Tibananuka v Masindi Municipal Concil and Another (Miscellaneous Application 109 of 2022) [2024] UGHC 578 (30 April 2024)

#### **THE REPUBLIC OF UGANDA**

#### **IN THE HIGH COURT OF UGANDA HOLDEN AT MASINDI**

#### **MISC. APPLICATION N0. 0109 OF 2022**

**(Arising out of Civil Suit No. 0070 of 2017)**

**BEATRICE TIBANANUKA …………………………………………………………………………………. APPLICANT**

**VERSUS**

### 10 **1. MASINDI MUNICIPAL COUNCIL**

**2. MASINDI REVIVAL EXPLOSION CHURCH MINISTRIES INTERNATIONAL …………… RESPONDENTS**

### **BEFORE: Hon Justice Isah Serunkuma**

### **JUDGEMENT**

### **Introduction**

This application is brought under **Section 33 of the Judicature Act Cap 13, Section 98** 20 **of the Civil Procedure Act and Order 52 Rules 1, 2 and 3 of the Civil Procedure Rules**, and mainly Rules 2(1), 6(2)(b) and 42(1) of the Judicature (Court of Appeal) Rules Directions S. I, 13 10 seeking stay of execution of the orders for costs to counsel Magoola Miriam in HCCS No. 0070 of 2017 in the High Court of Uganda at Masindi pending the hearing and or disposal of the applicant's pending appeal in the Court of Appeal.

The background to this application is that the applicant sued the respondent as a 2nd defendant in HCCS No. 0070 of 2017 but then, instead of writing on the pleadings, in full names of *"Revival Explosion Ministries International Limited"* without the word *"Limited"* and with an addition of *"Masindi."*

When the matter came up for hearing, one Magoola Miriam raised a preliminary 30 objection to the effect that the second respondent was a non-existent entity, and the suit was struck out against the second respondent with costs to counsel Magoola Miriam.

Dissatisfied with the learned trial judge's decision to award costs to counsel of a non– existent person/party/entity, the applicant commenced an appeal by lodging a Notice of Appeal in the Court of Appeal against the decision of Hon. Justice Jesse Byaruhanga, delivered on the 16th day of June 2022. He applied for a certified record of proceedings, which was served on Counsel Magoola Mariam.

Upon commencement of an appeal, the applicant applied for a stay of execution under the earlier-mentioned provisions of the law. The respondent disputed the grounds in the

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affidavit in reply and averred that the applicant has not complied with court guidelines/laws and that he will not suffer substantial loss.

## *Representation*

The Applicant was represented by M/S Tugume-Byensi & Co. Advocates, and the Respondents were represented by M/S T. Odeke & Co. Advocates. Both parties were directed to file written submissions and they both complied with the said directive.

## **Applicant's Submissions**

The Applicant submitted that the application has proved all the necessary grounds for a stay of execution pending Appeal.

- 10 1. The applicant must prove that he has a pending appeal and evidence that the notice of appeal has been lodged in court. Counsel relied on the case of *John Baptist Kawanga v Namyalo Kevira and Anor; Misc. Application No. 0012 of 2017,* where the high court found that the applicant, in that case, had satisfied the court of pendency of an appeal by proving that a notice of appeal had been filed in time, and in the circumstances, the court held that the applicant had satisfied the requirements. In the instant application, the applicant filed a notice of appeal and a letter requesting certified typed proceedings as per paragraph 4 of the affidavit in support of the notice of motion. - 20 2. Security for costs. Counsel submitted that this is not mandatory but rather at the discretion of the court. He relied on the case of *John Baptist Kawanga V Namyalo Kevira and Anor (supra)*, where it was held that the status of the applicant should be considered to decide whether security should be ordered and that security for costs for due performance of the decree is not mandatory. - 3. Imminent threat of execution. Counsel submitted that a party is at liberty to apply for a stay of execution even in the absence of threat of execution. - 4. The application must not be ordinarily delayed. Counsel submitted that this application was not ordinarily delayed.

The applicants' submissions threatened the application's grant and the execution of the 30 order made by this honourable court.

### *Respondents Submissions*

From the onset, the respondents strongly opposed the application, and the basis of the opposition is contained in the affidavit sworn by the respondents.

The respondents' submissions were also in line with the conditions that the court considers before allowing an application for a stay of execution, which were laid down in the case of *Steve Sahabo V Larissa Kaneza, Misc. Application No. 0524 of 2019.*

They relied on the case of *Tropical Commodities Supplies Ltd & 2 Others V International Credit Bank Ltd,* where Justice Ogoola held that the phrase substantial loss does not represent any amount or size; it cannot be qualified by any mathematical

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formula. It refers to any loss, great or small, of real worth or value as distinguished from a loss that is merely nominal, and in the instant case the applicant didn't prove anywhere in her application any loss, she is likely to suffer in case the applicant is denied.

Counsel for the respondents also relied on the case of *Steve Sahabo V Larissa Kaneza (supra),* where Lady Justice stated that security must be given for the due performance of the decree. Courts have, however, held that each case must be examined according to its merits. The requirement for payment of security for costs is to ensure that a losing party does not intentionally delay execution while hiding under unnecessary applications and that, in the instant case, the applicant didn't furnish security. Yet, the law is clear

10 under **Order 43, Rule 4(3) of the CPR**.

Furthermore, they relied on the case of *Tugumisirize and Another V Mawanda and 3 Others; Misc. Application No. 0673 of 2021,* where *Ssekaana Musa J* stated that a party seeking a stay should be prepared to meet the conditions set out in Order 43 rule 4(3) *CPR*. Yet in the instant case, the Applicant has failed to satisfy all conditions laid down under Order 43 rule 4(3) of the Civil Procedure *Rules.*

The respondents conceded that the applicant filed the Notice of Appeal within the time limit and without undue delay. However, based on the applicable law on the stay of executions, the application failed to satisfy the conditions stipulated under Order 43, rule 4 (3) of the Civil Procedure Rules.

## 20 *Analysis of court*

*Section 98 of the Civil Procedure Act* gives the High Court inherent powers to make decisions pertinent to the ends of justice, and an order for a stay of execution is such a decision *(See the case of Singh v Runda Coffee Estates Ltd [1966] EA).*

*Order 43 Rule 4 of the Civil Procedure Rules* provides for a stay by the High Court. It provides that.

*(2) Where an application is made for a stay of the execution of an appealable decree before the expiration of the time allowed for appealing from the decree, the court that passed the decree may, on sufficient cause being shown, order the execution to be stayed.*

30 *(3) No order for a stay of execution shall be made under subrule (1) or (2) of this rule unless the court making it is satisfied that*

> *a) substantial loss may result in the party applying for a stay of execution unless the order is made.*

*b) that the application has been made without unreasonable delay and.*

*c) that security has been given by the applicant for the due performance of decree or order as may ultimately be binding upon him or her.*

*(4) Notwithstanding anything in subrule (3) of this rule, the court may make an exparte order for a stay of execution pending the hearing of the application.*

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An applicant seeking a stay of execution must meet the conditions set out in Order 43 Rule *4(3) of the Civil Procedure Rules.* The conditions were espoused in the case of *Lawrence Musiitwa Kyazze vs Eunice Businge, Supreme Court Civil Application No. 18 of 1990,* but more pronounced in the Supreme Court case of *Hon Theodore Ssekikubo and Ors vs the Attorney General and Ors, Constitutional Application No. 003 of 2014,* and these include.

- *a. The applicant must show that he lodged a notice of appeal.* - *b. That substantial loss may result to the applicant unless the stay execution is* 10 *granted.*

- *c. That the application has been made without unreasonable delay.* - *d. That the applicant has given security for the due performance of the decree or order as may ultimately be binding upon him.*

I will now proceed to consider whether the applicant has complied with each of the requirements in Order 43, Rule 3 of the Civil Procedure Rules.

# *a) Whether the applicant has lodged a notice of appeal.*

Under paragraph 4 of the affidavit supporting the application, Beatrice Tibananuka states that she filed a notice of appeal and a letter requesting certified typed proceedings and attached them as annexures *A and B.* The respondent, in response, does not deny 20 the fact that a notice of appeal has been lodged.

**Section 101 of the Evidence Act** provides that whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts that he or she asserts must prove that those facts exist. The applicant has, in this regard, proved the existence of a notice of appeal. This ground has been satisfied.

## *b) Whether the applicant will suffer a substantial loss.*

In the case of *Tropical Commodities Supplies Ltd & 2 Others V International Credit Bank Ltd (In Liquidation) (Supra),* **Ogoola PJ** (as he then was) held that.

*"The phrase substantial loss does not represent any amount or size; it cannot be* 30 *by any mathematical formula.*

> *It refers to any loss, great or small, of real worth or value as distinguished from a loss that is merely nominal."*

In the instant case, I find that there is no threat of execution of the judgment, decrees, and orders of this court as there is no pending application for execution by the respondent.

It is the position of the law that once an appeal is pending and there is a serious threat of execution before the appeal hearing, the court intervenes to serve the purpose of


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# substantive justice. See *Hwang Sung Industries Ltd Vs. Tajuddin Hussein & Others; SCCA No. 079 of 2008.*

The general rule is that courts should not order a stay where there is no evidence of an application to execute a decree. See the case of *Baguma Paul Panache Associates Vs. Eng. Karuma Kagyina; MA No. 0460 of 2020* cited by **Ssekaana Musa J** while relying on the case of *Orient Bank Ltd Vs. Zaabwe & Others, MA, No. 0019 of 2007.*

The court in the above case, while dismissing an application, further held that while exercising the discretion conferred under the law of stay of execution, the court should consider that a party who has obtained a lawful decree is not deprived of the fruits of that 10 decree except for good cause and cogent reasons.

The provisions of **Order 43 rule 4(3) (c) of the Civil Procedure Rules** are mandatory as a precondition for courts granting a stay of execution, and the failure to fulfill the conditions leaves the court with no option but to dismiss an application to stay.

# *c) Whether there is a likelihood of success in the applicant's pending appeal.*

In the applicant's affidavit under paragraph 5, he states that the appeal raises a legal issue because the appeal challenges the award of costs to counsel Magoola by lodging a notice of appeal and an application for the certified record of proceedings.

The respondent counsel submitted that the applicant does not demonstrate how the 20 pending appeal has merit with a likelihood of success as alleged in the application, that mere filing of a notice of appeal which does not highlight or state the grounds of an appeal leaves the court in doubt to speculate on the strength and chances of success of the intended appeal and its likelihood of success.

I agree with the counsel for the respondent, and I find that the applicant has not shown this court the likelihood of success of his appeal from this court's judgment. I would find that this ground is neither proved nor satisfied. It, therefore, fails.

# *d) Whether the applicant has given security for the due performance of the decree.*

30 Counsel for the applicant submitted that **Rule 6(2) of the judicature (Court of Appeal) Rules S1 13-10** under which this application is brought, security for costs is not a must and that the rule says that the court may grant a stay of execution on such terms as the court may think just.

Security must be given for the decree's due performance. Courts have, however, held that each case must be considered according to its merits. The requirement for payment of security for costs is to ensure that a losing party does not intentionally delay execution while hiding behind unnecessary applications.

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The applicant's Counsel submitted that this is not mandatory but rather is at the discretion of the court and that the court should pardon him because this application is already in line with costs. However, security must be given because this requirement to pay security for costs ensures that a losing party does not intentionally delay execution.

This ground, too, equally fails to succeed.

# **e) Whether the application has been made without unreasonable delay.**

It is trite law that it is only fair that an intended appellant who has filed a notice of appeal should be able to apply for a stay of execution as soon as possible and not have to wait until he has lodged his appeal to do so. Owing to the long delay in obtaining the 10 proceedings of the High Court, it may be many months before he could lodge his appeal. (See **Ujagar Singh v Runda Coffee Estates Ltd [1966] EA 263)**

The applicant in this matter did not delay the application in that the order was made on 16 June 2022, the Notice of Appeal was lodged in court the following day, 17 June 2022, and this application for stay of execution was filled out on 7 September 2022 as per paragraph 9 of the affidavit.

Considering the above, this ground has been satisfied.

In conclusion, this application for stay of execution, though succeeding on some grounds, fails on critical grounds by virtue of **Order 34 rule 4 (3) (c) of the Civil Procedure Rules.** It, therefore, lacks merit and is accordingly dismissed with costs to the 20 respondent.

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**I so order.**

**Dated and delivered on this 30th Day of April 2024**

**…………………………………**

**Isah Serunkuma**

**JUDGE**