[1991] UGSC 31

IN THE SUPREME COURT OF UGANDA

### $AT$ MENGO

CORAM: ODOKI, JSC., ODER, JSC., SEATON, JSC.

## CIVIL APPLICATION NO. 4/91

### **BETWEEN**

J. W. R. KAZZORA

$M.$

GURRENE COURT LIBRAR

APPLICANT

ACC. No.

L. S. RUKUBA ,,,,,,,,,,,,,,,,<del>,,,,</del>,,,,,,,,,,,,,,,, RESPONDENT

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Arising from the judgment and decree of High Court of Uganda (Mr. Justice J. P. M. dated 18th March, 1991) TN

# HIGH COURT CIVIL SUIT NO. 320 OF 1988

### RULING OF THE COURT.

This is a Notice of Motion filed by Sam K. Kutesa Sc. & Co. Advocates for orders that (a) execution of the judgement and decree in the High Court Civil Case No.320 of 1988 be stayed pending the result of an appeal; and (b) that the poperty in dispute, to wit, Plot 261 Block 234 should not be transferred to third parties before the merits of the appeal are ര adjudicated upon this Court.

It is averred that the applicant will suffer irreparable loss if the property in dispute is sold to third parties who would then claim to be bonafide purchasers for value without notice because the subject matter $\frac{1}{2}$ the intended appeal, to wit, Plot 261 Block 234 was illegally transferred in the name of the respondent.

The application purports to be made in pursuance of Rule 5, sub-rule (2) (b) and Rule 42 of the Court Rules. It is supported by an affidavit sworn on 27th March 1991 by the applicant. Annexed to the affidavit are supporting documents:

$\mathbf{u}$ A photocopy of a Deed of Transfer executed on 11th September 1987 by one Lwanga Masengere, Administrator of the of the late Yosafasi Kasozi Lubega to the defendant/respondent.

"B" and "C" Photocopies of entries in the Land Register.

$u_{\Pi^H}$ A photocopy of a letter from Charles Lwdnga Masengere to the defendant/respondent dated 16th December 1987 informing the latter $\phi f$ a mistake he had made regarding the sale of the property which is the subject of the subject with the subject.

At the opening of the Notion the applicant, who is licensed to practise as an Advocate, appeared and informed the Court that he had dispensed with the services of the counsel who had filed the Notice of Nation. Arguing on his own behalf, the applicant urged that the application be granted on the basis of the grounds which were set out in his affidavit. the same that the These were inter alia:

- $\mathbf{1}$ . That on 28th March 1988 the applicant filed a suit against the defendant/respondent in respect of Plot 261 Block 234. - That on 18th March 1991 judgment was given by Mr. Justice 2. Tabaro dismissing the suit with costs. - That on 18th March 1991, the applicant filed a $\mathfrak{J}$ . Notice of Appeal in the Supreme Court against Mr. Justice Tabaro's judgment and decree and he has applied for a copy of the judgment and proceedings to enable him to lodge an appeal in time.

That the defendant/respondent alleges to have executed 4. transfer on 11th September 1987 and (by his Advocate) to have lodged it for registration on 12th October 1987 before the applicant's caveat was removed.

With continuous that have a manufactured when the way in the property of the state

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was a strip in the sale when the way of

- viteue<br>viteue That the applicant's caveat was removed by $5.$ of a ligh Court Order dated 3rd May 1988 which wa irregularly extracted. - 6. That although it is recorded on the Transfer that it was registered on $6/5/88$ , the Land Register recorded two other fraudulent entries

of registration dated $12/1/87$ and $12/10/87$ as the Maria Finish and the dates on which the defendant/respondent was registered as the proprietor of Plot 261 Block: 234.

7. That the defendant/respondent was not a bona fide purchaser for value without notice.

8. That the appeal has merits and stands a very good

chance of success.

$\sim$ Mat Land In the course of his arguments in support of the application, the applicant revealed that he had made a verbal application to the High Court on the day judgment was delivered asking for a stay of execution pending appeal but this application was summarily dismissed without explanation by Mr. Justice Tabaro.

Learned counsel for the defendant/respondent objected to the application being heard on the grounds (a) that the affidavit in support should have mentioned the prior application to the High Court for a stay of execution and its result; and (b) there should have been filed by the applicant copies of the judgment intended to be appealed against as well as notice of apeal and the Ruling of Mr. Justice Tabaro dismissing the application for a stay.

Counsel also disputed the correctness of the information provided by the applicant verbally that no explanation had been given by Mr. Justice Tabaro for dismissing the application for a stay. It had been stated by the learned Judge, counsel stated, that the dismissal was for failure

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WEME COUNT LIBRARY

to present the application in proper form.

The applicant - conceded the propriety of providing this Court with copies of the documents as submitted by counsel for the defendant/respon He urged that omission to file them should, however, be overlooked, explaining that he had tried on several occasions, without success, to get certified copies of such documents from the High Court.

Section 101 of the Civil Procedure Act was cited to us of the It provides that:

> "Nothing in this Act shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court."

Also cited was Rule 1 $(3)$ of the Court Rules with its provision to similar effect. Iron & Steelwares Ltd v. C. W. Martyr (1956)23 E. A. C. A. 175,177 wa referred to and it was submitted that this Court should use its power to deal with a situation where the Rules of Court have not been strictly complied with. Thus the Court should entertain the instant application.

Insofar as we have been able to understand from the affidavit filed by the applicant, supplemented by his verbal statements, the applicant $\binom{1}{2}$ was the purchaser of a plot of land with a house on it. This is the suit property. The defendant/respondent is in possession of the house. He is also the registered proprietor of the property. The applicant's suit before the High Court was for vacant possession and mesne profits. That suit was dismissed with costs.

The appeal will be based on a number of irregularities that are said to be apparent in the documents of which Annexes $A, B, C$ , and D to the affidavit are copies.

The applicant cited to us Wilson v. Church (No.2) (1879) 12 Ch. D in support of the proposition that "when a party is appealing, exercising his undoubted right of appeal, this Court ought to see that the appeal,

if successful, is not numatory. $\mathcal{L} = \mathcal{L} \mathcal{L}$

TE COURT LIBRARY We observe that the application in the instant case seeks not only a stay of execution but also a form of injunction. The effect of such orders may be to deprive a successful litigant of the fruits of his litigation. This is why the practice or procedure adopted requires to be carefully considered in order to ensure that all of the circumstances may be fully appreciated by the court.

ACC. No.

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2.

Within the past few years this Court has handed down a series of decisions involving Rule 41 of the Court of Apeal Rules and application for a stay of execution under Rule 5 $(2)(b)$ . As a result of Mugenyi & Co Advocates v. National Insurance Corp. (Civ.app. No. 13 of 1984) Judg. del. 1986; Francis Nansio Micah v. Nuwa Walakira (Civ. Appl. No. 9/90) Judg.del. 6.2.1991; and Lawrence Musiitwa Kyazze v. Eunice Busingye (Civ. Appl. No.18 of 1990) judg. del. 12.2.1991. (All unreported). The position has been clarified as follows:

As every Court has an inherent jurisdiction to l. stay its own orders it follows that the High Court has power to order a stay of execution pending an appeal from one of its orders to the Supreme Court.

Rule 41 illustrates the sound general principle that disputes should first be adjudicated in the lowest courts having jurisdiction. Its provisions may be implied as being directory rather than mandatory with regard to applications for a stay of execution since both the High Court and the Supreme Court Court have jurisdiction

- 3. There must be substance to the application for a'stay of execution both in form and content. It is preferable for the High Court to deal with the application on its merits • first, before the application is made to the Supreme Court. However, if the High Court refuses to accept jurisdiction, for manifestly wrong reasons, or.f^here is great delay,•' the Supreme Court may intervene and accep| jurisdiction5in the interests of justice. - 4. This Court may in special and probably rare cases entertain an application for a stay before the High Court has refused ^a stay, in the interests of justice to the parties. But before

the Court can so act it must be appraised of all the facts. We would like to emphasize the importance of the last sentence in (4) above. In the instant case, the application was presented to us in., form as if ^a stay was being requested before the High. Court had been asked for, and refused a stay. Only in the course of the hearing, in response to our questioning, was it disclosed that the .application was being brought after the High Court had been asked for a stay.

Then, after further questioning, conflicting explanations have been given as to why the High Court refused ^a stay. The applicant states that no reasons were given. Counsel for the respondent asserts that the High Court refused jurisdiction for reasons of form.

Great delay has occurred in lodging the intended appeal. Again explanations put forward are contradictory. Facts vital for our consideration have been omitted from the affidavit which Rule ⁴³ requires to be filed in ¹ support of every formal application.

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ULU. nX

WEME COURT LIB LACC. No. Leguiremen It is true that we should not make too much of a technical or a formality. It is equally true that we are not called upon at $\overrightarrow{t}$ stage to pronounce upon the merits of the appeal against the High Court's judgement.

Nevertheless we should have sight of that judgement and know at least the reasons why the suit went against rather than in favour of the applicant.

Were we to be unaware of why the High Court decided a particular case as it did, then we should find ourselves in the position of having to grant every application for a stay pending appeal. This in turn would encourage frivolous appeals merely to delay the satisfaction of judgement creditors. And it would make a mockery of the rule 5(2) that lodgement of an appeal should not by itself operate as a stay of execution.

This latter rule was intended to give the Court discretion whethr or not to grant a stay. Surely this must mean that a stay should be granted for good reasons. And where would we find the reasons if we cannot see the judgement intended to be appealed against?

For the above reasons we are unable to adjudicate upon the application as presented. It is incompetent and therefore struck out. It is open to the applicant, if he so desires, to re-submit his application with all the relevant documents.

We would add one or two comments as the applicant requested guidance on a particular point. Where, as in the instant matter, a litigant is also a counsel representing himself, we deem it inappropriate for him to conduct his case from a position in Court that is traditionally reserved for members of the Bar. Nor should he appear be-wigged or gowned as an Advocate. Whether or not he refers to counsel for the opposite party as "my learned brother" seems to us a matter of choice. Courtesy in this, as in other matters, is of mutual benefit.

What was not raised before us, but which may require consideration if this application is re-submitted, is whether it is permissible for one to act as advocate as well as swear an affidavit on contentious matters in support of the application. In this connection Yunusu Ismail O t/a Bombo City Store v. Alex Kamukamu & Anor Supreme Court Civil Appeal No. 7/87 (unreported) may be of some assistance.

saled at new, this Brigday of Departies

B. J. ODOKI JUSTICE OF THE SUPREME COURT

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ODER $\cdot$ 0. JUSTICE OF THE SUPREME COURT

E. E. SEATON

JUSTICE OF THE SUPREME COURT

if that this is alty of the