[2025] UGCA 246


The instant application is brought under Rules 6 (2)(b), 42 (1), and 43 (1) and (2) of the Judicature (Court of Appeal Rules) Directions S.l 13-10 for orders that: 25

¹. Execution of the decree in High Court Civil Suit No.1 10 of 2022 be stayed pending the hearing and determination of the Civil Appeal No.0264 of 2024 which is before the Court of Appeal, and

2. Costs of the application be provided for

## Background.

The Applicants were the plaintiffs in Civil Suit No.110 of 2022 in the High Court at lvlasaka where they sued the respondents for a declaration that they are the lawful and rightful registered proprietors of the land comprised in volumes MSK 436 and MSK 444 Folio 13 Ranch block 5783, Plots 1 and 2 having purchased the same from a one Kyabahwa Justus. Before 35

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- 5 purchasing the land, the applicants claimed to have consulted the 1"t respondent a neighbor to the said land who never showed that he had an interest therein. lt was discovered later that the 1"tand 3'd respondents had colluded to fraudulently create parallel interests on the same land without the applicants' knowledge. - 10 The respondents on the other hand filed a defence in which they denied the collusion and contended that the applicants' certificate titles were issued in error and had been subjected to a lawful cancellation by the 3'd respondent. They sought for an eviction order against the applicants.

15 The Hon Justice Lawrence Tweyanze delivered Judgment in favor of the Respondents on 21sl March, 2024. He dismissed the applicant's suit and granted the prayers in the counterclaim which included an eviction order against the applicants and payment of general damages of Shs. 2BN together with interest of 20%thereon p.a. from the date of filing the suit until payment in full.

20 Aggrieved and dissatisfied with the said decision the applicants filed an appeal to this court. They also filed an application for stay of execution in the High Court which was dismissed hence this application.

The grounds of this application are mainly contained in the atfidavit of Nuwagaba Mark, the 2nd Applicant which was sworn in support of the application and they are:

- 1. That The applicants lodged an appeal in this court which raises serious triable questions of law and fact and has high chances of success. - 2. That the Applicant shall suffer irreparable damage if the stay is not granted as the appeal shall be rendered nugatory. - 30

3. That the balance of convenience lies in favor of the Applicants.

The 2'd applicant stated in his affidavit that after the delivery of judgment by the high court, they filed a notice of appeal and two applications; one for an interim order and another for stay of execution pending appeal.

On 26th April, 2024, lhe learned Registrar of the High Court at Masaka granted an interim stay of execution, pending hearing and determination of the main application for stay of execution which was heard and dismissed by the.iudge on the '151h April, 2025 prompting the applicants to file this application.

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It was further deposed in the affidavit in support that prior to the filing of the applications for stay of execution, the 1^st Respondent had already commenced the process of execution by way of eviction and on 4^th April, 2024 the applicants were served with eviction notice.

He contended that the intended appeal raises plausible and triable questions for adjudication with high likelihood of success whose effect would be to set aside the very orders sought to be executed by the 1^st and 3^rd Respondents; and that the hearing of the appeal pending in this court is likely to take long which shall prejudice the applicants' interest in the suit land which they seek to protect.

Further, that if this application is not granted and execution proceeds, the applicants shall suffer substantial and irreparable loss which cannot be atoned by an award of damages for the reasons that the suit land contains the applicants' homes, farms and is their only source of livelihood. Evicting them would leave them homeless. That they have over 300 heads of cattle rearing on the suit land and once evicted, they shall have to lose all of them as they have nowhere to graze them.

It was further stated that the status quo currently prevailing is that the 25 impugned orders have not yet been executed and the applicants are in possession and occupation of the suit land but that, since the 21^st March, 2024 when the trial court delivered its judgment, the 1^st Respondent has resorted to harassing the applicants, giving ultimatums to leave the land. 30

> The applicants argued that the balance of convenience lies in their favour as the suit land which they have occupied for a period of 30 years is their source of livelihood and once evicted, they shall have nowhere to go with their families.

> It was also argued that the application has been brought without undue delay and that it is in the interest of justice and fairness that an order for stay of execution be granted pending the determination of the appeal.

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- ⁵ The application was opposed by the lstRespondent who swore an affidavit in reply in which he stated thatl - i) the affidavit sworn by the 2"d Applicant in support of the application was deponed without authority ofthe l"tapplicant. As such it is defective for non-compliance with the requirements of the law and should be struck out with costs; - ii) The applicants have never served the respondents with the purported memorandum of appeal and that the attached memorandum of appeal does not demonstrate that the pending appeal is meritorious with high chances of success. - iii) The Applicants are in possession of the suit property and made no mention of security for due performance of the decree, which is a requirement of the law and that the applicants intend to delay execution by hiding under unnecessary applications. - iv) The applicants have not met or demonstrated the grounds for grant for stay of execution and as such they will not suffer any injustice if the application is not granted. - v) The pending appeal is based on mere speculation, the memorandum of appeal was never served on the Respondent and there is no record of appeal, which proves that the pending appeal has no chances of success. - ln his affidavit in rejoinder the 2nd applicant contended that the requirement of security for due performance of the Decree is mandatory. 30

Representation; The Applicants were represented jointly by lvlr. Brian Rubaihayo of ltil/S trilwesigwa Rukutana and Co. Advocates while the 1"t Respondent was represented by Mr. Eliakimu Atumanya of M/S Eliakim &

Edson Advocates. The 2nd and 3'd Respondents did not participate in the proceedings. 35

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## 5 Submissions of the Applicants.

Counsel for the applicant submitted that an application for stay of execution was first filed in the High Court and dismissed. This application therefore complied with the provisions of Rule 42 (1) of the Rules of this court which require that applications of this nature shall first be made in the High Court. He cited the decision of Augustine Mukiibi Vs Hosanna Evangelistic Mission and 4 others Court of Appeal Civil Application No.295 of 2017.

15 As to the merit of the application, counsel for the Applicants cited the decision of court in Theodore Ssekikubo and others Vs Attorney General and others, Supreme Court Civil Application No. 06 of 2013, which stated the grounds for stay of execution as follows.

- 1. That the applicant must establish that his appeal has likelihood of success or a prima facie case of his right of appeal. - 20

- 2. That the applicant will suffer irreparable damage or that the appeal will be rendered nugatory if a stay is not granted. - 3. lf 1-2 above have not been established, the court must consider where the balance of convenience lies.

He added that the applicant must show that the application was instituted without delay.

As to whether there is an appeal with a probability of success, it was submitted for the Applicants that there is an appeal pending in this court with triable questions both of law and fact and with high chances of success.

As to whether the Applicants will suffer irreparable damage or that the appeal will be rendered nugatory if an order of stay is not granted, counsel for the Applicants argued that the 1"t Respondent commenced the execution process of the orders of the trial court and refusal to grant this application would render the applicants and their families homeless as the suit land comprises their homes, farms and as well their only source of livelihood. lt was also submitted that the Applicants have over 300 heads of cattle on the land which can only be sustained there.

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That there is already a threat of execution as the $1^st$ Respondent has sought $\mathsf{S}$ to evict the Applicants, constantly harassing them with ultimatums to vacate the suit. He cited the decision of court in Osman Kassim Ramathan Vs Century Bottling Company Ltd Civil Application No.35 of 2019 where the Supreme court found that the filing of a bill of costs to commence taxation proceedings constituted a threat of execution. 10

As to the balance of convenience, it was argued for the Applicants that their families live on the suit land with over 300 heads of cattle. As such the suit land is their only source of livelihood and an eviction would render them homeless. Counsel for the Applicants concluded that the balance of convenience lies in favor of the Applicants.

Counsel further argued that the application was brought without unreasonable delay as it was filed shortly after the dismissal of the application for stay of execution by the High Court. $20$

## 1^st Respondent's submission.

It was submitted for the 1^st Respondent that the application be struck out for non-compliance with the law as the 2^nd Applicant's affidavit in support lacks authority from the 1^st Applicant. Counsel for the 1^st Respondent cited **Order**

- 1 Rule 12 (2) of the Civil Procedure Rules to the effect that an authority to 25 a party to act for another shall be in writing, signed by the party giving it and filed with the case. He quoted the decision of court in Bishop Patrick Baligasiima Vs Kiiza Daniel and others High Court Miscellaneous Application No.1495 of 2016, to the effect that an affidavit is defective by - reason of being sworn on behalf of another without showing that the 30 deponent had authority. Counsel for the 1^st Respondent also cited the case of MHK Engineering Services (U) Ltd Vs MacDowell Ltd and Lena Nakalema Binaisa & 3 others Vs Mucunguzi Myres High Court Miscellaneous Application No.05460 of 2013 to fortify his arguments that an affidavit in support of an application is incurably defective for non-35 compliance with the requirements of the law.

As to whether the appeal has high chances of success, it was submitted for the 1^st Respondent that whereas it was established that notice of appeal,

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memorandum and record of appeal were filed, the same was not served onto $\mathsf{S}$ the 1^st Respondent.

That the Applicants have not demonstrated that the appeal has a likelihood of success and they have not raised a competent memorandum of appeal. As such the appeal has no chances of success.

Counsel argued that the Applicants have not deposited security for due 10 performance or shown any interest or intention to deposit the same. He

cited of Lawrence Musiitwa Kyazze Vs Eunice Businge, Supreme Court Civil Application No.18 of 1990 for the position that it was a mandatory requirement to deposit security for due performance of a decree if a stay of execution is to be granted.

Finally, counsel for the 1^st Respondent submitted that the Applicants have

not met all the conditions for grant of stay of execution as such the application should be dismissed with costs.

## Applicants' submissions in rejoinder.

In rejoinder, Counsel for the Applicants submitted that the preliminary 20 objection is misconceived as Order 1 Rule 12 (2) concerns appearance of one of several plaintiffs or defendants for others. He argued that in the instant matter, the 2^nd Applicant deponed the affidavit as a party to the application and as such he did not require authority of the 1^st Applicant to swear an affidavit on facts that are within his knowledge. 25

It was further submitted for the Applicants that the principle concerning affidavits is that any of the parties to an application can choose to depone an affidavit on behalf of others without requiring a written authority as long as they have similar interests. He relied on the decision of court in Bankone

Limited Vs Simbamanyo Estates Ltd HCMA No.645 of 2020 and 30 Namutebi Matilda Vs Ssemanda Simon and 2 others HCMA No.0430 of **2021**, to buttress his proposition.

As to whether the respondents were served with the memorandum and record of appeal, counsel showed that the respondent admitted through his email on 21^st June 2024 that he had been served with the record of appeal and further acknowledged receipt of the same when he came for hearing of the application on 24^th April 2025.

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$\mathcal{A}$ - On deposit of security, counsel reiterated his earlier submissions and cited $\mathsf{S}$ the case of Kafu Sugar Limited & another Vs Kiryandongo Sugar Ltd & another Civil Application No.607 of 2024, where Hon. Justice Moses Kazibwe Kawumi, JA (single justice) cited with approval the decision of Supreme Court in Joel Kato and Magaret Kato Vs Nuulu Nalwoga - S. C. C. A N04 of 2012 that the practice of imposing security for due 10 performance of the decree in some cases is only a rule of practice based on case law.

# **Preliminary objection**

- The objection is without merit. The second applicant as a party to the 15 application swore the affidavit on facts within his knowledge. He did not claim to represent the 1^st applicant. Where parties have a joint interest, repetition of the same facts by all co-applicants is unnecessary. The evidence was not challenged and is therefore deemed admitted under S.57 of the Evidence - Act Cap 6. 20

The objection is accordingly dismissed.

# **Determination of the Application**

This court is vested with the jurisdiction to grant interim reliefs as enshrined in Rule 6 (2) (b) and Rule 2 (2) of the Judicature (Court of Appeal Rules)

Directions 13-10 25

Rule 6 $(2)$ (b) of the Rules of this court provides that:

"Subject to sub rule 1, the institution of an appeal shall not operate to suspend any sentence or stay of execution but the court may in any civil proceedings, where a notice of appeal has been lodged in accordance with rule 76 of these Rules, order a stay of execution, an injunction, or a stay of proceedings on such terms as the court may think just"

Rule 2 (2) of the Rules of this court further provides as follows:


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"Nothing ,n lhese Rules shall be taken to limit or otherwise affect the inherent power of the court, or the High Coutt, to make such orders as may be necessary for attaining the ends of justice or to prevent abuse ofthe process of any such coutt, and that power shall extend to sefting aside Judgments which have been proved null and void after they have been passe4 and shall be exercised to prevent abuse of the process of any couft cause by delay."

Rule 42 (1) & (2) of the Rules of this Court, requires that applications for an order of stay of execution and/or injunction should first be filed in the High Court and when the same is not allowed, a fresh application may be filed in this court.

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The above rules confer discretionary reliefs to litigants. This court is mindful of its duty not to abuse the judicial discretion and must address each case according to its own peculiar facts. Further, the purpose of an application of this nature is to ensure that the status quo has been preserved so as not to render the appeal obsolete and of no use.

In the instant application, there is unchallenged evidence of the Applicants to the effect that prior to filing this application, they had filed an application of the same nature in the High Court and the same was re.jected. I therefore find that the Applicants complied with the requirement of Rule 42 (1) & (2) of the Rules of this Court as such the application is properly before this court.

Counsel for the Applicants properly stated the grounds upon which an application for grant of an order of stay of execution may be granted. They are contained in the Supreme Court decision of Hon. Theodore Ssekikubo

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⁵ & Others Versus the Attorney General and Another Constitutional Application No.06 of 20'13, where the court laid down the following considerations.

- 1. the applicant must establish that his appeal has a likelihood of success or a prima facie case of his right to appeal; - 2. it must also be established that the applicant will suffer irreparable damage or that the appeal shall be rendered nugatory if a stay is not granted; - 3. if 1 and 2 above has not been established, couft must consider where the balance of convenience lies; and - 4. that the applicant must also establish that the application was i n stit uted without del ay... "

## 1. Likelihood of Success.

The existence of a pending appeal is not in dispute. The applicants have attached the notice and memorandum of appeal, (Annextures R2 and R4) to the affidavit sworn by the 2'd applicant.

ln Junaco (T) Limited and 2 others vs DFCU Bank Ltd. (CA Civil Application No.145 of 2023) This court decided that:

"lt is incumbent upon applicants in circumstances like these to properly afticulate and demonstrate that they have an arguable case on appeal. ln order to do so, the applicants must avail to the Court via affidavit the ruling or judgment which is the subject of appeal and a draft memorandum of appeal".

The appeal raises serious questions of law and fact including,

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- 1. Whether the trial judge erred in failing to find fraud;

- ⁵ 2. Whether he misapplied the principles for a bonafide purchaser for value without notice of defect in title. - 3. Whether the commissioner land registration had power to cancel the titles; - 10 - 4. Whether general damages of UGX 2 billion were excessive.

These grounds are not frivolous and constitute an arguable appeal.

## lrreparable Damage.

As to whether the Applicants will suffer irreparable damage or the appeal will be rendered nugatory if the application is not granted, court is duty bound to analyze the evidence before it, considering the uniqueness of the facts ofthe case. 15

ln Giella v. Cassman Brown & Co. [973] E. A 358, it was held that irreparable in.iury does not mean that there must not be physical possibility of repairing the injury, but it means that the injury or damage must be one that cannot be adequately atoned by damages. 20

The Applicants have demonstrated that they are in possession of the suit land which is their home and sole source of livelihood. They have also demonstrated that they rear over 300 heads of cattle on the same land and have been in possession for over 30 years. Their eviction would render them destitute. The harm cannot be atoned by damages. These averments are unchallenged and are supported by annextures R7 and R8 to the affidavit in support of the application. 25

The High Court also awarded the respondents general damages of Shs 2 billion, a sum which is way out of the ordinary when compared to awards in similar matters. This sum is obviously significant and has been challenged 30


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on appeal. There is no doubt that its recovery through execution has the potential to cripple the applicant's chances to pursue an appeal.

### Balance of Convenience

10 15 ^Ihave already elaborately discussed and found that the applicants will suffer irreparably if the application is declined. The Applicants are in possession of the suit land which is the subject matter of the appeal and they have demonstrated, that they have been in possession thereon for over 30 years. The Applicants have also established that they stay on the suit land with their families and have over 300 heads of cattle, with no alternative place to go. The 1"1 Respondent on the other hand has not shown by evidence or otherwise how he will be prejudiced if the application is allowed. Therefore, it is my finding that the balance of convenience in this matter tilts in favor of

the Applicants, who would suffer most if the application is rejected.

Time.

20 As regards timelines, I find that the application was filed promptly following the dismissal of the High Court application. There is no undue delay.

Security for due performance: This requirement is not absolute. lt is not one of the requirements for the grant of this application as 1"t Respondent's counsel suggests. ln Joel Kato and Margaret Kato Vs Nuulu Nalwoga S. C. C. A No. 04 ol 2012, it was held that security is a matter of judicial discretion depending on the circumstances. ln the present case, imposing

such a requirement would be inequitable given the facts.

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#### Conclusion. $\mathsf{S}$

The application meets all the legal thresholds for grant of stay of execution. Accordingly, I make the following orders:

1. Execution of the decree in Masaka High Court Civil Suit No 110 Of 2022 is hereby stayed pending the hearing and determination of Civil Appeal No.0264 of 2024.

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2. Costs of this application shall abide the result of the appeal.

#### It is so ordered

Dated at Kampala this... $23...$ day of ................................... . . . . . . . . . . 2025 JOHN MIKE MUSISI **JUSTICE OF APPEAL**