Tumwesigye & 3 Others v Butungiro (Miscellaneous Application 8 of 2022) [2023] UGHC 452 (1 December 2023)

### THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT RUKUNGIRI **MISCELLANEOUS APPLICATION NO. 008 OF 2022** (ARISING FROM CIVIL APEAL NO. 050 OF 2019

### AND

# (ALSO ARISING FROM CIVIL SUIT NO. 017 OF 2018)

- 1. TUMWESIGYE GAD - 2. ARYEIJA ARTHUR - 3. KATOTO GIDEON - 4. NASASIRA LOYCE ::::::::::::::::::::::::::::::::::::

#### **VERSUS**

# BUTUNGIRO JACKSON ::::::::::::::::::::::::::::::::::::

### **BEFORE: HON. JUSTICE TOM CHEMUTAI**

#### **RULING**

The Application was brought by Notice of Motion under Sections 33 of the Judicature Act, Section 98 of the Civil Procedure Act and Order 52 Rule 1 of the Civil Procedure Rules, seeking for an order staying the execution of the judgment of the High Court in Civil Appeal No.50 of 2019 until the determination of their appeal to the Court of Appeal.

The Application had the following grounds:

1. That the applicants were the defendants in the original Kanungu Chief Magistrates Court Civil Suit No. 017 of 2018 at Kihihi and later the Appellants in High Court Civil Appeal No. 50 of 2019 which was concluded in this Honourable Court and, being dissatisfied with the

outcome, of the decision rendered therein, intend to appeal to the Court of Appeal of Uganda at Kampala.

- 2. The Applicants have already duly lodged a notice of Appeal and also requested for, and are yet to be availed the typed and or certified copies of the judgment, record of proceedings and all the pleadings and submissions hitherto filed in High Court Civil Appeal No. 50 of 2021 I order to prepare for their Appeal. - 3. The Applicant's intended Appeal has very high likelihood of success and, there has been no delay in indicating their intention to appeal and or in presenting this Application. - 4. The Applicants intended appeal will be rendered nugatory if and thereby causing substantial loss if the Respondent should proceed to execute any of the orders and or decree of this honourable court in civil appeal no. 50 of 2019 whose decision is being appealed against and or of the orders and decrees of the original suit in Kanungu Chief Magistrates Court Civil Suit No. 017 of 2018 at Kihihi where the appeal process emanates from. - 5. Its only just and equitable that all the execution proceedings in the matter be stayed pending determination of the intended appeal

The application is supported by the affidavit sworn by Katoto Gideon, the 3<sup>rd</sup> Applicant filed on December 14, 2021 in which he substantially repeats the grounds set out in the Notice of motion.

In his response, the Respondent Bitungiro Jackson, filed an affidavit in reply sworn on January 3, 2022 opposing the application. The main thrust of his objection is that:

- 1. The affidavit is fatally defective and ought to be struck out with costs. - 2. That the application is merely a delaying tactic designed to prevent him from enjoying the fruits of his judgment as ordered by the trial Court and this Court on Appeal. - 3. That the Applicant's Appeal has no chances of success and is a mere waste of Court's time. - 4. That the Application is frivolous and vexatious and lacks any evidential value to sustain itself and as such ought to be dismissed with costs. - 5. That he was informed by his lawyers that the Applicants have made no undertaking to pay security for due performance and or paid as required. - 6. That should Court be inclined to grant this Application, the Applicants should deposit with it at least UGX. 20,000,000/ $=$ (Uganda Shillings Twenty Million Only) being security for due performance.

### Background:

It is necessary to give a brief background to this application as far as can be gathered from the record, which is the fallowing;

In 2018, the Respondent instituted Civil Suit No. 51 of 2018 against the Applicants in the Chief Magistrates Court of Kanungu at Kihihi seeking a declaration that he is the rightful owner of land located in Ndeeba Cell, Nyakatunguru Ward, Kihihi Town Council with a permanent house.

He also sought a permanent injunction restraining the Appellants, their agents or successors or any person deriving title from interfering with the suit land, general damages and costs of the suit.

According to the Respondent, he acquired the suit land from the late George Byandagara Seburukoko the father of the Appellants on August 16, 2017. That he immediately took possession and started utilizing the land until May, 2018 when the Appellants chased him away from the suit land.

The Appellants on the other hand contended that the suit land forms part of the estate of the late Gorge Byandagara Seburukoko and that their father never disposed of the suit land and that the purported sale is a forgery.

The Appellants also disputed the Respondent's averment that he ever occupied and utilized the suit land.

The matter was heard and determined by the Grade One Magistrate, His Worship Andrew Katurubuki. He found that the suit land belongs to the Respondent and not the estate of the late George Byandagara. He issued a permanent injunction against the Appellants and or their agents or successors in title from interfering with the suit land, an eviction order against the Appellants and awarded costs of the suit to the Respondent.

Consequently, Tumwesigye Gad, Aryeija Arthur, Katoto Gideon and Nasasira Loyce Byandagala appealed to the High court in Kabale against that judgment and the Appeal to the High Court was also dismissed with costs to the Respondent hence the second Appeal to the Court of Appeal of Uganda.

The Appellants were granted an interim order of stay of execution on December 14, 2021 pending the determination of the instant application for stay of execution in the High Court.

$\mathbf{1}$

At the hearing of this Application, Mr. Mark Kanyerere represented the Applicants while Mr. Mark Mwesigye appeared for the Respondent. They adopted their written submissions that had been filed.

### Submissions:

Both parties filed their respective submissions and authorities.

According to the Pleadings and submissions, there are two issues for determination are:

1. Whether there are grounds for an order for stay of execution pending appeal and if so whether conditionally or not.

## 2. Whether costs should be provided.

However, Counsel for Respondent raised a preliminary objection to the effect that the Application is defective since it lacks the affidavits of the $1^{\mbox{\tiny st}}$ $2^{\mbox{\tiny nd}}$ and $4^{\rm th}$ Applicants and the there was no authority given to the $3^{\rm rd}$ Applicant to deponed the Affidavit on behalf of the other Applicants.

Counsel for the Respondent cited the case of Makerere University Versus Saint Mark Education Institution Ltd and Others H. C. C. S. No 378/1993 and prayed that the Application be dismissed for want of evidence since it is only the 3<sup>rd</sup> Applicant with evidence on record.

Counsel argued that the substantive issues in the alternative and submitted that should Court be inclined to grant the Application, then the same be subject to an order for payment of security for due performance for purposes of ensuring that there is not meant to delay execution of a decree through the filling vexatious and frivolous applications. Counsel thus prayed that the

Applicants do deposit at least UGX. 15,000,000/= (Uganda Shillings Fifteen Million Only) as security for due performance in the event that Court is inclined to grant the Application.

### **Analysis**

I have perused the Application and the affidavit in support of the Application. In the affidavit in support, $4^{\mbox{\tiny th}}$ Applicant depones the affidavit on his own behalf and on the behalf of the rest of the Applicants. However, there is no proof on record that $4^{\text{th}}$ Applicant got express authorization from the rest of the Applicants to file the instant Application and swear the affidavit in support on their behalf.

In the case of Taremwa Kamishani & 8 Others vs Attorney General & 2 Others (Miscellaneous Cause No. 38 of 2012, Hon. Justice Bashaija K. Andrew held "Let me state clearly that where the party obtains a representative order it is sufficient authority to represent himself/ herself and others in the same interest and he or she can swear an affidavit on his or her own behalf and on behalf of the others represented. Conversely, where a party swears an affidavit on his or her own behalf and on behalf of the others without the others' authority when it is not a representative suit, the affidavit becomes defective for want of authority." Underling for my emphasis.

I therefore, find the Applicant filing the instant Application and affidavit in support without express authorization from the other Applicants namely Tumwesigye Gad, Aryeija Arthur and Nasasira Loyce Byandagara was a grave error hence the same renders the entire Application incompetent and the same is dismissed with costs to the Respondent.

Dated at Rukungiri this ....................................

TOM CHEMUTAI JUDGE