[2024] UGHC 1113

### **THE REPUBLIC OF UGANDA**

## **IN THE HIGH COURT OF UGANDA HOLDEN AT KITGUM**

### **MISCELLANEOUS APPLICATION No. 016/2024**

### **(Formerly HIGH COURT GULU MISC. APPLICATION No. 041/2024)**

# 5 **(Arising from HIGH COURT GULU - CIVIL APPEAL No. 022/2014) (ARISING FROM CIVIL SUIT No. 087/2012: MAGISTRATE KITGUM) PERECI ABUR ORYEMA APPLICANT**

**Versus**

**1. EVERINA ANEK ODOTA**

10 **2. SUSAN ACEN**

**3. OKOT BENSON RESPONDENTS**

### **BEFORE HON. MR. JUSTICE PHILIP W. MWAKA.**

### **RULING.**

### **Introduction and Background.**

- 15 [1]. The Applicant seeks Orders from this Court firstly, for stay of execution of the Judgment and Orders in High Court Civil Appeal No. 022/2014 delivered on the 22nd May, 2020 pending disposal of an Appeal filed in the Court of Appeal and secondly, an Order making provision for Costs of the Application - [2]. The Motion instituting the Application was issued on the 12 th April, 2024 – 20 and was filed four (4) years after the decision of the Trial Court. - [3]. The Application is instituted by way of Notice of Motion under **Section 98 of the Civil Procedure Act, Cap. 71 (now Cap. 282)** and **Order 43 Rule 4 of the Civil Procedure Rules, SI 71 - 1.**

These citations were revised by the <u>Law Revision Act, Cap. 3 and Statutory</u> $[4]$ .

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- <u>Instrument No. 049/2024: The Law Revision (Commencement of the</u> 7^th Revised Edition) (Principal Laws) Instrument, 2024. - $[5]$ . An Affidavit supporting the Application is attached deponed by the Applicant.

### The Applicant's Case and Submissions. 30

- $[6]$ . The Applicant's grounds in the Motion are: - the Applicant Appealed the Judgment and Decree/Orders in High Court Civil Appeal No. 022/2014 to the Court of Appeal in Civil Appeal No. 062/2022 which is pending disposal; meanwhile the Respondents are engaged in cultivation on the suit land and preventing the Applicant from using the land in a bid to evict her; the foregoing will cause her irreparable loss; the Appeal has merit with chances of success; the Respondents should be restrained from executing the Decree so as not to render the Appeal nugatory; the Application was filed without undue delay; and, it is in the interests of Justice that the Application is granted with no prejudice occasioned to the Respondents. - In the supporting Affidavit, the Applicant reiterates the grounds in the $[7]$ . Motion and expounds that the Respondents are in addition to cultivating on the land also cutting down trees and destroying vegetation. - $[8]$ . The Court observes on its own Record - a Record of Appeal with Memorandum of Appeal filed in the Court of Appeal on the 1^st March, 2022 *vide* Civil Appeal No. 062/2022 and that the matter was set for Scheduling Conference on the $17^th$ November, 2022. - $[9]$ . Also attached to the Affidavit are photographs collectively marked Annexture "C" which are not Commissioned as required by the **Commissioners for** - Oaths (Advocates) Act, Cap. 6, Rule 8 of the 2^nd Schedule and whose $50$ Authorship is unclear as well being neither dated nor tagged for their geolocation. Consequently, they are inadmissible in evidence.

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- [10]. The Applicant filed Submissions on the 10th July, 2024 and citing **Section 98 of the Civil Procedure Act**, **Order 43 Rule 4(3) of the Civil Procedure** 55 **Rules** and *inter alia* **Supreme Court Civil Application No. 18/1990: Lawrence Musiitwa Kyazze Vs. Eunice Busingye** submitted that the Application has merit with – a Notice of Appeal lodged *vide* Civil Appeal No. 062/2022 in the Court of Appeal; the Respondents have taken it upon themselves to execute the Decree by cutting trees and cultivating on the suit 60 land which may result in substantial loss and, or irreparable damage not compensable in monetary terms unless stay of execution is granted and the Appeal risks being rendered nugatory - with their actions aggravating the Applicants medical conditions; the Application was instituted in April, 2024 immediately upon the Respondents cutting trees and cultivating on the suit 65 land which was without undue delay; the Applicant paid for security for costs in the High Court when lodging the Appeal in the Court of Appeal and security for performance of the Decree is at the discretion of the Court. - [11]. In conclusion, the Applicant submits that she has shown seriousness in pursuing her Appeal and prays that the Application is granted.

### 70 **The Respondents' Case and Submissions.**

- [12]. The 2 nd Respondent filed an Affidavit in Reply on the 9th July, 2024 opposing the Application in which she avers that – she was born on and has been living on the suit land todate together with her family; the Applicant has not been in occupation of the suit land – explaining that her mother the 1st Respondent 75 is since deceased; the claim in regard to their *"serious"* cultivation and the Applicant having nowhere to cultivate is false; the Applicant does not have a house or garden on the suit land with her land being across a road from them and near a Church; the Respondents have not applied for execution of the Decree of the High Court and the Bills of Costs in both the High Court and 80 Lower Court are untaxed with there being no imminent danger of execution which claim is speculative; the Appeal in her view has no chance of success. - 3 | P a g e

- [13]. The Respondents filed submissions on the 2 nd August, 2024 citing *inter alia* Court of Appeal **Civil Appeal No. 341/2013: Kyambogo University Vs. Prof. Ndiege Isaiah Omolo** and submitted that – whereas the Court has 85 inherent powers to grant reliefs under **Section 98 of the Civil Procedure Act** to meet the ends of Justice including stay of execution, the discretion should be exercised judiciously based on the circumstances of each case and they contend that the circumstances herein do not warrant grant of the Application. In respect of substantial loss, they contend that the Applicant 90 does not disclose what real loss or hardship she will suffer and the Respondents have been on the land for about five decades with homesteads and gardens - adding the existence of family graves. Even if there was cultivation, there would be no damage suffered. The Respondents highlight that the Judgment was delivered on the 22nd May, 2020 and there has been 95 delay of four (4) years in filing the Application. It is their case that there is no serious threat of execution since no application for execution has been made – moreover since the Applicant was not in possession of the land there was no need to extract eviction orders. The Applicant also has not deposited security for due performance. - 100 [14]. The Respondents conclude by submitting that the Appeal has no chances of success with the suit having been dismissed on the basis of limitation and no extension of time sought. It is their prayer that the Application is dismissed. - [15]. There are no Rejoinders filed on the Record of the Court.

### **Representation.**

- 105 [16]. Counsel, Mr. Donge Opar, represented the Applicant. The Applicant was present in Court. - [17]. Counsel, Mr. Okidi Ladwar, represented the Respondents. The 2 nd and 3rd Respondents were present in Court.

### **Proceedings of the Court.**

[18]. The proceedings of the Court were on the 10th 110 July, 2024.

### **Issues for Consideration.**

[19]. The Issue for consideration to be addressed by the Court is - **Whether the Applicant has established sufficient cause for the Court to Judiciously exercise its discretion and grant an Order for stay of execution of the** 115 **Judgment and Order in High Court Civil Appeal No. 022/2014.**

### **Considerations and Determination of the Court.**

- [20]. An Application for stay of execution must be founded on credible grounds establishing sufficient cause to enable the Court - under **Section 98 of the** - 120 **Civil Procedure Act** considered alongside **Order 43 Rule 4(3) of the Civil Procedure Rules** for reference and relevant Authorities - judiciously exercise its discretion to determine whether it should be granted - or not.

**See: Supreme Court Constitutional Application No. 06/2013: Hon. Theodore Ssekikubo & 3 Others Vs. The Attorney General & 4 Others**,

- 125 **Supreme Court Civil Application No. 18/1990: Lawrence Musitwa Kyazze Vs. Eunice Busingye** and **CACA No. 341/2013: Kyambogo University Vs. Prof. Isaiah Omolo Ndiege & Misc. Application No. 079/2023 (Kitgum): Onyango Olweny Galdino & 4 Others Vs. Odongo Marino & 5 Others.** - [21]. The Applicant filed a Record of Appeal in the Court of Appeal on the 1st 130 March, 2022 following the decision Appealed having been delivered on the 22nd May, 2020. The matter was set to be scheduled on the 17th November, 2022. These documents are on the Record of the Court. The first ground is therefore established in as far as there is a pending Appeal. - 135 [22]. The second ground regarding the Appeal being *prima facie* arguable or with a possibility of success is established considering that the core question of ownership is central alongside ground(s) regarding limitation in trespass. Moreover, the Appeal was already set for the Scheduling conference.

- [23]. The third ground for consideration is in respect of the Applicant facing an 140 imminent threat of execution with irreparable injury or substantial loss likely to being occasioned to her considered together with the likelihood of the Appeal being rendered nugatory in the event that this Application is not granted. This Court has scrutinized its entire Record in addition to the entire contents of this Application and responses. Nowhere is there any indication 145 that the Respondents have taken any formal or affirmative steps to commence execution of the Judgment/Decree. It is observed that the Judgment/Decree were issued on the 22nd May, 2020 which is four (4) years prior to this Application being filed. This affirms the Respondents' claim that they have not taken any steps in executing the Decree. The Court accordingly finds that 150 it is not established as claimed by the Applicant that there is an imminent threat of execution which may result in irreparable damage or substantial loss. The claims in respect of damage to vegetation and cutting down tree are not substantiated or in any way attributed to any specific individual, let alone the Respondents. Such claims of criminality are best addressed to the Police or to 155 the Local Authorities. The third ground therefore fails. - [24]. The fourth ground briefly considered herein-above is whether in not granting a stay of execution the Appeal will be rendered nugatory. The Respondents aver that the Applicant is not in occupation of the suit land. This is not disputed by the Applicant who did not rejoin. This further rings true 160 considering in the first place the claim in the cause of action in the original suit was in trespass and for vacant possession which by its very nature assumes that the complainant is not in possession or occupation. It has not been established that there are any *"irreversible changes"* regarding the suit land to imperil the *Status Quo*, or render the Appeal nugatory. The evidence 165 establishes that the parties have stayed put - using their respective areas. The ultimately successful party remains in a position to enforce the final decision reached by the Courts. In the circumstances therefore this ground fails.

- [25]. The fifth ground is in respect of the Application having been instituted without unnecessary delay. It is already observed that the Application was 170 instituted four (4) years after the Judgment/Decree. The delay is clearly substantial. The claim that the Application was instituted following alleged execution by activity damaging the land is already addressed under issue four herein-above and in sum it is not attributed to any specific individual. This ground fails. - 175 [26]. The sixth and last consideration would be the balance of convenience which is redundant in the circumstances with the Court having already determined that the Application was prematurely filed with no formal or affirmative steps in pursuit of execution having been taken. Moreover, the parties have stayed put in the areas they already occupied. This ground fails. - 180 [27]. In sum, based on the determinations on the merits of the Application hereinabove, the Court finds that the Applicants have not established sufficient cause for the Court to judiciously exercise its discretion and grant the Application. The Application is accordingly dismissed. - [28]. Having carefully given due consideration to the Application, the supporting 185 Affidavit(s), the responsive Affidavit(s), the Annextures, the respective Submissions filed, the Law applicable and the circumstances of the case, the Application is hereby dismissed. - [29]. Each Party shall bear their own costs.

### 190 **Orders of the Court.**

- [30]. Accordingly, the Court makes the following Orders: - 1. **Miscellaneous Application No. 016/2024** is hereby dismissed. - 2. Each Party shall bear their own costs.

It is so Ordered.

**Signed and Dated on the 27th** 195 **day of December, 2024 at High Court Kitgum Circuit.**

**Philip W. Mwaka**

200 **Acting Judge of the High Court.**

### **Delivery and Attendance.**

This signed and dated Ruling has on the directions of the Presiding Judge been delivered to the Parties electronically by the Deputy Registrar, High Court Kitgum

205 Circuit.

- 1. Deputy Registrar, - High Court Kitgum Circuit Her Worship Suzanne Aisia Musooli. - 2. Counsel for the Applicant Mr. Donge Opar. - 3. The Applicant Ms. Pereci Abur Oryema. - 210 4. Counsel for the Respondents Mr. Okidi Walter Ladwar. - 5. The 2 nd & 3 rd Respondents - 6. Court Clerk and Interpreter Mr. Atube Michael.

- 7. Interested and Affected Persons and Entities.


**Philip W. Mwaka**

**Acting Judge of the High Court.**

**Kitgum High Court Circuit.**

**27th day of December, 2024.**

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