[2024] UGCA 263

## THE REPUBI. IC OF UGANDA IN THE COURT APPEAL OF UGANDA AT KAMPATA ctvtL APPUCATTON NO. 1092 0F 2023 (ARTSTNG FROM CrVrr APPEAL NO. 55 OF 2023)

10 HAMIR KHUNTI APPLICANT

#### VERSUS

#### UGANDA MUSTIM SUPREME COUNCIL RESPONDENT

(Applicotion orising from the deuee of the High Court of Ugondq ot Soroti ( Dr. Henry Peter Adonyo l.) delivered on 77 Morch 2023)

## CORAM: MOSES KAZIBWE KAWUMIJA. (SINGtE JUSTICE)

#### RULING

The Application was brought under Rules 2 (2]l,6 (2) (b), 43 (1) and 44 (1) of the Judicature (Court Appeal Rules) Directions S.l. 13-10. 25

The Applicant seeks an order of stay of execution of the judgment, decree and taxed costs in Civil Suit No. 10 of 2018 pending the disposal of Civil Appeal No. 56 of 2O23 and provision be made of an ord=r of costs.

### ³⁰ Background

As gathered from the record, the Respondent through its agent Teso District Muslim Supreme Council invited the public to apply and take up space on its land in Soroti and build lock ups with the aim of generating income to support its operations of the mosque.

³⁵ Some of the conditions for the grant were that successful applicants were not to assign or sublet to any other person without the Respondent's approval.

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- s The Applicant was not among the first persons granted the lock up spaces but he acquired 2 lockups and assumed the rights of the first allocates on an understanding that he would occupy the space for ^a long period of seven years, albeit without the Respondent's approval. - I'he Applicant who is a non-muslim, occupied the space, developed ro lock-ups but he was required to pay rent of 50,000/= instead of 30,000 which his Moslem fellow tenants were paying. The Applicant's rent was later increased to 7O,OOO/= per month which the Applicant considered as discriminatory and he stopped paying. The nonpayment of rent prompted the Respondent to terminate the lease and 1s also to demanded for vacant possession.

Aggrieved with the termination of the lease, the Applicant and 3 others rrnsuccessfully filed Civil Suit No.10 of 2018 for breach of contract while the Respondent succeeded in its counter claim for trespass.

Being dissatisfied with the judgment, the Applicant filed Civil Appeal No. 56 of 2023 that is pending in this Court and also filed Miscellaneous Application No. 42 of 2023 for a stay of execution in the High Court, which was dismissed hence this Application to this Court. 20

## Grounds of the Application

The grounds of this Application are set out in the Notice of Motion and substantially repeated in the Affidavit of the Hamir Khunti in support of his Application as follows;-

- 1. The Applicant was one of the unsuccessful parties in Civil Suit No. 10 of 2018 were judgment was entered in favour of the Respondent. - 30 - 2. That the Applicant is dissatisfied with the iudgment and has since filed an appeal vide Civil Appeal No. 56 of 2OZ3 still pending hearing in this honourable Court.

- ⁵ 3. That there is a serious threat of execution as the Respondent commenced execution based on the lower Court Judgment yet the Application for stay of execution filed in the trial Court was dismissed. - 4. That the Applicant will be deprived of his livelihood since he resides and carries out business on the suit land. - 5. That there is need to maintain the status quo as the pending Appeal will be rendered nugatory if this Application is not granted - 5. That is in the interest of justice that this Application is granted.

The Application is further supported by a supplementary affidavit 20 deposed by a one Derrick Akankwasa who averred that the Applicant filed a memorandum of Appeal and that there is already a warrant of arrest issued against the Applicant.

The application was opposed by the Respondent through an affidavit sworn by Asuman Mohammed Ochen on the grounds that there is already a warrant issued and that no irreparable loss would be occasioned to the Applicant since the execution against the Applicant is pecuniary in nature and therefore reparable. 25

That the Applicant has not demonstrated that he has a pending Appeal with chances of success and that this Application is only intended to deny the Respondent the fruits of its judgment and further subject him to more costs. 30

#### Representation 35

When the Application came up for hearing on September 4, 2024, Counsel Natukunda Jaqueline of Omongole & Co. Advocates appeared for the Applicant while Adam Makmot-Kibwanga of Makmot-Kibwanga & Co. Advocates appeared for the Respondent.

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5 of both Counsel. The written submissions on Court record were adopted on application

### Submissions of the parties

Counsel for the Applicant submitted that it is a general rule that where the unsuccessful party is exercising their unrestricted right of appeal,

10 the court has to make such orders to stay proceedings to prevent the lppeal from being rendered nugatory. Counsel cited lawrence Erin Properties ltd Vs. Cheshire County Council lL997l2 AtL ER ⁴⁴⁶

Counsel also cited Rule 5(2) (b) of the Rules of this Court as the law that governs the grant of stay of executions and also cited Gashumba

- 15 Maniraguha Vs. Sam Nkundiye SCCA No. 24 of 2OLS to guide the Cou rt on the principles considered for applications of this nature including:- - 1) The applicant must establish that his/her appeal has a likelihood of success: or a prima facie case of his right to appeal. - 20 2) lt 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) lf l and 2 above have not been established, the Court must consider where the balance of convenience lies. - 4) That the Applicant must also establish that the application was instituted without delay. - 3C 35 Counsel submitted that the Applicant demonstrated all the above principles in his affidavit in support of the Application. Counsel urged this Court to look at paragraphs 4 of the Affidavit in support of this Application for the assertion that there is a pending appeal as well as paragraphs 5, 6 of the affidavit in support as well as paragraph 3 of the supplementary affidavit for the assertion that there is a threat of execution.

Counsel submitted that there is a likelihood of success of the appeal as the memorandum of Appeal raises pertinent issues. Counsel further

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⁵ submitted that the Applicant would suffer irreparable damage if the stay is not granted and referred Court to the fact that a notice to show cause was served upon the Applicant and a warrant of arrest was issued. Counsel submitted that examining the matter in terms of the balance of convenience favours the Applicant who is in possession of the suit land and whose livelihood is under threat of execution. 10

Counsel prayed that the Court should exercise its discretion and grant an order for a stay of execution of the Judgment and orders in High Court Civil Suit No. 10 of 2018 pending the determination of the Civil AppealNo.56 of2023.

#### Submissions for the Respondent 15

Counsel for the Respondent's submissions opposing the application were premised on the authority of Kyambogo University Vs. Prof lsaiah Omolo Ndiege Civil Application No. 341 of 2013 which restated the conditions for a stay of execution as follows;

a)That there is a serious and imminent threat of execution of the decree or order and ifthe application is not granted, the appeal will be rendered nugatory. 20

> b)That the said pending appeal is not frivolous and it has ^a likelihood of success.

- c) That refusal to stay would inflict greater hardship than it would avoid. - 30 - d)That the Applicant must show that, he has lodged an Appeal which is pending hearing.

The Respondent submitted that the Application does not satisfl'the above grounds

The Respondent further submitted that the supplementary affidavit was filed out of time and without leave of Court and should be struck out. That without the supplementary affidavit, the application is

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- ⁵ rnisconceived as it seeks to stay an alleged execution that has not started and that balance of convenience is in its favour as the Applicant was found to have trespassed on the suit land, practised haram and other practises injurious to the lslamic faith including rlcoholism and pork eating. - The Respondent urged Court to find that the dismissal of this Application would restore the sanctity of the suit land and that this tilts the balance of convenience in its Respondents favour. 10

## Consideration of Court.

The purpose ofthe grant of stay of execution is to help preserve the status quo and then have the merits ofthe case to be handled by the full bench. This Court has the task of establishing whether the Applicant has made out the conditions for the grant of stay of exec utio n. 15

The jurisdiction to grant a stay of execution is set out in Rule G(2) (b) of the Rules of this Court which provides that: 20

> "2. Subject to sub-rule (l), the institution of on oppeol sholl not operote to suspend ony sentence or stoy execution but the Court moy:

b) in ony civil proceedings, where o notice of oppeol has been lodged in occordonce with rule 76 of these Rules, order a stoy of execution.......on such terms os the Court moy think just.,,

This rule and rule 2 (2) give this Court, the discretion, in civil proceedings, where a Notice of Appeal has been lodged following rule ⁷⁶of the Rules of this Court, to order a stay of execution in appropriate cases and on terms that it thinks fit.

llowever, it is worth noting that this discretionary power must not be exercised capriciously or whimsically but must be exercised in a way that does not prevent a party from pursuing its appeal so that the same

⁵ is not rendered nugatory should the Court overturned the trial court's decision.

# ln Hon. Theodore Ssekikubo & Others Vs. The Attorney General and Another, Constitutional Application No 05 of 2013 it was held that rn

- applications of this nature, the Applicant must prove that; 10 - 1) The applicant must establish that his/her appeal has a likelihood of success; or a prima facie case of his right to appeal - 2) That the applicant will suffer irreparable damage or that the appeal will be rendered nugatory if a stay is not granted. - 3) lf 1 and 2 above have not been established, the Court must consider where the balance of convenience lies. - 4) That the applicant must also establish that the application was instituted without delay.

The primary issue for determination by this Court is whether the applicant has adduced sufficient reasons to justify the grant of a stay of execution.

I have considered the submissions by both ccunsel, the affidavits on record and the law. 25

Regarding the requirement for the appeal to have likelihood lf success; or a prima facie case . This court has to establish whether tl'e Appeal had been lodged according to Rule 76 of the Court of Appeal rules.

The Applicant averred that he filed an Appeal in this Court with high chances of success. ln proof of this, he attached an extract of the record of appeal, marked as annexture "8" as well as a memorandum of Appeal marked as annexture "88".

According to the record of proceedings, Judgment in HCCS No. 10 of 2018 was delivered on the 17th day of March 2022 in favour of the Respondent. The Notice of Appeal was lodged on the 24th of March 2022 seven days after the judgment.

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- ⁵ At this stage, Court is not to consider the merits of the Appeal but only :sses if the Appeal has serious questions for consideration. The Applicant raises locus standi as one of the matters for investigation by Court. lt is thus proved, that there is a prima facie appeal. - As regards the threat of execution, paragraphs 5,6,7 ,8 of the affidavit rn support of the Application allege a serious threat of execution. 10

It was averred that the Respondent has a taxed bill of costs, the Application for stay of execution in the High Court was dismissed and that there is a notice to show cause why execution should not issue.

These averments were supported by a certified copy of the judgment in Civil Suit No. 10 of 2018 marked "A", the notice to show cause "C", the certificate of taxation marked "Et" and the ruling-denying grant of the stay of execu:tion in the High Court marked "D".

Aside from that, there is evidence of a warrant of arrest attached to the supplementary affidavit marked "AA". The Rqspondent also admitted under paragraph 4 of the affidavit in reply that there is ^a warrant of arrest. I there for find that the Applicant proved that there

is a serious threat of execution.

Regarding the second criteria, each party claimed the balance of convenience to be in its favour. The Respondent has adduced evidence in his affidavit in reply that the warrant of arrest was already issued the Applicant is delaying the fruits of the judgment. On the other hand, it is the Applicant's evidence that he resides and carries on business on the suit land, and that the arrest has not been effected. 30

^rdo find that, refusal to stay execution would inflict greater hardship to the Applicant than it would avoid. ln essence, the balance of convenience tilts in favour of the Applicant. 35

As to whether the application was instituted without delay. The judgment of the High Court was delivered on 17th March 2022, the Notice of appeal was filed on 23,d March 2022. 5

The warrant of arrest was issued on 12th October 2023, this Application was filed on 17th October 2023 soon after learning of the threat of execution by way of arrest. I thus find that this application was brought without undue delay.

For the reasons given above, I find that the applicant satisfiec, the conditions for the grant of an order stay of execution. Accordingly, this Application is granted with the following orders:-

- a) An order of stay of execution is granted until the appeal is determined. - )o b) Costs of this application shall abide the outcome of the appeal

Delivered and dated at Kampala ttris...[\*.day of .. SEpL\*4-.-zOza

Moses Kazibwe Kawumi JUSTICE OF APPEAT

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