[2023] UGCA 168

## THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

# CIVIL MISCELLENEOUS APPLICATION NO. 745 OF 2022.

(Arising From COA-OO-CV-CA-396 OF 2022) (Arbing From HC-FD Ciuil Suit No. 558 OF 2016)

- 1. BUJINGO AYUB - 2. KAF(ruMA IBRAHIM - 3. KASSIM ABDIRAHMAN

# 4. KASAB B. M INVESTMENTS LIMITTD:::::::::::::::::::::::::::::::::APPELLAITTS VERSUS

#### 1. ABUBAXALI KIKOBA

### 2. MARJAJU MAKANGA

3. DDAMULIRA ABASI MABAIE:::::::::::::::::::::3:::::::::3::::::::RESPONDENTS

# BEFORE: HON WSTICE OSCAR KIHIKA, JA

(Sitting as a single Justice)

#### RULING OF COURT

This application was brought under Rules 2(21, 6(21(bl, a3(1) and (2) of the Judicature (Court of Appeal Rules) Directions SI 13-10 seeking for orders that;

- a) An order for stay of execution doth issue restraining the Respondents, their servants/agents attorneys or any person acting on their behalf from executing and or enforcing the Judgment ard orders of the High Court Family Division by Honourable Justice Ketrah Kitarisibwa Katunguka, delivered on 11th day of October, 2022 in Civil Suit N0. 558 of 2016 pending the determination of the appeaJ. - b) Costs of the application to abide the results of the appeal.

### Background

The background to this application as discerned from the High Court judgment attached to the alfidavit in support of the application is as follows;

The Respondents filed a suit against the Applicants at the High Court Family Division seeking for orders of removal of a caveat lodged on Administration Cause No. 899 of 2015 by the 1"t, 2"d and 3.d Applicants; a declaration that the developments including a commercial house on Block 12 Plot 139 land at Kasaato zone Kisenyi II parish still forms part of the estate of the late Hajji Muhammed Makanga; a declaration that a memoraldum of understanding dated 17 I 09 /2012 made between the 1"t and 4th Applicants is null and void.

The deceased, Hajji Mohammed Makanga purchased land comprised in LRV Folio 17 Block 12 Plot 139 at Kasaato Kisenyi II parish from the Departed Asian Property Custodian Board and obtained a certificate of purchase on 19 /07 /2OOO for a 49 year lease. Upon his death, the family appointed the 2"d Applicant, the 1st, 2nd and 3.d Respondents and one Rehema Nakiryowa Makanga to apply for letters of administration. The 1st, 2nd and 3.d Applicants lodged a caveat to block the application for letters of administration. The suit land is now registered in the names of the 4tn Applicant, which registration was effected after the purchase of the suit land by the lst and 3.d Applicants from Christine Eseza Ntiisa, the then mailo owner and the Applicants claimed that the 49 year lease expired by ellluxion of time on 2a/lO/2O14 and the land reverted back to the lesser who sold it to the I st Applicant.

Due to financial constraints, the 1st Applicant entered into a memorandum of understanding with the 4tr, Applicant to complete the purchase price. The Respondents allege that the transfer was fraudulently done by the 1"t and 4th Applicants and that the land still forms part of the estate of the late Muhammed Makanga.

Judgement was on the 29th of January 2021 was passed in favour of the Respondents.

The Applicants filed an application for an interim stay of execution vide Misc. Application No. 169 of 2027, arrd they also file Misc. Application no. 168 of 2O2l for an order of stay of execution. Both applications were heard on the 16e September 2022 and dismissed by Justice Ketra Kitarisibwa Katunguka.

The Applicants have now filed this application for an order for stay of execution of the decree in Civil Suit No. 558 of 2016.

The grounds upon which this application is based are set out in the affidavit of BUJIT{GO AYUB which sworn on the 126 October 2022 and briefly are: -

- 1. THAT the Respondents filed a suit against tte Applicants in High Court Familg Diui.sion Ciuil Suit No. 558 of 2016 (Abubakali Kikoba & 2 Ors Vs. Bujjingo Agub & 4 Others) and judgment uas deliuered on 29h January,2o21 in the absence of the Applicant and le was not notified bg the then Counsel and judgment was in fauour of the Respondents - 2. Soon afier judgment utas receiued, ue instructed our Counsel then to file an appeal against the u.thole judgment and to applg for stag of execution. - 3. A notice of appeal utas filed on 7 2th Febntary, 2021 in ttte High Court Familg Diuision and later a copg uas filed at the Court of Appeal on 7 7th Marcfu2O21. - 4. The Respondents applied for exeantion ofthe decree uide HC-FD EMA No. O16 of 2O22 (Abubakali Kikoba & 2 Others Vs 4 otLers) and secured a Notice of Euiction dated 18n JuU, 2022 ulnse expiry date i.s lVh October, 2O22 for one propertA that utas a subject of contention in Ciuil Suif JVo. 558 of 2O16 (Abubakali Kikoba & 2 Others Vs 4 others Vs. Bujjingo Agub & 4 Otlers). - 5. TLe Memorandum of Appeal was filed. - 6. There is a senous risk that since the lou.ter court dismissed ttte application for staA of execution, the execation of the decree utill continue tthich shall lead to great loss and ineparable damage to us tle Applicants and thi.s mag render the appeal moot or nugatory.

7. The appeal has a uery high chance orf success and if thi.s application is not granted this tuill cause a miscarriage of justice.

The Respondent hled an aJlidavit in reply opposing the application deponed by Abubakell Klkoba sworn on the 25th day of October 2022. The grounds of opposition can be surmised as follows;

- 1. There is no valid appeal before this court as the Notice of Appeal was filed out of time. - 2. That the judgment of the High Court was delivered on the 2lst of January 202 I but it is not true that the Notice of Appeal was filed on 12th February 2021. That the Notice of Appeal was filed on 2"d March 202 I which was 31 days from the date of delivery of the judgment. - 3. That the High Court has already made a ruling that the Notice of Appeal was filed out of time and backdated. - 4. The Applicant's application for stay of execution at the High Court was dismissed on the grounds that there was no valid Notice of Appeal. - 5. That Civil Appeal No. 396 of 2022 was itself filed out of time on 12fr October 2022 without leave of this court.

### Representetion

At the hearing of the application, Me. Norah Metovu appeared for the Applicants while Mr. Kavume Issa and Mr. Kanaabi Emnanuel appeared for the Respondents. Both parties filed written submissions which were adopted by court.

# Applicant's submisaions

Counsel submitted that Rule 6 (2O(b) of the Judicature (Court of Appeal Rules) Directions Sl 13-10 gives this court power to order a stay of execution where ^a Notice of Appea-l has been lodged in accordance with Rule 76. Counsel relied on the cases of Lawrence Muslltwa I(yazze Vs. Eunlce Buslngye (SC Civil Appllcatlon No. 18 of 19901, end Hon. Theodre Sseklkubo & 4 Others Vs.

# Attorney Gieneral & 4 Otherg Constltutlonal Appllcatlon No.3 of 2O14(SCI

on the principles which govern the grant of stay of execution by an appellate court and these include the following:

- a) The application must show that he/she has lodged a notice of appeal in accordance with rules 76 of the rules of this court. - b) The other facts to which lodgment of notice of appeal is subject, vary from case to case but include: - l. That the Applicants' appeal has a likelihood of success. - ii. The substantial loss may result to the Applicalt unless the order is made. - iii. The application has been made without unreasonable delay.

Counsel submitted that the Applicant has filed a Notice of Appeal in accordance with rule 76. That the Applicants complied with the requirements of this Rule albeit there were some mistakes by the previous Counsel which, according to counsel, should not be visited on the Applicants. Counsel submitted that the Applicants also l-rled through their lawyer, a letter requesting for record of proceedings and certified copies were endorsed on the 29tr July, 2022. ln addition, Civil Appeal No. 0617 of 2O22 Bujjingo Ayrrb & 3 others Vs. Abubakali Kikoba & 2 others was filed on 12th October, 2022 hence the Applicant has accordingly complied.

Counsel contended that the appeal has a likelihood of success. At this stage the court needs not delve into the merits of the appea-l. Counsel relied on Paragraph 4(d) ofthe aJfidavit in support ofthe application deponed by the lst Applicant, to which the Memorandum of Appeal was annexed.

Counsel submitted that the trial judge stretched it too far when she decided the case by not differentiating the interests in the disputed land between the parties and made wrong and erroneous decision. That there are merits in the appeal but if the stay is not granted, the appeal will be rendered nugatory. The Applicants shall suffer irreparable loss if the execution takes place. Counsel argued that it is usually in disputes of land that courts are prepared to consider that monetary

compensation will not be sufhcient if the appeal is successful. In these circumstances if the Applica-nts loose land and all their developments thereon, there will be no way of getting it back especially if it sold to 3rd parties.

The application has been made without unreasonable delay as required by rule 42 of the rules of this court. The Applicants first filed HC-FD MA 168 of 2021(Bujjingo Ayrrb & 3 others Vs. Abubakali Kikoba & 2 others) artd this was dismissed on 11th October, 2022. Instantly this application was frled without undue delay.

# Respondent's trrltten submlssions

In reply, the Respondents' counsel opposed this application on the ground that there is no valid appeal because the Notice of Appeal and the appeal itself were not filled in accordance with the law. Counsel submitted that the requirements laid down in the case of Lawrence Muslltwe l(yazze Vs. Eunlce Buslngye (SCCA I{O 18 of 199O1 as cited by counsel for the Applicants, that require that the application must show that he/she has lodged a Notice of Appeal in accordance with Rule 76 of the rules of this court have not been met by the Applicants.

Counsel relied on Rule 76(2) of the Court of Appeal Rules which gives a party who intends to appea.l fourteen days to file a Notice of Appeal from the date of the decision ofthe court from which an appeal is preferred. Counsel argued that the judgment in Civil Suit No. 558 of 2016 was delivered on the 29th day of January 2027 but the Applicant's Notice of Appeal was filed out of time on the 2"d day of March 2021 beyond the 14 days mandatory period.

Counsel argued further that the Applicants engaged in acts of forgery by back dating the Notice of Appeal to appear as if it was filed on 12th day of February 2021 which was false. The High Court indeed investigated the Notice of Appeal and delivered its ruling on the 1 1th day of October 2022 and found that the Notice of Appeal was filed out of time and back dated. The High Court dismissed Misc. Application No. 168 of 2027 on that ground arnong others. Furthermore, my the appeal itself was filed out of time on the 12th day of October 2O22 without leave of court for extension of time.

Counsel further argued that the Applicants did not comply with the requirement of Rule 83 ofthe Rules of this court because the certihcate of correctness on Page 170 of the record of Appeal indicates that the letter requesting for proceedings was made on the 6th day of April 2022 beyond the mandatory 30 days' period. That since there is no valid notice of appeal on court record coupled with lodging the appeal out of time, the Applicants have failed to satisfy the requirement for stay of execution and thus, the application should be dismissed with costs.

# Conslderation of the applicatlon.

Before I consider the merits of the application, I find it pertinent to address the issue raised by the Respondent's counsel that the Notice of Appeal filed by the Applicants was filed out of time and backdated and as such, there is no valid appeal pending in this court.

The Respondent's counsel argues that judgment in Civil Suit No. 558 of 2016 was delivered on 29th January 2O2l but the Notice of Appeal was filed out of time on 2"d March 2027. That the Notice of Appeal was back dated to 12th February 2027 yet the letter requesting for proceedings was filed on 6th April 2022 beyond the mandatory 30 days period.

The Respondent attached to his affidavit in reply a ruling by Justice Ketrah Kitariisibwa Katunguka in M. A No. 168 of 2027, an application for stay of execution, which was dismissed by the trial Judge.

In her decision, after inquiring into the allegation that the Notice of Appeal was filed out of time on 2"d March 2O2), and, backdated to the 12th of February 2O21 she ruled as follows;

uI ha tc looked at a letter bg the counsel Jor the Respondents to the Reglstrar Famllg Dhislon ReJ LI-KI|A/GEN/2O21 ddted gh March 2O21; tt uas bdngtng to attentlon oJ the Reglstrar that a Notlce ol Appeal had been

back dated to look as tt lt had been filed on 12/2/2O27 r,zuhereas not; that the reglster Jor Jvorices oJ Appeal together uith the recelpt for pagment oJ court Jees for the sald notlce o:f appeal both show that the Notlce of Appeal uas ftled on 2/3/2021 afier the t:lme tor Jlltng had passed; theg requested. Jor lrunstlgatlons to be carried outl counsel Jor the Appllcants dld not replg to these pa,rtlc.ular c1oims......... I found no record oJ the Notlce oJ Appeal on 77h Febraary 2O27; there was lnstead a record shouing that the notlce ruu<rs entered on 2/O3/2O21 in the reglster book oJ the Notlce oJ Appeal To rne thls makes better sense because then lt uas endorsed as lodged on 4th March 2O27, sertnd on counsel Jor the Respondents on 7@h March 2027 ond filed ln the court of appeal on 77th March 2O27; I hann not Jound redlton not to belleue counsel tor the Respondent that the sto,mp was backdated to make lt look as ff the notlce uas recelued on 7\*n Febntary 2027 because { tt had been so recelued., it should hann been recorded ln the reglster on that date and endorsed bg the Reglstrar lnmedlatelg thereafier lnstead of 20 dags later..."

I find no reason, given the evidence before me, to depart from the learned trial Judge's hnding. Additionally, the Applicant does not deny the fact that the Notice of Appeal was frled out of time and back dated but contends that mistake of counsel should not be visited on an innocent litigant.

ln the case ofBanco Arabe Espanol Vs. Bank of Uganda, SCCA No. 8 of 1998 it was held that;

'A mistake, negligence, ouersight or error on tLe part of counsel slnuld not be uisited on the litigant. Such mistake, or as the case mag be, constitutes just cause entitling tlrc trial judge to use his discretion so that tle matter is considered on its merits."

Whereas it is true that mistake of counsel should not be visited on an innocent litigant, this argument is not helpful for the purposes of this application. For art application for stay to be successful the Applicant must have filed a va.lid Notice of Appeal. In my view there is no va-lid Notice of Appeal.

There being no valid Notice of Appeal, the Applicants ought to have filed al application for extension of time which would have validated the Notice of Appeal. It is in that application where arguments of mista-ke of counsel could be considered.

The Applicants, however, have not demonstrated to this court that there's an application for validation of the Notice of Appeal or extension of time, that is pending hearing. As it stands now, sadly, the Applicants have no appeal pending in this court; and validation or extension of time cannot be granted within ambit of this application for stay of execution.

I therefore find this application void of merit and dismiss it for the reasons given above.

This application is thus dismissed with costs to the Respondent.

I so order.

Dated this ?0'1L day of May 2023

l/ OSCAR H HIKA JUSTICE