Ssemwanga v Nazziwa and 2 Others (Civil Application No. 20 of 2022) [2022] UGCA 44 (25 February 2022)

Full Case Text

## 5 THE REPUBLIC OF UGANDA,

## IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

## CIVIL APPLICATION NO 20 OF 2022

## (ARTSTNG FRoM N0 19 OF 20221

# (AR|SING FRoM CrVrL AppEAL N0 303 0F 2018, CtVtL APPEAL N0 r33 0F 2017 AND CtVtL SU|T N0 056 0F 201ti

SSEMWANGA CHARLES) APPLICANT

## VERSUS

- NAZZTWA ArSHA) 1. - . MoHAMMAD NSUBUGA) 2 - . sALrM Krzrro) RESPONDENTS 15 3

## RULING OF CHRISTOPHER MADRAMA, JA

The Appticant fited this apptication under the provisions of rule 2 (2), 6 (2) (b) and rute 43 (1) & (2) of the Judicature [Court of Appeat Rutes] Directions for an interim order of stay of execution of the judgment and orders of the

High Court in Civit Appeat No 133 ol 2017 against the Respondents or their agents or anyone claiming title under them pending the determination of the main application for stay of execution. Secondty it is for costs of the apptication to be provided for.

The grounds of the apptication averred in the notice of motion are:

- l. The Appticant was the successfuI party in Civit Suit No 056 of 2014 at the Chief Magistrates Court at Makindye against the Respondents. - 2. The Respondents appeated to the High Court which overturned the [ower court's decision. - 3. The Appticant was dissatisfied with the decision of the High Court and appeated to this court.

- 5 4. The appeat is stitt pending before this court and has a high chance of s u cce ss. - 5. The Respondents or their agents are currently constructing on the suit kibanja yet it is stitL a subject of court's determination. - 6. There is an imminent threat of tosing and wasting the suit kibanja to the Respondent or their agents. - 7. The Appticant f ited misceltaneous application No 19 ol 2022 for stay of execution of the decree of the lower court which is yet to be fixed before full bench of the justices of the Court of Appeat. - 8. The execution of the decree may be done before the main application for stay and appeat are heard. - 9. The apptication was brought without undue detay having exhausted the lower courts process seeking to stay execution of the decree. - l0.lt is just and equitabte that the apptication is granted in order not to render the main apptication for stay of execution nugatory. - 20 The Appticant's application is f urther supported by the aff idavit of Ssemwanga Charles deposed on 3l'r of January 2022 which has the fo[[owing facts.

The Appticant was the successful party in Civit Suit No 056 ot 2014 against the Respondents at the Chief Magistrates Court at Makindye where the court found that he was the rightfut owner of the suit kibanja according to a copy of the ruling attached. The Respondent was dissatisfied with the decision and appeated to the High Court land division which overturned the [ower court's decision. The Appticant being dissatisfied with the said decision of the High Court todged an appeaI to the Court of Appeat according

- to the record and memorandum of appeal and notice of appeal together with a letter requesting for proceedings attached. His former advocates were Messieurs Kajeke Maguru & Co Advocates and the new advocates are Messieurs J. P Baigana & Associated Advocates who advised him that his appeal raises matters of [aw for determination by the Court of Appeat. He 30 - repeats the averments that the appeat is stil[ pending determination before the court and has a high liketihood of success. He stated that the appeaI in

5 the High Court proceeded without an important page in the proceedings that has delayed the scheduling conference on the appeal. Further there is an imminent threat of losing the suit kibanja to waste since the Respondents or their agents and other people claiming false interest or others ctaiming under them are busy constructing on it according to copies of photographs 10 attached.

He states that he did appty for stay of execution in the High Court and the application was dismissed with costs. Further if the Respondents are not restrained, the status quo witt change in the main apptication and appeal witl be rendered nugatory. The Appticant f ited the main application for stay of execution pending determination of the appeal. The execution of the

decree may take place before the main apptication for stay of execution is fixed and heard by the Court of Appeat. 15

ln repty and the 4th Respondent Nazziwa Aisha deposed to an affidavit dated 2l't of February 2022 and states that she has authority of other Respondents according to Annexure "A" to affirm the affidavit on their behatf. The written authority is dated 21't February 2022. She read through the Applicant's application together with the affidavit in support thereof with the aid of counsel Messieurs Kayongo Jackson and company advocates and on the basis of advice states that the application is an abuse of the court proce\*cs, incompetent and ought to be dismissed with costs. 25 20

Secondly the same apptication had been fited in the High Court and was dismissed with costs to the Respondents. She states that the Respondents sotd of the entire suit property and as of now there is nothing to stay and the Appticant is aware of this fact according to Annexure attached to the apptication being sale agreements dated l()th 0ctober 2018, another dated l4th November 2021 and a further agreement dated 22"d Juty 2021. She further indicates that the ruling dismissing the Appticant's application for stay of execution in the High Court contains an observation of the triat Judge that the entire suit tand had been sold and there are 3'd parties in possession thereof. A copy of the ruling was attached. Further the deponent contends that on the basis of information of our lawyers, the Appticant's

- 5 contention that an important page in the proceedings is missing is a ptoy to smuggle new evidence into the record. The peopte the Respondents sold the suit property to commenced devetopments and constructions thereof according to photos of construction attached to her affidavit. She is further informed by her lawyers that it is a generat principte that the appe[tant court siroutd not travel outside the record of the lower court. That the onty remedy 10 - avaitable to the Appticant is to appty to set aside the sate transactions but not to appty for stay of execution.

Further on the basis of advice of her lawyers she states that the Applicants purported appeaI has no tiketihood of success because the Appticant bought the suit kibanja without the consent of the registered owner and the Appticant has not provided the required consent from the registered owner up to the time of making the affidavit and the appeat was a waste of the time of court. Further on the basis of information of her lawyers she asserts that the suit is based on an iltegal contract which no court ought to enforce. Further on the basis of information of her lawyers, the application is incurabty defective for being res judicata having been filed in the High Court and dismissed and has now been fited in the Court of Appeat without l'' appealing the High Court dismissal order. 15 20

Furthermore, the persons who bought the suit kibanja have already apptied to the Buganda tand board as representatives of the landlord for consent which was granted. 0n the further advice of her lawyers she asserts that the peopte they sotd the property to apptied for and are in the process of getting their own certificates of titte from Buganda [and board. That the Buganda tand board recognised the peopte who purchased the property and 25

have written on their behalf to the town cterk Makindye division for consent to devetop their Bibanja. 30

Further that the Appticant's application is a disguised appeat and ought to be dismissed as it woutd be highty prejudiciat to 3'd parties who bought and are currently in occupation of the suit property and who have not been accorded an opportunity to be heard.

5 When the apptication came for hearing, the Appticant was represented by learned counseI Mr. Ahumuza Edward while the Respondent was represented by learned counseI Mr. Kayongo Jackson. Both counsel adopted their written submissions as their address to court in this application and judgment was reserved on notice.

#### Written submissions of the Appticant. 10

The Applicant in the written submissions fited on court record on lSth February 2022 states that there are 2 issues for determination namely:

- l. Whether there are sufficient grounds for grant of an order of interim stay of execution? - 2. What remedies are available? 15

0n the first question the Appticant's counsel submitted that there are a wealth of authorities giving the factors that the court wilI consider before granting an application for an interim order of stay of execution pending the determination of the substantive application. ln Hwan Sung lndustries Ltd v

- Tajdin Hussein & 2 others; Supreme Court Civit Apptication No '19 of 2008 Oketto JSC stated that for an application for an interim order of stay, it suffices to show that there is a serious threat of execution before the hearing of the pending substantive apptication. lt is not necessary to preempt consideration of matters necessary in deciding whether or not to 20 - grant the substantive apptication for stay. Secondty in Patrick Kaumba Wittshire v lsmail Dabute; S. C. C. A. No. 03 of 2018 it was hetd that the Appticant has to satisfy certain conditions namely: that there is a competent notice of appeat, that a substantive application has been fited and thirdty that a serious threat of execution is imminent (see also Nyakaana & sons - Ltd versus Beatrice Kobusingye and others SCCA No 13 of 2017). Lastly counse[ submitted that the matter came from the High Court, and the first condition is that the Appticant must have apptied for stay of execution in the High Court and the same was denied. 30

As far as the competence of the appeal is concerned, counsel relied on the affidavit in support of the apptication and the documents attached to 35

5 paragraph 4 which are copies of the record, memorandum and notice of appeal and letter requesting for proceedings which show that they were atl served upon the Respondents through their advocates. He, submitted that it is satisfied rute 6 (2) of the Rutes of this court.

As far as there is a substantive apptication, paragraph ll of the affidavit in support of the apptication proves that civit apptication No '19 of 2022 was filed f rom which the current apptication arises. 10

Regarding the 3'd condition as to whether there was a serious threat of e;<ecution, counseI relied on the affidavit to the effect that there is an imminent danger of [osing the suit kibanja to waste since the Respondent or their agents and other peop[e ctaiming f alse interest are busy constructing on it. He relied on the Annexure "J" and "K" attaching photographs of buitding activities and materials on the site. He submitted that the order of an interim stay of execution is intended to stop the activities to preserve the status quo and the right of appeat. Further the intended appeal was supposed to be heard and compteted but was detayed due to failure of the lower court to produce a copy of a missing page in the record of appeat. 15 20

0n the 4th condition, the Appticant submitted that the application for stay of execution was dismissed by the High Court according to a copy of the ruling attached and marked as Annexure "L" to the affidavit in support of the apptication.

0n the possibitity of success of the appeal, counsel submitted that the appeat in the lower court proceeded without a properly constituted record for the trial court as seen from the correspondences attached as Annexure 'G", "H' & "1" which are letters from the Appticants advocates to court and the one from the court on the missing page which is an essentiat part of the record. Secondty the appeat raises matters of law worth adjudication and determination by this court on a second appeal as stated in paragraph 5 of tl:e Appticant's affidavit in support. The tower court proceeded with the case

5 without a critica[ part of the record of proceedings so that there was absolutely no re-evaluation of the evidence.

Further the Appticant fears that the Respondents would cause him serious irreparable harm or loss and the appeaI witt be rendered nugatory if the Respondents are not restrained by this court.

Lastly the Appticant prays that the Appticant be found to have satisfied the conditions for grant of an interim order of stay of execution and for the court to grant the order with costs of the apptication to the Appticant. 10

#### Submissions of the Respondent

ln the written submissions, counseI for the Respondent submitted that the Appticant purportedty bought the suit property (kibanja) from the late Bad.u Zziwa who is the father of the Respondents and husband of the tate Hadijah Babirye, the 4th Respondent. The suit [and was the residentiaI home of the Respondents. The Respondents after the purported sate took their father to court but he died before the conclusion of the case and the Appticant apptied 15

- to be joined to the suit as a buyer of the suit property. That the Respondents a[[ along have been in occupation of the suit [and as their home. The Chief Magistrates Court ruled in favour of the Appticant and the Respondent appealed white the High Court rightty ruted that the Appticants purported sale agreement of the suit kibanja without the consent of the landtord was 20 - invatid and could not pass titte to him. The Appticant was dissatisfied and appealed to the Court of Appeat. The Appticant then fited an apptication for stay of execution at the High Court and the same was dismissed. 25

Counsel submitted that no reason has been given by the Appticant why he had not appealed the decision of the High Court dismissing his application for stay of execution rather than apptying afresh to the Court of Appeat.

Secondly he submitted that Miscettaneous Apptication No 205 of 2020 tor stay of execution was heard inter partes and was dismissed on I'r June 2021. That the same application for stay of execution is now before the Court of 5 Appeat without the Appticant having fited an appeat against the dismissal. He contended that the suit is res judicata.

0n the question of the missing page, the Appticant and his [awyers contended that there is a missing page in the record of proceedings. The Respondents counsel submitted that this was a poor attempt at forging a record of proceedings and that the record was confirmed by the Chief Magistrate who presided in the case. Besides the correspondences on the missing page, none has ever been served on the Respondent. He contends that the Appticant having realised that the appeat is f rivolous have resorted to ptaying tricks on the court.

- 0n the question of the tiketihood of success of the Appticant's appea[, the Respondents counsel submitted that the Appticant has not presented to ceurt any material facts or point on how his appeal may succeed but rather pointed out to court Annexure which is a notice of appeat, Ietter requesting for proceedings and a memorandum of appeat. He submitted that the High 15 - Court while overturning the decision of the Chief Magistrate's Court stated that the Appticant while purchasing the suit [and did not seek the written consent of the tandlord. He prayed that the court takes into consideration the tetter of May 2016 from Buganda land board and exhibit DX7 which ctearty states that Buganda land board who is the landtord does not know 20 - the Appticant and any purported sale of the property by him is at best itlegal since the landtord's consent was never sought nor granted. Further the Appticant does not in any way possibte show that the he intends to secure ccnsent from the registered proprietor or his representatives in order for his appeat to succeed. 25 - The Respondent's counsel further submitted that the factors for staying execution inctude the probabitity of success of the intended appeal and the Appticant provided nothing to persuade the court of the probability of success of his intended appeat. 30

Further counsel submitted that in an apptication arising out of an appeat which is a finat appeat (a second appeat), the appeat can only be on points 35

5 of [aw. He relied on sections 72 and 74 of the Civit Procedure Act for the proposition that a second appeat can only be on points of [aw.

The Respondent's counse[ further submitted that the suit property has been disposed of to various persons and as a resutt it woutd be prejudiciat to other 3'd parties who have since bought the suit property and commenced construction of buitdings on it. ln the premises, counse[ submitted that there is nothing to stay and the remedy open to the Appticant is to sue the Respondents and the peopte they sotd to. Counsel further submitted that to grant a stay of execution would amount to condemning the buyers without giving them a chance to be heard contrary to the provisions of the Constitution and principtes of naturaI justice.

0n the question of whether the appeaI woutd be rendered nugatory, the Respondent's counsel submitted that a stay would be granted on the part which was unsotd. However, the Respondents counse[ also maintains that the Appticant has not shown how the appeal woutd be rendered nugatory.

CounseI further submitted that the Appticant mentioned the fiting of a substantive application but did not attach any evidence nor has he served any substantive apptication on the Respondents. 20

0n whether there was a threat of execution, the Respondent's counsel submitted that the kibanja had been disposed of to various persons which persons commenced construction on the suit property and those persons are not parties to the apptication.

ln the premises, he submitted that the apptication has been overtaken by events and ought to fait with costs.

## Resolution of application

I have carefu[[y considered the Appticant's apptication which is for an interim order of stay of execution of the judgment and orders of the High Court in Civit Appeat No 133 of 2017 to restrain the Respondents/their agents or anyone ctaiming titte under them pending the determination of the main application for stay of execution. 30

- 5 The judgment of the High Court and the facts in the Judgment of the Chief Magistrates Court demonstrate that the Appticant was the ptaintiff in that suit where he sued in the magistrate's court in the [and civiI suit No 56/2014 Chief Magistrates Court of Makindye at Makindye for declaration that he is the lawfuI owner of the suit kibanja, a permanent injunction restraining the defendants and their agents from continued trespass on the suit tand/kibanja, generaI damages profits and costs of the suit. The ptaintiffs suit succeeded with the fottowing dectarations: 10 - 1. The plaintiff is henceforward declared a lawful owner of the suit kibanja/property, situated at Kibuma LC I Busabata Parish, Makindye Ssabagabo Wakiso district. - 2. The defendants are hereby dectared trespassers on the suit ta nd/kiba nja/p ro perty. - 3. An eviction order issues against the defendants jointty and/or severatty to vacate the ptaintiffs tand/kibanja/property within l4 days from the date of this judgment. - 4. Generat damages of Uganda shittings 7,000,000/= is awarded to the ptaintiff to be paid by the defendants in equaI shares. - 5. Costs sha[[ also be made by the defendants jointly and severa[ty.

The defendants who are the current Respondents appealed against the decision of the Chief Magistrate issued on 22nd November 2017 to the High Court. The appeal succeeded with an order that the decision of the lower court is set aside. Secondly, the appe[[ants were found to be the rightfut owners of the kibanja in dispute and were entitled to judgment as sought for in the lower court. The costs of the appeat and of the court below were 25

granted to the defendants/appettants in the High Court who are now the Respondents with the appeat in the Court of Appeat. 30

Tne appettant was aggrieved and appeated to the Court of Appeat.

The question for consideration is whether the appettant is in possession of the suit property. Ctearty the appeltant had obtained an order of eviction of

the defendants within 14 days from the date of the judgment of the Chief 35

- 5 Magistrate. There is no indication anywhere that the defendants were evicted. Secondty, it is the appettant who was the ptaintiff seeking to gain possession of the suit property as far as what was appeated to the High Court is concerned. The dismissal of the suit pursuant to the decision of the High Court allowing the appeal of the defendants resutted in a negati,;e - order of dismissal of the suit in the Chief Magistrates Court. The judgment of the Chief Magistrate clearty demonstrates that there was no counterctaim. The issues framed in the triaI court were as fo[[ows: 10 - l. Whether the sale of the suit kibanja/tand by the tate Badru Zziwa to the ptaintiff was lawfu[. - 2. Whether the defendants are trespassers on the suit kibanja/tand. - 3. Remedies available to the parties.

Further the decision of the Chief Magistrate/triaI court ctearly shows that there was no counterclaim by the defendants.

The purpose of applications for stay of execution pending appeal or pending the substantive application is the same as for injunctions.

The jurisdiction to stay execution of a High Court order or decree is enabted by Rute 6 (2) (b) of The Judicature (Court of Appeat) Rules which provides that:

6. Suspension of sentence and stay of execution

(2) Subject to sub rule ('l) of this rule, the institution of an appeaI shal[ not operate to suspend any sentence or to stay execution, but the court may- 25

(a) ...

(b) in any civiI proceedings, where a notice of appeal has been lodged in accordance with ru[e 76 of these rules, order a stay of execution, an injunction, or a stay of the proceedings on such terms as the court may think just.

There is no dispute as to the fact that the Appticant fited a notice of appeat and a memorandum of appeat and therefore futfits the conditions in rules 6 (2) (b) anO 76 of the Rules of this Court.

- The rationale for granting an interim order is to preserve the right of an $\mathsf{S}$ intending appellant to have his or her appeal heard and to ensure that the intended appeal or main application is not rendered nugatory. The rationale for stay of proceedings was stated in Wilson v Church (1879) Vol 12 Ch. D **454** and is expressed in the following words: - As a matter of practice, where an unsuccessful party is exercising an unrestricted 10 right of appeal, it is the duty of the court in ordinary cases to make such order for staying proceedings in the Judgment appealed from as will prevent the appeal if successful from being rendered nugatory. - This rationale applies to stay of execution, stay of proceedings and injunctions. The order is intended to preserve the status quo pending the 15 hearing of the substantive matter such as the substantive application or appeal. In Uganda Revenue Authority v Nsubuga Guster; Supreme Court Miscellaneous Application No 16 of 2018 the Supreme Court applied rule 2 (2) of the Judicature Supreme Court Rules and held that it gives the court very wide discretion to make such orders as may be necessary to achieve 20 the ends of justice and that one of the ends of justice is to preserve the right of appeal and to help the parties to preserve the status quo before their dispute can be considered on the merits by the full court according to the rules. - What the Applicant has before this court for stay of execution is a negative 25 order of dismissal of the Plaintiffs suit in the chief Magistrates Court. There was no order capable of execution which can be stayed.

An application for stay of execution presupposes that there is an order capable of execution which may be stayed. In this application such a notion is erroneous because there is no order that is capable of being executed as 30 the order setting aside the decision of the Chief Magistrate resulted in a dismissal of the Applicant's suit. The situation is that there is no suit in existence.

There is no order capable of execution involved because a stay order is to stay the use of court processes under section 38 of the Civil Procedure Act 35

- and Order 22 ot lhe Civil Procedure Rules to give effect to the judgment. The decision of the Magistrates Court was set aside and the Appticants suit dismissed with costs, The Court of Appeat of Kenya in Exclusive Estate Limited vs. Kenya Posts and Tetecommunications Corporation and Another [2005] I EA 53 (CA) hetd that a stay of execution order envisaged under rule 5 - 5 (2) (b) of the Court of Appeat Ru[es of Kenya (equivatent to the Ugandan Rute 6 (2) (b) of the Judicature (Court of Appeat Rutes) Directions) is the execution of a decree capabte of execution in any of the modes provided for under the equivalent of the Ugandan section 38 of the Civi[ Procedure Act and a decree holder is "a person in whose favour a decree capable of 10 - execution has been passed". Further a negative order can only be set aside when the appeal succeeds but cannot be stayed. The question for consideration is whether the respondents are decree hotders. 15

The modes of execution provided for under section 38 of the Civil Procedure Act are:

- "(a) by detivery of any property specificatty decreed, 20 - (b) by attachment and sate, or by sate without attachment, of any property, - (c) by attachment of debts, - (d) by arrest and detention in prison of any person, - (e) by appointing a receiver, - 1C - (f) in such manner as the nature of the re[ief granted may require."

Section 38 (f) of the CPA provides for any other mode of execution as the nature of the relief may require. A dismissaI can only be set aside on the appeal succeeding. lt is not capable of execution.

ln Mugenyi and Co. Advocates vs. National lnsurance Corporation Civil Appeat No. 13 of 195411992 - 1993] HCB 82, the Court of Appeat hetd that under Section 2 of the CiviI Procedure Act an order of dismissaI of a suit for default is not a decree and accordingty the Respondent who was the Appticant in the High Court was not a decree hotder and thus there was a vatid objection to an order for stay of execution pending hearing a suit. 30

Under section 2 (c) of the Civil Procedure Act a "decree holder" means "any" $\mathsf{S}$ person in whose favour a decree has been passed or an order capable of *execution* has been made, and includes the assignee of such decree or order" (Emphasis added). As held in Mugenyi and Co Advocates v NIC (supra) a dismissal order which was in favour of the Respondents/the defendants and which is not capable of execution as it is a negative order. $10$ The Applicant seeks a stay order that positively affects the decision which would have an impact on the suit kibanja such as an order for possession or any declaratory orders capable of giving the property to another person. In any case, there is no indication anywhere that the Applicant is in possession of the suit property. 15

In the premises, the Applicant's application is incompetent because there is no order or decree which is capable of execution in the modes provided for under section 38 of the Civil Procedure Act and the application is hereby dismissed with costs to the Respondents.

Dated at Kampala the 25th day of February 2022

$\gamma$

Christopher Madrama Izama

Ammya Edward To/Applicant Methypluant is in Court Lessondant and coursel are alternated avening of