[2011] UGCA 14

### THE REPUBLIC OF UGANDA

### IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

### CORAM: HON. JUSTICE A. E. N. MPAGI BAHIGEINE, DCJ HON. JUSTICE A. TWINOMUJUNI,J' HON. JUSTICE A. S NSHIMYE,JA V.'

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### CIVIL APPLICATION NO.47 OF 20IO

#### . COMMISSIONER LAND REGISTRATION l5 . ATTORNEY GENERAL APPLICANTS I 2

## VERSUS

### PETER BIBANGAMBA RESPONDENT

[Arising from the decision of the High Court at Kampala (Magezi, J) dated I 9 January 20 l0 in Misc. Appl. No.2 I of 20091

### RULING OF THE COURT

This is an application by Notice of Motion brought under Rules 2(2)(b), 42(2), 43(l) and (2), 6(2)(b) of the Judicature (Court of Appeal Rules) Directions. It seeks orders that:-

³⁵ "a) This court be pleased to stay execution of the orders passed in Miscellaneous Application No.2l of 2009.

b) Provisions be made for the costs of this application."

The reasons for the application are stated therein as follows:-

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| 5 | "i) The applicants have lodged an appeal against the decision<br>and orders in Misc. Application No.2l of 2009 dated lgth<br>January,20l0. | |----|-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------| | | ii) The decision and/or orders of the High Court in Misc.<br>Application No.2l of20l0 are supposed to be executed. | | t0 | iii) That the applicants' appeal has not yet been set down for<br>hearing and the applicants have not yet obtained the record<br>ofproceedings by the Honourable Trial Court. | | t5 | iv) That the execution of the orders on Misc. Application No.2l<br>of20l0 will render the pending appeal in the appellate court<br>nugatory. | | | v) That it is in the interest ofjustice that a stay of execution is |

ordered pending the hearing and determination of the appeal in the appellate court."

The application is supported by an affidavit deponed to by Mr. Elison Karuhanga of the Attomey Generals Chambers which states as follows:-

"1. That I am an adult male Ugandan of sound mind and ^a State Attorney in the Attorney General's Chambers and competent to s\,vear this affidavit. 25

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2. That I am well versed with the facts arising out of Misc. Application No.2l of 2009 filed by the respondent against the applicants.

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- 3. That I know that in Misc. Application No.2l of 2009 the respondent obtained judgment in his favour granted by the Honourable Justice Anna Magezi. - 4. That I know on the 7th January, 2010 the 2nd applicant received a ruling notice for the delivery of the Ruling in Misc. Application No.21 of 2009 and the same was delivered on the 19th ofJanuary,2010 but not dated. (A photocopy of the ruling is attached and marked annexture "A"). l0 - 5. That I know the applicants being dissatislied with the said decision lodged a Notice of Appeal to challenge the decision of the Court. (A photocopy of the same is attached and marked, Annexture t'8"). t5 - 6. That I know that the applicants have also requested for the typed and certified record of proceedings. (A photocopy of the same is attached and marked annexture "C"). 20 - 7. That I know that the pending appeal in the court of Appeal has a high chance of success in that: - i) The learned trial judge erred in law and in fact in holding that the plaintiff/respondent was not accorded a right to be heard.

- ii) The learned trial judge erred in law and in fact in failing to address the issue of ownership of the land in question. - iii) The learned trial judge erred in law and in fact in upholding the reliefs sought by the plaintiff without any justification. - 8. That I know that if this court does not grant a stay of execution of the orders in Misc. Application No.2l of 2009 it will render the pending appeal in the Court of Appeal nugatory. - 9. That I know that the matters involved in the intended appeal are of great public interest and importance. - 10. That it is just and equitable in the circumstances that this court orders for a stay of execution of the orders granted in Misc. Application No.2l of 2009 pending the hearing and final determination of the appeal in the Court of Appeal. - I l. That I swear this affidavit in support of an application for stay of execution of the orders in Misc. Application No.2l of 2009. - 12. That whatever is stated herein above is true and correct to the best of my knowledge."

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There is on record an affidavit in reply deponed to by the respondent and filed in this court on I lth June 2010 which states as follows:-

- I am the respondent herein, an adult male Uganda with full capacity to swear this affidavit. I - I have read and understood the notice of motion and accompanying affidavit and in reply thereto I state as hereunder: )

While it is true that the applicants filed a Notice of

Appeal on 212/2010 and served it on my counsel on

ll/212010, counsel did not apply for the typed and

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- certified record of proceedings of the lower court and serve a copy onto me or onto my counsel as is required and as such an essential step has not been taken within the time prescribed and the time within which to lodge the appeal expired on ll4l20l0 without any appeal being lodged. - 20 - AND I swear this affidavit to oppose the application for stay of execution and what I have stated hereinabove is true and correct to the best of my knowledge." o ⁴ - At the hearing of the application before us Mr. Wanyama Kadoli, ^a Senior State Attomey, represented the applicants while Mr. Ngaruye Ruhindi Bonaface represented the respondent. 25

In his short submission, Mr. Kadoli highlighted the contents of the affidavit swom by Mr. Elison Karuhanga (supra) and submitted that since an appeal had already been filed in this court against the ruling in Miscellaneous Application No.2l of 2009 (High Court), it was necessary to be granted an order of injunction to protect the applicants from the orders which were made by the High Court in order not to render the appeal nugatory.

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Mr. Ngaruye Ruhindi, leamed counsel opposed the application. He advanced three reasons: l0

- (a) The applicants had not, at the time of hearing of the application, filed any appeal at all in this court as required by rule 83 of the Rules of this Court. Since no appeal existed, it could not be set down for hearing. Since the appeal should have been filed by 2/4/2010 and it was never filed, it was deemed to have been withdrawn. - (b)The applicants did not write to the Registrar of the High Court requesting for proceedings ofthe Court. Neither did they serve the respondent nor his counsel with a copy of the letter as required by Rule 83 of this Courts Rule. Therefore they cannot rely on rule 84 of this Courts Rules as they failed to take some essential step. )A - (c) The affidavit of Elison Karuhanga was full of falsehoods, especially paragraphs 7 and 8. Since there is no appeal pending in this court, this application cannot be granted as it is intended to defeat the respondent's decree granted by the High Court. He prayed that this application be dismissed with costs to his client. 25

We have carefully studied the available relevant materials on the record of this application. We have found so many anomalies and irregularities that make this application incurably defective. We here below outline them:-

(a) In the ruling of the leamed trial judge. from which this application arose, she did not make any orders other than to state that:-

# "I therefore allow the application in its entirety including costs as prayed for."

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The applicants did not file a copy of the decree of the High Court or that of the court whose decision was being reviewed by the High Court. We therefore have no idea what orders the applicant wants us to stay. They are not mentioned in the application. There is no justification for us to grant an application to stay orders which are not disclosed at all.

(b) Though the applicants filed a Notice of intention to Appeal in accordance with the Rules of this Court, they did not apply for ^a copy of the proceedings of the trial court nor did they serve such a copy of the letter on the respondent or his counsel as required by rule 83(2) and (3) of this Courts Rules. Yet, it is a fact that when we heard this application, seven moths after it was filed, the applicants had neither applied for a copy of the proceedings nor filed the appeal. It is also a fact that up to the time of writing this ruling, (i.e. May 201l) the applicants have not yet filed the appeal.

Since the applicants should have filed the appeal within sixty days from the date of lodging a notice ofappeal, the appeal is deemed to have been withdrawn under rule 84(a) of the Rules of this Court.

5 Therefore, since there is no appeal pending in this court, an application to stay orders of the High Court is misconceived as no intention to challenge them on appeal is indicated.

- (c) Paragraphs 6 and 7 including annexture "C" are all false. The applicants have never filed any appeal in this court and Annex "C" can only be false as it does not bear any court stamp nor was it served on the respondent. This makes the whole application invalid. IO - For all these reasons, we find that this application is misconceived in law and invalid. It is hereby struck off with costs to the respondent. l5

Dated at Kampala this .. . ... . . day of ..201 t.

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Hon. Justice A. E. N. Mpagi Bahigeine DEPUTY CHIEF JUSTICE

Hon. Justice A. Trvinomujuni JUSTICE OF APPEAL

Hon. Justice A. S. Nshimye JUSTICE OF APPEAL

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