[2024] UGHC 507

### THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT MPIGI

## **MISCELLANEOUS APPLICATION NO. 45 OF 2023**

### (Arising out of Civil Suit No. 058 of 2021)

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AISHA NAGUJJA APPLICANT $5$

#### **VERSUS**

# 1. NATIONAL FORESTRY AUTHORITY

2. AGNES KAMAGAJU SEMANA KITINISA...................................

#### BEFORE: HIS LORDSHIP HON. JUSTICE OYUKO ANTHONY OJOK $10$

#### Ruling

#### Introduction:

The applicant brought the instant application by Notice of Motion under Section 98 of the Civil Procedure Act and Order 52 Rules 1 and 2 of the Civil Procedure Rules against the respondents seeking the following orders;

- a. Execution of the decree in H. C. C. S No. 058 of 2021 be stayed pending the. final disposal of the Applicant's appeal in the court of Appeal. - b. The taxation of the $1^{st}$ and $2^{nd}$ respondents bill of costs be stayed pending the outcome of this application. - c. Costs of this application be provided for.

The application is supported by an affidavit sworn by the applicant and the grounds briefly are as follows;

- 1. The applicant has appealed against the whole of the ruling and orders of the High Court of Uganda Holden at Mpigi before Hon. Justice Oyuko Anthony Ojok delivered on the 14^th day of November, 2022. - 2. The applicant's appeal has a high probability of success and will be rendered nugatory if this application is not granted. - 3. The applicant shall suffer substantial and irreparable loss if the order for stay of execution of the decree pending the said appeal is not granted. - 4. In the circumstances, it is just, fair and equitable that the orders sought be, granted in the interest of justice.

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The application was opposed by the respondents through an affidavit in reply sworn by the $2^{nd}$ respondent and the pertinent paragraphs are as follows;

3. That the applicant instituted a suit against National Forest Authority and me vide Civil Suit No. 058 of 2021 for a declaration that she has possessory rights over land measuring approximately 30 acres from 348 acres of land comprised in Block 46 Plots 65 and 66 land at Nazili, an order of eviction against the respondents.

4. That the suit land comprised in Block 46 Plots 65 and 66 land at Nazili is the subject of another suit vide Civil Suit No. 148 of 2017 with the same cause of action.

5. That I have been informed by lawyers M/s Kalikumutima & Co. Advocates which information I believe to be true that Civil Suit No. 058 of 2021 was dismissed on 14^th November, 2022 before Hon. Justice Oyuko Anthony Ojok because of res judicata.

6. That I have been informed by my aforementioned lawyers which information 15 I believe to be true that the filing of a notice of appeal does not stay execution. This application is therefore dilatory and aimed to prevent me from enjoying the fruits of judgment.

7. That I have further been informed by my aforementioned lawyers which information I believe to be true that this application is premature since there is no imminent threat of execution as the matter has not been taxed yet. Thus, the application has no basis in law and should be dismissed with costs.

### **Brief facts:**

The applicant filed Civil Suit No. 058 of 2021 as the Administrator of the estate of the late Njabala Amisi Kakembo, her late father, claiming that the late father was 25 an ex-service man that participated in World War I between 1914 and 1918 as well as World War II of $1939 - 1945$ . That as a token of appreciation, the Queen of England, Queen Elizabeth II allocated the Ex-service men part of Crown land in Uganda which is Block 46, Plots 65 and 66 registered in the names of Kagwa Kayizzi James, Boniface Kagubale, Natiti Ausi Meddi as joint tenants and Patrick 30 Kasujja, Bbosa Godfrey and Mbazira Dilisa as joint tenants. The applicant contended that the 1^st respondent trespassed upon the said land.

The applicant hence filed the said Civil Suit against the respondents for recovery of land, trespass and eviction orders in respect of the suit land measuring 30 Hectares comprised in Freehold register Volume HQT 481 Folio 11 situated at Naziri Mawokota Block 46 Plot 66 having illegally been evicted from the same by

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the said respondents who also destroyed her crops claiming that it is a forest reserve under the control of the 1st respondent and thereafter put the 2nd respondent in possession/occupation as its agent/licensee. The said suit was dismissed with costs in favour of the respondents for being Res Judicata in line with Civil Suit No. 148 of 2017.

The applicant appealed to the Court of Appeal contesting the decisions of the trial court, and the same is still pending disposal. In the meantime, the respondents have filed a bill of costs for purposes of executing the order arising out of the trial court's ruling to which the applicant objects, hence this application.

However, there was also Civil Suit No. 148 of 2017, Boniface Kagubale & 4 Others 10 v. National Forestry Authority previously filed in this Honourable Court, involving the same subject matter (the suit land) suing under the same title as ex-service men, substantially concluded and is currently on appeal before the court of appeal under appeal No. 142 of 2019 pending hearing.

Representation: 15

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Mr. Kayondo George appeared for the applicant while Mr. Kwesiga Joseph appeared for the 1^st respondent and the 2^nd respondent was represented by Ms. Kalikumutima & Co. Advocates. All the parties filed written submissions.

Resolution:

Counsel for the applicant raised an issue to be determined by this court as follows; 20

Whether this is a proper application for grant of an order for stay of execution?

Order 43 Rule 4 (3) of the Civil Procedure Rules provides for stay of execution as follows;

"No order for stay of execution shall be made under sub rule (1) or (2) of this rule unless the court making it is satisfied—

(a) That substantial loss may result to the party applying for stay of execution unless the order is made;

(b) That the application has been made without unreasonable delay; and

(c) that security has been given by the applicant for the due performance of the decree or order as may ultimately be binding upon him or her."

The general principle is that where an unsuccessful; party is exercising their unrestricted right to appeal, it is the duty of the court to make such order for staying of proceedings in the judgment appealed from as will prevent the appeal

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from being rendered nugatory. (See: Ejulu Martin v. Itobu Margret, H. C. M. A No. $0160$ of 2022).

The cases of Lawrence Musiitwa Kyazze v. Eunice Businge, S. C. C. A No. 18 of 1990 and Kyambogo University v. Prof. Isaiah Omolo Ndiege, C. A. C. A No. 341 of 2013 laid down the conditions for a grant of a stay of execution as;

a. A notice of appeal has been filed:

Counsel for the applicant submitted that it is not in dispute that the applicant filed a notice of appeal even though it has not yet been fixed despite several efforts.

Counsel for the $2^{nd}$ respondent did concur that indeed there is a notice of appeal filed and there is a pending appeal before the Court of appeal.

I therefore, find that this condition has been satisfied by the applicant as it is even not in dispute.

# b. The application has been made without unreasonable delay:

- Counsel for the applicant submitted that applications for stay of execution ought to be made within a reasonable time and in the instant case the order sought to be 15 executed was rendered on the 14^th November, 2022. The respondents' bill of costs was filed on the 8^th February, 2023. That the application for stay of execution was filed in court on 28^th February, 2023 but it took long to be fixed for hearing. As such the applicant has proved this condition too. - The respondents did not contest this condition. I accordingly find that this 20 condition has as well been satisfied by the applicant.

c. The appeal is not frivolous and has a likelihood of success:

It was submitted for the applicant that the appeal has a high likelihood of success because the applicant was privy to the plaintiffs in the former suit only in respect to the fact that all of them were children/grandchildren of the ex-service men $25$ therefore entitled to distinctive portions on the suit land, she was not a registered proprietor on the suit land; the basis of which the former suit was filed for recovery of land because she was not a registered proprietor, so the claim of res judicata was determined in error by the trial court.

Secondly, that the suit land in Civil Suit No. 058 of 2021 was not actually the same 30 as that in Civil Suit No. 148 of 2017 but just incidental. The trial court ought not to have determined the suit as res judicata.

Thirdly, that trespass to land is a continuous cause of action and that the respondents have to date continued to illegally occupy the suit land against the

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applicant's wish, so it is a personal grievance, not general or collective with the plaintiffs in the former suit for the trial court to determined Res Judicata.

Counsel for the 1^st respondent on the other hand urged court to find that the applicant has not proved to this court that her appeal is likely to succeed.

Counsel for the $2^{nd}$ respondent submitted that the applicant has the onus to satisfy $\mathsf{S}$ court that the prospects of the appeal succeeding are not remote but there exists a realistic chance of succeeding. That the applicant's claim in Civil Suit No. 148 of 2017 was by virtue of her being a grandchild of one of the ex-service men who were declared to be the owners of the suit land comprised in Mawokota Block 46

Plots 66 and 69 land at Nazili Mpigi District. A fact the applicant also 10 acknowledged in her civil suit. Thus, her suit was rightly dismissed and the appeal lacks merit to warrant a stay of execution.

In the case of GAPCO Uganda Ltd v. Kaweesa & Another, M. A No. 259 of 2013 [2013] UGHCLD 47, Court defined likelihood of success of a case to be one that;

# "The court is satisfied that the claim is not frivolous or vexatious and that there is a serious question to be tried."

In the instant case the subject matter had already been tried and determined by this honourable court and as such I find that the applicant has not proved to this court that her appeal has a likelihood of success with a serious question to be tried by the Court of appeal.

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# d. The appeal would be rendered nugatory:

Counsel for the applicant submitted that he intends to raise a complaint in respect of the fact that the trial court awarded costs to undeserving parties who are guilty of contempt of court orders in Civil Suit No. 148 of 2017. That in the said suit the respondents were ordered to vacate the suit land but have never done so. That the applicant would not have filed Civil Suit No. 058 of 2021 had the respondents given earlier vacant possession following the court order. As such this is an illegality as per the case of Makula International v. His Eminence Cardinal Wamala Nsubuga, [1982] H. C. B 11.

Further, that the remedies addressing these illegalities will not be available to the 30 applicant on appeal if execution of the decree in Civil Suit No. 058 of 2021 is not stayed and the appeal will be rendered nugatory in addition to the fact that the respondents were self-represented and costs are awarded to advocates.

Counsel for the $2^{nd}$ respondent on the other hand submitted that the applicant's Civil Suit No. 58 of 2021 was only dismissed with costs to the respondents without any further orders. That to date the respondents' costs have remained

undetermined to enable her execute the decree and even if the same was to be commenced, she would only be seeking payment of the costs of the suit which does not affect the core grounds of the appeal.

The applicant in this case has intimated that she intends to challenge the award of costs to the respondents and also an illegality whereof she alleged that the $\mathsf{S}$ respondents are in contempt of court orders for failure to vacate the suit land.

It is my considered view that the objections the applicant seeks to pursue on appeal can be brought before this very court through proceedings for review and an application for contempt of court as opposed to filing an appeal to the court of appeal. These contentions can ably be determined by this very court. The applicant has therefore not satisfied this court that if the instant application is not granted the appeal before the court of appeal will be rendered nugatory.

- e. There is serious or imminent threat of execution of the decree or order if the application is not granted. - Counsel submitted that there is unequivocal evidence showing that the 15 respondents have taken unconditional steps as to convey a gravity of purpose and imminent prospect of execution of the decree. And relied on the case of Formula feeds Ltd & 3 Others v. KCB Bank Ltd, Miscellaneous Application No. 1647 of 2021, where court held that; steps that demonstrate a serious expression of intent - include; extracting the decree/order, presenting and having a bill of costs taxed. 20 The respondents have extracted an order arising out of the ruling and have presented their bill of costs for taxation.

Counsel for the 1^st respondent on the other hand submitted that the applicant has not shown that there are execution proceedings. Thus, the application is premature and incompetently before court. And taxation is not execution to warrant the grant of this application.

Counsel for the $2^{nd}$ respondent submitted that whereas it was rightly submitted by the applicant that an order for stay of execution will issue only if there is actual or presently threatened execution, and even though the extraction of the decree and

- filling of the bill of costs have been regarded as expressions of intention to execute, 30 the same do not constitute an imminent threat of execution where no execution has been commenced. Counsel relied on the case of Orient Bank Limited v. Zaabwe & Others as cited in Kampala Capital City Authority v. Mulangira Joseph, Miscellaneous Application No. 26 of 2016, where it was noted that; it is not proper - to institute an order for stay of execution when there is no evidence of any 35 application for execution of the decree.

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He also relied on the case of Papada Holdings Limited & Another v. Christopher Kisembo & Another, Miscellaneous Application No. 0497 of 2021, where it was held that:

"All proceedings in execution commence with the filing of an application for execution. According to Order 22 Rule 7 of the Civil Procedure Rules, where the holder of a decree desires to execute it, he or she has to apply to the court which passed the decree or order."

Further, that in the instant case whereas the respondent duly extracted her decree and filed her bill of costs, she has not commenced the execution process of the decree. As such in the absence of the said application for execution, there is no imminent threat of execution.

I do concur with the submissions for the respondents, in the instant case there is no application for execution that has been filed before this court, nor have the respondents expressed any interest in commencing execution proceedings. Filing a bill of costs for taxation cannot be equated to execution and in this case the applicant has not proved to this court that there is an imminent threat of execution of the decree.

f. Substantial loss may result to the applicant unless the stay of execution is granted.

Counsel for the applicant submitted that since 2012 the applicant has to date been 20 deprived of her interests in the suit land where she would derive income, additionally an execution of the order against her will causing substantial loss before determination of the appeal. That the applicant has no other property save for the suit property and if this is taken possession of by the respondents she will $25$

have no other source of income. And committing her to civil prison will be of no consequence if the order is executed.

Counsel for the 1^st respondent on the other hand submitted that the 1^st respondent has been and is in possession/occupation of the suit land/property managing it as Buto-Buvuma Central Forest Reserve and has never wasted, alienated and or

disposed it. Therefore, non-grant of stay of execution cannot result in any loss to 30 the applicant. That the 1^st respondent being dissatisfied with the judgment and decree in HCCS No. 148 of 2017 appealed to the court of appeal. That the applicant has not proved that she will suffer substantial loss.

Counsel for the $2^{nd}$ respondent submitted that in the absence of an application for execution there is no execution commenced and substantial loss can only be 35 pleaded to occur during the execution process. That in this case the respondents' costs have remained undetermined to enable her execute the decree and that even

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if the same was to be commenced, she would only seek payment of the costs of the suit. Counsel added that even if execution were to be commenced the applicant would not incur any loss.

The applicant in the instant case has not proved to this court that there are any execution proceedings as already discussed above that have been initiated by the $\mathsf{S}$ respondents that would result into her suffering a substantial loss. I therefore find that the applicant has also not proved this condition to the satisfaction of this court.

g. The applicant has given security for due performance of the decree or order.

It was submitted for the applicant that applicant cannot afford security for costs due to the conduct of the respondents who have confiscated her land.

Counsel for the 1^st respondent on the other hand submitted that the applicant has not provided or demonstrated that she will give security for due performance as required by the law. As such, the application is against the law, it is frivolous and lacks merit and should be dismissed.

Counsel for the 2^nd respondent submitted that security for due performance is 15 mandatory and in the instant case the applicant's failure to show her willingness to pay the same on allegations of being impecunious, that it is only just that this court finds in favour of the respondents.

The applicant clearly indicated that she is unable to pay the security for due performance. In the case of John Baptitsa Kawanga v. Nanyabo Kevina & Another, 20 M. A No. 12 of 2017, it was held that; the decision whether to order for security for due performance must be made in consonance with the probability of success. In the instant case the applicant was unable to prove to this court that her appeal has a likelihood of success as such I will make no order as to payment of security $25$ for due performance.

h. Refusal to grant the stay would inflict more hardship than it would avoid.

Counsel for the applicant submitted that it would be wrong to order a stay of proceedings pending appeal where the appeal is frivolous or where such order would inflict greater hardship than it would avoid. (See: Erinfold Properties Ltd v. Cheshire County Council [1974] 412 ALLER 448). That the applicant has demonstrated that she stands to suffer irreparable loss if execution ensues, she has offered evidence of objective facts from which it can be deduced that in the circumstances of this case, execution will cause significant difficulty, expense or disruption, beyond that to which every judgment debtor is necessarily subjected

when he or she loses his or her case and is deprived of his or her property in 35 consequence. That if granted, the order of execution is likely to inflict greater


hardship than it would avoid. That the applicant has satisfied the essential requirements for the grant of an order of stay of execution pending appeal. As such the application should be granted with costs.

I find that the applicant has not proved any hardships that would be occasioned to her if the instant application is not granted.

The applicant has therefore not proved all the conditions that ought to be satisfied before this court for an application for stay of execution to be granted.

I accordingly find that this application was prematurely brought before this court. It lacks merit and is accordingly dismissed with costs.

I so order. $10$

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OYUKO ANTHONY OJOK

**JUDGE** 15

$4/3/2024$