[2024] UGCA 113

## THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

# clvll APPLICATIoN NO. 1193 0F ²⁰²³

SAMUEL WUMA :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPLICANT

#### YERSUS

UGANDA RAILWAYS CORPORATION RESPONDENT

## RULING OF MUZAMIRU MUTANGULA KIBEEDI. JA

### lntroduction

- t1l This is an Application for stay of execution brought under Rule 43 (1), (2) and 44(1) of the Judicature (Court of Appeal Rules) Directions S.l 13-10. - l2l The Applicant seeks orders that: - a) AnorderofstayofexecutionofHighCourtMisc. ApplicationNo. 185of2021and Misc. Application EMA No.'l6/2021 (Arising from HCCS No. 14 7/2011)be issued pending the determination of the Appeal. - b) Costs of the Application be provided for - t31 The Application is supported by the affidavit of the Applicant, Mr. Samuel Alfred Wuma, sworn on the l4tr,April 2023. - 141 The Respondents oppose the said application basing on grounds stated in the Affidavit in reply sworn by Ms. Sarah Nambasa Masembe, an Advocate of the High Court and the Respondent's Corporation Secretary, dated 6th December 2023.

### Factual Backoround

tsl The Applicant was in the employment of the Respondent when he applied for and was granted study leave by the Respondent with effect 1s from May 1995 to 25th January Page 1 of 12

1998. This leave was cancelled by the Respondent on 5rn August 1996. At the time, the Applicant was studying from the United States of America. But it was not until the month of October 2003 that the Applicant returned from the United States of America to find that his employment had been terminated by the respondent. On 2810412006, the Applicant applied for House No. MB/A at Mbuya ll, lsmail Road allegedly as an exemployee awaiting payment of his terminal benefits. He was allocated the said House on 31/05/2006 where he resides to date with his family.

- 161 The Applicant filed High Court Civil Suit No. 147 Of 2011, seeking generaldamages due to pain, suffering and financial embarrassment occasioned to him after having worked for the defendant for over 21 years, unlaurful cancellation of his leave and threats to evict him from the house he is occupying. The Applicant also sought interest on the special and general damages at bank rate from the date of filing the suit until payment in full. He also sought costs of costs of the suit and any other reliefs the court may deem fit. - t7l The Respondent denied that the Applicant was entitled to the claims sought on the ground that following the cancellation of his study leave by the Respondent, he was obliged to report back for duty, but he did not. As a result, contended the Respondent, the Applicant abandoned his job and thereby forfeited his appointment and all the benefits attached to it. - t81 The Respondent also Counterclaimed for vacant possession of the house occupied by the Applicant and the rent payable by him as a tenant of the Respondent in respect of the said house. - tgl On 18rh December 2020, the trial Judge, Hon Justice Sekaana Musa, held that the Applicant's claim was baned by limitation. He nonetheless went ahead to consider the Applicant's claim on its merits, in case his finding of limitation is wrong, found that the

Applicant was not entitled to any of the remedies sought, and dismissed the suit with each party bearing its own costs.

- [10] The trial court also rejected the Respondent's Counter-claim for rent against the Applicant, but granted the Respondent an order for the Applicant to vacate the its premises that he currently occupies. - [11] BeingaggrievedanddissatisfiedbythejudgmentofHighCourt,theApplicantfileda Notice of Appeal commencing an appeal against the said decision to the trial Court, - [12] The Applicant filed High Court Miscellaneous Application No. 185 of 2021 on 281h January 2021 , seeking a stay of execution proceedings of the High Court decree under EMA No. 16 of 2021. However, the application was dismissed by Hon. Justice Musa Ssekaana on 8th August 2022. - [13] Upon dismissal of his application for stay of execution, the applicant filed the current application seeking a stay of execution against the ludgment and orders of the learned trialJudge, Hon. Justice lVlusa Ssekaana passed in HCCS No. 147 of2011.

#### The Grounds of the application

- [14] The grounds in support of the Application are contained in the Notice of Motion and the affidavit of Mr. Samuel Alfred Wuma, the Applicant, but in brief are that: - a) The Application is brought without undue delay. - b) The Applicant is ready and willing to furnish security for due peformance of the decree. - c) That the Applicant shall suffer substantial/oss if thls application is not granted and execution proceeds as the intended house the subiect of the threat of warrant of vacanl possesslon is where he has resided with his family since 2006

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to date and is the sub;ect of the appeal which the Respondent intends to dlspose of thus rendering the appeal nugatory.

- d) The Respondent witt not be preiudiced in any way with the grant of this application srnce lt has also appealed against the decision of the trial iudge. - e) lt is fair, just and equitable that the application is allowed, execution ls sfayed untilfinal disposal of the Appeal. - [15] The Respondent opposed the Application by describing the orders sought by the Applicant as meritless as they were not supported by evidence and as such, no loss substantial or otherwise would be occasioned by the denial of the stay application. - [16] ln further answer to the affidavit of the Applicant, the Respondent contended that the Applicant's appeal had no likelihood of success as he had no proprietary interest whatsoever in the premises and that he is merely a Tenant in the same. - [17] The Respondent further averred that, the denial of the orders sought in this Application shall not render the appeal nugatory. That the Applicant only sought orders for general damages due to pain, suffering and financial embarrassment occasioned to him, unlawful cancellation of his leave and threats to evict him form the house, which in the unlikely event of the Appeal being successful, can still be granted by Court. - [18] The Respondent further contended that this application does not disclose evidence of the ability and willingness to deposit security for due performance of the Decree by the Applicant and that, the Applicant is a retired former employee of the Respondent with no known source of income and, as such, is unable to settle the costs, if any. - t19l The Respondent contended that they would be highly prejudiced and inconvenienced in the event that the application is allowed, as the order would serve the purpose of

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defeating the proprietary interest of the Respondent who is entitled to quiet possession and enjoyment of its property as it deems fit.

- [20] Further, that the Applicant is in fact a non-paying tenant and has been so for a long period of time since April 2011. That if this Court grants the Applicant this application, it will only be denying the Respondent its full right to enjoy its property and furthering a loss on the Respondent which it has already suffered for a long period of time. - [21] ln addition, the Respondent swore that there has been undue delay in bringing this Application and the Applicant has not taken any essential steps to prosecute the Appeal since requesting for the typed record of proceedings in January 2021. - l22l The Respondent prayed that the Application be dismissed as totally lacking in merit.

#### Representation

[23] When this application came up for hearing, neither the Applicant nor his Counsel appeared in court. However, the Respondent was represented by Mr. Robert Apenya. As both parties had already filed their respective written submissions in the matter as previously directed by the Court, the Application was adjourned for Ruling based of the said Wriften Submissions.

### Applicant's submissions

- [24] Counsel for the Applicants submitted that the main issues for court's determination were: - a) Whether the order sought for stay of execution should be granted by this Court? - b) Remedies available to the parties

- [25] Counsel submitted that the Applicant in his affidavit in support deponed that he applied for House No. MB/A at Mbuya ll, lsmail Road as an ex-employee awaiting payment of his terminal benefits and he was allocated the said House on 31/05/2006. The Applicant deponed that the issue of ownership of the said house is a subject of the pending appeal by the Applicant and that is where his family has been residing from 2006 to date - a period of now over'17 years. - [26] Appellant's Counsel submitted that Court must consider what amounts to sufficient cause for an order of stay of execution to be granted. Counsel opined that this includes where the subject matter of the appeal is in danger of being destroyed, sold or in any way disposed of. That in such a case, a stay order serves to preserve the status quo. That the alternative is where the decree in question is affected by a glaring flaw in the record of the lower Court to make the appeal very likely to succeed. That the applicant pleaded and proved sufficient cause to wanant the grant of the stay and prayed that the same be granted by this Court. - [27] As regards security for due performance of the decree has been given by the applicant, Counsel for the Applicant submitted that the Applicant is ready to deposit in Cou( security for costs for the due performance of the decree. Further, the Applicant contended that there was no need for the applicant to provide security for the due performance of the decree because in the event that his appeal to the Cou( of Appeal is dismissed, which is not admitted, the Respondent would still get its property.

#### Respondent's Written Submissions

[28] lt was submitted for the Respondent that the Applicant had not demonstrated any substantial loss he would be faced with if the stay of execution is not granted considering that he has got no proprietary interest in the Respondent's property, and that he has not paid any rental fees for a long period of time, since April 2021 , Counsel refened to this the decision of Lady justice Hellen Obura in Andrew Page 5 of 12 Ksawuzi Vs Dan Oundo Malingu GCT-I0-CC-MA 467 of 2013-where she made reference to the decision of the Court in Bashidar Vs Pribku Dayalair 41/1954 which elaborated on the aspect ofsubstantial loss to mean:

"The deponent should have gone a step furlher to lay the basis upon which court can make a finding that the applicant will suffer substantia/ /oss as alleged. The applicant should go beyond the vague and general asserllon of subslantla/ /oss in the event a stay order of not granted.

Furlher, the words substanfra/ cannot mean the ordinary loss to which every judgment debtor is necessarily subjected when he /oses hls case and is deprived of his propeily in consequence. That is an element which must occur in every case....substantial/oss must mean something in addition to all different from that."

- [29] The respondent argued that this is a proper case where the Applicant shall not suffer any substantial loss for property, as he neither has a legal nor an equitable interest in the property and since he has lived at the premises for over ten years as a Tenant without paying any rent, the Court shall by granting this Application only be supporting an injustice which has been occasioned on the Applicant for a very long time. - [30] Further, the Respondent submitted that the Applicant had no known source of income and shall not be in position to settle the security for due performance of the decree if required or ordered by the Court to do so. - [31] The Respondent submitted that it is trite that the Notice of Appeal or intended appeal should not be a basis for the Court to grant the Applicant a stay of execution of the decree. That a stay of execution is at the discretion of the Court which should not feter its decision in order to meet the ends of justice. - [32] ln addition, the Respondent contended that the Applicant had not shown that his intended Appeal has any likelihood of success at all and that it is in the interest of justice that this Application be dismissed with costs to the Respondent.

- [33] The Respondent submitted that even though the Applicant did lodge a notice of appeal in January 2021, he had not lodged a Memorandum of Appeal to date. Counsel deduced that therefore, despite lodging the Appeal, the Applicant had no clear ground of appeal. - [34] ln conclusion, Counsel prayed to this Court to find that there is no merit in the application and accordingly dismiss it with costs to the Respondent.

## Jurisdiction of Court

- [35] The mandate of a single Justice of this Court to handle this application is derived from Section 12 of the Judicature Act, Cap. 13 which confers a single Justice of this Court with ,jurisdiction to hear and determine all interlocutory applications filed in this court with a dissatisfied party having a right to make a reference to a full panel of the court from that decision. - [36] ln the case of Jomayi Property Consultants Ltd. Vs. Andrew Maviiri, Civil Reference No. 174 of 2015 (Arising from Civil Application No. 200 of 2015) lhis Courl (Egonda-Ntende, Barishaki - Cheborion & Mutangula Kbeedi, JJA - 19.03.2020) had occasion to consider Section 12 of the Judicature Act vis-d-vis Rule 53(2)of the Court of Appeal Rules, S.l No:13 -10 which barred a single Justice of this Court from hearing applications for stay of execution, injunction or stay of proceedings. - [37] The unanimous decision of this Court in lhe Jomayi Property Consultants case above is to the effect that Section 12 of the Judicature Act, being an Act of Parliament, ovenides the provisions of Rule 53 of the Rules of this cou( and must now be taken to be the primary legislation providing for jurisdiction of a single judge of court. - [38] The above decision of this Cou( is still a good statement of the law

# Preconditions

- [39] lt is settled law that the grant of the orders sought by the applicant is discretionary. The principles to guide the Court in the exercise of its discretion have likewise been settled by several decisions of this Court and the Supreme Court including the following: Gashumba Maniraquha Vs Sam Nkundive SC Civil Aonlication No.0024 of 2015', and Hon. Ssekikubo & 3 Ors Vs Aftornev General & 4 Ors Const. Appl No.0006 Of 2013. - [40] ln summary the applicant must prove that - 1. He/she lodged a Notice of APPea| - 2. Theappeal hasaliketihoodof success; oraprimafaciecaseof hisrighttoappeal. - 3. He/she will suffer irreparable damage or that the appeal will be rendered nugatory if a stay is not granted. - 4. lf 2 and 3 above have been estabfished, coui must consider where the balance of convenience lies. - 5. The applicant musl a/so esfab/ish that the application was instituted without delay.

## Analvsis of the instant application

- [4'1] After reading the pleadings, the affidavit evidence and the submissions filed in the instant matter, I have made the following findings: - [42] There is evidence of the applicant having been very vigilant in filing the Notice of Appeal on 21,r January 2021, soon after the trial court had rendered its decision against him in HCCS No. 147 o12011. However, by the time this matter was heard,

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there was no evidence of the Applicant having taken a step further by filing the substantive appeal in this court ostensibly because he had not yet been provided with the typed record of proceedings and decision by the lower court. Whereas the duty to supply the certified proceedings to the intending Appellants is placed on the Registrar of the High Court, advocates, as officers of court, ought to proactively follow up the with Registrar and ensure that the typing and certiflcation of the proceedings and decision of the trial Court is expeditiously done. ln the case of Ruth Asiimwe Kanyaruju Versus Hon. Namara Grace CACA No. 168 of 2012, the Court of Appeal observed that it is the duty of every intending appellant to be seen taking an active role within the time stipulated by the rules to prosecute his or her appeal.

[43] I can add that a litigant who displays vigilance through such acts as proactively following-up of the certification of the record of proceedings and argues the application for a stay of execution while the substantive appeal has already been filed in this court, elicits more favourable consideration for his/her application than one who is less proactive .

## Likelihood of success and substantial loss

[44] The fact the Applicant has not yet filed the substantive appeal with a Memorandum setting out the grounds of appeal, renders the ascertainment of whether the intended appeal is frivolous or has a likelihood of success very challenging. But from paragraph 5 of the Applicant's Affidavit deponed on 14tn April 2023, it can be discerned that the major ground upon which the Applicant seeks to fault the trial Court is that it "did not find that the Applicant's study leave was cancelled upon due consideration when there was no iustification of exigency contrary to the respondent's Sfaff Ru/es and Regulations and the evidence". No where in his Affidavit evidence or written submissions does the Applicant allude to the major ground upon which the trial court resolved the Applicant's claim before the High Court, namely that it was barred

by limitation in so far as the Applicant in the pleadings and evidence before the trial court claimed that his contract was unlaMullv terminated on 25" January 1998 when 'itt-S'b\-buf=/ his official study leave ended, but his suit was inctatefl on 14th July 2011 well beyond the prescribed limitation period.

- [45] Further, from the Applicant's submissions, he claims that he was allocated the suit house and has continued to occupy the same as an ex-employee awaiting payment of his terminal benefits. However, the letter of the Applicant dated 28th April 2006 applying for allocation of the suit house was in his capacity as the National General Secretary of the Uganda Railway Workers Union. - [46] ln the circumstances, I am not satisfied that the applicant has proved this requirement.

#### lrreparable iniury and balance of convenience

[47] Having answered the preceding qualification criteria in the negative, the current two considerations automatically fall by the way side. Nonetheless, I reiterate that filing an appeal should not be treated by the parties as automatically entitling them to a stay of execution order. ln the case of Stanbrc Bank Uganda Limited vs Atabya Agencies SCCA ltlo. 31 of20 2004\_ Mulenga, JSC (RlP) aptly stated it thus:

> 'l would reiterate here my view expressed in Wilson Mukiibi vs James Semusambwa Civil Application No. 9 of 2003 where I said - "it is trite that an intention to appealperse ls not a ground for stay of execution and instituting an appealdoes nol operate as a stay of execution. A pafty seektng a stay of execution musl satlsfy the courl that there is sufficient cause why the pafty with judgement should postpone the enioyment of tts benefts. lt is not sufficient for the judgement debtor to say that he is vulnerable, because the successful party may take out execution proceedings. it must be shown that if execution proceeds there may be some ireparable /oss caused".

[48] The same view was held by Kakuru, JA (RlP) in the case ol Kyambogo University Vs Professor/saiah Omolo Ndiege, CA No.341 of 2013 where he held thus:

> "ln my view, the law recognizes that not all orders or decrees appealed from have to be stayed pending appeal. lt also recognizes thal a fact that an appeal may be determined without the court having to grant a stay of execution. However, couft may stay execution where the circumstances of the case justrfy such a stay. lt is therefore incumbent upon the applicant in every application of stay of execution to satisfy court that the grounds exist for a grant of stay of execution. The assumption that once a pafty has filed an appeal a stay of execution mustfollow as a mafter of course has no legal basls'.

### Conclusion

- [49] The Applicant has not satisfied the essential conditions for grant of stay of execution. - [50] laccordingly decline to grant the application and, instead, lhereby dismiss it with costs to the Respondent.

## I so Order

ls day of ²⁰²⁴ tlt"- Signed, delivered and dated at Kampala this.

Muzamiru Mutangula Kibeedi JUSTICE OF APPEAL