[2003] UGSC 44

## IN THE SUPREME COURT OF UGANDA HOLDEN AT MENGO.

## Before: J. N. Mulenga J. S. C., sitting as a single Judge. **CIVIL APPLICATION No.9 of 2003**

Between

WILSON MUKIIBI::::::::::::::::::::::::::::::::::

And

JAMES SEMUSAMBWA:::::::::::::::::::::::::::::::::::

## **RULING:**

This *ex parte* application is brought before me, a single judge, under Rules 1 (3), 5 (2) and 41 of the Rules of this Court. In it, the applicant seeks an "interim order" for stay of execution of orders made by the Court of Appeal, on 13^th December 2002, in Miscellaneous Application No.56 of 2002. The application is by Notice of Motion dated 27^th May 2003, and is supported by an Affidavit sworn on the same date by Wilson Mukiibi, the applicant. Furthermore, the Advocates for the applicant filed a 'Certificate of Urgency' made under Rule 46 (2) of the Rules of this Court. At the same time, the applicant filed Misc. Application No. 8/03, which I will call the substantive application for stay of execution, to be heard inter partes by a full bench of this court. That is still pending, and the court registry has not yet fixed a hearing date for it.

Mr. Kabiito Karamagi, counsel for the applicant, informed me from the bar, that on 13^th December 2002, the Court of Appeal ordered the applicant to give to the respondent vacant possession of land known as Plot 13 Kampala Road. The

applicant who claims leasehold interest thereon comprised in LRV 2517 Folio 9 intends to appeal to this Court, against the order of the Court of Appeal and meantime seeks stay of its execution. He filed the Notice of Appeal in this Court on 17.12.02, and on the same date applied to the Court of Appeal for copy of the court proceedings. He has not received the copy, and consequently has not yet compiled the record of appeal.

Briefly, the ground on which the applicant relies in support of this application for an interim order, is that the respondent is likely to carry out execution by evicting him from the land in dispute, and demolishing the developments the ton, before the Court hears the substantive application, thereby rendering the substantive application, nugatory. In his Affidavit, the applicant averred inter alia -

- THAT during the pendancy of the said application the Respondent has $"3.$ made various efforts to evict me from the land...and was purported to pulled down (sic) my developments thereon which are of sentimental value to me and which I put up at a great expense. See annexture marked "A". - THAT I am informed by my lawyers..... who I verily believe to say the $4.$ truth that they searched the Court of Appeal file in Misc. App. No.56/02 and established that the Respondent has applied to the Court of Appeal to renew the warrant of eviction.......and the matter is pending a ruling on Notice of the Court of Appeal. - THAT I will definitely be prejudiced if I am evicted before the $5.$ application for stay is heard."

Annexure "A" referred to in paragraph 3 of the affidavit, is copy of a circular letter dated 23^rd May, 2003, from Maka General Agencies, described as Factors, Auctioneers & Court Bailiffs. It is addressed to "All Occupants of Block 530 Plot 13 Mukono Kyagwe" under the heading: "Notice to Give Vacant Possession", and requires the occupants to vacate within 24 hours, otherwise, they would be evicted.

Upon presenting this application, Mr. Kabito Karamagi, counsel for the applicant, submitted to me that it has become a practice of this Court for a single judge to grant an interim order for stay of execution pending hearing by a full bench, where the ends of justice so demand. On the merits of this application, learned counsel particularly relied on paragraphs 3 and 4 of the applicant's affidavit. He maintained that although the respondent had not made any further attempt to evict since May, the applicant remained vulnerable, as eviction could be revived after the Court of Appeal delivers its ruling. He stressed that such an eviction and the probable demolition of the valuable development on the land would be irreversible, and would cause injustice to the applicant. He urged that I should view the situation differently from a monetary decree where an applicant can offer to pay the decretal amount into court.

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It is trite that an intention to appeal per se, is not a ground for stay of execution, and instituting an appeal does not operate as a stay of execution. A party seeking a stay of execution must satisfy the court that there is sufficient cause why the party with judgment should postpone the enjoyment of its benefits. It is not sufficient for the judgment-debtor to say that he is vulnerable, because the successful party may take out execution proceedings. It must be shown that if execution proceeds there may be some irreparable loss caused. Secondly, it is a cardinal principle of our judicial procedure that, save in exceptional circumstances, every party to a dispute before court for hearing, must be given notice thereof and opportunity to be heard before the court adjudicates on the dispute. The court will proceed ex parte only when it is satisfied that proceeding inter partes is likely to defeat the ends of justice, or when the party given notice fails to avail itself of the opportunity to be heard.

Rule 49 of the Rules of this Court provides in sub-rule (1) that every application shall be heard by a single Judge of the Court, but in sub-rule (2) it excludes, inter alia, an application for a stay of execution. In Horizon Coaches Ltd. vs. Francis Mutabazi & Others, Civil Application No.21/01, 1 held that sub-rule (2) does not exclude an application for an interim order for stay of execution, and that a single Judge could, in exercise of the Court's inherent powers, hear such application and grant the order, to prevent justice being defeated. I think it is clearer if I put it thus, namely that sub-rule (2) does not limit the inherent power of the Court to make such order as may be necessary to achieve the ends of justice, and that a single Judge, being vested with power to hear all applications to the Court, has jurisdiction to exercise that inherent power. I would hasten to add, however, that invoking that interim procedure must neither be taken as an alternative to, or substitute for, the procedure for obtaining a stay, which is envisaged under sub-rule (2), nor should it be used to negative the import of that sub-rule. The interim order ought to be made only in compelling circumstances, to prevent defeat of justice, and strictly pending ascertained hearing of a substantive application by the full Court.

In Horizon Coaches Ltd. vs. Francis Mutabazi & Others (supra) the applicant asked for stay of a sale by auction of the applicant's bus, which had been attached and advertised for sale in execution of a monetary decree. The auction was to take

place on the date the application was heard. The applicant was able to satisfy the decree, but had reason to fear that if the respondents were paid, they would not be able to refund the money, in the event of the decisions of the lower courts being reversed on appeal. He offered to pay the decretal amount into court. His substantive application for stay had been fixed to be heard inter partes by the full bench the following month. In granting the interim order, I said -

"Considering the peculiar circumstances of this case, however, whereby the main application to be heard by the full bench on 16.10.2001 would be rendered futile if the execution proceeded to day, I came to the conclusion that justice may well be defeated if the applicant is not heard. For the same consideration I accepted to hear the application ex-parte.

将軍を転除離し

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In particular I took note that there has been no undue delay since the decree was passed, that the main application is fixed for hearing next month, that the execution proceedings appear to have been pursued rather hastily, and that insisting on the respondent being served first would defeat the purpose of the application."

The circumstances of the instant application are clearly distinguishable from those of the earlier case. The applicant has not shown that eviction is imminent, nor has he provided evidence to clarify the "purported (pulling) down" of developments. If I have understood the applicant's affidavit correctly, the last threat to evict and/or demolish the developments, occurred about three months ago, and since then, the respondent has not taken any further step. I do not find that these are circumstances where I ought to intervene by invoking the inherent powers of the Court to grant an interim order. In my view, the applicant ought to pursue the substantive application to be heard by the full bench. I would also hold that no good cause has been

$5$

shown why the respondent should not be given opportunity to be heard in the application

According to the said affidavit, the respondent is apparently still waiting for a ruling of the Court of Appeal on his application "to renew the warrant of eviction" to evict the applicant. Although this is not a reason for my decision, I am constrained to observe that, if there was a contested hearing on the application to renew the warrant, requiring a "ruling", then it would not be proper to pre-empt the ruling of the Court of Appeal by granting a stay of execution at this stage.

In conclusion, I dismiss this application with no order as to costs.

Dated at Mengo this 10 day of September 2003.

J. N. Mulenga, Justice of the Supreme Court.