[2021] UGSC 53

### THE REPUBLIC OF UGANDA

## IN THE SUPREME COURT OF UGANDA AT KAMPALA

CORAM: ARACH-AMOKO, JSC (SINGLE JUSTICE)

## **CIVIL APPLICATION NO. 14 OF 2021**

(Arising from Civil Application No.13 of 2021)

(Arising from Civil Reference No.69 of 2020, Civil Application 10 No.85 of 2012, Misc. Application No.131 of 2011, Civil Application No.156 of 2009 And Civil Appeal No. 16 of 2009)

#### **BETWEEN**

REMEGIO OBWANA :::::::::::::::::::::::::::::::::::

$5$

AND

THE REGISTERED TRUSTEES OF TORORO DIOCESE:::RESPONDENT

(An application for interim stay of execution of a decree passed against the applicant in HCCS No.2 of 1994 pending the disposal of a substantive application for stay of execution in Civil Application No.13 of 2021)

#### RULING OF M. S. ARACH-AMOKO, JSC

The applicant instituted this application by Notice of Motion seeking for orders:

- a) staying execution of a decree passed against the Applicant vide HCCS.2/94 pending the disposal of an interparty application for stay of execution vide Civil Application No.13/ 2021 pending before this Honourable Court. - b) That costs of and incidental to this application abide the result of the substantive application, aforesaid.

It was brought under the provisions of **Rules 2(2), 6 (2) (b), 41(2)** $\mathsf{S}$ and 42(1) (2) of the Judicature (Supreme Court) Rules,

# Grounds of the application

The application is based on the grounds that:

- i) The Applicant has filed a substantive application for stay of execution of a decree passed in HCCS No. 2/1994 pending appeal comprised in Civil Application No.13 /2021 before this Honorable Court. - ii) The Applicant lodged a notice of appeal against a decision of the Court of Appeal made vide Civil Application No. 156/2009 pending a grant of leave to appeal by Court. - iii) The Applicant, pursuant to the aforesaid, unsuccessfully moved the Court of Appeal for grant of an order for stay of execution pending appeal of the decree aforesaid vide Civil Application No. 85/2012 and in Civil Reference No. $69/2020.$ - iv) Subject to the aforesaid, the Applicant continues to under real prospects of an imminent threat of execution of a warrant for giving vacant possession of the suit land issued in HCCS 2/1994 by the High Court with an indeterminate period of expiry, besides a warrant of arrest captioned as "a warrant of attachment and sale of movable property likely to be renewed.


- $\rm v)$ Unless the orders sought by the Applicant in the $\mathsf{S}$ Application are granted by this Honorable Court, the Respondent is likely to threaten execution of the decree passed in her favor in HCCS 2/1994, and thereby render nugatory the appeal to this Honorable Court, and the substantive application for stay of execution pending 10 appeal as well. - vi)It is just and proper that the orders sought by the Applicant before this Honorable Court ought to be granted so as to preserve the status quo. - vii)This application has been brought without undue delay 15 following a dismissal of Civil Reference No. 69/2020 seeking an application for an order for stay of execution pending appeal by the Court of Appeal, as aforesaid.

viii)The intended appeal has a higher like hood of succeeding on merit.

The application is supported by an affidavit sworn by the Applicant, Remegio Obwana on 20^th April, 2021. It was opposed by an affidavit in reply sworn on behalf of the Respondent by Fr. Centurio Olaboro, its Executive Secretary Land Board on the 6^th September, 2021.

### **Background**

From the scanty record availed to Court, the background to this application is as follows:

$\overline{3}$

The Respondent and the applicant have had a protracted land $5$ dispute for approximately twenty seven years over land situated in Apokor Kwapa, Tororo District.

In 1994, the respondent filed Civil Suit No.2 of 1994 at the High Court in Mbale against the applicant seeking a declaration that the disputed suit land comprising of a church and school situate in 10 Apokori, Kwapa was not part of the subject matter or affected by the decisions in Mukuju Civil Suit No.110 of 1975 and Tororo Civil Appeal No. 100 of 1983. That suit was heard interparty and judgment was entered in favour of the respondent on 2^nd June, 2008 wherein the applicant was ordered to give vacant possession 15

of the suit land to the respondent. Dissatisfied, on 20^th March, 2009 the applicant appealed to the

Court of Appeal against the decision of the High Court vide Civil Appeal No.16 of 2009.

On 20^th October, 2009, the respondent filed Civil Application No. 20 156 of 2009 at the Court of Appeal to strike out the applicant's appeal challenging among others, the applicant's memorandum of appeal as well as non compliance with the law under section 68 of the Civil Procedure Act. On 14^th June, 2011 the Court of Appeal struck out Civil Appeal No.16 of 2009 with costs to the respondent. 25

On 23^rd June, 2011, the applicant lodged a Notice of Appeal and further filed Miscellaneous Application No.131 of 2011 in the Court of Appeal where he sought leave to appeal to this Court against the

$\overline{4}$

decision of Court of Appeal in Civil Application No.156 of 2009. The $\mathsf{S}$ said application is still pending in the Court of Appeal.

On 17^th April, 2012 the respondent obtained two warrants of execution from the High Court in Mbale against the applicant for vacant possession of the suit land and a warrant of attachment of movable property in execution of a decree for Ushs. $8,638,500/=$ , being the taxed costs.

This prompted the applicant on 3^rd May 2012 to file two applications at the Court of Appeal namely, Miscellaneous Application No.86 of 2012 for an Interim Order for a stay of execution and Civil Application No.85 of 2012 for a substantive stay of execution pending appeal.

On 11^th May, 2012, the Assistant Registrar of the Court of Appeal granted an interim order for stay to the applicant for a period of 7 days. Upon expiry of the 7 days, the order was extended to 23^rd May, 2012 when the application was heard inter parties and the interim order was then extended for 4 months. When the 4 months elapsed on 24^th October, 2012, the interim order was further extended pending the hearing and determination of the substantive application for stay of execution which was not fixed for hearing until April 2018.

On 1^st June, 2020, the Court of Appeal dismissed the applicant's substantive application for stay of execution. On 5^th June, 2020, the applicant being dissatisfied with the Ruling in Civil Application

$\mathsf{S}$

No.85 of 2012 filed a Reference vide Civil Reference No.69 of 2020. $5$ The Reference was heard by three Justices of the Court of Appeal and in their Ruling that was delivered on 18th March, 2021, it dismissed the same.

Upon the dismissal of the Reference, the applicant proceeded to file Civil Application No. 13 of 2021 in this Court for a substantive stay 10 of execution together with this instant interim application.

### Representation

At the hearing of this application, the applicant was represented by Mr. Peter John Nagemi while Mr. Deogratus Obedo appeared for the respondent.

## Submissions for the applicant

Counsel submitted that this application was for an interim order for stay of execution of a decree made by the High Court at Mbale against the applicant in Civil Suit No.2/1994, pending the disposal of a substantive application for stay of execution filed and pending in this Court under Civil Application No. 13/2021.

Counsel submitted that this Court has inherent power to make such orders as may be necessary for achieving the end of justice or to prevent abuse of the process of court under Rule 2(2) of the Rules of Court.

Counsel submitted that failure by this Court to grant this application would render the applicant's intended appeal nugatory.

$6$

- Counsel relied on the case of Attorney General vs Hon. Michael $5$ Kabaziguruka, Supreme Court Constitutional Application No. 5/2021, and outlined the conditions which this Court has to consider before the grant of an application for stay, namely: - 1. The Applicant has to establish that the appeal has a likelihood of success or has a prima facie case. - 2. The Applicant has to establish that he/she will suffer irreparable injury or damage or that the appeal will be rendered nugatory if the stay is not granted. - 3. If (1) and (2) have not been established, Court must consider where the balance of convenience lies. - 4. The Applicant has to establish that the Application was instituted without undue delay. - 5. The Applicant has to establish that the Notice of Appeal has been filed. - Counsel contended that the applicant's intended appeal had not 20 been filed before this Court as the Applicant does not have an automatic right of appeal against a decision passed by the Court of Appeal in an interlocutory application. He submitted that the Court of Appeal was to deliver its decision on a pending application filed - by the Applicant under Miscellaneous Application No. 131/2011 for 25 leave to appeal.

- Counsel contended that the applicant had attached a provisional $\mathsf{S}$ Memorandum of Appeal to demonstrate to this Court the likely grounds of appeal to be preferred against the decision of the Court of Appeal that struck out Civil Appeal No. 16/2009. He added that in the event of a grant of leave to appeal by the Court of Appeal, or - refusal, the applicant would seek for the same in this Court as is 10 dictated by the Rules of this Court.

Counsel submitted that in the said grounds of appeal, the applicant had a higher likelihood of succeeding and had a prima facie case.

Counsel submitted that the applicant was likely to suffer irreparable injury or damage or that the appeal will be rendered 15 nugatory if the stay is not granted.

He added that the Respondent was intending to fraudulently dispose of the Applicant's 24 acres of his entire customary land as stated in a warrant for giving vacant possession. He averred that the land in dispute was hardly measuring 6-8 acres.

Counsel cited the cases of Francis Mansio Micah vs Nuwa Walakira [1992-93] HCB 88, G. Afaro vs Uganda Breweries Ltd, Civil Application No. 12/2008 to support his submissions.

Counsel contended that following the striking out of Civil Appeal No. 16/2009 by the Court of Appeal, the Respondent hastily 25 proceed to obtain a warrant for giving vacant possession, and a warrant for arrest against the applicant. He added that in 2018, the Respondent applied and obtained a notice to show cause why

execution should not issue notwithstanding the subsistence of valid $\mathsf{S}$ interim order for stay of execution lawfully issued by the Court of Appeal.

Counsel submitted that the applicant was living in a cloud of fear of imminent execution of a warrant for giving vacant possession of the suit land with an indeterminate period of expiry. He added that a warrant of arrest vaguely captioned as a warrant for attachment and sale of movable property was likely to be renewed given that his application for an order for stay of execution of the High Court decree pending appeal was dismissed by the Court of Appeal.

Counsel submitted that it was just and proper that the orders 15 sought to be granted to preserve the status quo.

Counsel further submitted that the balance of convenience lies with the Applicant as he was in possession, ownership, and occupation of Land measuring 24 acres from which he was willing to furnish a substantial part to the Respondent as security for the due 20 performance of a decree as may ultimately be binding upon him inclusive of a disputed 6-8 acres of land

Counsel also submitted that this application was filled in this Court without undue delay on the 23^rd April, 2021, a month apart following a dismissal of Civil Reference No. 69/2020 where the 25 applicant was seeking an order for stay of execution pending appeal by the Court of Appeal, on 18^th March 2021.

Lastly, Counsel submitted that the Applicant filed a Notice of $\mathsf{S}$ Appeal which was attached to the application as annexture: "C". He cited the case of Horizon Coaches Ltd vs Pan African Insurance Ltd, Civil Application No. 20/2002 and Stanbic Bank Uganda Ltd vs Atabya Agencies Ltd, Civil Application No. 31/2004 (SC) where it stated that "where a Notice of Appeal, or an application $10$ or indeed an appeal is pending before the Supreme Court, it is right and proper that an interim order for stay of execution either in the High Court or any court, be granted in the interest of justice and to prevent the proceedings and any order therefrom of this court being rendered nugatory" 15

Counsel therefore invited Court to grant the orders sought.

## Submissions for the respondent

Counsel for the respondent opposed the application, he stated that the Respondent in 2012, as a successful party applied for execution of the High Court decree, which execution was halted by the Court 20 of Appeal vide an interim order for stay of execution. He added that the applicant continued to use the land until the Court of Appeal dismissed the substantive application for stay of execution. He further argued that the Respondent has not taken out any application for execution and there is no pending threat of 25 execution existing.

According to counsel, the requirements for the grant of an interim order of stay of execution were cited in the case of Hwan Sung

Industries Ltd Verses Tadjin, Rinbow Foods Ltd and Nizar $\overline{5}$ Hussein SCCA NO. 19 of 2008, where court held that there must be a substantive Application pending, secondly there is a serious threat of execution before the hearing of the substantive application. Thirdly, it is not necessary to pre-empt consideration of matters in deciding whether or not to grant the Substantive 10 Application for Stay of Execution.

Counsel further cited the case of E, B Nyakana & Sons Ltd Verses Beatrice Kobusingye & 16 Others SCCA NO. 13 of 2017, where it was held that the Applicant must demonstrate to the satisfaction of the court that a Notice of Appeal has been lodged in accordance with the Rules, secondly the Applicant must show that there is a substantive Application for stay pending, thirdly that there is a serious threat of execution before the substantive Application, fourthly that the Application has been filed without undue delay.

Counsel contended that the Applicant in his submissions had 20 conceded that an appeal has not been filed before this court. He submitted that as such the Applicant did not have an automatic right of Appeal against the decision passed by the Court of Appeal in an interlocutory Application. He further contended that the Court of Appeal was to deliver its decision on a pending Application filed 25 under Miscellaneous Application No. 131 of 2012 for leave to Appeal.

## Counsel cited the case of **Uganda National Examination Board** Verses Mparo General Contractors Limited Supreme Court Civil

Application NO. 19 of 2004, where it was held that according to $5$ this provision there is an automatic right of Appeal from the Court of Appeal to this court in Civil matters decided by the High Court in exercise of its original jurisdiction provided the Court of Appeal has considered on merit the Appeal to court from a decision of the High Court in exercise of its original jurisdiction. 10

Counsel relied on the case of China Henan International Cooperation Group Co. Ltd Verses Justus Kyabahwa Civil Application NO. 030 of 2021, where the Court held that when the Notice of Appeal is incompetent, the substantive Application for stay has no leg to stand on since the Notice of Appeal is incompetent.

Counsel submitted that basing on the above decisions mentioned the applicant's substantive Application has no leg because there is no valid Notice of Appeal on record and as such he prayed that this Application be disallowed.

On the issue of serious threat of execution, counsel submitted that 20 there was no attempt of execution and nothing has happened since 2012 after stay of execution was obtained in the lower court. He added that in 2018, there was a notice to show cause but since then no effort has been made to take out execution proceedings by the Respondent. 25

Counsel invited Court to dismiss this application with costs.

Submissions of the applicant in rejoinder

Counsel contended that he was in agreement with the decisions of $5$ this Court in Hwang Sung vs Tadjin & Anor and Nyakana & Sons vs Beatreice Kobusingye & 16 Others, cited and relied on by the Respondent. He added that the said authorities restate the law for a grant of an interim order of stay of execution. He further argued that the applicant had to demonstrate that he filed a substantive 10 application for stay of execution, lodged of a Notice of Appeal in accordance with the Rules, there is a serious threat of execution before the substantive application and lastly, that the application has been filed without undue delay. He contended that the applicant had well-articulated/argued them in his 15 earlier submission.

On the case of **Uganda National Examination Board vs Mparo** General Contractors cited and relied on by the Respondent, counsel contended that the case clarified the law and procedure where an appeal can be filed as of right and when an appeal can 20 only be filed upon a grant of leave either by the Court of Appeal or this Court. He added that the applicant was to file an appeal to this Court as such no leave had been granted by the Court of Appeal. That the applicant was waiting for a said ruling from the Court of Appeal. 25

Counsel further explained that the Applicant filed an application for leave to appeal against a decision of the Court of Appeal passed in an interlocutory application under Civil Application No. 156/2009,

and the ruling on that Application is yet to be delivered by the $\mathsf{S}$ Court of Appeal.

Counsel submitted that the case of **China Henan International vs Kyabahwa** cited and relied on by the respondent was distinguished from the peculiar facts obtaining in the instant case. He contended that in that case there was no application for leave to appeal filed before any court at the material time a Notice of Appeal was lodged, which is unlike the present case.

Counsel cited the case of Bitamisi Namuddu vs Rwabuganda **Godfrey, Civil Application No. 4/2015**, where it was stated that: 15 In conclusion, we note that the issues of land justice are pertinent in our society. It is therefore important that we allow the applicant to lodge her intended third appeal to enable us to determine whether there was any judicial error owing to procedural irregularities or otherwise and the consequences thereof, not only on the parties to the proceedings in the lower courts but also to 3^rd 20 parties that had subsequently derived interests in the suit land.

Counsel contended that the Applicant in Bitamisi case was granted leave by this court to file a third appeal. He added that in the current case the applicant is seeking to file a second Appeal and that the costs are to abide by the determination of the appeal.

He submitted that this Court had concurrent powers to grant a stay of execution of the decree pending appeal since the Court of Appeal has taken long to pronounce itself on the application for leave. ## Consideration of the merits of the Application $5$

I have perused the pleadings of the parties, their authorities as well as the submissions by both learned counsel.

I wish to note that this is an application pending an appeal against an interlocutory order. It seeks the exercise of this Court's discretion in the absence of an appeal pending before this Court.

The principles governing the grant of stay of execution are based on Rule 6(2)(b) of the Judicature (Supreme Court Rules) Directions which provides as follows:

"Subject to sub rule (1) of this rule, the institution of an appeal shall not operate to suspend any sentence or stay execution, but the court may-

(a)....................................

(b) in any civil proceedings, where a notice of appeal has been lodged in accordance with rule 72 of these Rules, order a stay of execution, an injunction or stay of proceedings as the court may consider just."

Similarly, the power of this Court under Rule 2(2) in dealing with such applications is well settled. Rule 2(2) empowers Court to issue interim orders to achieve the ends of justice.

25 It is a settled principle that an interim order should only be granted subject to the well settled conditions and for a short time until a named day or further order of the court pending determination of

the main application. The purpose of an interim order is to help $\mathsf{S}$ parties preserve the status quo until the main issues are determined by the full bench.

This Court has stated and applied Rule 2(2) in several cases, among them is the case of China Henan International Cooperation Group Co. Ltd v Justus kyabahwa No.30 of 2021 which followed Hon. Theodore Ssekikubo and 3 Others vs The Attorney and Others Constitutional Application No.4 of 2014, where it stated as follows:

"Rule 2(2) of the Judicature Supreme Court Rules gives this Court very wide discretion to make such orders as 15 may be necessary to achieve the ends of justice. One of the ends of justice is to preserve the right of appeal.

Court went further to state the considerations for the grant of an interim stay that;

$...$

The consideration for the grant of an interim order of stay of execution or interim injunction is whether there is a substantive application pending and whether there is a serious threat of execution before the hearing of the substantive application. Needless to say, there must be a Notice of Appeal."

This criteria was enunciated in the case of **Hwang Sung Industries** Ltd vs Tajdin Hussein and others SCCA No.19 of 2008, and re-

echoed in the case of Zubeda Mohamed & Anor vs. Laila Wallia & $5$ Anor, Civil Reference No.07 of 2016 where it summarised the conditions as follows:

> "In summary, there are three conditions that an applicant must satisfy to justify the grant of an interim order:

1. A Competent Notice of Appeal:

2. A substantive application; and

## 3. A serious threat of execution."

Following the above criteria, the issue for determination is whether the applicant has satisfied the above conditions to warrant the 15 grant.

Regarding the Notice of Appeal, this court has repeatedly stated for example in the case of Zubeda Mohamed & Anor vs. Laila Wallia **& Anor**(supra) that:

- "in order to base an application for an interim stay, it is 20 needless to say that the underlying Notice of Appeal must be a valid one; otherwise the substantive application on which the interim order is based would have no leg to stand on." - The issue therefore is whether this Notice of Appeal is based on a 25 valid appeal. The applicant stated in the second ground of the Notice of Motion that: "The Applicant lodged a notice of appeal

against a decision of the Court of Appeal made vide Civil Application $5$ *No.* 156/2009 pending a grant of leave to appeal by Court."

The said Notice of Appeal dated 20^th June, 2011 was attached to his affidavit as annexure "C". A perusal of the Notice of Appeal clearly indicates that the intended appeal is based on an interlocutory order of the Court of Appeal in Civil Application No. 156/2009 which struck out the applicant's appeal of Civil Appeal No. $16/2009.$

It is trite that the right of appeal from the Court of Appeal to this Court is provided for under **Section 6(1) of the Judicature Act** which provides as follows: 15

> 'An appeal shall lie to the Supreme Court where the Court of Appeal confirms, varies, or reverses a judgment or order including an interlocutory order, given by the High Court in exercise of its original jurisdiction and either confirmed, varied or reversed by the Court of Appeal'

In Dr. Kasirivu Atwooki and Others vs. Grace Bamurangye Bororoza and others, SC Civil Application No. 02 of 2010 this Court re-stated its opinion in **Uganda National Examinations** Board v Mpora General Contractors (Civil Application No.19 of 2004 and Beatrice Kobusingye vs. Fiona Nyakana & Another **SC Civil Appeal No. 5 of 2004** as follows:

> 'As we recently stated in the UNEB case....there is no right of appeal to this Court originating from

> > 18

interlocutory orders of the Court of Appeal which orders are incidental to the appeal but not resulting from the final determination of the appeal itself.

This Court has further stated in Lukwago Erias v KCCA, Civil Application No.06 of 2014(SC) that:

'The right of appeal is a creature of statute. There is 10 nothing known in law as an inherent right of appeal. The legal foundation for application for stay of execution pending appeal is the right of appeal to the proper court and the fact that a Notice of Appeal has been filed in that court. Where a Notice of Appeal has been filed but 15 the right of appeal does not exist, the Notice of Appeal is incompetent and cannot form the basis for an application for stay of execution pending appeal, as there is no pending appeal.

$\cdots\cdots$

$5$

Rule 2(2) of the Rules of this Court providing for inherent powers of this Court to make such orders for achieving the ends of justice cannot be applied to override the clear provisions of the Judicature Act, which is the parent and superior law.'

From the record of events, in essence, this application arises from Civil Application No.69 of 2020, Civil Application No.85 of 2012, and Civil Application No.156 of 2009 which are all interlocutory

- applications. Since the intended appeal is from an interlocutory $5$ order of the Court of Appeal, there is no right of appeal to this Court. In the absence of a judgment of the Court of Appeal, the intended appeal to this Court exists in a vacuum and therefore the Notice of appeal upon which this Court can exercise its discretion to grant the interim stay is incompetent as it is not filed in accordance 10 - This criteria alone would dispose of this application since there is no appeal in this Court on which this application can be based.

with Rule 72 of the Rules of this Court.

- Nonetheless, regarding the issue of threat of execution, I note that the applicant sprung up in action and filed an application for stay 15 of execution in the Court of Appeal only after the respondent had obtained two warrants of execution against him in April 2012, the appeal having been struck out in June 2011. - I further note that since June 2020, when the applicant's substantive application was dismissed, no execution has taken 20 place to date. The respondent further averred under paragraph 16 in his affidavit that since 2018 there have been no attempts to evict the applicant and no applications for execution have been filed. This was not rebutted by the applicant. - The respondent further relied on the circular by the Chief Justice 25 dated 3^rd August, 2021 which prohibited evictions, arrests and detention of Judgment debtors. In my view therefore, the applicant

has not demonstrated that there is a serious threat of execution to $5$ warrant the grant of the order sought.

In the premises and for the foregoing reasons, since there is no appeal in this Court, there is no basis for the exercise of my discretion to grant this application. I accordingly, dismiss it with costs to the respondent.

Dated at Kampala this ....................................

HON. JUSTICE ARACH-AMOKO **JUSTICE OF THE SUPREME COURT** Kulmp delivered in the presence of<br>Consel for both parties and a represent. we is the represent one Moore heavy Afred Champerson land Roard of the Reportent). Assist. Repustion 23/11/2021 $21$

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