Wagabyalire v Attorney General & Another (Miscellaneous Application 78 of 2024) [2024] UGHC 550 (25 June 2024)

Full Case Text

### THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA HOLDEN AT MBALE

### MISC. APPLICATION NO.078 OF 2024

(ARISING FROM MISC. APPLICATION NO. 072 OF 2024)

(ARISING FROM MISC. APPLICATION NO. 259 OF 2023)

(ARISING FROM MISC. APPLICATION NO.258 OF 2023)

(ALL ARISING FROM MISC. CAUSE NO.08 OF 2022)

**JOHN AMRAN WAGABYALIRE ....................................**

#### **VERSUS**

#### 1. ATTORNEY GENERAL

**2. JUDE MIKE MUDOMA ::::::::::::::::::::::::::::::::::::**

#### BEFORE HON. JUSTICE LUBEGA FAROUQ

#### **RULING**

### 1. Introduction

2. This application was brought by way of chamber summons under section 98 of the Civil Procedure Act, section 33 of the Judicature Act, Oder 22 rule 26, Order 50 and Order 52 rules 1 and 3 of the Civil Procedure Rules for orders that execution of the ruling and orders in Miscellaneous Application No.259 of 2023 be stayed and costs.

## 3. Background

- 4. The Applicant herein filed Miscellaneous Cause No.8 of 2022 wherein Miscellaneous Application No.259 arose, for orders of contempt on the basis of gazzetting the $2^{nd}$ Respondent herein as cultural head of the institution of Inzu Ya Bamasaba. The said application was dismissed with costs for offending rules of procedure and practice. - 5. The Respondents are the judgment creditors and the Applicant is the judgment debtor in Miscellaneous Application No.259 of 2023.

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- 6. This application was supported by the affidavit of the Applicant JOHN **AMRAM WAGABYALIRE** which has been relied upon in the determination of this application and briefly states that - a. He instituted Miscellaneous Application No.259 of 2023 against the 1st and 2nd Respondents for orders that a temporary injunction be issued forbidding, preventing the enforcement and implementation of the 1st Respondent's gazettement on 4th August 2023 as the Umukuuka procured in contempt of court and that costs of the application be paid by the Respondents; - b. Unfortunately, before the same could proceed on its merits, the learned Assistant Registrar dismissed it on 19th October 2023 basing on the preliminary point of law; - c. Being aggrieved by the said orders and ruling of Her Worship Nankya Nusulah, delivered on 19th October 2023, he instructed his former advocates, Katongole & Co. Advocates to apply for the certified copies of the ruling and proceedings to enable him pursue his appeal; - d. That the mistake/omission of his previous counsel in not aggressively pursuing his instructions and filing his appeal on time should not be visited on him; - e. That he is committed and/or desire to pursue his rights on appeal against the ruling and orders of the trial court which rights shall be negated if the orders sought hereunder are denied; - f. He has a good appeal on the merits as it was erroneous for the trial court to dismiss his application where the Respondents had all filed their respective replies; - g. The said error was of a fundamental nature and in violation of both the law and procedure and the same unjustifiably prejudiced his rights and interests; - h. Unfortunately, on 27th March 2024, this court taxed the costs awarded in the said Miscellaneous Application No.265 of 2023 and a notice to show cause why execution should not issue was issued as an indicator of the commencement of the execution proceedings;

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- He will suffer irreparable injury if he is condemned to pay costs over a $\mathrm{i}.$ matter which was dismissed improperly. The denial of the orders herein shall deprive him of his constitutional right to be heard on appeal before he is condemned; - $i$ . He is the cultural leader of the Bamasaaba and by that, he is a dignified and respected member of the Bamasaaba community and the nation as a whole. The execution of the warrant of arrest against him shall fundamentally undermine his reputation and stature in society, which injury cannot be atoned in damages; - k. He will suffer substantial loss in so far as his health shall be fundamentally compromised and his right of appeal extinguished. - 7. This application was also opposed by the affidavit of **BAGEYA MOTOOKA AARON** a Senior State Attorney at Attorney General's Chambers, Mbale Regional Office which has been relied upon in the determination of this application and briefly states - a. The 1st Respondent was not party to the execution proceedings of the ruling and orders in Miscellaneous Application No.259 of 2023; - b. The supporting affidavit indicates that the Application is arising from Miscellaneous Application No.77 of 2024, however, the 1st Respondent has never been served with Miscellaneous Application No.77 of 2024; - c. The supporting affidavit does not state the application number the Applicant refers to and further still, there is no copy of the said application that was attached; - d. At the time of filing this application, there was no application challenging the ruling and orders delivered in Miscellaneous Application No.259 of 2024; - e. This application is an abuse of court process and should thus be dismissed with costs. - 8. This application was also opposed by the affidavit of the $2^{nd}$ Respondent **JUDE** MIKE MUDOMA which has been relied upon and briefly states that-

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- a. This application is misconceived, frivolous, vexatious, marred with falsehoods, barred in law, an abuse of court process and the same ought to be dismissed with costs; - b. The application was dismissed on technicalities for failure to follow the established rules of procedure and practice on a preliminary point of law for serving summons out of time; - c. The instant application or appeal cannot merit because both the Misc. Application No.259 and Misc. Cause No.08 of 2022 ceased to serve the purpose for which they were filed for; - d. He is the legally constituted and gazzetted, enthroned and inaugurated cultural head of the institution of Inzu Ya Bamasaba, the applicant is a masquerader or an imposter and therefore not under any privileged rights or immunity from enforcing a court order against him.

## 9. Legal representation

Counsel Olucho Isaac appeared for the 1st Respondent, counsel Nangulu 10. Eddie appeared for the Applicant while counsel Massa Joseph and Wesire Yonna appeared for the $2^{nd}$ Respondent.

#### **Submissions** 11.

At the hearing of this application, counsel for all parties were given 12. schedules to file their respective written submissions and they all complied. This court shall consider them in determination of this application.

#### 13. **Analysis of court**

Order 22 rule 26 of the Civil Procedure Rules SI 71-1 provides that-14.

"Where a suit is pending in any court against the holder of a decree of the court in the name of the person against whom the decree was passed, the court may, on such terms as to security or otherwise, as it thinks fit, stay execution of the decree until the pending suit has been decided."

Order 43 rule 4 (3) of the Civil Procedure Rules SI.71 provides that-15.

"No order for stay of execution shall be made 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;* - (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."

16. In Hon. Theodore Ssekikubo & others V.. Attorney General and Another, Constitutional Application No 06 of 2013 clearly re-stated the above principles as follows-

In order for the Court to grant an application for a stay of execution-

"(1) The applicant must establish that his appeal has a likelihood of success; or a prima facie case of his right to appeal

(2) It must also be established that the applicant will suffer irreparable damage or that the appeal will be rendered nugatory if a stay is not granted.

(3) If 1 and 2 above has not been established, Court must consider where the balance of convenience lies.

(4) That the applicant must also establish that the application was *instituted without delay."*

17. The above conditions, are going to guide this court in the determination of this Application.

# The applicant must establish that his appeal has a likelihood of success; or a prima facie case of his right to appeal

Under paragraphs 2 & 3 of the affidavit in support the Applicant averred 18. that he instituted Miscellaneous Application No. 259 of 2023 against the 1st and $2^{nd}$ Respondents for orders that a temporary injunction be issued

forbidding, preventing the enforcement and implementation of the 1st Respondent's gazettement on 4th day of August 2023 as the Umukuuka procured in contempt of court and costs of the Application be paid by the 1st and 2nd Respondents. However, the same was dismissed by the learned Assistant Registrar on the ground of failure to serve chamber summons within time.

- The Applicant further averred under paragraphs 4 & 5 of the affidavit in 19. support that being aggrieved with the decision of the Assistant Registrar, he instructed his former Advocates of Katongole & Co. Advocates to apply for the certified copies of the ruling and proceedings to enable him pursue his appeal and for that reason, the delay occasioned by his previous advocates in filing the appeal in time cannot be visited on him. - 20. The Applicant added under paragraphs 6 and 7 of the affidavit in support that he is committed to pursue his right on appeal against the ruling and orders of the trial court which rights shall be negated if the orders sought hereunder are denied and that he has a good appeal on the merits as it was erroneous for the trial court to dismiss his application which unjustifiably prejudiced his rights and interests. - 21. I have gone perused the court record and I have not seen any notice of the said appeal. What is on the court record is Miscellaneous Application No. 72 of 2024 seeking for extension of time within which to file a memorandum of appeal but the memorandum of appeal is not attached on that application for this court to be able to establish whether the Applicant's appeal has a likelihood of success or not. - 22. However, from the Applicant's averments as reproduced in the body of this ruling, the Applicant averred that he instructed his advocates to institute miscellaneous application No. 259 of 2023 which means the advocates were under a duty to ensure that the same is served on the opposite party in time which they did not do. In fact, the Applicant instructed three law firms to represent him in that matter that is; $M/s$ Katongole & Co. Advocates, $M/s$ Nangulu & Mugoda & Co. Advocates and M/s Senkezi, Ssali & Co. Advocates. One of the said firms should at least served the Respondents but none did.

- In the case of Nicholas Roussos V. Gullam Hussein, Abib Hirami & 23. others SCCA NO.9 of 1993, court held that the mistake of an advocate though negligent may be accepted as a sufficient cause. - 24. Therefore, as guided by the above authority, - 25. I am satisfied that the Applicant has a prima facie case with a likelihood of success.

# It must also be established that the applicant will suffer irreparable damage if a stay is not granted.

- 26. From the court record, it is not in dispute that Miscellaneous Application No 259 of 2023 was dismissed and a bill of costs was drawn amounting to Ugx: 12, 598,000/= according to the $2^{nd}$ Respondent's submissions. This would therefore by implication mean that the Applicant will suffer irreparable damage if a stay is not granted. - 27. If 1 and 2 above has not been established, Court must consider where the balance of convenience lies. - 28. The balance of convenience is in favour of the Applicant against whom execution will be enforced if this application is not granted.

# That the applicant must also establish that the application was instituted without delay.

- 29. From the proceedings in Miscellaneous Application No. 259 of 2023, the Applicant's lawyer was present during the hearing but was still unable to file not even a notice of appeal since October, 2023 and only woke up in April of this year to file for extension of time within which to file the appeal. This is in my view unreasonable delay and an abuse of court process which this court cannot condone. - Under paragraph 6 of the affidavit in rejoinder, the Applicant avers that 30. efforts to obtain the said certified copies of the ruling and proceedings were frustrated by his former advocates and as a result of such delay, he was unable to file his memorandum of appeal within the mandatory statutory period.

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- I have however looked at the chamber summons in Miscellaneous 31. Application No. 259 of 2023 and noted that the chamber summons was drawn by three law firms to wit; M/s Katongole & Co. Adovocates, M/s Nangulu & Mugoda & Co. Advocates and M/s Senkezi, Ssali & Co. Advocates which in my view means they all represented the Applicant in that matter. - It is therefore clear that even $M/s$ Nangulu & Mugoda & Co. Advocates 32. which the Applicant claims to be his new lawyer was one of the counsel who represented him in Misc. Application No. 259 of 2023 which means it was part of the alleged delay, and for that reason, the Applicant's claim of former lawyers delaying to file the memorandum of appeal does not suffice. - It is also worth of note that the duty to follow up a matter when filed in 33. court should not only be left to counsel but the litigant should also be vigilant enough to follow up his or her matter. For example, in the instant case, although the Applicant had instructed his counsel to institute an appeal against the orders of the Assistant Registrar in Misc. Application No. 259 of 2023, he was also duty bound to follow up the same to establish whether the appeal was indeed filed or not, but he did not. - In light of the above discussion, it is the finding of this court that the 34. Applicant unreasonably delayed to institute this Application. - However, before I take leave of this matter, I would like to note that counsel 35. for the 2nd Respondent argued that Miscellaneous Application No. 72 of 2024 has never been served on them. - I have perused through the court record and what I can observe is that 36. Miscellaneous Application No. 72 of 2024 was instituted on the same day as the current application and presumably, the Applicant was intending to serve the same on the Respondents. The fact that it had not yet been served, in my view is not fatal. What is important is that it was filed in court. - 37. **Security for costs** - 38. Counsel for the $2^{nd}$ Respondent submitted that the disputed amount in MiscellaneousApplication No. 259 of 2023 is Ugx: $12,598,000/$ =. He argued that in event the application is not granted, provision for security for costs be considered by this court.

- As already discussed in this ruling, it is apparent that the Applicant has 39. been lazy in enforcing his rights despite hiring more than one law firm to pursue his matter. It is not in dispute that Misc. Application No. 259 of 2023 was dismissed due to the Applicant's failure to serve chamber summons on the Respondents in time. - 40. The above mentioned application was dismissed in October, 2023 and an application to file a memorandum of appeal out of time was filed in this court on 26th April, 2024 after the taxation hearing was completed. This by implication indicates that the Applicant is not ready to pursue his rights. - In the case of Giddey and Shepstone & Wylie and others v Geyser NO. 41. 1998 (3) SA 1036 (SCA) ([1998] 3 All SA 349) it was stated that-

"First, a court seized with an application to compel a plaintiff or applicant to furnish security for costs retains an unfettered discretion. Second, the court needs to 'balance the potential injustice to a plaintiff if it is prevented from pursuing a legitimate claim as a result of an order requiring it to pay security for costs, on the one hand, against the potential injustice to a defendant who successfully defends the claim, and yet may well have to pay all its costs in the litigation. Third, *the statuary purpose of section 13 is 'to deter would-be plaintiffs from* instituting proceedings vexatious or in circumstances where their *prospects are poor*" (the underlined emphasis is mine)

42. In the upshot, as guided by Order 43 rule 4 $(3)$ (c) of the Civil Procedure Rules and in SCCA No. 15 of 2002 Noble Builders (U) Limited & Anor V. Jabal Sigh Sandhu and Giddey and Shepstone & Wylie (supra) the Applicant's application for stay of execution is granted subject to paying security for costs amounting to Ugx: $6,000,000/$ = (Six million shillings) to be paid before hearing Miscellaneous Application No. 72 of 2024.

I so order

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Ruling delivered via emails of the parties on **25th** day of **June**, 2024