[2024] UGHC 589

#### **THE REPUBLIC OF UGANDA**

#### **IN THE HIGH COURT OF UGANDA HOLDEN AT MASINDI**

#### **MISC. APPLICATION NO. 0021 OF 2023**

#### **ARISING OUT OF CIVIL SUIT NO. 0001 OF 2021**

#### **ARISING FROM ADMINISTRATION CAUSE NO. MH5 OF 1982 MASINDI CM COURT**

- **1. KATURAMU EMMANUEL** - **2. KATURAMU EVA** - **3. ALINDA JULIET** - 10 **4. MBABAZI SIMON** - **5. ASIIMWE GILBERT** - **6. PATRICK TUMUSIIME …………………………………………………………………… APPLICANTS**

#### **VERSUS**

- **1. GEORGE ISAAC KANYAAMU** - **2. MUHANGUZI ROBERT** - **3. NYAMUNUNU STEPHEN** - **4. BYAMUKAMA PATRICK** - **5. MUHENDA SIMON** - **6. KATHUNGU SIMON** - 20 **7. KATHUNGU MAATE ELIZABETH** - **8. NTAMBA FRED** - **9. KAKOORA EDWARD** - **10. ISHANGA EDWARD** - **11. BWATOOKA EDWARD** - **12. MWINE FRED …………………………………………………………………………… RESPONDENTS**

#### **BEFORE: Hon. Justice Isah Serunkuma**

#### 30 **RULING**

#### **Introduction**

The Applicants brought this Application by way of Notice of Motion under Order 52 Rule 1 & 2 of the Civil Procedure Rules and Section 98 of the Civil Procedure Act seeking for orders that stay of execution pending appeal doth issue against the Respondents until final determination of the appeal and costs of the application be provided for.

The affidavits of the 5th and 6th Applicants supported the application. The 1st Respondent's affidavit in reply was authorized to swear for and on behalf of the 2nd — 12th

Respondent.

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### *Grounds*

The grounds of this Application briefly as set out in the Application and the supporting affidavits, are that the Applicants have filed a Notice of Appeal in this Court against the whole of the decision of Honourable Justice Byaruhanga Jesse Rugyema entered on the 30th day of March 2023. That the 1st Respondent had disposed of off some of the Estate property to the 2nd - 12th Respondents, which the Applicants contest. Unless a stay of execution pending appeal is issued, the Respondents will likely transfer the land into the purchaser's name and subsequently to other people, affecting the Applicants.

In reply, the Respondents, in their affidavit, stated that they have not yet taxed the costs 10 and have not applied to execute this court's judgment. They stated that there is no warrant for execution and/or threat of execution in this matter, and the Applicants have not provided security for the due performance of the decree.

The Respondents further stated that during the pendency of this suit, the applicants applied for a temporary injunction, which this court dismissed. They, therefore, believe that the present application is speculative. They further stated that the Applicants intend to fraudulently deny the Respondents quiet use of their land and fetter their ownership by delaying their registration as proprietors, which is legally untenable. That the Applicants neither occupy nor utilize the land occupied by the Respondents. They asserted that the affidavits in support do not disclose any sufficient cause why the order 20 prayed for should be granted. That the Applicant`s application has no merit whatsoever.

### *Representation*

M/S Mungoma Justin & Co. Advocates represented the Applicants, and Mr. Simon Kasangaki of M/S Kasangaki and Co. Advocates represented the Respondents. Both parties were directed to file Written Submissions.

#### *Preliminary Objections*

The Respondents first raised preliminary points of law as follows.

# *1. The applicants failed to mention the specific law for the institution of this application before the court.*

They submitted that the application was brought under S.98 of the Civil Procedure Act and O.52 r1 and 2 CPR. That S.98 CPA only applies where the law does not expressly provide a procedure. It also applies where the proceedings have, in the first instance, been properly brought before the court in terms of the procedure prescribed by the CPR and where a party to a dispute cannot ordinarily invoke the inherent jurisdiction of the court under S.98 if another remedy is available. They referred to the case of *Ahmed Hassan Mulji V Shirimbal Jadavj [1963] EA 217,* where it was held that it is trite law that 10 a party to a dispute cannot ordinarily invoke the inherent jurisdiction of the court under S.98 CPA if another express remedy is available.

They further submitted that *O.52 r 1 and 2 CPR,* which the Applicants also invoked, provides for all applications to be instituted by motion unless the law expressly provides otherwise and that it should be made with notice to the parties affected by the motion unless otherwise as provided under r.2 of this order, this order only provides a procedure of instituting applications generally and the applicants failed to mention specific law under which they would have brought this application. So,they should have invoked *O.43 rule 3 CPR*, which provides for when a court may stay the execution.

#### *2. The Application by the 1st - 4 th Applicants is not supported by evidence.*

20 They submitted that the application is brought by six applicants, out of which the 5th and 6th applicants swore affidavits in support, and the 1st, 2nd, 3rd, and 4th applicants are not supported by any affidavits sworn by or on behalf of the said applications. They further submitted that on the fact that the affidavits are sworn without the authority of the deponents on whose behalf they are made, the case of *Binaisa Nakalema & 3 Ors V Mucunguzi Myers, MA No. 0460 of 2013,* court dismissed the provisions of *O.1 r10 (2) and 13, and O.3 r2 (a) of the CPR* and guided that a person swearing on behalf of others ought to have their authority in writing which must be attached as evidence and the same filed on the court record and further stated in the case of *Mukuye & 106 Ors V Madhavani Group Ltd, Misc. Application No. 0821 of 2013* that an affidavit is defective

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because of being sworn on behalf of another without showing that the deponent had the authority of the other.

### 3. *The Applicant's Annextures to the affidavits were unsealed and unsigned*.

They submitted that all annextures to Patrick Tumusiime and Asiimwe Gilbert's Affidavits in support of the application are neither sealed nor signed by a commissioner for Oaths and therefore, they cannot form part of the affidavits and must be struck out for contravening *Rule 8 of the Schedule to the Commissioner for Oaths Rules* which provides that all exhibits to the affidavit should be securely sealed to the affidavits under the seal of the commissioner and should be marked with serial letters of identification.

10 They further submitted that the said default is not an irregularity and should not be treated as one, premised on the case of *Amongin Jane Frances Okii V Lucy Akello [2015] UGHC.* Therefore, the said affidavits should be struck off the court record, and the motion should be dismissed as it cannot stand without evidence.

The applicants replied to the preliminary objections raised by the respondents as follows.

#### *1. Failure to specify the law under which the Application was brought.*

They submitted that not citing *O.43 r 3 CPR*is an error, but it is not fatal to the application. They based on the case of *Re: Christine Namatovu Tebajjukira 1992-93 HCB*, which held that where an application omits to cite any law or cites the wrong law but the 20 jurisdiction to grant the order exists, the irregularity or omission can be ignored, and correct law inserted.

#### *2. The application for the 1st -4 th applicant is not supported by evidence.*

They submitted that under the law, there is no legal requirement that all the applicants must file an affidavit in cases where there is more than one applicant or respondent, respectively, and that any one of the applicants can swear the affidavit for the benefit of all the parties. They referred to the case of *George William Katumba & Ors V Abarihanwe Livestock Co-operative Society, Misc. App No. 0006 of 2021*, where *Justice Boniface Wamala* held that where such averments constitute evidence that Is

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helpful to the case of other applicants, it is not expected or required by the court that each of the 161 applicants would depone to their affidavits.

They further submitted that it would be an absurdity if each of the six applicants were called upon to file six affidavits talking about the same circumstance.

## *3. The applicant's Annextures are unsealed and unsigned by the commissioner of oaths.*

They submitted that failure to identify an attachment for an affidavit is an irregularity but not fatal to the application and that this is not a sound basis for striking out the applicant's exhibits or affidavits because mere failure by the commissioner to endorse 10 them should not affect the applicant's application. They referred to the case of *Jonel Limited V Koboko Enterprises Limited (Misc App No. 27 of 2016) [2016],* where the respondent had submitted that the affidavit convened the mandatory rules relating to the identification of exhibits. He had submitted that the affidavit be rejected for failure to confirm the provision of the oath act, and Justice Madrama held that failure to identify the affidavits by the commissioner for oaths is a problem of form and not substance because the documents referred to are clearly identified and for that reason, it is an irregularity which cannot render the affidavits defective.

## *Court decision on the Respondents` Preliminary Objections.*

## *1. The applicants failed to mention the specific law for the institution of this* 20 *application.*

This Honourable Court concurs with the Respondents that this Application should have been brought under *O.43 Rule 4 CPR*, which provides for when the Court may stay execution pending appeal.

This Court further concurs with the Respondents that Section 98 of the Civil Procedure Act, which clothes this Court with inherent jurisdiction, should not be ordinarily invoked if another express remedy is available. In the instant matter, the express remedy is provided for under *O.43 Rule 4 CPR.*

However, decided cases have established that citing a wrong law or omitting to cite any law at all is not fatal to an application. The Court of Appeal has held that "where an application omits to cite any law at all or cites the wrong law but the jurisdiction to grant the order exists, the irregularity or omission can be ignored, and the correct law inserted." Refer to the case of Nanjibhi Prabhudas & Co. Ltd vs. Standard Bank Ltd [1968] EA and RE Christine Namatovu Tebajjukira [1992-93] HCB 85.

I, therefore, find that the non-specification of the right law under which this Application was brought did not in any way prejudice the Respondents; thus, this objection is overruled.

#### 2. The Application for the 1^st- 4^th Applicant is not supported by evidence. $10$

In the instant matter, only the $5^th$ and $6^th$ Applicants swore affidavits to support the Application out of the 6 Applicants.

**O. 1 Rule 12 CPR** provides that where more Plaintiffs than one, any one or more of them may be authorized by any other of them to appear, plead, or act for that other in any proceeding, and in like manner, where there are more defendants than one, any one or more of them may be authorized by any other of them to appear, plead or act for that other in any proceeding. The authority shall be in writing, signed by the party giving it, and shall be filed in the case.

In the case of Mukuye Steven & 106 ORS vs. Madhivani Group Ltd MA, No. 0821/2013, $20$ the Court held that, from the clear wording of **O. 1 Rule 12 CPR**, nothing appears to prohibit the deponent from swearing an affidavit on behalf of others who have given him authority duly signed to represent them.

In the instant matter, the 5^th and 6^th Applicants are the only ones who swore affidavits in support of this Application, and in doing so, they did not purport to do so in any representative capacity of the 1^st - 4th Applicants, as there is even no authority in writing on file authorizing them to do so. It therefore follows that the 1^st - 4^th Applicants have no evidence in support of their application to Stay execution pending Appeal.

James James

However, despite the above irregularity and sloppy guidance of the Counsel of the Applicants to his clients (the Applicants), this honorable Court is inclined not to dismiss this Application.

Dismissal of this entire Application based on the ground that the 1st - 4th Applicants never swore affidavits supporting the Application would prejudice the 5th and 6th Applicants who laboured to swear affidavits supporting this Application. It, therefore, follows that this ground is overruled.

## *3. The applicant's annextures is unsealed and unsigned by the commissioner of oaths.*

I concur with Counsel for the Respondents that all the annextures to the 5th and 6th 10 Applicant`s Affidavits in support are neither signed nor sealed by a commissioner for oaths. However, the affidavits themselves are signed and sealed by the commissioner for oaths.

At this point, I note that the Counsel for the Respondents attacked the propriety of the annextures to the affidavit but did not in any way attack the propriety of the affidavits themselves. I, therefore, note that the affidavits of the 5th and 6th Respondents are proper and devoid of any defects.

I must acknowledge that *Rule 8 of the Schedule to the Commissioner for Oaths (Advocates) Act* is very instructive regarding the requirement that all exhibits to the 20 affidavits be sealed under the seal of the Commissioner and marked with serial letters of Identification. The Applicants properly identified all the Annextures of the affidavits, although they were never endorsed by the Commissioner for Oaths, which is not in contest. In the case of *RTD Col. Kizza Besigye V YK Museveni & The Electoral Commission, Supreme Court, Presidential Election Petition No. 1 of 2006, Odoki* **CJ** observed on page 24 that there is a general trend towards taking a liberal approach to dealing with defective affidavits. This is in line with the constitutional directive in Art. 126(2)(e) that the courts should administer justice without regard to technicalities. Rules of procedure should be used as handmaids of justice but not to defeat it.

It's against that background that I overrule this objection.

Page 7 ## *Applicant's Submissions*

The Applicants submitted that *Order 43 r4 (3) CPR* sets down conditions that the Applicants must comply with before a stay of execution is granted as pronounced in the case of *Hon. Theodore Ssekikubo and ORS V the attorney General and Ors, Constitutional Application No. 003 of 2014* and so they submitted on the set down conditions as follows.

"The applicant must show the court that unless a stay is issued, they shall suffer substantial loss and, on this condition, they submit that the land which is the subject of this appeal is family land that originally belonged to their father/grandfather and if it is 10 transferred into the names of the third parties it would be very difficult to recover and therefore important that the stay of execution is granted to the applicant so that they do not lose it."

In addition, they submitted that the Respondent's Advocates have written to the registrar of titles to remove the caveats lodged on the title. Once the caveats are lifted, the land will change hands, and this would be irretrievable.

The second condition submitted is that the Application was filed as soon as it was possible. They submitted that the suit was determined on the 30th day of March 2022. This application was filed on the 19th day of April 2023, making it a mere 19 days after judgment, and this is not an ordinate delay at all. They referred to the case of *Andrew*

20 *Kansiime Kandura v Richard Kaijuka, civil Reference No. 15 of 2016,* which held that a party that is dissatisfied with any decision of the court is reared to take essential stops within the prescribed time to file an appeal against the decision under the relevant applicable laws and that, unlike the applicant, in this case, the applicant moved quickly to stay execution.

The third condition submitted is Security for due performance. They submitted that while it is true that the applicants did not provide for payment of security for due performance, this does not mean that they are not willing to provide it. They further submitted that it is probable that security for due performance was not brought to their attention. There was no monetary order that was made against the applicants save for an order to pay costs.

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When applying, the defendants' bill of costs had not yet been taxed, making it difficult for the applicants to assess what amount could be paid as security for the due performance.

## *Respondents Submissions*

The respondents Submitted the issues of determination as follows.

## *1. Is there sufficient cause to grant an order for a stay of execution?*

They submitted that this is not a proper case for the grant of stay of execution. They referred to the case of *Lawrence Musiitwa Kyazze V Eunice Busingye Civil App. No. 0018 of 1990,* where the supreme court of Uganda ruled that in applications for a stay of execution pending appeal, the applicant must prepare to meet conditions similar to 10 those set out under *Order 43 r 4(3) CPR,* which states that no stay of execution is to be ordered unless the court making it is satisfied that.

- a) Substantial loss shall result to the party applying for the stay of execution unless the order is made - b) The application has been made without unreasonable delay and - c) That security has been given by the Applicant for the due performance of such decree or order as may ultimately be binding upon him.

The respondents submitted on each of the conditions in detail as follows;

#### *1. Substantial Loss*

They submitted that the application for stay of execution must demonstrate that 20 substantial loss will occur to the applicants unless the order is issued as in the case of *Tanzania Cotton Marketing Board V Cogecot Cotton Co. SA (1995-1998) EA 312,* where it was held that it is not enough merely to repeat the words of the code and state that substantial loss will result. The kind of loss must be specific, details must be given, and the conscience of the court must be satisfied that such a loss will really ensue.

They further referred to the case of *Tropical Commodities Suppliers Ltd & Others V International Credit Bank Ltd, Misc. App No. 0379 of 2003*, where it was held that substantial loss does not represent any amount or size. Any mathematical formula cannot quantify it; rather, it is a qualitative concept. It refers to any loss, greater or

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smaller, that is of real worth or value as distinguished from a loss without value or a loss that is merely normal.

They submitted that the applicants have not demonstrated that they are likely to suffer substantial loss if the instant order is not granted because they are the very persons who set the action in motion vide *Civil Suit No. 0001 of 2021* claiming interests in the suit property.

The respondents submitted that the 1 strespondent, in Paragraph 3 of his affidavit in reply, strongly avers that he is the estate administrator and that the letters granted to him are not a forgery and were lawfully granted to him with the consent of all beneficiaries/ siblings. In addition, he avers under Paragraph 12 that the 2nd 10 - 12th respondents lawfully purchased their parcels of land from the estate beneficiaries who acquired the shares from the 1st respondent as an estate administrator. Therefore, their interests are protected and good in law.

They further submitted that that the applicants will not suffer any irreparable damage and or any loss if this application is not granted since they are not beneficiaries of the suit property; they neither occupy nor utilize the same. Still, rather, it is occupied and utilized by the respondents. The caveats were lodged by the caveators who have no caveatable interests in the suit titles, and the caveats lapsed by operation of the law following the decision of this court.

## 20 *2. Unreasonable Delay Test*

The respondents submitted that an application for a stay of execution should be made to the court that passed the decree as soon as possible. This application was filed on 19th April 2023, and the judgment in Civil Suit No. 0001 of 2021, from which it arises, was delivered on 30th March 2023, therefore failing to fulfill this condition.

#### *3. Payment of security*

They submitted that the applicants are obliged to pay security for costs only and not for the entire decretal amount as per the supreme court case of *Kampala Bottlers Ltd V Uganda Bottlers Ltd SCCA, No. 0025 of 1995*. The applicants did not state in their affidavits evidence whetherthey will pay, have paid, or are ready to pay security for costs.

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Yet, it is one of the mandatory requirements to be proved before an order for a stay of execution can be granted. The 1 st respondent's evidence in his affidavit in reply strongly avers that the applicants have not provided security for costs for the due performance of the decree.

#### *4. Probability of success*

The respondents submitted that the applicants have not espoused or led evidence to prove the known conditions for grant of an order for stay of execution as spelt out in Paragraph 17 of the respondent's affidavit in reply. It is clear that the evidence on record was dully and ably evaluated in *Civil Suit No. 0001 of 2021*; thus, *Miscellaneous*

10 *Application No. 0021 of 2023* is brought in bad faith, instead to delay the respondents from realizing the fruits of successful litigation, an afterthought and not meritorious, the application and affidavits in support do not disclose any sufficient cause why the order prayed for in the application should be granted, the application and affidavit in support contain falsehoods, is suspect, incurably defective and the same should be dismissed with costs to the Respondents.

#### *Issue 2*

#### *Whether the Applicants are entitled to the remedies sought*

The respondents submitted that no remedy in the instant application should be granted as this application should be dismissed summarily. They further submitted that they 20 should be awarded costs of this application as per the case of *Kwizera V Attorney General, Constitutional Appeal No. 001 of 2008,* where it was held that whereas the award of costs is at the discretion of the court, it usually follows the event unless the court for good reason orders otherwise. Therefore, it is submitted that the court should dismiss this application and may be pleased to award costs to the respondents.

#### *Courts Analysis*

**0.43 r 4 (1***) CPR* provides for a stay of proceedings under a decree or order appealed from. The provision clearly indicates that *"an appeal to the High Court shall not operate as a stay of proceedings under a decree or order appealed from except as far as the High Court may order, nor shall execution of a decree be stayed by reason*

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## *only of an appeal having been preferred from the decree; but the High Court may for sufficient cause order stay of execution of the decree."*

*0.43 r 4 (3) CPR* sets out the conditions that must be satisfied before an order for a stay of execution is made. These are:-

- a) That substantial loss may result in the party applying for a stay of execution unless the order is made. - b) The application has been made without unreasonable delay. - c) That the applicant has given security for the due performance of the decree or order

10 as may ultimately be binding upon him or her.

See the cases of *Abu Wamboya vs. Sulaiman Gidima, HCMA 27/97; Mhalo Kamia J, and British India General Insurance Co. Ltd vs. Dolatrai Solanki (Civil Appeal No. 30 of 1997) [2000] UGCA 4 (23 May 2000]* where the grounds for stay of execution pending appeal were stated.

In the instant case, Counsel for the Respondents submitted that the Applicant had not satisfied any of the conditions set out in *O.43 Rule 4 (3) CPR* and thus prayed for dismissal of the application. From the afore-highlighted conditions necessary for the 20 grant of an order of stay of execution pending appeal, *the Applicant must prove that substantial loss may result to the party applying for a stay of execution unless the order is made.* In the instant matter, the 6th Applicant, under paragraph 5 of his affidavit supporting the Application, states that the 1st Respondent is likely to issue transfer forms in favour of the other Respondents, which would render the intended appeal

nugatory

The Respondents, in their written submissions, never addressed the afore statement nor contested it. I, therefore, find that there exists a possibility of disposing of the suit property when this matter is on appeal, which would render it to be without worth. Thus, this condition is fulfilled.

30 *The second condition to be fulfilled is that the application has been made without*

*unreasonable delay.*

It is trite law that applications for a stay of execution must be made within a reasonable time, and this reasonableness depends on the facts of each case. In the instant matter, the Judgment was delivered on the 30th day of March 2023, and this Application was filed on the 19th day of April 2023. I find that there was no inordinate delay when filing this application. Thus, this condition is fulfilled.

# *d) The third Condition to be fulfilled is that the applicant has given security for the due performance of the decree or order that may ultimately be binding upon him or her.*

It is trite law that courts have to protect the successful party in a suit (Respondents 10 herein) from the risk that the Appellants (Applicants herein) may not be able to satisfy the decree in applications for a stay of execution pending appeal. One such measure of minimizing that risk is ensuring that the Applicant provides security for the due performance of the decree.

However, as highlighted in the cases of *Tropical Commodities Supplies Ltd and others v. International Credit Bank Ltd (in liquidation) [2004] 2 EA 331 and DFCU Bank Ltd v. Dr. Ann Persis Nakate Lussejere, C. A Civil Appeal No. 29 of 2003***,** insistence on a practice that mandates security for the entire decretal amount is likely to stifle appeals, even those that have substantial issues for determination. It's against that liberal background that I am inclined to do away with the need to furnish security for due

20 performance.

In conclusion, the Applicants have satisfied the requirements for the grant of an order of stay of execution pending appeal. The application is allowed. The costs of the application to abide the outcome of the appeal.

**I so rule and order.**

**Dated and delivered on this 30th Day of April 2024.**

**……………………** 30 **Isah Serunkuma**

**JUDGE**