[2025] UGHC 115

# THE REPUBULIC OF UGANDA

# IN THE HIGH COURT OF UGANDA HOLDEN AT MBALE

**MISCELLANEOUS. APPLICATION NO. 278 OF 2024**

(Arising from Mbale Civil Appeal No. 09 Of 2021)

(Arising from Pallisa Civil Suit No. 010 of 2017)

1. OKALANG REGINA

2. IMAYET LAWRENCE :::::::::::::::::::::::::::::::::::

#### **VERSUS**

### 1. PHILIP AURUGAI

**<u>....................................**</u> 2. PETER OKIRIA :::::::::::::::::::::::

# **BEFORE: HON. JUSTICE LUBEGA FAROUQ**

### **RULING**

## 1. Introduction

- 2. This application was brought under section 98 of the Civil Procedure Act Cap 282 for orders that stay of execution doth issue restraining the Respondents or any of their agents from executing orders emanating from judgment and decree in Civil Suit No.010 of 2017 and Civil Appeal No.09 of 2021 and costs. - 3. The grounds on which this application was premised are contained in the supporting affidavit and the affidavit in rejoinder sworn by the 2^nd Applicant, but briefly are that-

$\mathbf{1}$

a. The 2^nd Applicant is a beneficiary to the estate of the late Jude Okalang to which the suit land forms part and, filed Civil Suit No. 10 of 2017

together with his mother, the 1^st Applicant against the Respondents for trespass;

- b. The suit land is approximately half an acre and comprises of mvule tree, a cassia trees, among other trees and at all material time, the 2^nd Applicant and his family have used the suit land for cultivation without any disturbance from anyone until the year 2017, when court issued a temporary injunction against them and they stopped cultivation but the trees remained thereon; - c. Civil Suit No.10 of 2017 was decided against them, the reason they filed Civil Appeal No.09 of 2021 which was dismissed; - d. Being dissatisfied with the judgment and orders in Civil Appeal No. 09 of 2021, they applied for a record of proceedings and also filed a notice of appeal; - e. The judgment and orders in Civil Appeal No. 09 of 2021 are contrary to the law and their intended appeal has merit with very high chances of success and stands to be rendered nugatory if the application for stay of execution is not granted; - f. After the court's decision, the Respondents have severally brought lumberjacks and forest officers to inspect the trees on the suit land with sole aim of cutting down the Muvule tree and acacia trees; - g. The trees on the suit land take a long time to grow and for generations, they have been shades to their family ancestral shrines and they hold very high sentimental values to them and if they are cut, it would mean destroying their family heritage and they stand to suffer irreparable injury that cannot be atoned in damages; - h. Apart from the attempts being made to cut down the trees, the Respondents have also brought several people on the suit land for

$\overline{2}$

inspection with a view of selling the same to third parties which will render the intended appeal nugatory;

- i. If execution is allowed to continue, then the intended appeal would be rendered nugatory and the 2^nd Applicant and his entire family would suffer loss and inconvenience which is not capable of being atoned by way of damages; - j. One of our grounds of appeal in this court was that the trial chief magistrate erred in law and fact when she failed to properly record locus in quo proceedings and failed to draw a proper locus sketch leaving out key features pointed out by them; - k. Indeed, the learned judge on appeal having found the chief magistrate's proceedings to be improper ordered for a locus visit which he conducted on $23^rd$ April 2024; - 1. The locus proceedings conducted by the judge on appeal were in all material aspects different from those conducted by the trial chief magistrate; - m. Shockingly the judge on appeal relied on the locus proceedings of the chief magistrate which he had already cast doubt upon and negated his own locus findings without giving any reason; - n. It was very erroneous of the judge to negate his locus proceedings and relying on the defective locus proceedings of the chief magistrate without any reason which gives their intended appeal a very high likelihood of success. - 4. The Respondents opposed this application through an affidavit in reply sworn by the $1^{st}$ Respondent which has been considered in the determination of this application and briefly states that-


- a. He swears on his behalf and also with authority to swear on behalf of the $2^nd$ Respondent; - b. The Applicants were declared trespassers onto the land of the Respondents; - c. Apparently the Respondents are in possession and that it is the Applicants who have continued to cut down the trees which are on their land; - d. There is no threat to execute against the Applicants and the intended appeal has no chances of success as the Applicants have already lost twice right from the court at Pallisa; - e. This application is incompetent as it is incurably defective; - f. The Applicants have not furnished any money as security for costs as the law stipulates therefore this application ought to be struck out with costs; - g. The Muvle tree belongs to the Respondents and they can do anything with it including cutting it down but for now there is no threat of cutting it down; - h. The allegations of putting the land on sale is a lie and the Respondents do not have any intentions to dispose it of as its family land which they only use for cultivation; - i. This application is incurably defective as the Applicants are two and its only one swearing the affidavit without written authority from the other; - j. There is no serious threat to execute as the Respondents are already in possession of the suit land.

# 5. Legal representation

6. Counsel Allan Ogoi on brief for Kevin Okalang represented the Applicants while counsel Wetete Ronald appeared for the Respondents.

# 7. Submissions

8. During the hearing of this application, schedules were granted to counsel to file written submissions. Both counsel complied.

## 9. Analysis of court

Before I drive into the determination of the merit of this application, I will 10. first resolve the preliminary objections raised by the Respondents.

#### 1^st preliminary objection by counsel for the Respondents 11.

- Counsel for the Respondents submitted that the 2^nd Applicant did not have 12. authority from the 1^st Applicant to swear the affidavit in support on her behalf which contravenes the law and therefore, the instant application is incompetent. - In reply, counsel for the Applicants while relying on the case of Kaawa $13.$ Steven & Anor V. Mawerere Benefansi, submitted that where facts are within the common knowledge of parties having the same interest in the litigation, an affidavit by one of them will suffice and there is no need to swear multiple affidavits over the same averments. - Counsel further stated that what is required in affidavits is the knowledge $14.$ or belief of the deponent, rather than authorization by a party to the litigation.

#### **Determination of court** 15.

Article 126 (2) (e) of the Constitution of the Republic of Uganda provides-16.

> "In adjudicating cases of both a civil and criminal nature, the courts shall, subject to the law, apply the following principles

substantive justice shall be administered without undue regard to technicalities."

ਵਾਰ । ਬੰਦਾਨ ਸਮੇਂ ਵੱਡ ਕੈਂਦਾਨ ਸਮੇਂ ਵਿੱਤ ਕੰਮ ਕੇ

The Supreme Court in Banco Arabe Espanol Vs Bank of Uganda 20 17. [1999] 2 EA 22 held-

> "The administration of justice should normally require that the substance of all disputes should be investigated and decided on their merits and that errors or lapses should not necessarily debar a litigant from the pursuit of his rights and unless a lack of adherence to rules renders the appeal process difficult and inoperative it would seem that the main purposes of litigation, namely the hearing and determination of disputes, should be fostered rather than hindered."

My brother judge, Hon. Justice Stephen Mubiru in **Namutebi Matilda Vs** 18. Ssemanda Simon and 2 Others Misc. Application No. 430 of 2021, while dealing with a like situation held-

> "Of course the Rules of procedure, like any set of rule, cannot in their very nature provide for every procedural situation that arises. Where the Rules are deficient, my view is that the Court should go so far as it can in granting orders which would help to further the *administration of justice, rather than hampering it. For those reasons* I am not persuaded to follow the principle that where there is no written authority to swear on behalf of the others, an affidavit is defective."

19. He added that-

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"...one golden thread is always to be seen; that what is required in affidavits is the knowledge or belief of the deponent, rather than *authorization by a party to the litigation.*"

My brother judge, Hon. Justice Ssekaana Musa in Grace Namulondo & 3 20. Others Vs Jone Johns Serwanga Salongo & 2 Others Misc. Cause No. 001 of 2019 held-

> "Therefore the failure by the rest of the applicants to depose affidavits and relying on the affidavit of the 1st applicant is a mere irregularity which would not defeat their application. This is premised on the fact that they are relying on the same facts and evidence. Otherwise it would have been very different if they were relying on different grounds that required different evidence to support them."

- Basing on the averments of the parties and the record of court, the 21. Respondents are aware that the $1^{st}$ Applicant is a biological mother to the $2^{nd}$ Applicant and that they claim the same interest in the suit property as beneficiaries to the estate of late Okalang Jude. - It is therefore logical that whatever the 1^st Applicant would have sworn 22. would be the same as that already sworn by the $2^{nd}$ Applicant since their claim is the same. It would be different if they had different claims/interests in the suit land. - Therefore, it would defeat justice to struck out the affidavit in support and 23. fail this application merely on the ground that the 1st Applicant did not authorize the $2^{nd}$ Applicant to swear the same because the information therein was already in knowledge of the 2^nd Applicant since they claim the same interest. - The $1^{st}$ preliminary objection is hereby overruled. 24.

#### 2^nd preliminary objection by counsel for the Respondents 25.

Counsel for the Respondents submitted that this application was brought 26. against 2^nd Respondent who is a wrong and non-existent party and therefore, the instant application is incompetent.

$\overline{7}$ - Counsel alluded that the parties to Civil Appeal No. 09 of 2021 included 27. the Applicants, the 1^st Respondent and Peter Okello and not Peter Okiria who is the $2^{nd}$ Respondent to this application. - In reply, counsel for the Applicants submitted that right from the trial 28. court, the 2^nd Respondent has never denied to be Peter Okiria, but for clarity Civil Suit No. 10 of 2017, the 2^nd Respondent was sued as Peter S/o Okiria Lodoviko and the $2^{nd}$ Respondent himself informed court that he was Peter Okiria Okello which was entered onto court record. - Counsel added that the memorandum of appeal in Civil Appeal No. 09 of 29. 2021 captions the Respondents name Peter Okiria although the judgment has Peter Okello and therefore, it does not in any way depict a wrong party as both refer to one and the same person being the 2^nd Respondent.

#### **Determination of court** 30.

From the record of court, it is clear at page 30 that the 2^nd Respondent 31. while testifying on oath stated-

### "I am OKELLO OKIRIA PETER 45 years old."

- In view of the above, it is clear that the name Peter and Okiria all belong 32. to the same person who is the 2^nd Respondent having been his own evidence in the trial court. - Further, the 2^nd Respondent was sued on appeal to this court in the same 33. names being contested in this application, as reflected in the memorandum of appeal in Civil Appeal No. 09 of 2021, but neither the 2^nd Respondent nor his counsel ever raised clarification or concern to that effect. - I am therefore convinced that the $2^{nd}$ Respondent is not a non-existent 34. party as alleged. - The $2^{nd}$ preliminary objection is hereby overruled. 35.

$\mathbf{R}$

### Analysis of court on the merit 36.

Counsel for the Applicant in his written submissions framed one issue and 37. that is-

# Whether an order for stay of execution should be granted?

- Order 43 rule 4 (3) of the Civil Procedure Rules SI.71-1 provides for the 38. grounds of stay of execution and these include - i. That substantial loss may result to the party applying for stay of execution unless the order is made; - ii. That the application has been made without any reasonable delay; - iii. That security has been given by the Applicant for the due performance of the decree or order as may ultimately be binding upon him/her. - The Supreme Court in Gashumba Maniraguha V. Sam Nkudiye Civil 39. Application No. 24 of 2015, held-

"Recently, this Court has in the application by Hon, Theodore Ssekikubo & Others vs. The Attorney General and Another, Constitutional Application No. 06 of 2013 clearly re-stated the *principles as follows: - In order for the Court to grant an application for a stay of execution;*

(1) The application must establish that his appeal has a likelihood of success; or a prima facie case of his right to appeal.

(2) It must also be established that the applicant will suffer irreparable damage or that the appeal will be rendered nuqatory if a stay is not granted.

(3) If 1 and 2 above has not been established, Court must consider where the balance of convenience lies.

(4) That the applicant must also establish that the application was instituted without delay."

This court will be guided by the principles echoed in the above authorities 40. as below-

#### Whether the applicant lodged a notice of appeal 41.

many and a fact that the

- It is trite that an appeal in the Court of Appeal is lodged by filing a notice 42. of appeal. See rule 6 (2) (b) of the Judicature (Court of Appeal) Rules SI 13-10 - The Applicants attached **annexure A1** to this application which is their 43. notice of appeal dated 7^th October 2024 which was received by the Court of Appeal on 10^th October 2024. It was served on the advocates for the Respondents on $7$ ^th October 2024.

### Whether the intended appeal is not frivolous and has a likelihood of 44. success

- The Applicants aver that the judgment and orders in Civil Appeal No. 09 45. of 2021 are contrary to the law because the locus proceedings conducted by the judge on appeal were in all material aspects different from those conducted by the trial chief magistrate but shockingly, the judge on appeal relied on the locus proceedings of the trial chief magistrate which he had already cast doubt upon and negated his own locus findings without giving any reason. - The Court of Appeal in Lubega Moses V. Nassibwa Sylivia Civil 46. Application No. 0122 of 2024 held-

## "The Court at this point is not interested in the merits of the matter."

The Court of Appeal in the same decision found that the appeal before it 47. raised issues concerning award/of general damages and breach of contract which warranted its consideration, hence found that the said appeal was not vexatious.

# The Court of Appeal in Haruna Sentongo Vs I & M Bank Ltd (formerly) 48. Orient Bank (U) Ltd Civil Application No. 113 of 2023 UGCA 153 19 held-

"an arguable appeal must not necessarily succeed, but one which ought to be argued fully before the court; one which is not frivolous."

In view of the above, am convinced that the Applicants have an arguable 49. appeal to the Court of Appeal.

### Whether substantial loss may result to the applicant if stay of 50. execution is not granted

- The Applicants aver that after the court's decision, the Respondents have 51. severally brought lumberjacks and forest officers to inspect the trees on the suit land with sole aim of cutting down the Muvule tree and acacia trees. - They further said trees take very long to grow and for generations, they 52. have shades to the Applicants' family ancestral shrines, they hold very high sentimental values to them and cutting them would mean destroying their family heritage and they stand to suffer irreparable injury that cannot be atoned in damages. - The Applicants also aver that the Respondents have also brought several 53. people on the suit land for inspection with a view of selling the same to third parties which will render the intended appeal nugatory. - In reply, the Respondents state that they are in possession and that it is 54. the Applicants who have continued to cut down the trees which are on their land and there is no threat to execute against the Applicants and the intended appeal has no chances of success as the Applicants have already lost twice right from the court at Pallisa. - The Respondents further said that the Muvule trees belongs to them and 55. they can do anything with it including cutting it down but for now there is no threat of cutting it down and that the allegations of putting the land on sale

$\overline{11}$

is a lie and the Respondents do not have any intentions to dispose it of as its family land which they only use for cultivation.

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- 56. It is trite that the purpose of grant of stay of execution is to help preserve the status quo and to prevent rendering the alleged appeal nugatory. (See: Lubega Moses V. Nassibwa Sylivia Court of Appeal Civil Application No. 0122 of 2024) - The term substantial loss was defined to mean loss which cannot be 57. quantified by any monetary compensation or that there is no exact mathematical formula to compute substantial loss. $(See:$ **Tropical** Commodities Supplies Ltd V. International Credit Bank Ltd (in liquidation) $(2004)$ 2 EA 331) - The Court of Appeal in Kiiza Sanyu V. Emojong John Civil Application 58. No.130 of 2024 held-

"In determining whether an Applicant shall suffer irreparable damages, the court must be satisfied that if the Applicant succeeds on appeal, he would not be adequately compensated by an award of damages for the loss he would have sustained as a result of the defendant's action."

Therefore, following the Applicants averments, they will suffer substantial 59. loss if this application is not granted.

#### Whether there is imminent threat of execution 60.

- On the court record, there is a letter dated 6^th March 2025 received from 61. counsel for the Applicants, dated the same day and copied to the Chief Magistrate of Pallisa, the Respondents and the Applicants. - In the said letter, counsel for the Applicants informed court that the 62. Respondents had sought an application for consequential orders in respect of the judgment and orders of this court in Civil Appeal No. 09 of 2021 and

$12$

ruling on the same was delivered by the Chief Magistrate of Pallisa on 24^th January 2024. The certified copy of the ruling was also attached.

- 63. A consequential order is defined as an order founded on the claim of the successful party. In other wards a consequential is one which is not merely incidental to the decision properly made, but one which is merely to give effect to that decision. (See: Henry O. Owoniyi and Others V. Amorc (NIG) (2000) - From the above definition, it is manifest that consequential orders only 64. give effect to the decision of court. - In this case, the Respondents were the successful parties both in the trial 65. court and on appeal. Having been the successful party, they sought consequential orders to give effect to the decision of the court of appeal. - Unlike a consequential order, execution is the process of realization of 66. what is contained or ordered in the court judgment and the procedure for doing so is well laid in the Civil Procedure Act and the Civil Procedure Rules. - Grant of consequential orders does not therefore bar a successful from 67. following the execution process required by the law. - However, on examination of the certified copy of the said ruling, it is clear 68. that the trial magistrate ordered among others that; eviction of the Applicants from the suit land within 14 days, a permanent and order to cut down the Muvule tree which is on the suit land. - In light of the above, I am convinced that there is imminent threat of 69. execution

**Security for costs** 70.

I have held before in the case of **Kidudu Patrick & Others Vs Sebakaki** 71. Issa & Others Miscellaneous Application No. 0087 of 2024 that security for costs is not a condition precedent to the grant of stay of execution.

- However, since the Respondents were the successful parties both in the 72. trial court and on appeal, it will serve the ends of justice if the Applicants pay security for costs. - In the circumstances, this application is granted subject to payment of 73. security for costs of Ugx: $5,000,000/$ = (Five million shillings)

I so order.

**LUBEGA FAROUQ** Ag. JUDGE

Ruling delivered via emails of the advocates of the parties this 17^th day March 2025