Tigambirwa v Kazooba (HCT-01-CV-MA 68 of 2024) [2024] UGHC 1026 (25 October 2024)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT FORT PORTAL** 3 **HCT – 01 – CV – MA NO. 068 OF 2024 (ARISING FROM CIVIL APPEAL NO. 24 OF 2024) (ARISING FROM EXMA NO. 28 OF 2023, FORT PORTAL M. A. NO. 89 OF** 6 **2013 AND CIVIL SUIT NO. 210 OF 2012) BLASIO TIGAMBIRWA :::::::::::::::::::::::::::::::::::::::::: APPLICANT VERSUS**

9 **KAZOOBA PETER ::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT BEFORE: HON. JUSTICE VINCENT WAGONA RULING**

- 12 The applicant filed this application under Section 98 of the Civil Procedure Act and Order 43 rules 4 (1), 4 and 5 of the Civil Procedure Rules seeking an order to stay execution of the decree in FPT – 00 – CV – EXMA – No. 28 of 2023 pending the - 15 outcome of High Court Civil Appeal No. 24 of 2024 and costs of taking out the application.

The grounds are detailed in the applicant's affidavit in support where he stated as 18 follows:

(1)The applicant was the defendant to Civil Suit No. 210 of 2012 where judgment was entered against him. He was never served with the summons in the 21 summary suit and learnt of the suit in *Entasi* Newspaper when the bailiff advertised his property for sale.

(2)The applicant immediately instructed Counsel Johnson Musana (deceased) of

24 Musana & Co. Advocates to file an application to set aside the default judgment and he filed Misc. Application No. 89 of 2013 which was later


dismissed without notice for none attendance. The applicant did not know that his lawyer had withdrawn from the case.

- 3 (3)In 2018, the area Local Authorities informed the applicant that strangers had entered into his land on Queens Road Kagote and were using his materials to construct a wall fence and when he went to assess the damage caused, he was 6 arrested and charged with criminal trespass and malicious damage to property. - (4)The applicant later instructed Counsel Atuhaire Timothy who filed Misc. Application No. 75 to set aside the dismissal of Misc. Application No. 89 of 2013. After Counsel Musana withdrew from the case, on 10th 9 September 2015, court had ordered the respondent to serve the applicant with a hearing notice which was not done. Court went ahead and dismissed the applicant's 12 application for want of prosecution without his knowledge. - (5)There was an order for substituted service that was never vacated and not complied with. The Dismissal of M. A No. 89 of 2013 with costs was 15 irregularly done. The applicant made efforts to have the order set aside and filed Misc. Application No. 75 of 2018 which was also dismissed with costs on 14th December 2023. - 18 (6)The applicant later filed an appeal to this court vide Civil Appeal No. 24 of 2024 which is pending trial. He applied for a typed record of proceedings and a letter calling for the lower court file. There is now a notice to show cause, which was fixed for 4 th 21 September 2024 in respect of the multiple bills of costs resulting from the several applications which were unfairly dismissed. - (7)The applicant has been subjected to loss and inconvenience after his property 24 comprised in Plot 43, Queens Road, Kagote was sold as a result of the


proceedings being challenged and he will suffer loss and inconvenience if this application is granted.

3 The application is opposed byKazooba Peter (respondent) who deposed as follows;

(1)The respondent filed Civil Suit No. 210 of 2012 for recovery of 12m and summons were duly served upon the applicant in the presence of L. C. 6 Chairperson, and he did not seek leave to appear and defend the suit and execution was conducted by way of attachment and sale of the applicant's plot at Queens Road Kagote, Central Division, Fort Portal City and the execution 9 report is on record.

- (2)The applicant filed an application to set aside the default judgment on 14/01/2016 which was dismissed for none attendance of the applicant and by 12 the time the said application was dismissed, the applicant's counsel Musana was still living. - (3)In 2018, the applicant engaged counsel Atuhaire who filed Misc. Application - 15 No. 75 of 2018 for reinstatement of M. A No. 89 of 2013 which was also dismissed for none attendance on 21.06.2019 and the application for stay vide M. A No. 76 of 2018 was also dismissed. - 18 (4)The applicant later filed M. A No. 89 of 2013 for re-instatement of M. A No. 89 of 2013 which also dismissed with costs on 14th May 2024.

(5)The applicant is guilty of gross or inordinate delay and this application is 21 overtaken by events since the execution was completed in 2013 and the purchaser took possession. The applicant's appeal was filed without leave of court and is incompetent and unfounded.

24 (6)The judgment debt has been outstanding for a long time and the applicant has not furnished security for payment of the judgment debt.


### **Representation and Hearing:**

*Mr. Nyakaana Patrick Mabiiho* appeared for the applicant while *M/s Kaahwa, Kafuuzi, Bwiruka & Co. Advocates* appeared for the Respondent. Mr. Nyakaana 6 filed written submissions in compliance with the directions issued by Court and

learned counsel for the Respondent did not. I have thus considered the submissions of Mr. Nyakaana in this ruling.

## **Consideration by Court:**

12 Order 43 Rule 4 (1), (2) and (3) of the CPR states as follows:

### **Stay by High Court.**

- 15 *(1)An appeal to the High Court shall not operate as a stay of proceedings under a decree or order appealed from except so far as the High Court may order, nor shall execution of a decree be stayed by reason only of an appeal having* 18 *been preferred from the decree; but the High Court may for sufficient cause* - *order stay of execution of the decree.* - *(2)Where an application is made for stay of execution of an appealable decree* 21 *before the expiration of the time allowed for appealing from the decree, the court which passed the decree may on sufficient cause being shown order the execution to be stayed.* - 24 *(3)No order for stay of execution shall be made under sub rule (1) or (2) of this rule unless the court making it is satisfied—*


- *(a) that substantial loss may result to the party applying for stay of execution unless the order is made;* - 3 *(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 the decree or order as may ultimately be binding upon him or her.*

The grounds for stay of execution were laid down in *Kyambogo University v Isaiah Omolo, Court of Appeal Civil Application No. 341 of 2013* to include;

- 9 (1)Proof of lodgment of an appeal. - (2)That substantial loss may result to the applicant unless the order is made. - (3)That there is a serious and imminent threat of execution of the decree or order. - 12 (4)That refusal to grant the stay would inflict greater hardship than it would avoid. - (5)That the application has been made without unreasonable delay. - 15 (6) That the applicant has given security for due performance of the decree or order as may ultimately be binding upon him.

(See also:**Dr. Ahmed MuhammedKisule Vs. Greenland Bank (in Liquidation),**

- 18 **Supreme Court Civil Application No. 7 of 2010** *and* **Lawrence MusiitwaKyazze - Vs - Eunice Busingye, SC. Civil Application No. 18of 1990**). - 21

# **(i) Proofof lodgment of an appeal:**

24 Section 79 (1) of the Civil procedure Act is to the effect that appeals from orders of the lower courts to the High Court must be filed within 30 days from the date of the decree or order. Order 43 rule 1emphasizes further, that the appeal must be in form 27 of a memorandum of appeal signed by an appellant or his or her advocate.


Courts recognize that the lodgment of a notice of appeal is a clear expression of the

- 3 intent to appeal, sufficient for purpose of stay. In this regard in *Attorney General of the Republic of Uganda versus The East African Law Society & Another EACA Application No.1 of 2013,* cited with approval in *Equity Bank Uganda Ltd versus* - 6 *Nicholas Were M. A No.604 of 2013* it was stated thus: **'***A notice of appeal is a sufficient expression of an intention to file an appeal and that such an action is sufficient to found the basis for grant of orders of stay in appropriate cases'* - 9

The lodged appeal must prema-facie, be competent. Whereas court at this stage is not required to delve into the merits of the appeal, where it is clear from the face of 12 the record that the appeal lodged is barred by law or not in compliance with the law, court may reject the application for stay and consequently strike out the appeal. The basis of such reasoning is that court cannot stay execution of a decree on an appeal 15 which is bad in law or which is clearly a non-starter from the face of the record.

In the several applications filed by the application in the trial court, he was seeking 18 an order to set aside the earlier order dismissing Misc. Application No. 89 of 2013 for it to be heard on merits. In Misc. Application No. 75 of 2018, the application was filed under Order 9 rule 23 of the Civil Procedure Rules and it was dismissed. Under 21 Order 44 rule 1(b), an order rejecting an application to set aside a dismissal order under Order 9 rule 23 of the Civil Procedure Rules is appealable as of right. Therefore the appeal in issue did not require leave. I am therefore satisfied that the

24 applicant lodged the appeal and this ground is proved.

 - **(ii) Substantial loss may result to the applicant unless the order is made and the refusal to grant the stay would inflict greater hardship than it** 3 **would avoid.**

In **Tropical Commodities Suppliers Ltd 2 Others –Vs - International Credit**

- 6 **Bank Ltd (In Liquidation), Misc. Application No. 379 of 2003,** the term 'substantial loss' for purposes of stay of execution was described thus: *"Hence, the question needs to be asked as to what in law constitutes "substantial* - 9 *loss". In my view, substantial loss need not be determined by a mathematical formula whose computation yields any particular amount. Indeed, Jowitt's Dictionary of English Law (2' Edn.) Vol. 2, p. 1713, carefully defines the analogous* - 12 *concept of "substantial damages" as: "damages which represent actual loss, whether great or small, as opposed to nominal damages."* - 15 Substantial loss is any loss or substantial inconvenience that a party may be subjected to. In *Formual Feeds Ltd & Others v KCB Bank Ltd, HCMA No. 1647 of 2022*, Hon. Justice Stephen Mubiru stated that substantial loss includes significant - 18 difficulty, expense, disruption beyond that to which every judgment debtor is necessarily subjected when he or she loses her case and deprived of her property in consequence. - 21

It was submitted for the applicant that if a stay is not granted, the applicant shall be forced to pay a sum of shs 21,494,000/= arising from the multiple bills taxed 24 resulting from the different applications which were dismissed. That the applicant already lost his property through execution and if a stay is not granted, the applicant will be arrested and compelled to pay the taxed bill.


I have examined the evidence on record and the submissions and the pleadings on record. There is a notice for the applicant to show cause why execution should not

- 3 issue against him to recover a sum of shs 21,494,000/=. It is submitted that if a stay is not granted, there is looming threat of execution against the applicant and greater difficulty will be suffered by the applicant if a stay is not granted as he will be - 6 compelled to pay the taxed bill before the conclusion of the appeal which challenges some of the orders where the said costs were granted. I am satisfied that if execution proceeds, the appeal by the applicant and his contest against the said bills will be 9 rendered nugatory. I thus find that the applicant proved this ground. - **(iii) Serious and imminent threat of execution of the decree or order:** - 12

The applicant filed this application on 3rd September 2024 and the notice to show cause why execution should not issue was scheduled for 4th September 2024. I 15 therefore find that the current application was filed without unreasonable delay. I therefore find that this ground is proved.

## 18 **(iv) That the applicant has given security for due performance of the decree or order:**

- 21 Order 43 rule 4 (3) (c) of the Civil Procedure rules makes it a requirement that a party who is desirous of securing a stay of execution must be willing to deposit in court security for due performance of the decree. - 24

In **Shem Mpanga Mukasa &Anor Vs. Kizza Clessy Barya, Misc. Application No. 479 of 2021** the Hon. Lady Justice Nkonge Rugadya stated thus: "*The payment* 27 *of security for costs is intended to operate as a shield against the filing of frivolous*


*and vexatious appeals which may never succeed yet have an effect in escalating trial*

*costs."* In **Misc. Application No. 105 of 2020, Kisaalu Joseph & 10 others Vs.**

- 3 **Nakintu May &Anor,** the Hon. Lady Justice Victoria Nakintu Nkwanga Katamba added thus: *"The condition requiring an applicant to deposit security for due performance is established under Order 43 Rule 4 (3(c). Security for due* - 6 *performance has been interpreted to mean the entire decretal sum and itis intended to protect the judgment creditor in the event that the appeal is unsuccessful".* The Learned Judge further stated that: "*Courts though have been* - 9 *reluctant to order security for due performance of the decree. Rather Courts have been keen to order security for Costs (see Tropical Commodities Supplies Ltd and others v. International Credit Bank Ltd (in liquidation) [2004] 2 EA 331 and DFCU* - 12 *Bank Ltd v. Dr. Ann Persis Nakate Lussejere, C. A Civil Appeal No.29 of 2003), because the requirement and insistence on a practice that mandates security for the entire decretal amount is likely to stifle appeals."* - 15

Security for costs or due performance of the decree operates as an insurance cover that is meant to indemnify the judgment debtor in the event the appeal fails, without

- 18 recourse to vigorous processes of recovering such costs. In **Amon Bazira Vs. Maurice Pater Kagimu, Land Division Misc. Application No. 1138 of 2016**, the Hon. Justice Henry I. Kawesa stated as follows: *"It has been trite that due* - 21 *performance of the decree can only be secured by the provision of security for costs. This position was not altered in anyway by the Supreme Court decision of*

**Lawrence Musiitwa Kyazze versus Eunice Busingye SCA No.18/1990.**

The requirement to deposit security for costs should not be used as a punishment to the applicant or used as a mechanism to frustrate his appeal by ordering security for


costs which the applicant may not be able to pay. Court must make an independent assessment of the facts and the parties before it prior to ordering for security for

## 3 costs. **(See: The New Vision Publishing Corporation & 2 others Vs. Peter Kaggwa, HCMA 127 of 2006).**

- 6 I find it fair to order the applicant to deposit security for costs. Therefore the applicant shall deposit 20% of the taxed costs as security for costs. The applicant has just filed Misc. Application No. 088 of 2024, seeking his release - 9 following his arrest and committal to civil prison before the determination of the current application and his pending appeal in High Court Civil Appeal No. 24 of 2024.

This application succeeds with the following orders:

- 15 **1. An order doth issue staying the execution of the orders in Fort Portal Misc. Application No. 76 of 2018, 75 of 2018 and 89 of 2013 until the determination of Civil Appeal No. 24 of 2024.** - 18 **2. The stay of execution is granted on condition that the applicant pays 20% of the taxed costs translating into a sum of shs 4,298,800/= as security for costs within 60 days from the date of delivery of this ruling, failure of** 21 **which, this order shall automatically lapse.**

**3. The applicant shall immediately be released from civil prison so as to enable him comply with the order in No. 2 above and also to pursue his**

24 **Civil Appeal No. 24 of 2024. Should the applicant fail to comply with the order in No 2 above, this order releasing him from civil prison shall also automatically lapse.**


- **4. The determination of this application renders Misc. Application No. 69 of 2024 by the applicant for interim stay and Misc. Application No. 88 of** 3 **2024 for release of the applicant/judgment debtor, redundant and the said 2 applications are accordingly dismissed with no orders as to costs.** - **5. The costs of this application shall abide the outcome of the Civil Appeal** 6 **No. 24 of 2024.**

**It is so ordered.**

Vincent Wagona **High Court Judge**

12 **FORTPORTAL DATE: 25/10/2024**