Ssentongo Vs Kagimu (Misc. Application No. 122 of 2019) [2019] UGCA 2076 (28 August 2019)


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THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA

### AT KAMPALA

# Miscellaneous Application No. 122 of 2019

(Arising out of Miscellaneous Application No. 121 of 2019: Arising out of Court of Appeal Civil Appeal No. 277 of 2017)

### **Between**

Ssentongo Denis :::::::::::::::::::::::::::::::::::: **VERSUS**

Kagimu Bashir :::::::::::::::::::::::::::::::::::: $20$

Hon. Mr. Justice Remmy Kasule, Ag. JA sitting as a Coram: single Justice

#### **RULING OF THE COURT** $\overline{25}$

This application is for an Interim Order to stay execution pending disposal of Court of Appeal Miscellaneous Application No. 121

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of 2019, the substantive Application to stay execution. It is brought under Section 33 of the Judicature Act, Section 98 of the Civil Procedure Act and Rules $2(2)$ , $6(2)$ , $42(2)$ , $43(1)$ (2), $44(1)$ of the Judicature (Court of Appeal Rules) Directions.

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The applicant is an appellant in **Court of Appeal Civil Appeal No.** 277 of 2017 challenging the High Court Masaka (Keitirima, J.) Judgment whereby the said High Court upheld the Judgment of the trial Grade I Magistrate, Masaka Chief Magistrate's Court, in Land Civil Suit No. 068 of 2010.

In the said Civil Suit, the applicant, as plaintiff, sued the respondent, as defendant, for vacant possession, permanent injunction and general damages for trespass. The applicant asserted that he was the beneficial owner by purchase of a house 40 comprising of a number of rooms at Nakayiba-Nyendo, Masaka Municipality and that in May, 2010, the respondent (defendant) without any lawful claim had entered the applicant's store room, occupied the same without the permission and/or consent of the applicant, thus causing loss and damage to the applicant. 45

On 25.04.2016 after a full trial of the suit, the trial Grade I Magistrate, delivered Judgment in the suit holding that the applicant, as plaintiff, was not the beneficial owner of the particular store-room, the subject of the dispute, on the suit premises and that the respondent was the landlord of the applicant, who was merely a kibanja owner on the respondent's land. Accordingly the respondent was not a trespasser on the suit property of which he was already in possession and owner. The

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trial Magistrate thus dismissed the applicant's suit with costs to the respondent.

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Dissatisfied with the Judgment of the Grade I Magistrate, the applicant, as the appellant, lodged at the **High Court (Masaka)** Civil Appeal No. 35 of 2016.

On 15.09.2017, the High Court at Masaka, (Keitirima, J.) upheld the Grade I Magistrate Court Judgment by dismissing the 60 applicant's appeal with costs to the respondent. The applicant then lodged **Civil Appeal No. 277 of 2017**, as a second appeal, to this Court challenging the decisions of the High Court and that of the trial Magistrate Grade I Court. This appeal is still pending determination in this Court. The applicant as appellant filed his 65 written submissions on 22.10.2018 and the respondent filed his on 28.11.2018. The conferencing in the appeal was concluded on

17.07.2019. The appeal thus awaits being given a hearing date.

While the appeal is still pending in this Court, on 02.11.2017 the Magistrate Grade I, Masaka, taxed the respondent's Bill of Costs 70 in Civil Suit No. 068 of 2010 and allowed the same at shs. $4,153,000$ = payable by the applicant who is also appellant in the Appeal. Further, on 11.01.2018, the Assistant Registrar, High Court, Masaka, taxed the respondent's Bill of Costs in **High Court**, Masaka, Civil Appeal No. 35 of 2016 and allowed the same at

75 shs. $3,771,500$ = again payable by the appellant/applicant.

Though the Deputy Registrar, High Court, Masaka, had issued to the appellant/applicant an interim order to stay execution vide High Court, Masaka, Miscellaneous Application No. 64 of 2018, this interim order became vacated when the substantive **High**

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Court Miscellaneous Application 221 of 2017 was discussed on 12.02.2019, by the High Court, Masaka (Nabisinde, J) when the said Court refused to grant to the appellant/applicant a substantive order of stay of execution. The learned Judge held that the order of stay, if issued by Court, would stop the 85 appellant/applicant from paying the taxed costs of the Grade I Magistrate's Civil Suit No. 68 of 2010 and those of the High Court, Masaka, Civil Appeal No. 35 of 2016, which costs did not, according to the holding of the learned Judge, amount to damages that cannot be atoned for in monetary terms and as such their 90 payment by the appellant/applicant, whether by execution or otherwise, cannot amount to a substantial loss. The learned Judge further held that there was no need for Court to issue an order of stay of execution since both the Grade I Magistrate and the High Court at Masaka had held that the respondent was already in 95 possession of the suit property.

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The applicant, dissatisfied with the High Court (Masaka) Judgment that upheld the Magistrate Grade I Judgment and also being further dissatisfied with the High Court order refusing to order a stay of the High Court Judgment that upheld the Grade I 100 Magistrat's Judgment, appealed to this Court in Civil Appeal No. 277 of 2017. He also lodged in this Court Miscellaneous Application No. 121 of 2019 seeking a substantive stay and this Application No. 122 of 2019 for an interim order of stay. Each one of these applications is supported by the applicant's affidavit 105 in support.

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Counsel Bruno Sserunkuma appeared for the Applicant at the hearing of the Application for the interim order of stay. The respondent as well as his Counsel were absent. According to the affidavit of service filed on record, the Firm of Advocates of Counsel 110 for the respondent was served on 2<sup>nd</sup> August, 2019 with the Hearing Notice for the hearing date of 7<sup>th</sup> August, 2019. The respondent's firm of Advocates rejected the said service on the grounds, according to the affidavit of the process server, filed on the Court record, that it was short notice and that their Counsel 115 handling this particular application was not in chambers and further that the said Firm of Advocates had lost contact with the respondent.

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This Court has perused the Court record of the application, the subject of this Ruling, as well as that of the substantive application 120 for a stay and that of the appeal from which both applications arise. There is nothing on record in each one of those court files to the effect that the respondent's Counsel Ms. Iragaba, Lukwago & Co., Advocates, communicated to Court that they had lost contact with their client, the respondent, and as such they no 125 longer had his instructions in the matter. It is the duty of Counsel who is on Court record as representing a party to the cause, to receive and act in compliance with Court process that is being served on such Counsel for and on behalf of the party such Counsel is on record as representing. If Counsel on record has 130 any observation or complaint about the served Court process, such Counsel ought to make arrangements to appear before Court in person, or through another Counsel holding brief, and communicate to Court that observation or complaint and seek for

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appropriate prayers based on the prevailing circumstances. It is 135 unacceptable for Counsel who is on Court record as representing a party to a cause to reject or to instruct his/her staff to reject Court process under circumstances as was done in this case. This Court thus refused to adjourn the application by reason of the absence of the respondent and his Counsel. Court proceeded with 140 the hearing of the application in the absence of both of them.

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Counsel for the applicant, relying on the applicant's affidavit in support, submitted that the applicant had made out a case to be granted the interim order of stay. He had lodged in this Court the substantive application to stay execution as well as an appeal 145 challenging the Judgments of the lower Courts. Both the substantive application to stay execution and the appeal, whose conferencing was completed, are pending being given hearing dates for due determination by this Court.

Learned Counsel further submitted that the respondent had in fact 150 carried out a threat to execute against the applicant by arresting him and committing him to Civil prison for failure to pay the taxed costs and it had been the Deputy Registrar, High Court, Masaka, by issuing an interim order to stay execution that the applicant had been saved from being committed to civil prison. With the 155 decision of the High Court, Masaka, dismissing the applicant's application for a substantive order to stay execution, the threat of the applicant being arrested and committed to civil prison for nonpayment of Court costs is now a real one once again. Indeed the applicant had been summoned to appear before the High Court, 160 Masaka, on 19.03.2019, 10.09.2019 and 21.05.2019 to answer to

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the Court's Notice to show cause why Execution should not issue against him. Thus the threat of Execution is very real.

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Lastly, Counsel submitted that the grant of an interim order of stay will not make the respondent suffer any injustice. Applicant's Counsel thus prayed that this Court issues an interim order of stay of the orders of the trial Magistrate Grade I Court whose Judgment was upheld on appeal by the High Court, Masaka.

In considering the merits or demerits of this application, this Court appreciates the legal position that an interim order is one that the 170 Court issues intended to be operative for only a short period until a substantive Application to stay Execution is determined. An interim order is thus a stop gap measure to ensure that the substantive application is not rendered nugatory. Interim orders are thus resorted to in cases of urgency and are issued in order: 175 to achieve the ends of justice. The Court of Appeal has inherent

powers to issues interim orders under Rule $2(2)$ of its own Rules.

An interim order to stay, though usually based on the same facts and circumstances, has basic differences from a substantive application to stay that may be made by Court under Rule $6(2)(b)$ 180 which provides that this Court may:

> "In any civil proceedings, where a Notice of Appeal has been *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".*

In the Supreme and Court of Appeal Courts, in the normal course of things, an application for an interim order is heard by a single Justice of the Court. A party dissatisfied with the decision of a

$\overline{7}$ single Justice may then contest that decision by making a Reference of the same to a full Bench of the Court. The further $190$ difference is that an interim order is granted pending disposal of the substantive application, and not the appeal. It is the substantive application that is granted pending disposal of the appeal: See: Supreme Court of Uganda Civil Reference No. 07 of 2016: Zubeda Mohamed & Another vs Laila Kaka Wallia & 195 Another.

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As to the principles that the Court entertaining an application for an interim order has to consider, the Supreme Court has held that the granting of interim orders is to help parties to a cause to 200 preserve the status quo and then have the main issues in dispute determined by the full Court in accordance with the set Rules of the Court. See: **Supreme Court Civil Application No. 5 of 2013:** Yakobo Senkungu & Others vs Cerencio Mukasa.

- It is now settled that a Court determining an application for an interim order has to consider whether or not there is a substantive 205 application pending in Court, whether there is a serious threat of execution or some other threatening act before determination of the substantive application. Finally Court has to consider whether there is a Notice of Appeal filed in Court. See: **Supreme Court** - Civil Application No. 19 of 2008: Hwang Sung Industries Ltd 210 vs Tajdin Hussein and 2 others.

In resolving whether or not there has been compliance by the applicant with the above set out considerations, the Court determining the application for an interim order under Rule $2(2)$ of the Judicature (Court of Appeal Rules) Directions, exercises very

wide discretion to make such orders as may be necessary to achieve the ends of justice, particularly the preservation of the right of appeal of a party to a cause: See: Supreme Court Constitutional Application No. 04 of 2014: Hon. Theodore Ssekikubo & Others vs The Attorney General & Others. The 220 exercise of this wide discretion, of necessity, vests in the Court determining the interim application, judicial power to consider, in addition to the set out above main considerations, other circumstances and aspects appropriately having a bearing to the application, so as to ensure that the ends of justice are met. Such 225 a Court may, for example, find it appropriate, to consider whether or not, inspite of the Notice of Appeal having been lodged, the applicant has any right of appeal in the matter or whether or not the applicant is not resorting to such an application so as to cause inordinate delay to the prejudice of the opposite party, or whether 230 or not, the applicant is not guilty of dilatory conduct in his/her prosecution of the application, and/or other relevant matters.

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In determining whether or not this application should be allowed, this Court notes, by way of background that the applicant lodged

in the Chief Magistrate's Court, Masaka, Civil Suit No. 68 of 235 **2010** against the respondent. The applicant, as plaintiff in the suit, claimed to be a beneficial owner by purchase from one Peter Bunyaga on 04.12.2008 of a house at Nakayiba-Nyendo, Senyange Division, Masaka Municipality. The house was comprised of a commercial room in front, a residential room at the back and two 240 other additional rooms. Prior to the purchase, the applicant had been a tenant of the premises and had, during the tenancy, constructed the two additional rooms on the premises. The

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applicant asserted in the suit that in May, 2010 the respondent. defendant to the suit, without any lawful claim and without the 245 applicant's permission, forcibly entered one of the rooms of the applicant's house and occupied the same. The applicant thus instituted the suit against the respondent to have vacant possession of the promises as well as general damages for trespass and costs of the suit.

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The respondent, by way of defence to the suit, claimed to have acquired lawful title and legal possession to the suit property including the room in dispute.

The Grade I Magistrate, Masaka, heard all the evidence in the case and dismissed the same against the applicant in favour of the 255 respondent in a judgment dated 25.04.2016.

The applicant appealed the decision of the Magistrate Grade I to the High Court, Masaka, through Civil Appeal No. 35 of 2016, which appeal was also dismissed against the applicant in favour of the respondent in a Judgment delivered on 15.09.2017.

Dissatisfied, the applicant appealed to this Court against the High Court Judgment through **Civil Appeal No. 277 of 2017** preceded by a Notice of Appeal lodged on 20.09.2017.

In the meantime of the above stated developments in the court proceedings, on 02.11.2017 the Magistrate Grade I Masaka, taxed 265 and allowed the respondent's Bill of costs in the suit dismissed against the applicant at shs. $4,153,000=$ . On 11.01.2018 the Assistant Registrar taxed and allowed the respondent's Bill of Costs of the appeal in the High Court, Masaka, at shs. $3,771,500$ =again against the applicant. 270

In October, 2017 the applicant lodged **Miscellaneous Application** No. 221 of 2017 in the High Court, Masaka, seeking to stay execution of the High Court Decree in Civil Appeal No. 35 of **2016**. Before this Miscellaneous Application for stay was disposed of, execution proceedings were carried out against the applicant 275 who was arrested by Court bailiffs demanding of him to pay the taxed costs of the High Court appeal and those of the suit in the Magistrate's Court. The Applicant successfully sought an interim order of the High Court, Masaka, issued by the Court's Deputy Registrar, vide Miscellaneous Application No. 64 of 2018, ordering stay of execution against him. However, on 12.02.2019, the High Court Judge, Masaka, determined the applicant's substantive application to stay execution by dismissing the same, thus the interim order to stay execution issued by the High Court,

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- Masaka Deputy Registrar in Civil Application No. 64 of 2018 also 285 elapsed. Thereafter execution proceedings by way of summons to show cause why execution should not issue have been served upon the applicant to appear in Court on 19.03.2019, 10.04.2019 and 21.05.2019. - This Court having considered the above facts, the law that governs 290 issuance of an interim order, the pleadings of the parties and the submissions of Counsel for the applicant finds that the applicant lodged a Notice of Appeal intending to appeal to this Court of Appeal, the Judgment of the High Court, Masaka, on 26.09.2017 through the High Court, Registry, Masaka. Subsequently on 295 30.11.2017 Civil Appeal No. 277 of 2017 was lodged in the Court of Appeal and the same is at conferencing stage. The applicant

has thus satisfied the requirement of having lodged a proper and competent Notice of Appeal to and in this Court.

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- There is also on record of this Court **Miscellaneous Application** 300 **No. 121 of 2019** whereby the applicant is seeking an order of stay of execution of the decree of the **High Court, Masaka, Civil Appeal** No. 35 of 2016, whereby the High Court, Masaka, upheld the Judgment of the Grade I Magistrate's Court, Masaka, Civil Suit - No. 68 of 2010, pending the determination by this Court of Civil 305 Appeal No. 277 of 2017 in which the applicant is the appellant against the respondent. The requirement of the existence of a substantive application for stay of execution pending disposal of the appeal, has thus been satisfied by the applicant. - It is not denied that he applicant has a right of appeal to this Court. 310 There is also no assertion that the applicant has been guilty of dilatory conduct or that he is pursuing the applications and the appeal for the sake of merely causing delay to the prejudice of the respondent. - The evidence adduced by the applicant before this Court also 315 establishes that the applicant was and is being subjected to execution process whereby he was going to be committed to civil prison for none payment of the taxed costs of the appeal to the High Court, Masaka as well as those of the Masaka Grade I Magistrate trial Court. The evidence of the applicant that he has 320 been served with Notices summoning him to attend the High Court at Masaka on the dates of 19.03.2019, 10.04.2019 and 21.05.2019 to show cause why execution should not issue against him, has not in any way been disproved. This Court accepts the said

evidence and holds that the applicant has satisfactorily proved 325 that a serious threat of execution exists against him, while his substantive application to stay execution as well as his appeal in this Court remain pending determination.

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- In conclusion this Court is satisfied that the applicant has make out a case to be granted an interim order of stay of execution. 330 Accordingly this application is allowed. An interim order is hereby issued in the following terms: - The execution of the decree of the High Court, Masaka in $i$ Civil Appeal No. 35 of 2016 and Masaka Chief Magistrate's Grade I Court Judgment/Decree in Civil 335 Suit No. 68 of 2010 is hereby stayed pending disposal of the applicant's Court of Appeal substantive application for stay No. 121 of 2019 or final disposal of Court of Appeal Civil Appeal No. 277 of 2017, whichever is earlier in being disposed of. 340 - The order to pay taxed costs is part and parcel of the Court ii) decree that is herein stayed and as such any recovery of taxed costs from the applicant is also stayed in the terms stated in number (i) above. - Given the fact that the litigation in the Courts of law iii) 345 between the applicant and the respondent began almost nine (9) years ago, the Civil Registry of this Court, as well as all Counsel for the parties to the suit, are called upon to have both the substantive application for stay of execution No. 121 of 2019 and the Appeal No. 277 of 350 **2017** fixed for hearing at the earliest possible.

As to costs of these proceedings, the same shall abide the outcome of the substantive application for stay of execution **No.** 121 of 2019 or Court of Appeal Civil Appeal No. 277 of 2017, whichever is disposed of earlier.

It is so ordered.

Dated at Kampala this..... $\mathcal{L} \mathcal{L}$ 2019. day of

Rè **Ag. Justice of Appeal**

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