[2022] UGHC 143

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT FORT PORTAL MISC APPLICATION NO. 051 OF 2022 [ARISING FROM MISC APPLICATION NO. 031 OF 2022]

[ALL ARISING FROM HCT-01-CV-LD-CS-005 OF 2011] STEPHEN MUGENYI :::::::::::::::::::::::::::::::::::: **VERSUS**

**UGANDA REVENUE AUTHORITY::::::::::::::::::::::::::::::::::::**

### BEFORE HON. MR. JUSTICE VINCENT EMMY MUGABO **RULING**

This is an application brought under Sections 33 & 38 of the Judicature Act Cap 13, Section 98 of the Civil Procedure Act Cap 71, Order 44 rules 2, 3 and 4 of the Civil Procedure Rules seeking for Orders that the applicant be granted leave to appeal against the ruling and orders of this Court delivered on the 16^th day of May 2022 and that costs of the application be provided for.

The grounds of the application are contained in the affidavit in support of the Notice of Motion deposed by the applicant who among others states that the learned trial judge granted an order for stay of execution when execution had not yet actually commenced and that the applicant had written neither a demand letter nor an eviction notice to the respondent to warrant the grant of an order for stay of execution. That the misdirection of the trial judge has occasioned him a miscarriage of justice and that his intended appeal raises questions of law and or fact that warrant serious judicial consideration.

Ruling of Hon. Justice Vincent Emmy Mugabo

JUULITIUU

In opposition to the application an affidavit was sworn by Mr. Nahumuza Derrick, an employee of the respondent. He deposed inter alia; that the applicant has not disclosed any questions of law that would warrant court's consideration and that the applicant's intended appeal has no chances of success. Further that in granting the order for stay of execution, the trial judge judiciously exercised his discretion having regard to the law and circumstances.

#### Back ground.

The respondent instituted HCCS No. 05 of 2011 against the applicant and Uganda Land Commission for among others; a declaration that the land and the property comprised in LRV 3876 Folio 16, Plot 4, Nyaika Avenue, Fort Portal was vested in the respondent by operation of Law; A declaration that the allocation of the suit land by Uganda Land Commission was void ab initio as there was no land available for allocation. This court delivered its judgment on 31^st March 2022 against the applicant and ordered vacant possession and eviction against the applicant. The respondent applied for and was granted an order for stay of execution pending its appeal to the Court of Appeal. This court delivered the ruling on 16^th May 2022. It is this ruling that the applicant now seeks for leave to appeal against.

### Representation and hearing.

The applicant is represented by Mr. Musinguzi Joshua of Joshua Musinguzi Associated Advocates while Bakashaba Donald $Mr.$ represented the respondent. On the direction of this court, the hearing proceeded by way of written submissions. Both parties filed submissions which have been considered in this ruling.

Ruling of Hon. Justice Vincent Emmy Mugabo

**UCALIFICA WILLI**

## Consideration by court

Counsel for the applicant relied on the case of Sango Bay Estate Vs Desdner Bank & Attorney General [1971] EA 17 to submit that leave to appeal from an order in civil proceedings will normally be granted where prima facie it appears that there are grounds of appeal which merit serious judicial consideration. Counsel argued that leave to appeal should be granted where court considers that the appeal would have prospect of success or that there is some compelling reason why the appeal should be heard. Further that in granting the order for stay of execution, the trial judge erred in law and in fact when he allowed the application for stay yet execution had not actually commenced. Counsel also noted that at the time of the application for stay of execution, the applicant had neither applied for execution nor demanded for eviction of the respondent. Counsel argued that these would be serious questions for the consideration by the Court of Appeal.

In response, counsel for the respondent argued that the applicant has not demonstrated that his intended appeal has serious questions of law for determination by the Court of Appeal and that the intended appeal has no reasonable chances of success. Counsel relied on the case of Matayo Okum Vs Francisco Amundhe & others [1979] HCB 229 to argue that a substantial question of law is one where the point raised is one of general principle decided for the first time or where the question is one upon which further argument and a decision of the superior court would be to the public advantage.

Counsel for the respondent further argued that the trial judge judiciously exercised his discretion having regard to the conditions required for the grant of an order of stay of execution and the rationale for the same is to

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**JUULILIUU VVILLI**

preserve the status quo of the property that is at state and not to render the appeal nugatory should it succeed.

I have considered the application and the affidavits as well as carefully considered the submissions of both counsel and the cases relied upon. The applicant contends that the appeal raises arguable grounds the respondent argued otherwise. In the case of Sango Bay Estates Ltd & Others vs Dresdner Bank AG (supra) Spry V. P at page 40 stated the principle upon which leave to appeal can be granted as follows:

"As I understand it, leave to appeal from an order in civil proceedings will normally be granted where prima facie it appears that there are grounds of appeal which merit serious judicial consideration, but where as in the present case, the order from which it is sought to appeal was made in the exercise of a judicial discretion, a rather stronger case will have to be made out."

The Supreme Court of Uganda in the case of G. M. Combined (U) Ltd Vs A. K. Detergents (U) Ltd Civil Appeal No. 23 of 1994 alluded to this principle which was subsequently followed the Court of Appeal in Degeya Trading Stores (U) Ltd Vs Uganda Revenue Authority, Civil Application No. 16 of 1996 where their Lordships stated;

"An applicant seeking leave to appeal must show either that his intended appeal has reasonable chance of success or that he has arguable grounds of appeal and has not been guilty of dilatory conduct".

The same principle has been followed in various cases, see among others: Alley Route Ltd vs UDB HCMA No 634 of 2006 (2), Spear Motors Ltd

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vs Attorney General & 2 others High Court Civil Suit No, 692 of 2007 and others.

Therefore for this application to succeed, the applicant is required to show that there are grounds of appeal which merit serious judicial consideration. In my considered opinion, the ruling and order sought to be appealed against were made by this Court in exercise of its discretion to preserve the status quo of the property subject to appeal to the Court of Appeal and not to render the appeal nugatory should it succeed.

It is clear that this Court is clothed with an unfettered discretion to stay execution pending appeal if it is satisfied that the conditions for the grant are present to safeguard the status quo on such terms as it considers just. For this application to succeed, the applicants need to satisfy this Court that there are matters whether of law or facts that deserve to be addressed by the appellate Court in the intended appeal. These include showing how this Court misdirected itself in the exercise of its discretion and as a result arrived at a wrong decision or that this court was clearly wrong in the exercise of the discretion and that as a result there has been a miscarriage of justice.

It is the argument of counsel for the applicant that court granted the order of stay of execution when the execution had not commenced. In the first place, court is enjoined with the discretion to make such an order even when one or more of the conditions for the grant are not present, but also, an applicants' failure to fulfill a condition cannot be an arguable ground of appeal that merit serious judicial consideration by the appellate Court. To my mind the intended appeal is just an abuse of the court process which this Court is enjoined to prevent. While a party should in the

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formal course not be prevented from pursuing an appeal, it is also necessary to put in place mechanisms that prevent abuse of Court process as was observed by the Court of Appeal of Uganda in Asiimwe Francis Vs Tumwongyeirwe Aflod Miscellaneous Application No. 103 of 2011.

On the whole, taking into account the circumstances of this application, I do not find any arguable grounds of the intended appeal that merit granting this application and it is accordingly dismissed with costs to the Respondent.

I so order

Dated at Fort Portal this 28^th day of October 2022

Julo

**Vincent Emmy Mugabo** Judge.

Court: The Assistant Registrar shall deliver the Ruling to the parties.

Vincent Emmy Mugabo Judge

28/10/2022

**UUUTITICU**