[2013] UGCA 2048

THE REPUBLIC OF UGANDA

IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

CIVIL APPLICATION NO. 341 OF 2013

(Arising out of Civil Application No. 340 of 2013)

KYAMBOGO UNIVERSITY ==================== APPLICANT

VERSUS

PROF. ISAIAH OMOLO NDIEGE =============== RESPONDENT

CORAM: HON JUSTICE KENNETH KAKURU, JA

*(SINGLE JUSTICE)*

## RULING

This application is brought under Section 10 of the Judicature Act Cap 13 and Rules 2(2), 6(2), 43 (1) and (2) of the Rules of this Court.

The application seeks an order staying execution of High Court order is in High Court Miscellaneous Cause No. 20 of 2013, pending the disposal of the applicants' application for stay of execution pending appeal.

In effect it is an application for interim order of stay of execution pending a substantive application for stay of execution before a full bench of this Court.

The grounds upon which the application is brought are set out in the notice of motion which is supported by the affidavit of one SAM S. AKORIMO deponed to on 25th October, 2013 which generally repeats the grounds in the notice of motion. Although Mr. Akorimo did not state in which capacity he swore the affidavit which is a fatal defect, i was able to establish that he is employed by the applicant as the University Secretary and i allowed the affidavit to stand under Article 126 (2) (e) of the Constitution.

This application is not an appeal and i do not see any relevancy of bringing it under Section 10 of the Judicature Act.

For clarity, I have entertained this application under Section 12 of the Judicature Act, and Rule 6 (2) (b) of the Rules of this Court.

The background to this application as far as I could gather from the record before me is as follows:

The applicant, Kyambogo University, is government educational institution at which the respondent, Prof. Isaiah Omolo Ndiege is employed as a Vice Chancellor on a contract that commenced on 12th January 2009. The contract ends in January 2014.

There were allegations and counter allegations of corruption, abuse of office and mismanagement at the Applicant University. Some of these matters were investigated and others are still under investigation by different bodies including the University Council, the Parliamentary Sectoral Committee on Education, The Inspectorate of Government, the Police and the Auditor General among others.

The applicant seems to have sent the respondent on forced leave on 15th September, 2012 for 6 months, ending 18th March 2013. This forced leave it appears was further extended for three months by the applicant. When the three months ended the applicant again sent the respondent on an indefinite forced leave.

The applicant filed at the High Court Miscellaneous Cause No. 20 of 2013 for Judicial Review, seeking court to quash the decision of the applicant sending him on forced leave and later indefinite leave.

The application for judicial review was heard by His Lordship Hon. Wilson Masalu Musene, J, inter parties. The High Court allowed the application and issued writs of *certiorari, mandamus* and *prohibition* against the applicant on 21st October, 2013.

On 24th October, 2013 the applicant being dissatisfied with the ruling and orders of the High Court filed a notice of appeal in this court. On 25th October 2013 the applicant filed two applications for stay of execution of the High court order; *vide* Court of Appeal Miscellaneous Application No. 340 and 341 of 2013. The application before me is a Court of Appeal Miscellaneous Application No. 341 of 2013 as already stated above the applicant is seeking an interim order stays the execution of orders issued by the High Court in High Court Miscellaneous Cause No. 20 of 2013.

The respondent in this matter filed an affidavit in reply on 1st November 2012; generally opposing this application on account that there is nothing to stay and the application is for academic and moot purposes only.

At the hearing of this application Mr. Mubiru Kalenge appeared for the applicant and Mr. Akile Sunday Idu Rocks appeared for the respondent. Initially counsel for the applicant had sought to have this matter heard exparte before the Registrar of this Court. However the practice of this Court now is that all such matters ought to be heard inter parties and where possible by a Single Justice of this Court, which I must say is a good practice.

Both learned counsel in this matter in their submissions retaliated what was set out in their respective pleadings and the annextures thereto and left the rest to Court.

I have read the pleadings and the annextures thereto. I have also carefully listened to the arguments of both counsel.

Following the decision of the Supreme Court in Lawrence Musiitwa Kyazze versus Eunice Busingye Civil Application No. 18 of 1990, an application of this nature ought to have been made at the High Court first. In that case the Supreme Court stated as follows at page 10;

*"This court would prefer the High court to deal with the application for a stay on its merits first, before the application is made to the Supreme Court. However if the High Court refuses to accept the jurisdiction, or refuses jurisdiction for manifestly wrong reasons, or there is great delay, this court may intervene and accept jurisdiction in the interest of justice"*

This application was decided by the Supreme Court in 1990 before this Court was established. Back then appeals from the High Court went straight to the Supreme Court.

The above position of the law is also set out Rule 42 (1) of the Rules of this Court which stipulates is as follows:

*"42 (1) wherever an application may be made either in the court or in the High Court it shall be made first in the High Court*.

It is now settled law that this court and the High Court have concurrent jurisdiction in this matter. It appears to me that applications of this nature should be first filed in the High Court as a general rule, and should only be filed in this court, where exceptional circumstances exist. I have found no special circumstances requiring this application to be fixed in this court first. This application ought to have been filed in the High Court.

Be that as it may, it is trite law that an appeal does not operate as a stay of execution. Indeed this is what Rule 6 of the Rules of this Court provides;

## 6. Suspension of Sentence and Stay of Execution

*"(1) No sentence of death or corporal punishment shall be carried out until the time for giving notice of appeal has expired or, where notice of appeal has been given until the appeal has been determined.*

*(2) (a) in any criminal proceedings, where notice of appeal has been given in accordance with rule 59 or 60 of these Rules, order that the appellant be released on bail or that the execution of any warrant of distress be suspended pending the determination of the appeal; and*

*(b) 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".*

Clearly Rule 6(1) and (2) (b) refers to stay of sentence in Criminal Proceedings and is not relevant here. What is relevant is sub rule (2) (b) which is to effect that;

## *"The institution of an appeal shall not operate as a stay of execution".*

In my view the law recognises that not all orders or decrees appealed from have to be stayed pending appeal. It also recognises a fact that an appeal may be determined without the court having to grant a stay of execution. However, court may stay execution where the circumstances of the case justify such a stay. It is therefore incumbent upon the applicant in every application of stay of execution to satisfy court that grounds exist for grant of a stay of execution. The assumption that once a party has filed an appeal a stay of execution must follow as a matter of course has no legal basis.

The Supreme Court in Miscellaneous Application no. 7 of 2010; Dr. Ahmed Muhammed Kisuule vs. Greenland Bank (In liquidation) had this to say;

*"For an application in this Court for a stay of execution to succeed the applicant must first show subject to order facts in a given case, that he/she has lodged a notice of appeal in accordance with Rule 72 of Rules of this Court. The other facts which lodgment of the notice of appeal is subject vary from case to case but include the fact that the applicant will suffer irreparable loss if a stay is not granted, that the appellant's appeal has a high likelihood of success".*

In the case of Kitende Apollonaries Kalibogha and 2 others vs. Mrs. Eleonora Wismer; *(Supreme Court Miscellaneous Application No. 6 of 2010)* Justice Okello, JSC, had this to say;

*"I agree with the principle stated by this Court in Hwang Sung Industries Ltd (Hwang Sung Industries Ltd vs. Tajdin Hussien and 2 others Supreme Court Miscellaneous Application No. 19 of 2008) regarding grant of an interim order of stay of execution. The applicant must show by evidence that there is a pending substantive application for stay of execution and that there is a serious threat of execution of the decree before the hearing of the substantive application for an interim order to issue".*

The history of stay of execution pending appeal can be traced to the English authorities of Cropper versus Smith (1883) CH. DIV 305, Wilson versus Church 1879 11 Ch. D 576 and Erin-for Properties Ltd vs. Cheshire County Council (1974) 2 ALL ER 448.

All the above authorities were ably discussed, by the Supreme Court in the case of Lawrence Musiitwa Kyazze vs. Eunice Busingye (supra).

In the case of Erin-For Properties Ltd versus Cheshire County Council (supra) Megarry, J observed as follows:

*"There may ofcourse be many cases when it could be wrong to grant an injunction pending appeal, as where an appeal would be frivolous, or to grant the injunction would inflict greater hardships than it would avoid. But subject to that the principle is to be found in the leading judgment of Cotton L. J in Wilson versus Church (No. 2) [1879] 12 Ch. D 45c) when speaking of an appeal from the Court of Appeal to the house of Lords he said;*

*'Where a party is appealing, exercising his undoubted right of appeal this Court ought to see that the appeal if successful is not nugatory"*

This position of the law has been followed by this court in numerous applications of this nature. That this Court must ensure that an appeal if successful is not rendered nugatory. In my view this is the most important ground that court must consider in an application of this nature.

From the above the applicant ought to satisfy the following conditions;

- 1. That the applicant has lodged a notice of appeal in accordance with Rule 76 of the Rules of this Court. - 2. That a substantive application for stay of execution has been filed in this court and is pending hearing. - 3. That the said substantive application and the appeal are not frivolous and they have a likelihood of success. - 4. That there is a serious and imminent threat of execution of the decree or order and that if the application is not granted the main application and the appeal will be rendered nugatory. - 5. That the application was made without unreasonable delay - 6. The applicant is prepared to grant security for due performance of the decree. - 7. That refusal to grant the stay would inflict greater hardship than it would avoid.

I agree with Mr. Mubiru Kalenge learned counsel for the applicant that the applicant has lodged a notice of appeal in accordance with Rule 76 of the Rules of this Court. I am unable to agree with counsel for the respondent that a notice of appeal is not an appeal for the purposes of an application of this nature. All the applicant is required to do is to lodge a notice of appeal in this court in accordance with Rule 76 of the Rules of this Court. I find that this has been complied with.

Paragraphs 3 (f) of the Notice of Motion does not indicate the application number of the main application for stay herein. However I have been able to ascertain from court records that there is a pending application No. 340 of 2013 for a substantive application for stay of execution from which this application arises.

This condition has also been satisfied.

This application was filed in this court on 25th October 2013, the notice of appeal having been filed a day before. The High Court order against which the applicant is appealing was made on 21st October 2013 therefore this application was made without undue delay. This condition has too been satisfied.

The applicant states both in the motion and in the affidavit that it is willing to deposit security for due performance of the order. I have no reason to doubt that. This ground has also been satisfied.

The applicant contends that:-

*"The grounds of the Applicants Appeal are meritorious with high chances of success".*

However no draft memorandum of appeal was attached to the pleadings and as such i was unable to ascertain the validity of the above statements. I have read the ruling of the Hon Judge of the High Court, and I was unable to ascertain therefore any apparent irregularity, fraud or lack of jurisdiction. I am not satisfied that the applicant has established that the main application herein and or the appeal itself have high chances of success. I find that this condition has not been satisfied.

The applicant in paragraph 3 (g) and 3 (h) of the notice of motion states as follows:-

*3(g) that there is an impending threat of execution of the order of court in Miscellaneous Cause No. 20 of 2013 as the ruling has been made and an order extracted waiting to be executed.*

*3(f) that the execution of the said order will render the main application for stay and the pending appeal nugatory if this application is not granted.*

There is no evidence whatsoever that there is an impending or imminent threat of execution. No such evidence was provided. No warrant of execution has been issued or even applied for. I have found no evidence of any threat of execution on record. There is no evidence that if the order is not stayed the main application and the appeal would be rendered nugatory.

The question to be resolved in this peculiar case is whether or not there is an order capable of being executed at all.

Black's Law Dictionary Sixth Edition defines execution in the following terms:-

*"Process issuing from a court in a civil action authorising the sheriff or other competent officer to carry out the court's decision in favour of the prevailing party"*

The same dictionary defines stay of execution as follows:-

*"The stopping or arresting of execution on a judgment that is of the judgment creditor's right to issue execution, for a limited period".*

It appears that execution refers to a process by which a successful party in a civil matter enforces the decree or order. This unusually entails attachment of property to recover judgment debt, order of eviction, order requiring vacant possession of land, cancellation of certificate of title, return of moveable property and so on.

In my humble view is that for an order to be stayed such an order must be capable of being executed. The purpose of an order of stay of execution is to preserve the *status quo* and protect the applicants' right of appeal from being rendered nugatory.

In National Enterprise Corporation versus Mukisa Foods Miscellaneous Civil Application No. 7 of 1998 this Court held as follows at page 7;

*"The Court has power in its discretion to grant stay of execution where it appears to be equitable so to do with a view to temporarily preserving the status quo.*

*As a general rule the only ground for stay of execution is for the applicant to show that once the decretal property is disposed of there is no likelihood of setting it back should the appeal succeed".*

The Supreme Court of Uganda in Civil Application No. 9 of 1990; Francis Hansio Micar vs. Nuwa Walakira observed as follows:

*"It would be unwise in some circumstances to defeat a statutory right of appeal by for example demolishing the subject matter of a suit so that the appeal is rendered nugatory. Again stay may be necessary when it comes to the notice of any court that an alleged fraud has been practiced upon it effecting its decree or when courts action is in doubt through want of jurisdiction".*

This court cited and followed the above observation in the Civil Application No. 21 of 1996; Teddy Sseezi Cheeye and another versus Enos Tumusiime, where it observed that although what amounts to sufficient cause in an application for stay of execution has not been specifically defined the Micar vs. Walakira case (supra) illustrates the type of circumstances that can be considered to amount to sufficient cause for an order of stay of execution to be granted. The learned justices of this court put it in the following words:-

*"Such include where the subject of a case is in danger of being destroyed, sold it in anyway disposed of. In such a case a stay is ordered to preserve the status quo or where the decree in question is effected by a glaring flow in the record of the lower court as to make the appeal very unlikely to succeed".*

In this particular case, the appeal is in respect of a ruling in an application for judicial review. The learned trial judge found that the applicant recommended the removal of the respondent from office without giving him a fair hearing and that the subsequent decisions to keep him out of office on forced leave indefinitely are unfair, unreasonable and unjustifiable. He held that:-

*"The underlying intention to keep the applicant on indefinite forced leave till his contract expires in 2014 cannot be allowed by this court".*

The court then went on to issue the following writs:-

- 1. *That the writ of Certiorari issues calling for and quashing the decision arrived at by the Respondent University Council, recommending the dismissal of the Applicant as the Vice Chancellor and keeping him out of office on an indefinite forced leave.* - 2. *That the writ of Mandamus issues, directing the Respondent to comply with the findings and recommendations of the Parliament of Uganda which ordered that the entire University Management be investigated by the offices of Inspector General of Government (IGG), the Auditor General and the Directorate of Criminal Intelligence Investigations Department.* - 3. *That the writ of Prohibition issues against, effecting the illegal orders of the University Council.*

It is this order of court that is subject of appeal from which this application arises.

I find that these orders are not capable of being executed in the true sense of the word as defined above and that no warrant of execution can be issued to enforce them. There is therefore nothing to stay.

Mr. Mubiru Kalenge argued that with the above order the respondent will force his way back to office yet the applicant is not prepared to have him back.

The applicant cannot chose which order courts in this county can issue or not issue. By refusing to comply with the orders of the High Court the applicant may infact be cited for contempt. The orders of the High Court became effective on the day they were pronounced. In fact Mr. Mubiru Kalenge conceded that the current *status quo* is that the respondent is the Vice Chancellor of the Applicant University, the act of locking him out of office notwithstanding.

The applicants contend as follows in paragraphs 3(k) (L) (M) of the notice of motion

*3(K) the Applicant's council as the respondent's employer is not ready to have him back in office pending the completion of investigation into the Allegations raised against the Respondent by the staff of the Applicant.*

*3(L) the Applicant is at a great risk of disruption of its programs, and the smooth running of the University due to the mistrust that still exists within the applicant's Management and staff regarding the unresolved allegations leveled against the Respondent.*

*3(M) substantial loss will result to the Applicant in terms of the likely closure of the University unless the interim order staying the execution of the Order granted in Miscellaneous Cause No. 20 of 2013 pending the hearing of and determination of the main application for stay of execution of the said order pending appeal is granted.*

It clearly appears that the case for the applicant is that if this court does not issue an order of stay of execution *"all hell will break loose"* at Kyambogo University. This Court cannot take decisions under threats.

This is absolutely unacceptable. This court must make orders that are legal, just and equitable irrespective of what happens outside the court room. That is why the symbol of justice is a blind folded woman with a sword in one hand and scale in the other. In order to be objective justice must be blind otherwise courts would lose their objectivity.

The disruptions of programmes at the University which I must say is very speculative and a veiled threat was not proved. Even if it was real and eminent it is not a ground for granting a stay of execution.

In *Marine and General Mutual Life Assurance Society versus Feltwill Feri Second District Drainage Board [1945] KB 394* it was held that, execution of a court order would not be stayed simply because its execution would make it impossible for the respondents to carry out their statutory duty.

I find that in this particular case before me there is no proof that the respondent will suffer any loss by complying with the High court order or will fail to carry out its statutory duty if the order is not stayed. Even if it were so it would not be a ground for grant of stay of execution. I am not satisfied that there is any evidence to show that the appeal be rendered nugatory if this application is not granted.

The applicant is not a party to Constitutional Petition No. 27 of 2013 and as such the orders therein do not apply to him.

It appears to me that this application and the main application for stay are brought in bad faith. They are intended to delay the respondent from assuming his office and conducting his duties.

This application and the main application for stay herein are intended to defeat the orders of the High Court and to keep the respondent on forced leave until his contract expires, as observed by the learned trial judge. The application if granted would alter the *status quo* prevailing since the High Court order was made.

I find that the respondent is at present lawfully in office and he is no longer on forced leave. To hold otherwise would be to alter the *status quo*.

The act of applicant's employees denying the respondent physical access to his office can in no way be construed to mean that he is not holding the office of the Vice Chancellor at the Applicant University. It would be absurd to hold otherwise.

This application is frivolous and devoid of any merit. I also find that it was brought in bad faith and is an abuse of court process.

It is accordingly dismissed with costs.

Before I take leave of this matter I must say the following.

That this application was filed in this court in 25th of October 2013 a day after a notice of appeal had been filed and was fixed for hearing before me on 1st November, 2013. There are hundreds of similar applications pending in this court which were filed sometime back. Some as far back as 2008 or even earlier. These applications have never been fixed for hearing, yet recent applications such as this one have been fixed heard in a record time.

Justice must not be done but must manifestly be seen to be done. All persons in this country are equal before the law. A system must be put in place which ensures objectivity, fairness and equity in fixing all matters in this court subject only to the law.

Dated at Kampala this.....*06th* ..... day of......*November.* 2013.

.....................................

HON. JUSTICE KENNETH KAKURU

JUSTICE OF APPEAL.