[2023] UGHC 420

### **THE REPUBLIC OF UGANDA**

### **IN THE HIGH COURT OF UGANDA AT MASAKA**

### **MISCELLANEOUS APPLICATION NO. 262 OF 2022**

# **(ARISING FROM TAXATION CAUSE NO. 71 OF 2022 AND CIVIL SUIT NO. 53 OF 2017)**

**BASIIME PAUL ……………..…………………..……………...…………… APPLICANT**

### **VERSUS**

### **1. HARRIET KANTENGWA SSEKATAWA**

**2. HARRIET NAKAMYA …………………………………….……….. RESPONDENTS**

#### **RULING**

*Hon. Lady Justice Victoria N. N. Katamba*

### **BACKGROUND**

The Applicant instituted civil suit No. 53 of 2017 against the Respondents for a declaration that they had trespassed on his land. The 1st Respondent filed a written statement of defence with a counterclaim that she was entitled to 15 acres out of the suit land which were originally occupied by her deceased mother. This court found no merit in the Applicants suit, dismissed it and directed him to vacate the 1st Respondent's land, pay her general damages of **UGX. 30,000,000/=, exemplary damages of UGX. 10,000,000/=** Each of the above limbs of damages attracts interest at 16% per annum. The Respondents were also awarded costs of the suit. The Respondents have since taxed their bills of costs. The one for the 1st Respondent was allowed at **UGX. 19,985,000/=** while the one for the 2nd Respondent was allowed at **UGX. 14,895,000/=.**

The Applicant was clearly dissatisfied with the findings of this court for which reason he instituted an appeal in the court of appeal and the instant Application for stay of execution of the orders of this court to enable him prosecute his appeal.

#### **Representation**

The Applicant was represented by **M/s Lubega & Co. Advocates**.


The Respondent was on the other hand represented by **M/s KOB Advocates**.

#### **Applicant's submissions**

The Applicant submitted that the application was filed under **O.22 rule 23 (1)** of the Civil Procedure Rules. That Rule 23 (1) provides for when court may stay execution. It provides that "*the court to which a decree has been sent for execution shall, upon sufficient cause being shown, stay execution of the decree to enable the judgment debtor apply to the court by which the decree was passed, for an order to stay execution.*

**Section 98** of the **Civil Procedure Act Cap 71** which saves the inherent powers of this Court provides that *"nothing in this Act shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice to be achieved."*

The Applicant further submitted that the principles upon which the courts rely to grant orders to stay execution pending appeal were articulated by the Supreme Court in **Lawrence Musiitwa Kyazze –Vs- Eunice Busingye, Civil Application No. 18 of 1990**, but more pronounced in the Supreme Court case of **Hon. Theodore Ssekikubo & Others vs The Attorney General & Another Constitutional Application No. 6 of 2013,** as follows:

- i) That appeal has likelihood of success or the appeal presents a prima facie case. - ii) That the applicant will suffer irreparable damage or that the appeal will be rendered nugatory if a stay is not granted. - iii) If i-ii have not been established, court must consider where the balance of convenience lies: and - iv) That the application was instituted without delay.

The Applicant raised one issue which is; **whether the application raises sufficient cause to warrant a stay of execution?**

### **(a) Notice of appeal**

The Applicant submitted that under Rule 23 of Order 22 of the Civil Procedure Rules, the court has discretion to grant a stay of execution where a Notice of appeal has been filed in accordance with rule 76 of the Court of Appeal rules. He stated that paragraphs 3 & 6 of his affidavit in support


of this application disclose that he did not only lodge the notice of appeal on 7th June, 2022 in this Court but also filed his appeal on 26th July, 2022 vide **Civil Appeal No. 266 of 2022 – Basiime**

**Paul –Vs- Harriet Kantengwa Ssekatawa & Anor.**

### **(b) Likelihood of success of the appeal**

The Applicant argued that since his appeal raises eleven grounds as set out in his memorandum of appeal attached to his affidavit in support under annexure "**E1",** his appeal has high chances of success.

The Applicant argued further that his appeal raises important questions of law that merit serious judicial consideration by the Appellate Court hence constituting a prima facie case with a likelihood of success.

### **(c) Irreparable damage**

The Applicant submitted that he would suffer irreparable loss if the application is not granted as stated in paragraph 9 of his affidavit in support of the application.

He cited *Jowitt's Dictionary of English Law (2' Edn.) Vol. 2, p. 1713 definition of "substantial damage" which is analogous to Irreparable damage as: "damages which represent actual loss, whether great or small, as opposed to nominal damages."*

He submitted that having been ordered to vacate 15 acres of land which he has occupied and cultivated for more than 2 decades, this amounts to actual substantial loss if execution would issue.

### **(d) Balance of convenience**

The Applicant submitted that the issue of balance of convenience lies in his favor because he is the one with actual possession of the suit land.

### **(e) No undue delay**

The Applicant submitted that the instant application was filed on 22nd December, 2022 upon receiving a notice to show cause why execution should not issue against him on 1 st December, 2022. The Applicant referred this court to the Notice to show cause why execution should not issue marked annexure E attached to his affidavit in support.

#### **Respondents submissions**

**The Respondent relied on Order 43 Rules 3 and 4 of the Rules which** provides that;

*Where an application is made for stay of execution of an appealable decree 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.*

*(3) No order for stay of execution shall be made under subrule (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;*

*(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.*

**ISSUE: Whether there is sufficient cause for stay of execution of the orders in civil appeal no. 041 of 2015**?

The Respondent submitted that the power to order for stay of execution is entirely discretionary as was held in **National Housing and Construction Corporation versus Kampala District Land Board & Another, No. 6 of 2002 at P. 8-9**

The Respondent further submitted that an Applicant seeking stay of execution must meet the conditions set out in O. 43 r.4 (3) of the Civil Procedure Rules and those 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 03 of 2014. That the grounds include: The applicant must show that he lodged a notice of appeal; That substantial loss may result to the applicant unless the stay of execution is granted; That the application has been made without unreasonable delay; That the applicant has given security for due performance of the decree or order as may ultimately be binding upon him.*


#### **On whether a notice of appeal exists on record;**

The Respondent submitted that the Applicant attached a notice of appeal as annexure "**B**" to the application. That the same was filed in this Honourable Court on the 7th of June, 2022 and served on the Respondents' Counsel on the 10th of June, 2022.

In conclusion, the Respondent submitted that this ground was not in issue.

#### **On whether the Applicant may suffer substantial loss;**

The Respondent submitted that this Court in its judgment at **page 12** found that the Applicant had no cause of action against the 2nd Respondent who was sued in her own name yet she was acting in the course of her official duties as the Resident District Commissioner. That the Court ruled that the suit against the 2nd Respondent was incurably defective as the right party to have been sued would have been the Attorney General of Uganda. That this is a matter of law which cannot be overturned in the Applicant's purported appeal.

The Respondent also submitted that this Court also found at **page 14** of its Judgment that the 1st Respondent was entitled to 15 acres of land comprised in the suit land and the Applicant was entitled to his residue. That the above finding emanated from the fact that all the Applicant's witnesses had admitted that the 1st Respondent's mother the late Olivia Nyiramutangoma had independently lived on part of the suit land in her permanent house from 1965 to 1995. That this interest was thus passed onto the 1st Respondent and that this evidence was irrefutable.

The Respondent submitted further that the Applicant trespassed onto the 1st Respondent's land and that his continued insistence on occupying it does not prove substantial loss.

The Respondent also submitted that In *Aupal Kokas Wilfred v Aisu Popuras (supra)* the Court held that;

"**The general rule is that Courts should not order a stay where there is no evidence of an application for execution of a decree**".

That Court 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 decree except for good cause and cogent reasons. So long as the decree is not set aside by a competent Court, it stands good and effective and should not be**


**lightly dealt with so as to deprive the holder of the lawful fruits of the decree. Therefore, a decree passed by a competent Court should be allowed to be executed unless a strong case is made out on cogent grounds, no stay should be granted. Where a stay is granted, it must be on such terms as to security so that the earlier decree is not made ineffective due to lapse of time**."

### **On whether the Application was brought without unreasonable delay;**

The Respondents did not contest this requirement.

### **On whether the Respondent should deposit security for due performance of the Decree.**

The Respondent submitted that the Respondent had not expressed any willingness to deposit security for due performance of the Decree. The Respondent contends that the Applicant admitted in paragraph 1 of page 2 of his written submissions, that he is aware that the Respondents' bills of costs were taxed and allowed at **UGX 19,985,000/=** and **UGX 14,895,000/=** respectively.

The Respondent also argued that in *Aupal Kokas Wilfred v Aisu Popuras (supra)* the Court held that the provisions of **Order 43 Rule 4 (3) (c) of the Civil Procedure Rules** are couched in mandatory terms as a precondition for the grant of stay of execution by Courts and the failure to fulfill the conditions leaves the Court with no option but to dismiss the application for stay.

In conclusion the Respondents prayed that the Application be dismissed with costs to them.

### **Applicant's submissions in rejoinder**.

The Applicant's rejoinder was mostly a reiteration of his earlier submissions in support. Except on the aspect of the requirement to deposit security for due performance of the Decree, and to this he submitted that the requirement is a clog on his right to appeal against a decision he considers to have been made in error.

He submitted that it would be harsh to require him to deposit security for due performance of the Decree on a dispute involving ownership of land and the rights of the parties.

The Applicant also argued that the award of general, punitive damages and costs are auxiliary to the key dispute of land ownership which were made under the court's exercise of discretion.


The Applicant also contends that he is already required to deposit UGX. 200,000/= as security for costs under Rule 105(1) of the court of appeal rules.

The Applicant stated that whereas *Order 43 r4(3) ( c) is couched in mandatory terms*, it is in fact directory and failure to comply with it does not render the application to be incurably defective. He relied on the authority of *Asiimwe Francis vs. Tumwongyeirwe Aflod Misc Appln No. 103 of 2011 in which it was held that the word shall is only mandatory where noncompliance attracts a sanction which is not the case in the instant case.*

In conclusion the Applicant prayed that the Application be allowed with costs to him.

### **DETERMINATION BY COURT**.

I have carefully considered the Application, the affidavit in reply, the rejoinder and the submissions of the parties.

*Order 22 rules 26 and 89 of the C. P. R SI 71-1* empowers this Honorable Court to stay execution of a decree pending the disposal of a suit between the decree holder and the judgement debtor

The court of *Appeal in Kyambogo University vs. Prof. Isaiah Omollo Ndiege Civil Application No. 340 of 2013 laid down the grounds for granting a stay of execution as below;*

- *1. That the Applicant has lodged a notice of appeal.* - *2. That the appeal is not frivolous.* - *3. That there is a serious and imminent threat of execution of the Decree.* - *4. That the application was made without unreasonable delay.* - *5. That the Applicant is prepared to grant security for due performance of the Decree.*

Having considered the grounds above laid down in the Prof. Isaiah Omollo case, I am satisfied that the Applicant lodged a notice of appeal in this court, the Application was made without unreasonable delay, and that there is imminent threat of execution. I say so because, there exists a notice to Applicant to show cause why execution should not issue against him for the past hearing date of 18th January 2023.

The Respondent does not contend the existence of a notice of appeal filed by the Applicant, nor on existence of the appeal itself. He also agrees that the Application was filed without unreasonable delay.

What now remains to be settled is on the aspects below;

- a) Whether the appeal is not frivolous? - b) Whether the Applicant is prepared to grant security for due performance of the Decree?

*Whether the appeal is not frivolous*; this is subjective at this stage because, this court is not exactly in the know as to which legal and factual arguments the Applicant intends to point out exactly to convince the Appellate court to change the decision of this court on the grounds of appeal presented by the Appellant. In the circumstances of this case, if it were up to this court to determine the appeal, the decision would most likely be maintained. In particular, I do not agree with the Applicant that merely because he has raised eleven "grounds of appeal", his appeal has any chance of success. If anything, the Appellant is seeking to rely on a new claim of being an adverse possessor which he did not raise in the trial court. More also, as pointed out by the Respondents, the Applicant's very witnesses testified that the 1st Respondent's now deceased mother occupied the suit land and even constructed a permanent house on it for many years long before the Applicant was even born.

The above, notwithstanding, this court is inclined to give the Applicant the benefit of a doubt to treat his appeal as not necessarily frivolous as to enable him explore his right to appeal against the decision of this court.

The Applicant's right to explore his right of appeal, however, has to be balanced against the Respondents' right to timely delivery of Justice and their right of assurance to enjoy the fruits of litigation in the event that the decision of this court is upheld by the Appellate court. This therefore leads us to the remaining limb/ground below that has to be considered in applications of this nature.

### *Whether the Applicant is prepared to grant security for due performance of the Decree?*

In his affidavit in support of the application and submissions in chief the Applicant made no mention whatsoever on his preparedness to grant security for due performance of the Decree despite having relied on authorities like *Lawrence Musiitwa Kyazze vs. Eunice Busingye, Civil Application No. 18 of 1990* that underscore the same.

On this aspect of requiring applicants/intending appellants to deposit security for due performance of the Decree that may be passed against them, courts of law have taken the approach that each


case should be considered on its own facts. I also do not agree with the Applicants submission that there is no sanction for noncompliance with the requirement to deposit a security for due performance of the Decree in the manner in which *Order 43 r4(3) (c) of the Civil Procedure Rules is drafted. The fact that it is couched in such manner that no order of stay shall be granted without proof of satisfaction of the grounds set thereunder, creates an implied sanction of a dismissal order in the event of noncompliance.*

In his submissions in rejoinder, the Applicant submits that requiring him to make a monetary deposit as security for due performance of the Decree that may be made against him will deprive him of his right to appeal. The Appellant, however, says nothing about the delayed justice for the 1 st Respondent who will have to wait before she can access and use her land as decreed by this court nor about the need for the 2nd Respondent to recover the costs incurred in defending the suit in the trial court, that is, in the event that the Orders and Decree of this court are upheld. On the other hand, when this court stays execution of its Orders, the Applicant will continue to enjoy use and derive benefits out of of the 15 acres of land that this court has found to belong to the 1st Respondent, for as long as the appeal lasts.

This court is of the view that this is one of such cases in which the Appellant should be required to make a reasonable but not deterrent monetary deposit for due performance of the Decree that may be made against him to ensure a part- timely compensation of the Respondents in the event they succeed in the appellate court.

The Appellant's current financial obligations under the Decree of this court stands at **UGX**. **74,880,000/=** before adding interest accruing on general and exemplary damages so far. This court hereby directs the Appellant to deposit a security deposit of **UGX. 35,000,000/= (Uganda Shillings Thirty-Five Million Only)** in this court within three months from the date of delivery of this ruling which is less than half of the amount of his current obligation under the decree.

Execution is hereby temporarily stayed for three months to enable the Applicant deposit the above monetary sum in this court, acknowledgment of which should be served on Counsel for the Respondent, failure of which execution may issue without further notice.

I so order.

Orders;


The Application is hereby allowed with no order as to costs on the conditions below;

- i) The Applicant shall deposit a partial security for due performance of the Decree of **UGX**. **35,000,000/= (Uganda Shillings Thirty-Five Million Only)** in this court in three months' time from the date of delivery of this Ruling. - ii) The sum of money in (i) above shall be refunded to the Applicant in the event that all orders in the Decree of this court are reversed by the Court of Appeal. - iii) In the event that the Orders in the Decree of this court are not reversed, the above monies shall be paid out to the Respondents with immediate effect. - iv) The Applicant shall serve Counsel for the Respondents with this court's acknowledgement of receipt of the above security deposit immediately. - v) In default of the order in (i) above, execution may issue against the Applicant without further notice.

Dated and delivered electronically this 24th day of August 2023

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## **HON. LADY JUSTICE VICTORIA NAKINTU NKWANGA KATAMBA**