[2024] UGHC 423

### THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA HOLDEN AT MBALE

# MISC. APPLICATION NO.404 OF 2023

(ARISING FROM CIVIL APPEAL NO.1318 OF 2023)

(ARISING FROM MISC. APPLICATION NO. 52 OF 2023)

(ARISING FROM MISC. APPLICATION NO. 11 OF 2014)

(ARISING FROM CIVIL APPEAL.055 OF 2010)

**.....................................** MUDANGHA POLYCAP :::::::::::::::::::

#### **VERSUS**

<table>

DAUYA TALIBA ::::::::::::::::::::::::::::::::::::

## BEFORE HON. JUSTICE LUBEGA FAROUQ

#### **RULING**

#### 1 Introduction

2. This application was brought by way of chamber summons under section 98 of the Civil Procedure Act Cap 71, Order 22 rules 26 & 89 (1) Civil Procedure Rules S. I 71-1 for orders that- stay of execution of ruling and orders in Misc. Application No.52 of 2023 be granted in favor of the Applicant and costs of the application.

### 3. Background

- 4. The Applicant filed the instant application on the 24^th November 2023 wherein he seeks to stay execution of the ruling and orders arising out of Miscellaneous Application No.52 of 2023 which were passed by this court on 20^th October 2023. - 5. The Applicant filed Civil Appeal No.1318 of 2023 in the Court of Appeal at Kampala and notice of the said appeal was filed both in this court and the Court of Appeal.

- 6. This application was supported by the affidavit of **MUDANGHA POLCYCAP** the Applicant which has been relied upon in the determination of this application and briefly states that - a. He was the unsuccessful party in Misc. Application No.52 of 2023 filed by the Respondent against him and a one Watibika Stephen; - b. He is currently in ownership and use of the suit land pending the hearing and determination of this Application and was in occupation of the same even during proceedings of the lower courts; - c. Owing to the ruling and orders of this court, the Respondent is now threatening to evict him and demolish structures on the same and as a result he shall suffer substantial loss; - d. He was dissatisfied with the judgment/ruling/orders in Misc. Application No.52 of 2023 and lodged a notice of appeal in both this court and the Court of Appeal at Kampala; - e. After his lawyers wrote to this court requesting for record of proceedings and ruling to enable him file a memorandum of appeal and record of appeal to the Court of Appeal but the same has not been availed to date; - f. The Respondent served him with a notice to show cause why execution should not issue dated $10^{th}/11/2023$ ; - g. Civil Appeal No.1318 of 2023 arising from Misc. Application No.52 of 2023 is pending lodging of a memorandum of appeal and record of appeal after getting the record of proceedings and the ruling; - h. The orders of Civil Appeal No.1318 of 2023 will be rendered nugatory if this application is not granted; - There is no need for security for due performance in this application; and $\dot{1}$ . - This application has been brought without unreasonable delay. $1.$ - 7. This application was also supported by the supplementary affidavit of the Applicant **MUDANGHA POLYCAP** which has been relied upon in the determination of this application and briefly states that - a. He needs the typed and certified copy of the court order, ruling and record of proceeding in Misc. Application No.52 of 2023 in order to prepare and

file a memorandum and record of appeal to prosecute his appeal which is now pending before the Court of Appeal at Kampala;

- b. On 3^rd November 2023 his lawyers wrote to this court requesting for the typed and certified copy of the court order, ruling and record of proceeding in Misc. Application No.52 of 2023 but the same has not yet been availed to him; - c. On $20^{\text{th}}$ December, 2023 his lawyers again wrote to this court requesting for the typed and certified copy of the court order, ruling and record of proceeding in Misc. Application No.52 of 2023 but the same has not yet been availed to him; and - d. On $18^{\text{th}}$ April, 2024 his lawyers further wrote to this court requesting for the typed and certified copy of the court order, ruling and record of proceeding in Misc. Application No.52 of 2023 but the same has not yet been availed to him. - 8. This application was opposed by the affidavit in reply of the Respondent **DAUYA TALIBA** which has been relied upon in the determination of this application and briefly states that - a. She should at the hearing raise a preliminary objection that the application is incompetent and untenable in law; - b. Having purchased the suit land which at the time had squatters, she duly compensated all of them who themselves voluntarily demolished their houses and handed over possession to her; - c. Shortly the seller a one Watiba Stephen turned around and wanted to retake the land which she had purchased hence resulted into a criminal matter that led to the prosecution and conviction of Watiba Stephen; - d. After Watibika Stephen was released from prison, he filed a case against her in the land tribunal which was later transferred to the Chief Magistrate of Mbale vide Civil Suit No.49 of 2003; - e. Civil Suit No.49 of 2003 was in respect of the disputed piece of land comprised in Plot 18 Nile Drive in Mbale district;

- f. On the 4^th May 2010 the trial magistrate delivered Judgment in respect of Civil Suit No.49 of 2003 declaring that part of the suit land was for Watibika Stephen; - g. She was dissatisfied with the decision of the trial magistrate upon which she lodged Civil Appeal No.55 of 2010 in this court where judgment was entered in her favor and the appellant court decreed that Plot 18 Nile Drive to belonged to her; - h. In 2014, the Applicant filed Miscellaneous Application No.11 of 2014 against the Respondent and Watibika Stephen through which he sought for review of the judgment in Civil Appeal No.55 of 2010; - i. Upon hearing the said application interparty, it was dismissed with costs on 27^th September 2019; - The Applicant having forcefully entered the suit land in the course of the $\mathbf{i}$ . court hearing, he is to date occupying the suit land which was decreed to her by this court; - k. Since the land had been decreed to her on appeal, she filed Miscellaneous Application No.052 of 2023 against Watibika Stephen and the Applicant in which a consequential order was issued; - 1. She is not aware of the alleged appeal since herself and her lawyers have never been served with a memorandum of appeal or notice of appeal; - m. The Applicant is not interested in having the said appeal prosecuted but rather has left it pending as he continues to un justifiably deprive her from utilizing the suit property which was decreed to her; - n. The alleged appeal if any has been lying idol as the Applicant has never taken steps to have it prosecuted and yet she has been deprived of the suit land for 21 years; - o. It is her who is prejudiced since she has a judgment and ruling in her favour against the Applicant who was condemned in costs which he has never paid; - p. The Applicant only filed this application to frustrate her from taking benefit of the orders which are in her favour.

#### 9. Legal representation

The Applicant was represented by M/S Mutembuli & Co. Advocates while 10. the Respondent was represented by M/S Mbale Law Chambers & Co. Advocates.

#### 11. **Submissions**

At the hearing of this application both counsel were given schedules to file 12. their respective written submissions and they both complied. This court has considered them in the determination of this application.

#### 13. **Analysis of court**

- 14. Before I delve in to the issues for determination by this court, For purposes of clarity and brevity, I will make a detailed analysis of the background of this matter first as below- - The background of this matter is that a one Watibika Stephen instituted 15. Civil Suit No. 49 of 2003 against Dauya Taliba for vacant possession of the unsold portion of Plot No. 18 Nile Drive, Mbale Municipality among other orders. The trial magistrate found that the Plaintiff only sold part of his land to Dauya Taliba but not the whole of it. - Dauya Taliba/defendant being dissatisfied with the above judgment and 16. orders appealed to this court under Civil Appeal No. 055 of 2010 and Justice Stephen Musota (as he then was) determined the appeal in favour of Appellant/ Dauya Taliba. - The Applicant in the instant case (Mudangha Polycap) then filed 17. Miscellaneous Application No. 11 of 2014 against Dauya Taliba and Watibika Stephen seeking to review and set aside Civil Appeal No. 55 of 2010 and that he be added as a party to both Civil Suit No. 49 of 2003 and Civil Appeal No. 55 of 2010, so that he can be heard and costs of the Application. - Lady. Justice Susan Okalanyi while dismissing the above Application said 18. that;

"Mudangha Polucap cannot be joined a party to Civil Appeal No. 55 of *2010 since he is a total stranger to the trial in the lower court. It goes* without saying that the basis of an appellate court's decision are the

proceedings and judgment of the lower court. The grounds of appeal are framed from the said proceedings and judgment. With due respect to Mr. Mutembuli, it is legally impractical for Mr. Mudangha to be added as a party to the said appeal at this point, having not been a party to Civil Suit No. 49 of 2003 in the lower court."

- 19. Dauya Taliba then filed Miscellaneous Application No. 052 of 2023 seeking for consequential order, eviction orders, demolition of the structures and costs to be provided for. That Application was allowed on 20^th of October, 2023 by Justice Godfrey Namundi. - Under paragraph 5 to the affidavit in support of Miscellaneous Application 20. No. 404 of 2023 the Applicant avers that; "I was dissatisfied with the judgment or ruling and orders in Miscellaneous Application No. 52 of 2023 and lodged a Notice in both the High Court and the Court of **Appeal at Kampala.**" He attached annexure B which a notice of appeal. - In light of the above background, it is not clear to this court where the 21. Applicant in the instant Application gets the *locus standi* to institute all these applications and suits in the presence of the finding in Miscellaneous Application No. 11 of 2014 above mentioned. - 22. In the pending Appeal which is Civil Appeal No. 1318, the Applicant wants to challenge the findings in Misc. Application no. 52 of 2023 which arose from Civil Appeal No. 55 of 2010 yet there is still a finding of this court which declared Mudangha Polycap/Applicant to be a party with no locus standi in respect of all matters that arise from Civil Suit No. 49 of 2003 and Civil Appeal No. 55 of 2010 which has never been overturned by any court order. - Civil Suit No. 49 of 2003 and Civil Appeal No. 55 of 2010 was between 23. Dauya Taliba and Watibika Stephen. The Applicant in the instant application was not a party. - Therefore, to bring this Application by the Applicant who was not a party 24. in those two suits in the presence of the decision in Miscellaneous Application No. 11 of 2014, is an abuse of court process which this court cannot condone.

(See Global Capita Save 2004 Ltd and Anor V. Alice Okiror & Anor Supreme Court Civil Application No. 57 of 2021)

- In any case, the position of the law is that the pending appeal in 25. applications of this nature must not be frivolous and must have a likelihood of success. However, following the background of this case as above given, it is obvious that the pending Civil Appeal No. 1318 of 2023 is frivolous and has no likelihood of success. (See: Kyambogo University Vs Prof. Isaiah Omolo Ndiege C. A Misc. Civil Application No. 341 of 2013). - In the circumstance, this Application is incompetent before court and it is 26. accordingly dismissed with costs to the Respondent. - 27. I so order.


Ruling delivered via email on 11^th of June, 2024