[2009] UGSC 44

**EPUBLIC OF UGANDA**

## IN THE SUPREME COURT OF UGANDA AT MENGO

(CORAM: J. W. N. TSEKOOKO, JSC - Single Judge)

## **CIVIL ADDLICATION NO. 2 OF 2009**

THE ADMINISTRATOR GENERAL THROUGH THE LAWFUL ATTORNEY KYOMUHENDO JOLLY CHRISTINE ....................................

## **VERSUS**

- 1. NATIONAL SOCIAL SECURITY FUND - 2. BASAIJA DAVID KISEMBO T/A ULTIMATE COURT **BAILIFFS & AUCTIONEERS** - 3. FULUGENCE MUNGEREZA...................................

(Civil Application arising from Misc. Application No. 1 of 2009)

## RULING OF TSEKOOKO, JSC.

The Administrator General (the applicant) instituted this application by way of Notice of Motion under Rules (6) (2) (b) and 42 of the Rules of this court seeking for an interim order to stay execution of what is describes as a High Court decree in Civil suit No.10 of 2005 pending the hearing of the main application by which the applicant seeks for a final order of stay of execution of the same decree.

The notice sets out some ten grounds in support of the application. The application is supported by an affidavit sworn by Kyomuhendo Jolly Christine, who described herself as the

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Atlorney for the opplicont. ln the offidovit she exploins why the opplicotion hos been mode. To thot offidovit ore onnexed o number of documents. ln opposition to lhe opplicolion ore three offidovits. The first is sworn by Stello Aliboteese, on lnternol Legol Counsel for the first respondenl. The third respondent swore the second offidovit in which he stoled thot he purchosed lhe suit property in Seplember 2005 from one Nokonjoko Morgoret Njeri ond wos registered os proprietor on 519/2006 ond thot the occuponts of the suit property hove now been evicted. He is now in possession of the property since l6th Morch, 2009. Finolly Festus Kolereggo swore his offidovit to the effect lhol os Courl Boiliff, he, on I 6th Morch , 2009, corried out the eviction ond honded the suit property to lhe 3'o respondent who hos ocknowledged this in his own offidovit.

'tL" +\*,Utja I4WD R44 tj\*2 'fur{on colled Potrick Koijo (now deceosed) owned property

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comprised in Plof lll, Mokerere Kiyindi (suil property). While olive, the deceosed, who wos on employee of the firsl respondent, obtoined o loon from the lotter ond morlgoged lhe suit property to secure thol loon. Employment of the deceosed ceosed whereupon he wos required to repoy lhe loon in full which he wos unoble to do. There upon the I't respondent instituled o suit (by originoting summons) No. l0 of 2005, in the High court to recover the loon. A consenl judgment wos on lsth Moy, 2006 entered ogoinst the deceosed. By thot consent judgment lhe deceosed ogreed to repoy the loon ond the cosls of lhe suit in instollments. Under

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paragraph 4 of the consent judgment/decree, it was agreed and ordered that:

"in the event of default in any one payment by the defendant/Mortgagor, the whole outstanding balance shall automatically become due and payable in a lump sum to be realized by the sale of the suit property WITHOUT **RECOURSE TO COURT."**

As fate would have it, the deceased appears to have died probably soon thereafter. There was default in repayment in accordance with the consent decree. The suit property was thereafter sold by the second respondent as Court Bailiff to one Nakanjako Margaret Njeri who in turn sold it to the 3^rd respondent. From what Mr., Patrick Mugisha, counsel for applicant stated before me during the hearing of this application, Nakanjako Margaret Njeri was not registered as proprietor before she resold the property to the 3^rd respondent. The latter became a registered proprietor. It appears an application to challenge the sale to the third responded was then instituted in the High Court from whose decision in that application, an appeal was apparently instituted in the Court of Appeal. That appeal is still pending. But the applicant instituted Misc. application No. 206/2007 in that same Court seeking orders to stay execution of the decree in the High Court )Civil Suit No. 10. of 2005.) According to the ruling of the Court of Appeal, in that application, the applicant sought an

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order "to **restrain the 3^rd respondent** from disposing of or alienating the property....................................

The first respondent opposed the application in the Court of Appeal principally on the basis that the appeal in that court was unlikely to succeed as its foundation was bad in law. The Court of Appeal dismissed the application and declined to grant stay of execution. The applicant lodged a notice of appeal intending to appeal against that ruling. Consequently this application for stay was filed.

Now the Attorney, Ms Kyomuhendo, in paragraph 7 of the affidavit supporting the application deponed thus:

"the gist of the appeal to this Court and the application for stay is that the Court of Appeal's refusal of stay is unjustified and unfair, having a appreciated that the impugned transactions are tainted by illegalities which will require scrutiny at the trial of the main appeal."

This paragraph when read together with the contents of the Notice of Appeal show that the intended appeal to this Court is against the ruling by the Court of Appeal in which the Court declined to grant a stay of execution of the decree of the High Court. With respect I do not think that the applicant should have appealed again the ruling of the Court of Appeal. It therefore appears that the applicant was not sure about which

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decree wqs to be stoyed when she inslituted the present opplicotion.

^Iom olive lo the proclice thot judiciol decisions should not be bosed on technicolities. lt is subslonlive juslice which is imporlont. But porlies must be cleor in their pleodings ond whot they litigote obout in order for Courls lo decide on issue on merit.

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I think thot this opplicotion is muddled up. ll is like one throwing o slone inlo o bush to see which bird flies out. ln one breoth the opplicont seeks for stoy of execution of decree of the High Court whereos the Notice of Appeol which is lhe bosis upon which lhe opplicotion for sloy wos mode shows thot the intended oppeol is ogoinst the refusol by the Courl of Appeol to gronl stoy. Rule 6(2)(b) by virlue of which the opplicont filed, lhis opplicotion, gives Court discrelion to order o sloy of execution where o notice of oppeol hos been lodged in occordonce with Rule 72 of the Rules of Court. lt goes wilhoul soying thol such o notice of oppeol must relole to the decision on the merits of the cose, nomely the subject motter of liligotion; in this cose repoyment of the loon ond consequent sole of lhe suit property. The Applicotion in this Court for stoy of execution is outomolic provided o proper notice of oppeol is in exislence. Applicotion for sloy of execution connot ond would nol depend on on oppeol to this Court orising from refusol by the Courl of Appeollo gront o stoy.

Therefore while I ogree with some hesitotion coused by the conduct of counsel for the 3'o respondent in regord to corrying out eviclion when this opplicolion wos fixed for heoring, thot this opplicotion obotes, I lhink thot there wos no proper notice of oppeol upon which this opplicotion for stoy of execution could be bosed. ln olher words even if lhe opplicotion could noi obole becouse of lhe eviclions, lwould decline to gront on interim order for stoy.

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Let me olso point out thot by virtue of sub-rule 2(b) of Rule 6 of the Rules of this Courl, opplicolions for stoy of execution ore not supposed lo be heord by o single judge of this courl. However over the losl eight yeors or so, there hos evolved o proctice of such opplicotions being heord by o single judge. Exomples ore: Horizon Cooches Lfd Vs Froncis Mulobozi & 3 Ofhers (Civil opplicotion No. 2l of 2001). Mulengo JSC (Retired) heord the opplicolion wiih hesitolion becouse he wos not certoin lhot os o single judge, he wos empowered lo heor il. See olso W. Mukiibi Vs J. Semusombwo (Civil Applicotion No. 9/2003) ond Slonbic Bonk (lJ) Lld Vs Atobyo Agencies Lfd. (Civil Applicolion No. 3l of 2004) Those opplicotions were heord exporle. This proctice is necessitoled by lhe desire lo do juslice.

ln this opplicotion ofler perusing lhe notice of molion ond Attorney's offidovit, I considered il desiroble to heor both sides. This wos becouse I hod noticed some opporent deficiencies. ^I


olso thought I would encouroge porties to consent lo on interim order of stoy pending the heoring of lhe moin opplicotion on meril. ln ony cose oporl from lhe exercise of inhereni powers under Rule 2(2), the Rules of the Courl do not specificolly provide for lhe heoring of opplicotions for ond or the gront of inlerim orders by o single judge.

When the motter come up for heoring on 121312009, Mrs. Bosozo Wosswo, counsel for the first respondenl, opplied for odjournment to enoble her file offidovit in reply. Mr. Zimulo who held o brief for Mr. Sekotowo, counsel for the 3'd respondenl, mode o similor opplicotion. I gronted the odjournmenl ond osked counsel for bolh sides to ottempt o setllement. Sodly when this opplicotion come up for heoring on Wednesdoy lSrn Morch lo which I hod odjourned it, on opplicotion by the \ respondenls, Mr. Potri{Mugisho, counsel for the opplicont informed Court thot no discussion for settlement wos possible becouse in the inlerim execulion hod been corried out by eviction of occuponts of the suit property. Mr. Sekotowo, counsel for the 3'd respondent, conceded thot indeed execulion hod been corried ond the occuponts of lhe suit properly hod been evicted. As I hove poinled out olreody, the court boiliff who corried oul the eviction swore on offidovit to thot effect ond so did the 3'o respondent himself. On the olher hond Mrs. Bosozo Wosswo, Counsel for the I't respondent poinled oul thot in foct execution of lhe proper decree of the High Court wos corried out os for bock os in 2006 when lhe suit 7

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property was sold to one **Nakanjako Margaret Njeri**. Indeed this is what influenced the Court of Appeal when on 26/2/2009 it declined to grant on order for stay of execution.

Whatever the case I want to repeat here what I told Mr. Sekatawa during the hearing that it was absolutely improper to cause eviction to be carried out after his firm had been served with a hearing notice. He claimed that he and his firm could not know what went on between the court bailiff and the Registrar of the Court who signed the warrant for the eviction.

With respect to Mr. Sekatawa, I think that he was not being candid to court. It is within my experience (and he could not dispute this) that it is the advocate for a decree-holder who normally moves the court (or its Registrar) by lodging necessary documents for purposes of execution. I notice that the warrant to give vacant possession (Annexure "B1" to the affidavit of the $3^rd$ respondent) was signed by the Registrar on 12^th March, 2009, the day on which this application was before me for hearing, Mr. Zimula who appeared before me on that day holding a brief for Mr. Sekatawa, whose firm had been served, appeared before $me_k$ behalf of the 3^rd respondent. It is most unlikely that when Mr. Zimula appeared before me on the morning of 12^th March, 2009, and applied for adjournment so as to prepare affidavit in reply, he, as agent of Mr. Sekatawa, was not aware that steps to effect eviction had been taken. Nor do I believe that Mr. Sekatawa was unaware either.

The main reason why the applicant sought for an interim order was to prevent the 3^rd respondent, Fulgence Mungereza from evicting the applicant from the suit property the subject of these proceedings. Unfortunately and strangely, eviction was carried out despite the fact that the respondents were aware of the pending applications (this one and the main one). Because of the pending appeal in the Court of Appeal and the main application which the applicant may chose to pursue, I would not say much more than that I am unable to grant this application.

Because of the conduct of the respondents, I make no order as to costs.

Delivered at Mengo this. Joth...day of March 2009