[2025] UGHC 421

#### THE REPUBLIC OF UGANDA

#### IN THE HIGH COURT OF UGANDA

#### **AT LUWERO**

### HCT-17-LD-MA-0333-2024

(Arising from EMA No. 0023 of 2024)

(Arising from Misc. Appeal no. 0002 of 2023)

(Arising from Misc. Application no. 0571 of 2022)

(Arising from HCCS No. 0239 of 2022)

### 1. KAAYA MUSA

- 2. SEBAGALA SULAIMAN - 3. DENIS BIRUNGI:::::::::::::::::::::::::::::::::::: $VS$

### OJAMBO SUNDAY STEVEN:::::::::::::::::::::::::::::::::::

### **BEFORE HON. JUSTICE GODFREY HIMBAZA**

### RULING.

### **Introduction**

This application was brought by Notice of Motion filed in this court on 5^th November 2024 under section 98 of the Civil Procedure Act Cap 282, and 0.52 rule 1,2 and 3 of the Civil Procedure Rules SI 282-1. The application sought for orders that;

- a) Execution of the orders arising from EMA No. 023 of 2024 and Misc Application no. 0571of 2022, arising from civil suit no. 239 of 2022 be stayed pending the determination of Misc. Appeal no. 0002 of 2023 before this honourable court. - b) Costs of the application be provided for.

The grounds in support of this application are contained in the affidavit of the $3^rd$ applicant. The respondent filed an affidavit in reply to the application and

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opposed the same. The parties also filed written submissions which this court has considered in determination of this application.

## Backsround to the application

- ^I Sometime in 2022, the respondent sued the appellants for declarations among others, that he was a Kibanja owner on Block 16 plot 22 measuring approximately 28 acres of land. The respondent applied to court and was granted a temporary injunction restraining the appellants from interfering with his occupation of the land until determination of the main suit. The respondent then filed an application for contempt of court accusing the applicants of violating the order of temporary injunction. The application was heard by the Deputy Registrar of the High court Land Division, and she condemned the applicants to a fine and general damages for contempt of court. The applicants, being dissatisfied with the findings and orders of the Deputy Registrar filed an appeal vide Misc. Appeal no. 0O02 of 2023 seeking to set aside the orders of the Deputy Registrar. - The respondent commenced execution of the orders of the Deputy Registrar by filing his Bill of Costs and applying for a notice to show cause. Consequently, the applicants filed this application seeking for orders that execution of the orders of the learned Deputy Registrar be stayed pending the determination of the appeal. 2

# 3. Lesal Reoresentation.

At the hearing of the application, the applicants were represented by M/s Nabwire & Co. Advocates and Legal Consultants whereas the respondent was represented by M/s Sempasa, Luwagga, Muwemba & Co. Advocates. The parties were directed to file written submissions, and i have taken them into consideration while determining this application.

## Issues for determinatlon

- 4 The following issues were raised by the parties. - a) Whether the applicants have sufficient grounds for grant of an order of stay of execution

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b) What remedies are available

## Consideration of the application

# Applicants' case and submissions on issue I

- 5. Counsel for the applicants argued that they were dissatisfied with the decisions and orders of Her Worship Natukunda Janeva, Deputy Registrar, who condemned them to a line of 10,000,000 l: and general damages pf 5,000,000/= plus costs for contempt of court vide Miscellaneous Application no. 0571 of 2022 pending determination of the main appeal. - 6. The applicants averred that there is a threat of execution of a decree/ order of the Deputy Registrar and that if it so happens, it will render Misc. Appeal No. 0002 of 2023 against the decision of the Registrar nugatory, yet it has a high probabilit5r of success as the respondent has filed an application for execution and if executed, it will render the appeal nugatory. - 7. The applicant relied on 0.43 r 1 Civil Procedure Rules as amended which provides that;

"An appeal to the High court shall not operate as a stay of proceedings under a decree or order appealed from except so far as the High court may order nor shall execution of a decree be stayed by reason only ofan appeal having been preferred from the decree, but the High Court may for sufficient reason order a stay of execution of the decree".

- 8. Counsel averred that under paragraph 2 of the affidavit in support, the applicant filed an appeal against the said Deputy Registrar's orders which appeal stands to be rendered nugatory if stay of execution is not granted. Submiesions of Counsel for the Respondent on Issue 1. - Counsel for the respondents raised two preliminary objections as follows; 9 - a) The aflidavit ln support of the application is fatally /incurably defective and cannot support this application.

b) The appeal is fatally defectlve makiug this application incompetent.

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10. On the first preliminary objection, counsel for the respondent submitted that the affidavit in support of the application was sworn by the 3rd respondent Birungi Denis on behalf of the l st and 2.d applicants without written authority which makes it incurably defective and cannot support this application. Counsel relied on O. 3 rule I of the Civil Procedure Rules which provides as follows;

" Any application to or appearance or act in any court required or authorised by the law to be made or done by a party in such court may except where otherwise expressly provided by any law for the time being in force be made or done by the appointed person to act on his or her behall except that any such appearance shall, if the court so directs be made by the party in person"

¹1. Counsel averred that Paragraph 1 of the affidavit in support of the application stated that;

'.....and I do depone to this affidauit and on behalf of the lst and 2nd applicants in that capacitg"

12. Counsel averred that the above statement indicated that the said Birungi Denis was swearing the said affidavit in representative capacity. However, he did not furnish court with any written authority from the lst and 2nd applicants that he purportedly tried to swear on their behalf. Consequently, according to counsel , this rendered the affidavit incurably defective. Counsel relied on the case of Makerere Univereity Vs. St Mark Educatlon Instltute & ors HCCS No. O378 of 1993 where court stated as follows;

"An affidauit is defectiue bg reason of being sworyl on behalf of another utithout shouing that the deponent had authoity of the other. In this case, the ffidauit is inanrablg defectiue for non-compliance raith the requirements of the laut. It cannot support the application uhich seeks to add the other applicants. The application is dismissed uith costs" .

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- 13. On the 2nd preliminary objection counsel for the respondent argued that the appeal is fatally defective rendering this application incompetent. His reasoning was that the applicants never sought leave before instituting this appeal. He relied on the case of MuJib Juma Kenyi Vs. Swaib Juma Kenyi Court of Appeal Civil Appllcation to of 2o.24 Lukwago Erias Vs Attorney General & Anor l20l4l UGSC 4OS and prayed that the application be dismissed on the ground that the applicants never sought for leave to appeal before instituting the appeal and this application. - 14. While submitting on the merits of the application, counsel cited O.43 r 4 (3) Civil Procedure Rules which provides that; "No order for stay of execution shall be made under sub rule (1) unless the court making it is satisfied that; - a) Substantial loss may result to the party applying for stay of execution unless the order is made. - b) The application has been brought without delay. - c) Security has been given by the applicant for due performance of the decree or orders as may ultimately be binding upon him or her." - 15. Counsel argued that the provisions of 0.43 are couched in mandatory terms as preconditions for grant of stay of execution. He relied on the case of Aupal

Kokas Wilfred Vs Aisu Popuras HCMA No. O52 of 2022.

## Declsion

# Resolution of Issue I by Court.

[,r\* 16. Before resolving the merits of the application, i wish to address the preliminary points of law raised by the respondent as to the legality of the application and the appeal itself. Starting with preliminary objection number one that "the aflidavit in suDDort of the application is fatally defective and cannot aupport thls application". Counsel for the respondent submitted that the application was supported by the affidavit of Dennis Birungi the 3'd respondent. Under paragraph 2, the said deponent stated as follows;

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"That I am a male adult Ugandan of sound mind and the 3^rd *applicant/defendant in the main suit herein well conversant with this matter* and do depone to this affidavit and on behalf of the 1^st and the 2^nd applicants in that capacity"

17. 0.3 $r$ 1 of the Civil Procedure Rules provides that a party to a case is supposed to act on his or her personal capacity or through an advocate or an authorised agent. In this case, for a person to swear an affidavit on behalf of another person, he or she needs express written authority to do so. Indeed i agree with the holding of Justice Andrew Bashaija in the case of Lena Nakalema Binaisa & 3 ors Vs. Mucunguzi Myers HCMA No.0460 of 2013 (Land Division) where he relied on $0.1$ r $12(1)$ Civil Procedure Rules which provides as follows;

**0.1 r 12 (1)** Civil Procedure Rules provides that;

*Where there are more plaintiffs than one, any one or more of them* may be authorised by any other of them to appear, plead or act for that other in any proceedings, and in like manner, where there are more defendants than one any one or more of them may be *authorised by any other of them to appear, plead or act for that other* in any proceedings.

**Sub-rule (2)** is mandatory and provides as follows;

"The authority shall be in writing signed by the party giving it and shall be filed in the case"

18. In the case of **Nakalema Binaisa** cited above Justice Basheija further stated as follows:

"In paragraph 2 of Lena Nakalema Binaisa's affidavit in support of the application, she swears that she has been authorised by the $2^{nd}$ and $3^rd$ applicants and swears the affidavit on their behalf. However no such authority is attached as required by the mandatory provisions of **Sub-rule 2**.....whether it be a representative action $\mathbf{S}$ under $0.1r$ 10(2) or suit by recognized agent under $0.3 r$ 2 (a) CPR or by order of the Court, the person swearing on behalf of the others

6 | Page ought to have their authority in writing which must be attached as evidence and filed on court record. Otherwise, there would be no proof that the person purporting to swear on behalf of the others had the authority to do so"

- 19. Justice Basheija further cited a number of cases that dealt with this same issue. He quoted the case of Taremwa Kamishana Tomas V8 Attorney General..,. Vincent Kafeero & 11 ors V8 Attorney General, HCMA No. O48 of 2Ol2 Mukye & 1O6 ors Vs. Madhvani Group Ltd Mlsc Applic. No 0821 of 2O13 which relied on Materere University Vs. St Mark Education Institute & ors TICCS No. 378 of 1993 which all held that an affidavit is defective by reason of being sworn on behalf of another without showing that the deponent had authority of others. Justice Bashaija concluded that in the case before him, the affidavit was incurably defective for non-compliance with the requirements of the law. The application was accordingly dismissed. - 20. In the instant application, the aflidavit of Birungi Dennis on behalf of the I st and 2,d applicants lacked authority from them and therefore is defective. I accordingly uphold the preliminary objection by counsel for the respondent and hereby strike out the aflidavit in support of the application for being defective. - 2l . On the 2"d preliminary objection that the applicants appeal is fatally defective because the applicants did not first seek for leave to appeal the orders of the Deputy Registrar, counsel for the respondent relied on the Court of Appeal case of MuJib Juma Kenyi Vs. Suraib Juma Keayi & 3 ors CACA. No. L89 of 2o24 where Justice Christopher Gashirabake stated that; "The applicant did not demonstrate any"rvhere in the affidavit evidence or otherwise that he sought for leave of the Court before filing the appeal which is the basis of this application. The preliminary objection is hereby upheld and I find that the application for stay is incompetent since there is no appeal."

22. The above authority to me is distinguishable from the current case on the h,,t'\* basis that unlike in the current case before me, the above cited Court of TlPage

Appeal authority delt with an appeal arising from a Contempt order issued by a Judge of the High Court. Such an order is appealable to the Court of Appeal upon first seeking for leave to appeal. However, in the instant application before me, the appeal is against an order issued by a Deputy Registrar condemning the applicants to a fine and damages for contempt of court. Such an order is appealable to this court under O.50 r 8 Civil Procedure Rules and there is no requirement for leave to be sought before an appeal is filed.

23. O.50 r 8 provides as follows:

"Ang person aggieued by an order of a Regi.stror moy appeal from the order to the High Court. The appeal shall be by motion on notice"

- 24. I do note that this is an appeal against the orders of the Deputy Registrar Land Division ^H/ W Natukunda Janeva condemning the applicants to IO,OOO,OOO/ = fine for Contempt of Court and a general damages of S,(XX),(XX)/=. An appeal against this order follows the procedure laid down under O. 50 r 8 of the Civil Procedure Rules. It doesnt require leave to appeal. - 25. I am fortilied by the decision of my learned sister Lady Justice Faridah Bukirwa in the case of Hawa llyende & anor Vs. Kafeero Jamada & 3 ors (JtnJa) Mtsc. Application no 155 of 2o23 where she stated as follows; "Order 5O rule 8 of the Ciuil Procedure Rules grants a partV aggrieued bg the decision of the Registrar a right to appeal against the same to the judge."

She relied on the cases of Attorney General Vs Shah no, 4 of (19711 EA P. SO, Spry Ag. President stated as follows;

> "Appellate Jurisdiction spings only from statute. There is no such thing as inherent appellate jurisdiction"

26. She further relied on the case of Baku Raphael Obudra and Obiga

Kania Vs. Attorney General, Supreme Court Constitutional h 'il\*" 8lPage

**Petition no. 1 of 2005** where **Odoki CJ**(as he then was), also noted as follows:

"It is trite law that there is no such a thing as inherent appellate jurisdiction. Appellate jurisdiction must be specifically created by law. It cannot be inferred or implied"

- 27. It is my considered view that an appeal of this nature to this court does not require leave to appeal. The second preliminary objection is therefore overruled. - 28. However, despite my findings on the preliminary objections, i will proceed and determine the merits of the application for purposes of finality and conclusiveness of court decisions. - 29. I have had the benefit of thoroughly examining the affidavits of the parties, their submissions as well as the annextures to their respective affidavits. This application was brought under Section 98 of the Civil Procedure Act, O.52 r 1& 3 Civil Procedure Rules. However, the procedural law that governs applications for Stay of Execution pending appeal is $0.43 \text{ r } 1 \text{ to } 3$ Civil Procedure Rules. - 30. The principles on which court relies to grant Stay of Execution were laid down in the case of **Theodore Ssekikuubo & ors Vs. Attorney General &** Ors, Constitutional Application no. 03 of 2014 where the court propounded as follows;

"An applicant must establish that his appeal has a likelihood of success or a prima facie case in his appeal. That the applicant will suffer irreparable damage or that the Appeal will be rendered nugatory if a stay is not granted. If the above has not been established, court must consider the application on balance of convenience"

31. Further, in Lawrence Musiitwa Kyazze Vs. Eunice Busingye SCCA No. 18 of **1990 91992**) iv **KALR 55**, Supreme Court stated as follows;

"An application for stay of execution pending appeal is designed to preserve the subject matter in dispute so that the rights of the 9 | Page

appellant who is exercising his /her right of appeal are safeguarded and the appeal if successful is not rendered nugatoq/.

- 32. I wish to note that the principles laid down in the cases of Theodore Seekikuubo (supraf and Muslltwa Kyazze (supra) (much as they were set by the Supreme court), are also applicable in High court and cut across applications for Temporary Injunction, Stay of Execution and Stay of Proceedings. - 33. Turning to the merits of this application, i wish to address the issue of the likelihood of success of the appeal. In the case of Gapco Uganda Ltd Vs. Kaweeaa & Anor(MA No.259 of 2O13) "likelihood of success" was delined as one where;

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

- 34. I have had the beneht of looking at the orders issued by HW Natukunda Janeva, Deputy Registrar High Court Land Division. An appeal against such orders should be filed under Order 50 rule 8 of the Civil Procedure Rules. - 35. Paragraph 2 of the affidavit of the 3'd applicant states a follows;

'2. That I filed Miscellaneous Appeal against the decision and orders aising from Misc. Application no.571 of 2O22 pending determination before the judge of this honorable court and the same was serued upon the respondent (Attached hereto ls a fi.led copg oJ the appeal as Annexdtre A)

- 36. However, the documents attached to the application as Annexture A is not an appeal against the Orders of the Deputy Registrar filed under Order 50 rue 8 of the Civil Procedure Rules. I am not satisfied that there is a valid appeal warranting a grant of an order of stay of execution. - 37. The other requirement for grant of an order for Stay of Execution is that the applicant must show that substantial, loss may result to the applicant unless a stay of execution is granted. In the case of Pan African Insurance

Co. Ltd Vs. International Air Transport Association HCMA I{o. 86 of t,, ll111l^vZOOO it was held that the deponent in an application for stay of execution '' 10;erg"

must go a step further to lay the basis upon which court can make a finding that the applicant will suffer substantial loss, and that it should go beyond the vague and general assertions of substantial loss in case the order of stay is refused. The applicant must also show that such substantial loss if any cannot be atoned by an award of damages. I do not see anywhere in the applicants' affidavit or submissions what kind of loss is likely to be suffered to guide court whether it is substantial or not

38. The applicant must also express his willingness to provide security for due performance of the decree/order. I do not see any indication by the applicants in their affidavit and submissions that they are willing to provide security for due performance as a legal requirement. This is a key requirement for obtaining a stay, as it ensures the respondent's interests are protected and that the appeal if unsuccessful wont render the judgement or order meaningless. I am guided by the reasoning of the Hon. Justlce Dr. Flavlan ?\*iia in the case of Abtd Vs Windriver Loglstlcs Ltd Misc. Application no. 219 of 2O2l (Mubende) where an order directing the applicants to pay 30O,000,000/= as a fine for contempt of court orders was appealed against by the applicants who then filed an application for stay of execution. Hon Justice ZeiJa restated his earlier views in the case of Kawanga Ve. Namyalo Kevina & Anor Misc. Application no. 12 of 2Ol7 as follows;

> "l am of the view that every application should be handled on its merits and a decision whether or not to order for security for due performance be made according to the circumstances of each case. The objective ofthe legal provisions on security was never intended to fetter the right of appeal. It was intended to ensure that courts do not assist litigants to delay execution of decrees and at the same time safeguarding the right of appeal of parties who have filed an appeal with the orobabilirv of success of the appeal.(my emphasis).

It. r There can never be cases with similar facts. As it was held in the )+illa?

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case of Theodore Ssekikuubo cited above, the nature of decision depends on the facts of each case."

39. As already observed earlier, the applicants have not demonstrated that they Iiled a proper appeal in accordance with Order 5O rule 8 of the Civil Procedure Rules, they did not demonstrate that they are likely to suffer substantial loss not possible to be adequately atoned by an award of damages, and that they are ready to deposit security for due performance of the decree. In light of the above, issue number I is resolved in the negative.

## What remedies available to the oarties.

- 40. The applicants submitted that the circumstances for grant of an order of stay of execution favour the applicants and they prayed that the order be granted. In response, the respondent argued that the applicants have failed to fulhll all conditions stated under Order 43. - 41. I have properly analyzed the law and evidence on record as well as the relevant authorities. I have also given my reasons while resolving this application. I do not think the applicants have satisfied the conditions necessary for grant of an order of Stay of Execution. I therefore do not find this a proper case where I should exercise my discretion to grant the same. In the hnal result, this application is therefore accordingly dismissed with Costs to the respondent.

It is so ordered.

I day of.......<::[ 2025 la Dated this ..... ..1 D +

GOD AG. JUDGE