Mugisa Florence Kyaligonza & 2 Ors v Jane Rose Tusiime (Administrator of the (Miscellaneous Application 8 of 2024) [2024] UGHC 409 (31 May 2024)


THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT FORT PORTAL

MISC. APPLICATION NO. 008 OF 2024

(ARISING FROM CIVIL SUIT NO. 013 OF 2020)

  1. MUGISA FLORENCE KYALIGONZA

  2. CHRISTINE NABUKENYA

  3. JOSEPHAT KASAIJA ::::::::::::::::::::::::::::::::::::::::: APPLICANTS

VERSUS

  1. JANE ROSE TUSIIME

  2. EDITH MBABAZI :::::::::::::::::::::: RESPONDENTS

  3. NTAMBIRWEKI PELUCY KABAHUMA

(Administrator of the Estate of the late Prof John Ntambirweki)


BEFORE: HON. JUSTICE VINCENT WAGONA

RULING

Introduction:

This application was commenced under Section 98 of the Civil Procedure Act, Section 33 of the Judicature Act and Order 52 rules 1 & 2 of the Civil Procedure Rules for orders that:

  1. An order doth issue against the Respondents staying the execution of the judgment, decree and orders made by Hon. Justice Vincent Wagona, the Resident Judge of Fort Portal High Court Circuit delivered on 15th January 2024.



  1. That the costs of taking out the application be provided to the applicants.

Grounds of the application:

The application was supported by the affidavit of Mugisa Florence, the 1st applicant with written authority from the 2nd and 3rd applicants who deposed as follows:

  1. That on 25th/01/2024, Civil Suit No. 013 of 2020 was determined in favour of the Respondents. That among the orders issued, Court directed that the caveat lodged by the 1st applicant be removed/vacated from land comprised in Block 91, Plot 52 at Kihembo, Kidukuru.

  2. That the applicants being aggrieved lodged a notice of appeal and a letter requesting for a typed record of proceedings. That if the caveat is vacated, the prevailing status quo shall be altered which will render the appeal nugatory.

  3. That the 3rd Respondent being an administrator is going to distribute the estate and transfer the title to the beneficiaries which will make it impossible for the applicants to recover the same.

  4. That the suit land has graves where the 1stapplicant’s mother, the late Cecilia Nyakato, the late grandfather Kamiri Murubya and other six people were buried and there is risk of having their bodies being exhumed.

  5. That the Respondents have since entered into the suit land, cleared the same, fenced it off with barbed wire and iron sheets, poured sand and the place is currently guarded by security.

  6. That the site cleared includes the portion that has graves and the construction cannot take place unless and until the bodies of the deceased are exhumed.

  7. That the respondent’s action of fencing off the land, pouring building materials and grading the land which is the subject of the intended appeal for purposes of construction amounts to an eminent threat of execution.

  8. That the applicant shall suffer irreparable damage if the application is not granted since the remains of the deceased shall be exhumed and this loss cannot be compensated by an award of general damages.

  9. That it is fair, just and equitable that the application is granted and an order of stay of the orders of the trial judge in civil suit no. 0013 of 2020 stayed.

Reply of the Respondents:

The application is opposed by the Respondents who averred as follows:

  1. That there is no pending appeal and if any, there is no likelihood of success of the said appeal.

  2. That the Respondents have not applied for execution, therefore there is no threat of execution.

  3. That the current application is premature before this court there is no threat of execution.

  4. That it is fair that this application is denied.

Representation and Hearing:

Mr. Jolly Mutumba represented the applicants while Mr. Bwiruka Richard appeared for the 1st and 2nd Respondent and Mr. Kasigazi Francis for the 3rd Respondent. Counsel addressed me on the merits of the application by way of written submissions which I have duly considered herein.



Issues:

Two issues are at the heart of this application thus:

  1. Whether this application meets the test for grant of an order of stay of execution.

  2. What remedies are available to the parties in the circumstances?

CONSIDERATION OF THE APPLICATION:

Order 43 Rule 4 (1), (2) and (3) of the CPR states as follows:

Stay by High Court.

  1. An appeal to the High Court shall not operate as a stay of proceedings under a decree or order appealed from except so far as the High Court may order, nor shall execution of a decree be stayed by reason only of an appeal having been preferred from the decree; but the High Court may for sufficient cause order stay of execution of the decree.

  2. Where an application is made for stay of execution of an appealable decree before the expiration of the time allowed for appealing from the decree, the court which passed the decree may on sufficient cause being shown order the execution to be stayed.

  3. No order for stay of execution shall be made under sub rule (1) or (2) of this rule unless the court making it is satisfied—

  1. that substantial loss may result to the party applying for stay of execution unless the order is made;

  2. that the application has been made without unreasonable delay; and

  3. that security has been given by the applicant for the due performance of the decree or order as may ultimately be binding upon him or her.


In Lawrence Musiitwa Kyazze -Vs - Eunice Busingye, SC. Civil Application No. 18of 1990, it was stated that “Parties asking for a stay” should satisfy the following:

(1) That substantial loss may result to the applicant unless the order is made.

(2) That the application has been made without unreasonable delay.

(3) That the applicant has given security for due performance of the decree or order as may ultimately be binding upon him.”


The Supreme Court in Dr. Ahmed Muhammed Kisule Vs. Greenland Bank (in Liquidation), Supreme Court Civil Application No. 7 of 2010, stated that there must be proof of lodgment of an appeal in the appellate court. In the case of the Supreme Court, the applicant should have lodged a notice of appeal in the Court of Appeal.



In Kyambogo University Vs. Prof. Isiah Omolo Ndiege, C.A.C.A No. 341 of 2013 Justice Kakuru, JA observed that in an application for stay, the applicant must prove in addition to other grounds; (a) That there is a serious and imminent threat of execution of the decree or order and (b) That refusal to grant the stay would inflict greater hardship than it would avoid.



I am guided by the above principles in determining this application.


  1. Proofof lodgment of an appeal:


Rule 76 (1), (2) and (3) of the Judicature (Court of Appeal Rules) Direction provides thus:


Notice of appeal in civil appeals.

  1. Any person who desires to appeal to the court shall give notice in writing, which shall be lodged in duplicate with the registrar of the High Court.

  2. Every notice under sub rule (1) of this rule shall, subject to rules 83 and 95 of these Rules, be lodged within fourteen days after the date of the decision against which it is desired to appeal.

  3. Every notice of appeal shall state whether it is intended to appeal against the whole or part only of the decision; and where it is intended to appeal against a part only of the decision, it shall specify the part complained of, state the address for service of the appellant and state the names and addresses of all persons intended to be served with copies of the notice.


Therefore an appeal against a decision of the High Court to the Court of Appeal is commenced by way of a notice of appeal. Once a party lodges a notice of appeal within 14 days from the date of the decision, an appeal is deemed to have been competently filed in the Court of Appeal. What follows thereafter are procedures to progress the appeal already lodged. This was ably brought out in Attorney General of the Republic of Uganda versus The East African Law Society &Another EACA Application No.1 of 2013, cited with approval in Equity Bank Uganda Ltd versus Nicholas Were M.A No.604 of 2013) where court observed that: “A notice of appeal is a sufficient expression of an intention to file an appeal and that such an action is sufficient to found the basis for grant of orders of stay in appropriate cases.”


In the present case, the applicants lodged a notice of appeal against the decision of this court which was delivered on 15th January 2024 on 29th January 2024 and a copy of the same is attached to the affidavit in support of the motion.The notice was lodged within 14 days from the date of the judgment. The notice was endorsed by the Registrar on 30thJanuary 2020. I therefore find that there is a pending appeal lodged against the decision of this Court in the Court of Appeal.


  1. Substantial loss may result to the applicant unless the order is made:


In Tropical Commodities Suppliers Ltd 2 Others –Vs - International Credit Bank Ltd (In Liquidation), Misc. Application No. 379 of 2003, the term ‘substantial loss’ for purposes of stay of execution was described thus: “Hence, the question needs to be asked as to what in law constitutes “substantial loss”. In my view, substantial loss need not be determined by a mathematical formula whose computation yields any particular amount. Indeed, Jowitt’s Dictionary of English Law (2’ Edn.) Vol. 2, p. 1713, carefully defines the analogous concept of “substantial damages” as: “damages which represent actual loss, whether great or small, as opposed to nominal damages.”


Mr. Mutumba for the applicants submitted that if the caveated lodged by the applicants is vacated, they shall suffer loss since there is risk of the land being distributed by the administrator and a likelihood of transfer of the same into the names of the 3rd Respondent. That removing the caveat would mean allowing parties to continue transacting over the land in dispute which raises a risk of the same being sold, mortgaged or otherwise dealt with, which may result into damage to the applicants. The applicants also deposed, that the Respondents have since delivery of the judgment taken possession of the land, cleared the same and poured materials with the intention of commencing construction. That the place where the said construction is intended to take place has graves of their dear ones which may be exhumed and shall subject them to loss which cannot be atoned by an award of general damages.


In reply, Mr. Bwiruka and Mr. Kasigazi asserted that the there is no threat of execution and the loss alluded to by the applicants is none existent. That the Respondents have been in possession of the land in dispute and there is no threat of execution at all. Mr. Kasigazi in his supplementary submissions submitted that the title was already transferred into the names of the 3rd Respondent after the caveat had been removed. He attached a copy of the said title which is in the names of the 3rd Respondent. That as such any attempt by the applicant to cause court to stay execution on account of maintaining the caveat is overtaken by events. That as such loss such no shall be suffered by the applicants.


Substantial loss is any loss or substantial inconvenience that a party may be subjected to. In this case, the caveat lodged by the 1st applicant was vacated and the title transferred into the names of the 3rd Respondent for the portion she bought from the 1st and 2nd Respondent. Therefore the invitation by the applicants to grant a stay pegged on the existence of the caveat is overtaken by events since the caveat was vacated. Further, in the judgment, the orders that court made were;

(a) Civil Suit No. 013 of 2020 is res-judicata and thus is struck out.

(b) The caveat lodged by the 1stplaintiff/counter defendant dated 27th November 2012 is hereby vacated forthwith.

(c) That since the parties are related and for purposes of promoting harmony, I order that each party bears own costs.

Since the caveat was vacated there are no more orders to be executed by the Respondents that will cause substantial loss to the applicants. The Respondents have been in possession of the suit land and the title was already transferred into the names of the 3rd Respondent. It is legally inconceivable how court can at this stage stop them from using the same in an application for stay. The Respondents have not commenced any execution since there is no order to execute the caveat having been vacated.


I see no loss that cannot be atoned by an award of damages likely to be suffered by the applicants to warrant an order of stay of execution. This ground is therefore not proved by the applicants.


  1. Serious and imminent threat of execution of the decree or order:


In this case, no effort has been made by the Respondent to execute the orders of court. The caveat by the 1st applicant was vacated. Therefore, the remaining orders are incapable of being executed since they did not grant any interests to the Respondents. This ground therefore fails.


I find the consideration of the remaining two ground that is; that the application has been made without unreasonable delay and the applicant has given security for due performance of the decree or order academic since there is no threat of execution and the application at hand if any is overtaken by events since the act it sought to stop already took place. This application therefore fails and it is accordingly dismissed with costs awarded to the Respondents.


I so order.

Vincent Wagona

High Court Judge

Fort-portal


DATE: 31/05/2024



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