomcy, is thc samc pcrson who signcd as thc doncc (Rcbccca Muyitti), that thc handwriting is thc samc.

'l-hc Applicant howcvcr, othcr than making thc avcrmcnts as statcd, ncvcr attachcd any cvidcncc liom a handwriting cxpcrt, or any lorcnsic or othcr rclcvant cvidcncc to support his avcrmcnts, ncithcr did hc call for l{cbccca Muyitti to cross cxaminc hcr on hcr allidavit in rcply, in particular, regarding hcr signaturc on thc said affidavit in rcply, or rcgarding thc powcr of attomcy

that cmpowcrcd hcr to rcprcscnt Cathcrinc Namutcbi Muyir.ti (anncxurc I) to thc alfidavit in rcply). On that basis, I would llnd that thc objcction raiscd by thc Applicant lacks mcrit bccausc thc Applicant has not satisficd this Court about his avcrrncnts that l{cbccca Muyit.ti has no capacity to swcar thc alfidavit on bchalf of thc I't Rcspondcnt.

'l'hc Applicant also objcctcd to Itcbccca Muyizzi's dcponing to thc Rcspondcnts' alldavit in rcply on bchalIol- M/S l]ikaali Ircllowship sincc shc is not a dircctor, sharcholdcr or sccrctary of thc company, ncithcr docs shc havc pou,crs ol'attorncy l'rom llikaali Christian I:cllouship.

Scction 59 ol' thc Companics Ac1 providcs that a documcnl or procccding rcquiring authcntication by a company may bc signcd by a dircctor. sccrclary or othcr authoriscd olliccr ol'thc company and nccd not bc undcr its common scal.

In thc allidavit in rcply, Rcbccca Muyizzi avcrrcd in paragraph 2 that shc had bccn authoriscd by Ilikaali Christian lcllowship to swcar thc alfidavit on thcir bchall. Shc attachcd Anncxurc l] to thc said allldavit. which is a documcnt signcd by a onc Pastor John llikaali, slating that llikaali Christian lcllowship had authoriscd hcr to swcar thc al'lidavits rclating to this application. Anncxurc C to thc Applicant's allidavit in rcjoindcr, howcvcr. shows thc mcmbcrship ol' llikaali Christian Ircllowship. Itcbccca Muyitt.i is clcarly not shown to bc a mcmbcr. dircctor, or sccrctary ol thc said company or association, ncithcr has shc availcd this Court cvidcncc that shc holds powcrs ol' attomcy to rcprcscnt Ilikaali Christian licllowship in this application. Sccondly, thc purportcd authorisation, which bcars no stamp or scal ol'llikaali Christian l;cllowship, though signcd by a Pastor John Ilikaali (anncxurc I)), is ol no cl'l'cct, bccausc thcrc is no cvidcncc on rccord showing that thc said John llikaali is a dircctor or a sccrclary or authoriscd pcrson to sign on bchalf of Ilikaali Christian Icllowship.

l'hus, bascd on thc lindings abovc, thc ob.jcction by the Applicant that Rcbccca Muyit.r) has no capacity to swcar allldavits on bchall' of Bikaali Christian l'cllowship has mcrit, and is sustaincd. l'hc cflbct of this, in my considcrcd opinion. is that Bikaali Christian l;cllowship did not dcponc a supporting all'idavit to this application, bccausc thc deponcnl who purportcd to dcponc thc aft'rdavit on thcir bchall'was ncithcr a sccrctary nor a dircctor nor an authoriscd pcrson to swcar thc allldavit on bchall'olthat company or association.

'l'hus, bascd on thc abovc, il will bc takcn that it is thc l't Rcspondcnt who, through hcr attorncy. dcponcd to thc allidavit in rcply. In that allldavit in rcply, thc I't Itcspondcnt avcrs that thcrc is a scrious thrcat ol'cxccution, that the Ilcspondcnts havc takcn no stcps to cxccutc thc dccrcc. 'l'hc Applicant has not attachcd any cvidcncc to show that thc ordcr was cxtractcd by thc Rcspondcnts in prcparation lbr cxccution ol thc court ordcr. /A^-

In thc alrcady cited casc ol'Zubcda. this Court dcclincd to issuc an intcrim ordcr in abscncc of strong cvidcncc in Ibrm of a Warrant ol lixccution or Noticc to Show Causc why cxccution should not issuc from thc Iixccuting court. In thal casc thc cvidcncc availcd to court was a dcmand lcttcr ltom thc applicant's lawycrs which thc court in its wisdom did not takc to bc strong evidcncc of immincnt cxccution ol'1hc dccrcc.

'l'hc partics in this application havc lurthcr altcmptcd kr show in thcir aliidavit cvidcncc (paragraph 5 ol'thc Applicant's supporling al'lidavit and paragraphs 9, 10. I l. and l2 ol'thc I" Ilcspondcnt's allidavit in rcply) that thc suit land which is thc sub-jcct ol- thc courl ordcr soughl kr bc staycd through thc inlcrim ordcr, has sincc rcvcrtcd to parlics rvho wcrc not partics to thc suit or thc conscqucnt appcal rcsolvcd by thc L^ourt ol'Appcal. 'l'his cvidcncc will bc rclcvant at thc dctcrmination ol- thc main application. 'l'his Court (Okcllo, JSC sitting as a Singlc Judgc) clcarly statcd in Hwang Sung lndustrics Ltd Vs Tajdin Husscin & Othcrs, Suprcmc Court Civil Application No. l9 of 2008, that:-

"For an application for an interim stay, it suffices to show that a substantive application is pending and that there is a serious threat of execution before the hearing of the 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.*"

I would in the circumstances of the instant application, and for reasons given, decline to issue the interim order of stay of execution, on grounds that the Applicant has failed to satisfy court that there is a serious threat of execution.

This application is accordingly dismissed. Costs will be in the cause of determining the main application.

Dated at Kampala this.................................... .....2022

Watu Maire Percy Night Tuhaise

**Justice of the Supreme Court**

Delivered tody the 16th 08-2022 as directed by the How Juste How Justèe