Court name
Commercial Court of Uganda
Judgment date
23 March 2009

Abdalla Hassan v Bunzingye Nikuze Therese (Miscellaneous Application-2009/53) [2009] UGCommC 45 (23 March 2009);

Cite this case
[2009] UGCommC 45


THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
(COMMERCIAL DIVISION)
MISCELLANEOUS APPLICATION NO. 0053 OF 2009
[Arising out of Civil Suit No.
99 of 2003]
ABDALLA HASSAN ::::::::::::::::::::::::::::::::::::::::APPLICANT
VERSUS
BUNZINGYE NIKUZE THERESE:::::::::::::::::::::::RESPONDENT

BEFORE: HON LADY JUSTICE M.S ARACH-AMOKO


RULING

The Applicant/Defendant herein seeks by a Notice of Motion dated 6th February 2009, the following orders against the Respondent/Plaintiff.
a)      

That this Honorable court makes an order directing the Registrar of Titles to transfer land, viz, Kyadondo Block 244 Plot 1891, Muyenga to the applicant/defendant.
b)       Costs of this application be provided for.

The grounds are that:
a)      
This honorable court delivered judgment in the aforesaid suit wherein it ordered that the plaintiff delivers a duty signed transfer deed to the applicant to enable him have the aforesaid land transferred into his names.
b)       In toto (sic) disobedience of court order, the respondent has refused to deliver the transfer deed to the applicant and it is not possible to have the land transferred into his names.
c)       The respondent resides in Kigali, Rwanda and it is not possible to make her comply with the court order by any means.

That application is supported by an affidavit sworn by the applicant/ defendant on the 6th February 2009. Ms Akello Rose said to be a lawyer C/O Munanura Mugabi & Co Advocates; the law firm representing the respondent/plaintiff swore an affidavit in opposition on the 18th March 2009.

The substance of the applicant/defendant’s affidavit as follows:

“3. That judgment in the suit was delivered on 17th June 2008.

4. That a decree was extracted thereafter by my lawyers M/s Mutabingwa & Co. Advocates.

5. That in the judgment aforesaid court made several orders and inter alia, ordered me to deliver to the plaintiff the signed transfer forms for the truck and trailer I sold him.

6. That court also ordered the plaintiff/respondent to hand over to me duly signed transfer deed to enable me have the land he had sold me viz Kyamdondo Block 244 plot 1891 at Muyenga registered into my names.

7. That court ordered the plaintiff to pay me

of the costs of the suit/proceedings and ordered the registrar of the court to handover to me certificate of title for the land. Kyandondo Block 244 plot 1891 at Muyenga, which had been deposited in court.

8. That the registrar of this honourable court has already handed over to me the certificate of title as ordered by court.

9. That however, the respondent/plaintiff has totally refused to deliver to me the transfer deed as ordered by court hence I’m still unable to have the land transferred into my names.

10. That I have already complied with the court order and paid to court the plaintiff’s 10,000,000/= and interest arising there from general damages after substractinng my costs.

11. That I have also delivered to court the transfer for the vehicle and truck as ordered by court to enable the respondent have the trailer and truck registered into her names.

12. That the respondent lives in Kigali, Rwanda and it is not possible to make her comply with the court order.
13. That I am informed by my advocate MUTABINGWA MAXIM whom I verily believe to be truthful that the only available legal option left to the applicant is to apply to Court to order the Registrar of Titles to register the land into my names”

Ms Akellos affidavit in opposition is as follows:
“1. That I am an adult female Ugandan of sound mind, a lawyer and well conversant with the facts of this case and swear this affidavit in that capacity.

2. That paragraphs 2 and 3 are admitted.

3. THAT in reply to paragraph 4 of Abdullah Hassan’s affidavit, we have never been served with the said decree as stated in the affidavit.

4. That paragraph 5, 6 and 7 of Abdallah Hassan’s affidavit are admitted.

5. That in reply to paragraphs 8,9,10 and 11 of Abdallah Hassan’s affidavit, there is a pending appeal in the Court of Appeal against the whole decision of the High Court under Civil Appeal No. 82 of 2008 and an application to appeal out of time was grated by the Court of Appeal.
6. That in
reply to paragraphs 12 and 13, the transfer of the title into the names of the applicant/defendant should not be ordered until the final disposal of the appeal.

7. That I swear this affidavit opposing the applicant’s application to have the certificate of title transferred into his names”

In essence, as can be discerned from the reply by Ms Akello, the respondent/plaintiff does not deny the facts deponed to by the applicant/defendant. The respondent/plaintiff’s contention is, however, that there is a pending appeal in the Court of Appeal against the High Court decision under Civil Appeal No 82 of 2008 and an application to file an appeal out of time has been granted by the Registrar. The decree should therefore not be complied with.

This is not only contradictory, but it is not true. Technically, where an appeal is to be filed out of time, there cannot be a pending appeal before leave is granted to file the same out of time is granted by court. According to information availed to this court by non other than counsel for the respondent vide his letter to the Registrar dated 13th March 2009, there is an application to strike out Civil Appeal No. 82/08 vide Civil application No. 11/09 for having been filed out of time. Civil application No 150/2008 was for leave to file an appeal out of time and the Court of Appeal Registrar delivered his ruling on the 17th March 2009, granting the respondent/plaintiff leave to file an appeal out of time. No competent appeal has yet been filed in the Court of Appeal on the basis of the information availed to me so far. Ms Akello’s averments are therefore false and deliberately calculated to mislead this Court.

In the famous case of Bitaitana-vs-Kamanura [1979] HCB 34, court held that inconsistencies in affidavits cannot be ignored however minor since a sworn affidavit is not a document to be treated lightly. If it contains obvious falsehoods then it naturally becomes suspect as it amounts to lying under oath as in contradictions and inconsistencies in oral evidence.

As Mr. Mutabingwa pointed out in his submissions, the decree is very clear. Court ordered and decreed that:
“a) The defendant pays to the plaintiff shs 10,000,000= (ten million shillings) only being general damages for breach of contract.

b)The above 10,000,000= general damages shall carry interest at court rate from today i.e. 17th June till payment in full.
c)
The defendant’s counter claim is dismissed with costs.
d) The certificate of title for Block 244 plot No. 1891 Muyenga be released to the defendant by the registrar of this court.
e) The plaintiff delivers to the defendant duly executed transfer forms for the land mentioned in (d) above as it is not in dispute that the defendant has paid the full purchase price for the land.
f) The defendant delivers to the plaintiff duly signed transfer forms for the vehicles that he delivered to the plaintiff in particle payment for the house.
g) These mutual actions hereinabove mentioned be completed within 30 days from today 17th June 2008.
h) Since a substantial part of the plaintiff’s claim has failed, the plaintiff is awarded one quarter of the costs and the defendant is awarded three quarters of the costs in defending these proceedings

 
Secondly, and most importantly, there is no stay of execution. The High court has power to stay execution pending appeal. The courts have held that even mere service of notice of appeal does not operate as a stay. See National Pharmacy Ltd-vs-KCC [1979]HCB 132 (CA). The rationale is simple. Every judgment or decree of a court of competent jurisdiction takes effect immediately upon pronouncement and every court has an inherent power to proceed to enforce such judgment or decree at once in the absence of an order staying execution. The Courts will not therefore, without good reason delay a successful litigant from enjoying the fruits of his judgment.

In the instant case, and for the aforesaid reasons, I find no good reason to delay the applicant/defendant from obtaining the transfer of the land he has paid for. I accordingly grant the application as prayed, and hereby direct:


1) The Registrar of Titles to transfer the land comprised in Kyaddondo Block 244 Plot 1891 Muyenga to the applicant/defendant forthwith.

2) The respondent/plaintiff to pay the costs of this application.


………………………………..
M.S Arach-Amoko
Judge
24/3/2009

Ruling delivered in open court in the presence of:
1)      

Mr. Mutabingwa for Applicant
2)       Ms. Akello Rose - Legal Assistant with Respondent’s Counsel.
3)       Applicant.
4)       Okuni Charles Court Clerk

……………………………………..
M.S Arach-Amoko
Judge
24/3/2009