[2024] UGCA 23

## THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPAI-A CML APPLICATION No.roo5 of zoz3 ARISING OUT OF CML APPEAL No.74 of zoz3

#### BINDEEBAIACOB:::::::::::::::::::::::::::::::::::::::::::::::APPTICANT

#### VERSUS

## r. RWANTEBE YOFASI

z. RWABWERA MOSES ::::: :: :::::::l:::::::: ::::: RESPONDENTS

# RULING OF CATHERINE BAMUGEMEREIRE, IA (SITTING AS A SINGLE IUSTICE)

Civil Procedure - Stay of execution - whether a decree is

executable. 15

### Introduction

This ruling pertains to a notice of motion filed on behalf of Jacob Bindeeba (the applicant) in this court, under rule z(z), rule 6(b), and rule 43(r) of the Rules of this court. The applicant seeks the

- following orders: 20 - r. A stay of execution be issued staying the decree in suit No.z6/zozo. - z. Costs of the Application.

The grounds for the application are outlined in the Notice of Motion and further detailed in the supporting affidavit, sworn by Jacob Bindeeba. 25

#### Background

According to the record, Jacob Bindeeba filed HCCS No.z,6 of zozo, seeking general and aggravated damages for trespass to land (kibanla) in Kinota, Rakai district. He also filed an s application for a temporary injunction, No. 95 of zozo, which was granted by the learned depury registrar, Her Worship Agnes Nkonge.

During the hearing ofl the main suit, counsel for the respondents was absent therefore the court proceeded ex parte. In spite ofthe

- 10 failure for responds and their lawyer to attend, they obtained ^a favourable judgment against the applicant, with the trial judge finding that the applicant did not lawfully acquire the disputed property. Consequently, the applicant filed an appeal in this court and sought a stay of execution in the High Court at Masaka. - 15 However, the High Court at Masaka declined to grant an order f,or stay of execution, stating that the judgment was not executable. As a result, the applicant filed an application for ^a stay of execution in this court.

#### Representation

- 20 At the hearing of this application, Mr. Gabriel Byamugisha represented the applicant, while Mr. Fahad Sirajje and Geoffrey Katabazi represented the respondent. It should be noted that the at the hearing, Mr. Sirajje withdrew the interim application no. roo6,which left this court with only the substantive application - 25 no.loo5 of zoz3 for the court to address.

#### Submissions for the Parties

According to the submission made by counsel for the applicant, the respondents plan to permanently dispossess the applicant of his land, which is also his family's residence. Counsel averred that

- 5 the respondents have obtained a judgment in HCCS No. z6 of zozo that recognizes them as the rightful owners of the suit land. In light of this judgment, the respondents have taken the ag,gressive step of destroying the applicant's banana plantation. Counsel relied on the authority of Francis Nansio Micah v - Nuwa Walakira SCCA No.oog of rggo, which espoused the view that this court has iurisdiction to stay execution and that it would be unwise in some circumstances, to defeat the statutory right of appeal by, flor example demolishing the subject matter, as this causes irreparable damage to the applicant and their appeal may 10 - be rendered nugatory. 15

Counsel further averred that the subject matter of this case is land which is the appellant's home and Courts have held that land is invaluable properry and loss if it makes it irreparable damage. Counsel further submitted that the appeal has a lot of

merit and is bound to succeed. 20

> Counsel averred that the appellant filed an appeal to demonstrate that probate existed but that the suit land was not part of the estate. Counsel argued therefore that the appeal has a likelihood of success on its merits. He invited this court to grant a stay of

execution pending the determination of appeal.

Counsel for the respondent contended that this here is no application for execution and as such there is nothing to stay. Counsel argued that there is no threat of execution, and that

- there is nothing to execute since the respondents have always been in occupation of the suit land. He submitted that when the lower court dismissed the applicants claim in civil suit No.z6 of 2o2o, court sealed the respondent ownership. Counsel relied on the authority of George Ruyondo v Muriisa Nicholas Election - Application No.39 of zou where this court found that no execution proceedings had been commenced, and the application for stay of execution that had been brought before the said court was dismissed with costs. Counsel averred that the application has been brought prematurely since there is no 10 - pending application for execution of the lower court orders. Counsel further averred that the orders as were given in the lower court are not executable and that the High Court of Uganda at Masaka was right to dismiss the applicant's application for stay ofexecution as there was no application flor execution in court or 15 - threat to execute the orders ofcourt. Counsel contended that the plaintiff lost the case and no orders as to costs were awarded. The court further contended that this application and the main application for stay are frivolous and devoid of any merit and an abuse of court process. Counsel argued that the land belongs to 20

respondents, and they have all the right to use their land the way they wish.

### Submissions in Reioinder

- 5 In rejoinder, counsel for the applicant replied that the respondent's cows are grazing the banana plantation belonging to him and have continued to destroy it. Counsel averred that this means that the judgment which declares that the applicant is not the owner and that the respondents are not trespassers has been - executed as the respondents justifo their actions as they claim to be the owners. Counsel implored court to find that the decretal property is being disposed ofand that ifthis is not stopped, the appeal if it succeeds will be rendered nugatory. 10

#### 15 Determination of the Application.

Upon review of the notice of motion, affidavits, and the submissions presented by both counsel, I have taken into account the relevant authorities. The law governing applications for stay of,execution in this court is provided for under Rule 6(z) (b) of

20 the Rules of this Court that reads as follows:

?5

"6(z) . Subject to sub-rule (r), the institution ofan appeal shall not operate to suspend any sentence or stay execution but the Court may:...

b) in any civil proceedings, where a notice of appeal has been lodged in accordance with Rule 7z of the Rules of this Court, order a stay of execution.....on such terms as the Court may think just."

The general rule is that where an unsuccessfi,rl party is exercising an unrestricted right to appeal, it is the duty of court to make such orders for stay of execution so as not to render the appeal nugatory. As held in the Supreme Court decision of Lawrence Musiitwa Kyazze v Eunice Busingye SCCA No.r8 of r99o (1992) IV KALR 55,

"An application for stay of execution pending appeal is designed to preserve the subject matter in dispute so that the right of the appellant who is exercising his/her undoubted rights ofappeal are safeguarded and the appeal, iIsuccessful is not rendered nugatory."

The principles on which court relies to grant stay o[ execution were laid down in Hon. Ssekikubo & Ors v Attorney General & Ors Constitutional Application No.o3 of zor4. The court propounded that: 15

"Applicant must establish that his appeal has likelihood of success, or a prima facie case of his right ofappeal. That the applicant will suffer irreparable damage or that the appeal will be rendered nugatory if a stay is not granted. I[ r-z above have not been established, Court must consider where the balance of,convenience lies. We should add that another principle is that the applicant must also establish that the application was instituted without delay." 20 25

I will evaluate the criteria to determine whether the applicants have provided satisfactory reasons to suPport the approval oftheir application. Regarding the question of likelihood of success, Gapco Uganda Ltd v Kaweesa & Anor (MA No .259 of zorS) defines likelihood of success of a case to be one where;

"The court is satisfied that the claim is not fiivolous or vexatious and that there is a serious question to be tried."

At trial the applicant was faulted for acquiringa kibanja that was part ofthe deceased's estate from a seller who did not have a right to sell since she did not possess letters ofprobate. The applicant refuted the allegation, arguing that the seller, Jovanice Kemijumbi, had inherited the land and therefore had the authoriry to sell it. Furthermore, the applicant claimed that the 10

land was a gift inter vivos and was not considered as part ofthe deceased's estate. 15

In my view, the applicant's claim is not vexatious. Although it's not within my purview to delve into the merits of the case at this stage, I am confident that a case with a prima flacie probability of

success exists. See American Cyanamid Co v Ethicon Ltd (r9y5) WCR316. 20

As to the second condition of the possibility of suffering irreparable damage. The respondent contended that the order

made by the learned trial judge was not executable, below is the order in question.

"This court is disinclined to gront the remedies sought by the plaintiffbecause it has neither found him the lawful owner of the property nor thot the defend.ants (children of the Late Edwad. K) are trespassers. The suit is dismissed with no order as to costs. "

I respectfully disagree with the reasoning provided by the respondents that the above order cannot be executed. The decision clearly granted ownership to the respondents, thereby conferring upon them the right to use the suit land as they see fit, despite the fact that the applicant's home and plantation are on the same land. lt's worth noting that the respondents destroyed 10

- the applicant's banana plantation, estimated to be around z 7z acres in size. In my opinion, the respondents' ownership rights are derived flrom the order issued by the learned trial judge, which led to the destruction of the applicant's plantation. The applicant is now seeking a stay of,these actions from this court. - It is conceded by the respondents that they were responsible for destroying the banana plantation. They claimed that the land in question belongs to them and they had the right to utilize it as they saw fit. However, given that the applicant uses the suit land as his residence is a significant consideration, and the damage 20

incurred would leave him without a home, resulting into an enormous and substantial loss.

The case of Tropical Commodities Suppliers Ltd & Ors v International Credit Bank Ltd (in liquidation) [zoo+] z EA

5 3fr elucidates the principle that one must consider whether substantial losses would be incurred.

"substantial loss refers to that loss that cannot be quantified by any particular monetary compensation, or that there is no exact mathematical formula to comPute 10 substantial loss."

# Francis Hansio Micar v Nuwa Walakira SCCA No.9 of r99o stands for the proposition that:

"lt would be unwise in some circumstances to defeat ^a statutory right of appeal by, for example, demolishing the 15 subject matter of a suit so that the appeal is rendered nugatory. Again, stay may be necessary when it comes to the notice of any court that an alleged fraud has been practiced upon it effecting its decree or when courts action is in doubt through want of jurisdiction."

20 I associate myself with the above reasoning, the subject matter has sustained partial damage, and the applicant is at risk of incurring further loss. In the interest of iustice, I believe the applicant meets the condition of experiencing irreparable harm.

In situations where a court is uncertain about the aforementioned principles, it may consider the issue in terms of the balance ofconvenience. However, in this application, I have established that the appeal has a likelihood o[ success, and that

the applicants would suffer irreparable damage if no order was granteg. Therefore, it is unnecessary to examine the matter in terms of the balance of convenience.

I thereflore find that a case has been made out for this court to exercise its discretion and grant an order for stay of execution of the Judgment and orders in High Court Civil Appeal No.z6 of zozo. As a result order I order as follows: 10

- r. A stay of,execution doth issue staying the judgment, orders and decree in High Court Civil Appeal No.z6 of zozo until disposal of Civil Appeal No.74 of zoz3. - z. Interim application No.roo6 of zoz3 was earlier withdrawn by the applicants and stands dismissed. - 3. The costs of this application and application No.roo5 of zoz3 shall abide the result ofthe Appeal.

Datcd this (l 't day of c 2o24.

tq

CATHERI NE BAMUGEMEREIRE JUSTICE OF APPEAL