[2023] UGHC 370

# **THE REPUBLIC OF UGANDA HIGH COURT OF UGANDA AT MASAKA MISCELLANEOUS APPLICATION NO. 125 OF 2022 (ARISING FROM HCCA. NO. 78 0F 2017) (ARISING FROM CHIEF MAGISTRATES COURT CIVIL SUIT NO.89 OF 2014)**

# **EDIRISA MUYINGO::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPLICANT VERSUS**

### **1. ISMAEL SSEMPIJJA**

**2. MBUGA FRANCIS:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT**

## *Before; Hon. Justice Victoria Nakintu Nkwanga Katamba* **RULING**

This Application was brought under Order 43, Order 52 Rules 1 and 3 of the Civil Procedure Rules SI 71-1 and Section 98 of the Civil Procedure Act seeking;

1. An order staying execution of the orders in HCT O6-CV-CA No.0078 of 2017 (arising from Civil Suit No.089 of 2014) pending determination of Civil Appeal No.189 of 2019.

2. An order providing for Costs of the Application.

The grounds in support of this Application are contained in affidavit deponed by the Applicant, where he states as follows that;

1. He was the Appellant in this Court vide HCCA. No.78 0f 2017 which arose from Civil Suit No.89 of 2014 in the Chief Magistrates Court and being satisfied with the decision of this Court, he lodged a second appeal vide COACA No. 189 of 2019 to the Court of Appeal and that the appeal is at the conferencing stage.

2. The Respondents have moved Court to tax their respective bill of costs and also forwarded the Court file to the Chief Magistrate (trial Court) for the purposes of execution which amounts to an imminent threat of execution.

3. At the time of filing Civil Suit No. 89 of 2014, the Respondents had already divided the land into plots and they planned on selling it.

4. If execution is not stayed, the Respondents will evict the Applicant and alienate the land rendering the Appeal nugatory.

5. The Respondents will not suffer any miscarriage of justice if the Application is granted.

6. The Appeal is being fast tracked.


An Affidavit in reply was deponed by the 2nd Respondent where he states as below that;

1. There is no pending Appeal in the Court of Appeal but that in case it exists, it does not change the fact that the Respondents were the successful litigants in Civil Suit No. 89 of 2014 and HCCA. NO.78 of 2017 and as such, they are entitled to enjoy the fruits of judgement.

2. He has never divided the land into small plots for purposes of selling the land and that there is no Court order precluding the Respondents from using the land.

3. He will suffer injustice because he has been locked out of use of the land for 7 years and there is no amount of money sufficient to compensate him for the inconvenience.

4. The appeal has no probability of success.

5. The Applicant will not suffer irreparable damage because he has never used, possessed or taken any steps to add value to the land.

6. The Applicant is guilty of unreasonable delay.

7. The Applicant has not provided or expressed his willingness to furnish security for due performance.

The parties filed written submissions.

The parties raised two issues for determination, that is;

1. Whether the Court has jurisdiction to grant the stay of execution.

2. Whether this is a proper case for grant of stay of execution.

Both parties agreed that this Court has jurisdiction to grant the stay of execution. I shall therefore not consider jurisdiction of Court to grant a stay of execution as an issue.

#### **Issue 2. Whether this is a proper case for grant of stay of execution.**

#### **Submissions for the Applicant.**

Counsel relied on the authority of *Hon. Theodore Ssekikubo and others versus the Attorney General and others, Constitutional Application No.3 of 2014,* to establish the requirements to

be fulfilled for Court to grant a stay of execution which are;

- 1. The Applicant must show that they lodged a notice of appeal. - 2. Substantial loss will occur if stay of execution is not granted. - 3. The Application was made without unreasonable delay. - 4. The Applicant has given security for due performance for the decree.

### He further submitted that the list was expanded in *Kyambogo University versus Prof. Isaiah Omolo CA. No.341 of 2013, to include;*

- 1. There is serious or eminent threat of execution. - 2. The Appeal is not frivolous and has a high likelihood of success. - 3. The refusal to grant stay will inflict more hardship.

Counsel submitted that an appeal was duly filed and it is not frivolous. It was then submitted that the appeal among others, seeks to address an issue of whether sharia law applies to succession and this shall have a bearing on jurisprudence.

On substantial loss, it was submitted that the Respondents had already divided the land into plots and they planned on alienating the same which would deprive the Applicant of the land which is an inheritance from his late father.

On unreasonable delay, it was submitted that the Applicant filed an application for stay earlier but the same was never determined even upon multiple follow ups until it was rendered nugatory by proceeding events however, the Applicant filed this fresh application as soon as the appeal was filed.

On the requirement to furnish security, it was submitted that the requirement is not mandatory. Counsel submitted that the Applicant is a senior citizen and the subject matter of the suit is immovable property. Counsel invited Court to waive the requirement for security.

Counsel then submitted that the Applicant has been in occupation of the land and an eviction would cause hardship to the Applicant and yet the land is still being litigated over.

#### **Submissions for the Respondent**.

The Respondent reiterated the requirements to be satisfied in order for Court to grant a stay of execution.

It was submitted for the Respondent that the Applicant shall not suffer any substantial loss because he has not been in occupation of the land and that the land has never belonged to the Applicant. It was further submitted that it is the 2nd Respondent that stands to lose if the stay of execution is granted because two Courts have already found him to be the rightful owner and that he has already been locked out of use of the land for at least 10 years.

It was then submitted that the Applicant does not occupy the land and neither will he be deprived of any livelihood if the land is alienated.

On security, it was submitted that the requirement to furnish security is mandatory and not discretionary.

### **Determination of the Application.**

As rightly cited by both parties, the case of *Hon. Theodore Ssekikubo and others versus Attorney General and others, SCCA. No.3 of 2014* establishes the prerequisites to warrant a grant of stay of execution which are;

1. The Applicant must show that they lodged a notice of Appeal.

2. The Applicant must show that substantial loss may result if stay of execution is not granted.

3. That the Application for stay has been brought without unreasonable delay.

4. That the Applicant has given security for the due performance of the decree or order.

As rightly submitted by Counsel for the Applicants, the case of *Kyambogo university versus Prof. Isaiah Omollo Ndiege, COAMA. No. 341 of 2013* adds to the considerations in Hon. Theodore Ssekikubo and others versus AG and others (supra) and these other considerations are ;

1. Eminent threat of execution.

2. The appeal not being frivolous and having a high likelihood of success.

3. Infliction of more hardship in the stay is not granted.

It is my observation that the Respondent admitted to having commenced the execution process. It also my observation that there is a notice to show cause why execution should not issue on Court record.

On record is also a notice of appeal and memorandum of appeal.

It is therefore my finding that the requirement for notice of appeal and eminent threat of execution is settled.

### **Application brought without unreasonable delay.**

The judgement of this Court vide HCCA. No.78 of 2017 was delivered on 5th April 2019. The notice of Appeal was filed on 9th April 2019. On Court record is also an application for stay of execution in HCMA. No.58 of 2019 but the record does not show that it was ever determined. Also according to the record of Court, the Respondents' bill of costs was filed on 10th June 2022. The notice to show cause why execution should not issue was issued by the Learned

Deputy Registrar on 22nd August 2022 while this Application was filed on 10th August 2022 before the notice to show cause.

It is my observation that based on the sequence of events, this Application was brought before the notice to show cause was issued but after the bill of costs was filed. The preceding


observation together with the fact that there is already an earlier application for stay for execution which was never determined, supports the fact that the Applicant was vigilant in bringing the applications for stay of execution pending his appeal to the Court of Appeal. As a result, I find that this Application was brought in a timely manner.

#### **Substantial loss.**

In *Tropical Commodities Suppliers Ltd and 2 Others versus International Credit Bank Ltd (In Liquidation), Misc. Application No. 379 of 2003*, the concept of substantial loss for purposes of stay of execution was held to mean, loss not determined by any mathematical formula whose computation yields any particular amount however, the loss must be actual loss, whether great or small, as opposed to nominal damages.

In *Kaganda George William versus Balinda and others, HCMA. No.46 0f 2021***,** Court considered dispossession of land and subsequent eviction from land in execution pending an appeal and it held that deprivation of land amounts to substantial loss.

The substantial loss raised by the Applicant is that he inheried the property in dispute from his late father Haji Amiisi Ddungu and stands to lose his inheritance if execution of the orders of court is not stayed. He indicated in paragraph 5 of his affidavit in support of the application that at the time he filed Civil Suit No.89 of 20145, the Respondents had forcefully entered and delineated the suit land into plots with the intention to sell and were only restrained by the injunction of court. That unless execution is stayed, the Respondents will sale off the properties and the Applicant will suffer substantial loss.

Counsel for the second respondent rebutted this argument and submitted that the Applicant has failed to prove to this court that he may suffer irreparable loss.

It is my observation that the Applicant has not adduced sufficient evidence to prove that he is currently in possession of the land or that he derives sustenance from the land. In this Application, while the Applicant asserts to be in possession, the Respondent also asserts that the Applicant is not in possession. In fact, the 2nd Respondent asserts in paragraph 10 of his affidavit in reply that "the Applicant shall not suffer any irreparable loss as he never provided any viable consideration for the suit property and has never used, possessed or made attempts to add value to the land. However as a second respondent, I rightfully purchased from the first defendant, furnished consideration and took possession immediately and I see no basis for his eventual loss." The Applicant was duty bound to furnish further evidence to prove the fact that he is in possession. A rejoinder was available to the Applicant but he did not consider the same.


In most applications of this nature involving land, one of the parties always concedes to the opposite party being in occupation of the disputed land but it is not the case in this Application. In this Application, the issue of possession is in dispute. It was therefore important for the Applicant to prove occupation beyond simply stating in their affidavit that he is in occupation. I therefore find that the Applicant has failed to prove substantial loss due to failure to prove occupation or derivation of livelihood from the land. An affidavit in rejoinder by the applicant would have clarified these issues but none was filed.

Without delving into the other requirements that is; furnishing of security or that the appeal is not frivolous, I find that the Application fails on the test of proof of substantial loss.

This Application therefore fails and is hereby dismissed. Each party shall bear its own costs.

I so order

Dated and delivered electronically this 31st day of May 2023.


### **VICTORIA NAKINTU NKWANGA KATAMBA JUDGE**