THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
(EXECUTION AND BAILIFFS DIVISION)
MISCELLANEOUS APPLICATION NO. 2699 OF 2016
(ARISING FROM EMA NO. 2698 OF 2016)
(ARISING FROM CIVIL SUIT NO. 28 OF 2014)
NABOSSA AISHA ---------------------------------------- APPLICANT
- YAGALA CHRISTINE
- NALUGYA PROSCOVIA
- NAKIYINGI BIRAH
- BINYERERE EMMANUEL
- COMMISSIONER LAND REGISTRATION ------- RESPONDENTS
BEFORE LADY JUSTICE FLAVIA SENOGA ANGLIN
This application was made under S.98 CPA, 0.22 r 23 and 0.43 r 4 C.P.R. The Applicant seeks the following orders of this court:-
- An order staying execution of the ruling and orders in HCCS No. 28/16 until final disposal of the appeal.
- The status quo of the land comprised in Block 2, Plot 30, Sir Apollo Kaggwa Road, Kampala, be maintained pending the hearing and determination of the appeal.
- Costs of the application be provided for.
The grounds for the application, set out in the affidavit of the Applicant are that:-
The Applicant filed HCCS 28/14 seeking interalia declarations and correction of the certificate of title for land comprised in Block 2, Plot 30, Sir Apollo Kaggwa Road.
While the suit was pending, the Applicant applied for a temporary injunction vide HCMA 237/2015. When the application was called for hearing, the Fourth Respondent raised a preliminary objection contending that the main suit was time barred.
The trial court dismissed the main suit on 22.11.16, without giving the Applicant a hearing, thereby infringing the Applicant’s right to a fair hearing.
An appeal has been filed against the decision of the trial judge as indicated by Annexture B to the supporting affidavit.
That if the orders of court are executed before the appeal is heard; the Applicant will suffer substantial loss and irreparable loss.
This application has been filed without any delay.
The appeal will be rendered nugatory if this application is not granted, yet the Respondents will not be prejudiced in any way if the stay is granted.
That this court has the discretion to grant stay of execution.
There is an affidavit in reply deponed by the First Respondent where she confirms the filing of the suit and application for temporary injunction, and that the preliminary objection was upheld.
However that, the suit was raising serious allegations of fraud against the Respondents in respect of their late father’s estate to which they and the Applicant are beneficiaries.
That the said fraud was purportedly committed during the time the estate was being administered.
Therefore that, because of the serious allegations of fraud raised in the main suit, which ought to be investigated to the satisfaction of everybody, the Respondents concede to that application for the ends of justice.
The Applicant should be allowed to prosecute her appeal and the status quo maintained until final determination by court.
That it is in the interests of justice that the application be allowed.
There is a supplementary affidavit in reply by the Fourth Respondent. Contrary to the deposition of the First Respondent, the Fourth Respondent claims that the suit was struck out on valid legal grounds after the Applicant was accorded an opportunity to be heard, as reflected in the ruling.
Also that he is not aware of any appeal filed by the Applicant pending before the Court of Appeal.
That as the successful party, he has never applied for execution and the purported EMA 2699/16 from which this application arises is not known to him and he does not know the circumstances under which the Applicant commenced execution.
The Applicant shall not suffer any substantial or irreparable damage as no particulars are shown in the supporting affidavit.
The application and supporting affidavit do not satisfy the consideration for grant of stay of execution.
It is the further contention of the Fourth Respondent that the Applicant is in the habit of abusing court process. That she obtained an exparte order in Mengo C.S 462/14, which she used to evict the Fourth Respondent’s tenants and forcefully take possession of the land. The order was set aside. She appealed to the Commercial Court and the appeal was struck out.
And in HCCS 28/14, it was agreed to maintain the status quo but the Applicant violated the court order by building illegal structures on and renting out the land (Annexture “A”).
It was the further contention of the Fourth Respondent that, since the Applicant has previously acted with impunity and in contempt of the consent interim order, she should not be granted courts protection.
After several adjournments for reasons indicated on record, the application was finally heard on 09.03.17 in the presence of all Counsel.
Counsel for the Applicant went through the provisions of the law under which the application was made. Referred to the affidavit in support pointing out that it sets out the background to the application and highlighted a few points.
He explained that, the order dismissing the Applicant’s suit arises out of an interlocutory application. And that therefore, it was a gross irregularity in procedure which amounted to denial of the right to a hearing for the main suit to be dismissed on a preliminary point of law that touches on the main suit.
Counsel asserted that, the order of dismissal of the main suit had the effect of defeating the Applicant’s legal interest in the suit property and creating avenues of putting the property beyond the reach of the Applicant, as reflected in the supplementary affidavit in rejoinder that was filed on 07.03.17.
The affidavit was wholly adopted by Counsel for the Applicant.
It was asserted that the order sought to be stayed is self executing by nature and does not require sanction of court for the party to do with the title as he wishes. That is to remove caveats and transfer the land, hence this application under S.98 CPA.
The section grants court “inherent powers to make such orders as may be necessary for the ends of justice and to prevent abuse of the process of court”.
Adding that, the orders sought are necessary for the ends of justice to be met.
Further that under S.38 (3) of the Judicature Act, an injunction may be granted if court deems it fit.
Counsel submitted that, the order sought is an injunctive order, because the parties threatened to alienate the property from the Applicant’s reach and put the Applicant’s legal interest under an apprehended waste.
The Fourth Respondent was sought out as claiming to have a viable legal title on the land. But that, court has powers under the laws cited to stop the Respondent from doing any act that will defeat the ends of justice.
Counsel argued that, the rules cites did not contemplate a situation of self executing order. Therefore by their wording require a stay of execution under 0.22 r 23 C.P.R, where file is sent for execution.
It was the further submission of Counsel that the Civil Procedure Rules (CPR) are subsidiary legislation and subordinate to the Judicature Act and the Civil Procedure Act. Where the rules speak counter to either of the two statutes, the main statutes prevail.
But that, without prejudice to that argument, the law is dynamic and is considered to grow with its society. Therefore that, it is applied to cater for the different circumstances that may face a growing society. For that reason, 0.22 r 23 C.P.R can be given a Perfarcive interpretation so as to reach its desired effect that was in the minds of the framers.
And that stay of execution is considered to be discretionary. The court weighs the circumstances of each particular case and exercises discretion whether to stay execution or grant the order sought.
Court was referred to the case of P.K Sengendo vs. Busulwa Lawrence & Another CACA 207/14 by Justice Kakuru – where at Pg 3, 4 and 5, the discretion of court in such applications is discussed. The conclusion was that, “if what was sought to be executed was payment of a sum of money, generally courts will deny stay. Reason being that money can always be returned. But where the subject matter was property capable of permanent alienation and therefore capable of causing the appeal preferred to be nugatory, for example, transfer, then court will exercise its discretion in favor of the Applicant, so as to give benefit to the appeal to be attended to on its merits”.
Counsel stated that, that is the case in the present application, the affidavits of the Applicant indicate that if the order is not stayed and status quo maintained to allow appeal to be determined on its merits, the appeal which will most likely succeed will be rendered nugatory since the legal interest of the Applicant will be defeated.
It was then prayed that the application be allowed and costs follow the outcome of the appeal.
Counsel for the Respondents submitted that the Fourth Respondent opposes the application. Referring to the two affidavits in reply dated 08.12.16 of Nandyose Sebina and the one of 01.03.17 by the Fourth Respondent, respectively, Counsel stated that:-
- The application is an abuse of court process because of the following reasons:-
- No order was extracted from the ruling of 22.11.16 and therefore there is nothing to be stayed.
- The Practice is that the successful party applies to court for execution. In this case, Fourth Respondent and consequently, the Judgment Debtor can file application for stay.
But that, in this case the Judgment Debtor (Applicant) is moving court to stay a ruling dismissing the suit.
- The issue is whether court can stay an order dismissing a suit.
The answer is no; Counsel stated, adding that the Trial Judge had earlier granted an interim order by consent and there was a substantive injunction which lapsed when Applicant’s suit was struck out. That for the Applicant to seek the same injunction is abuse of court process as it was agreed upon and was later vacated by the ruling dismissing the suit.
- 0.22r23 C.P.R under which the application is made provides for stay of execution where a decree has been forwarded for execution
But that is not the case here, Counsel pointed out. The Applicant’s claim that, the file was sent to Land Division under 0.22r23 C.P.R does not assist the Applicant. There are no execution proceedings commenced Counsel asserted.
Therefore that, the application does not satisfy conditions for grant of stay of execution. Yet it is trite law that the Applicant should show sufficient cause for stay. But that looking at the application and supporting affidavit, no sufficient cause has been shown.
Also that, the Fourth Respondent is yet to tax his Bill of Costs which would be a threat to execute.
The Respondent is not aware of any pending appeal, implying that he has not been served either with notice of appeal or the letter requesting for proceedings. Therefore that, the appeal would be frivolous for lack of taking the essential steps. Adding that, it has been three months since the documents were purportedly filed and therefore there is no appeal.
Further that, the ruling of the Trial Judge indicated that the suit was struck out because the Applicant failed to state grounds of exemption in her pleadings. Hence the holding that the suit was time barred.
Finally that, S.38 (3) of the Judicature Act does not apply to the present proceedings. It was cited out of context, Counsel argued. It only applies to the injunction in the proceedings which were before the Trial Judge.
What is applicable is whether the Applicant has shown sufficient cause and provided security for due performance of the decree.
That the submissions concerning possible transfer and removal of caveats is evidence from the Bar since the Applicant did not demonstrate in her affidavit if she filed a caveat and how it will be vacated. Whether the Fourth Respondent has taken any steps to vacate the caveat.
It was pointed out that the Fourth Respondent in his affidavit in reply gave the background to the current proceedings – paragraph 8 and 9. And how the Applicant abused the previous interim order.
Counsel then submitted that the Applicant should not be given protection of the court as she has previously acted in contempt of court.
That the authority cited by Counsel for the Applicant P.K Sengendo vs. Busulwa Lawrence & Another CACA 207/14 emphasizes sufficient cause and how appeal will be rendered nugatory if stay is not granted.
However that, the appeal will proceed even without the orders sought by the Applicant. The appeal is about whether the Applicant has a cause of action.
Counsel then prayed court to dismiss the application with costs.
In rejoinder, it was the contention of Counsel for the Applicant that, the issue on appeal is whether the Respondent is legally with title and therefore touches ownership. The Applicant’s suit was dismissed and hence her legal claim.
The Court of Appeal has to decide on title and may send the file back for trial.
Basing on the principle in CACA 207/14, court was urged to find sufficient cause exhibited and that irreparable damage will occur.
Commenting about the alleged contempt of court, Counsel referred to paragraphs 6,7,8,9 and 10 of the affidavit in rejoinder and argued that there is no order of contempt. And that thinking that someone acted in contempt does not suffice.
About the alleged unlawful taking of possession, Counsel referred to paragraphs 6, 7, 8,9,10 and 11 of the affidavit in rejoinder; and urged court to look at the Tenancy agreements and receipts with persons evicted. He contended that there is nothing to show that the tenants were tenants of the Fourth Respondent.
As to the alleged submission from the Bar, about the caveats – paragraphs 5-9 of the affidavit in rejoinder were referred to.
Security for due performance of decree: Counsel submitted, is not mandatory. It arises out of discretion of court.
If the Applicant losses the appeal, she will vacate the land. Therefore she does not require to give security for due performance.
S.38 (3) of the Judicature Act- contemplates scenarios after the matter has been heard, Counsel argued. Stay is also an injunction.
Counsel also insisted that the appeal has merit and is therefore not frivolous. That there was gross abuse of procedure which denied the Applicant a hearing.
Service of notice of appeal and letter requesting fro proceedings: That service has never been acknowledged by Counsel for the Fourth Respondent. Yet the chamber summons had notice of appeal and letter requesting for proceedings attached.
That 0.22r23 C.P.R, S.98 CPA and S.38 Judicature Act should be given perforcive interpretation.
Extracting decree is a mere technicality and not necessary. The Fourth Respondent should have extracted the order but its extraction is not necessary for stay.
Applying for stay after party applies for execution is not a requirement under S.38 Judicature Act, as long as there is threatened waste or apprehended waste.
It was emphasized that stay of order dismissing the suit is not what is sought by the Applicant; but stay of the consequences arising as a result. The Appellate Court will attend to the questions of dismissal.
And that since the interim order was vacated after the ruling; there is need for the application to preserve the status quo.
Court was urged to find the circumstances justifiable for stay of execution pending hearing and disposal of the appeal. And that costs should abide the outcome of the appeal.
Whether this is a proper case for stay of execution and maintaining the status quo.
It has been repeatedly stated by decided cases that “court has discretion to grant stay of execution. However that, this power ought to be exercised judiciously and where it appears equitable to do so, with a view to temporarily preserving the status quo”.
Guiding principles to be considered in applications for stay of execution have also be established. They include:-
- Suit pending before another court
- Likelihood of suffering substantial loss or irreparable damage
- The application has been made without unreasonable delay.
- Security for costs has been given by the Applicant.
- Balance of convenience.
However, “the guiding principles depend on the individual circumstances and merit of each case. The individual circumstances of each case will determine whether the case falls within the scope and parameters of any other laid down principle”. Refer to the case of East African Development Bank vs. Blueline Enterprise Ltd  2EA 5 (CAT) and David Wesley vs. Attorney General Constitutional App. 61/14.
In the present case, the circumstances are well laid out in the grounds for the application and the supporting affidavit of the Applicant, earlier set out in this ruling. I will therefore not repeat them except to emphasize that the suit filed by the Applicant was dismissed without the Applicant being given a chance to be heard.
An appeal has been filed although this is disputed by the Respondent – Refer to Annexture B1 of the supporting affidavit - notice of appeal and B2 – application for copy of record of proceedings.
According to the case of Attorney General vs. East African Law Society & Another EAC J Application No. 01/3 “a notice of appeal is sufficient expression of an intention to file an appeal and such an action is sufficient to found the basis for grant of orders of stay in appropriate cases”.
Although Counsel for the Fourth Respondent claims that the Fourth respondent has not been served with the notice of appeal and application for proceedings, it cannot be denied that the notice of appeal and application for proceedings of the trial court were attached to the chamber summons, which the Fourth Respondent received and thereby filed an affidavit in reply opposing the same. This court therefore finds that the Fourth Respondent was served. The submissions claiming otherwise are accordingly not sustainable.
The First and Third Respondents also admit that the Applicant has filed an appeal and should therefore be given a chance to prosecute the same and the status quo maintained until determination of the said appeal.
The Fourth Respondent also argues that there is no threatened execution as no decree has been forwarded for execution and no such proceedings commenced. That even the Bill of Costs have not been taxed. And that, the Applicant is moving court to stay the ruling dismissing the suit.
But this court finds that, it is clear from the application, the supporting affidavit and the submissions of Counsel for the Applicant that the orders sought are not to stay the ruling dismissing the suit, but to stop the eminent eviction of the Applicant from the suit land, thereby maintaining the status quo.
The Fourth Respondent who claims to have viable legal title to the disputed land can move court for consequential orders, yet the Applicant wishes to be given a chance to appeal the orders of the trial judge.
As pointed out by Counsel for the Applicant and rightly so in my view, “the inherent powers of court provided for under S.98 CPA may be rightly invoked in the circumstances of this case to order that the status quo be maintained for the ends of justice”.
It would be perpetuating an injustice to deny the Applicant a chance to be heard on appeal if court were to refuse to maintain the status quo. “The determination of what is unfair or wrong is for the court to determine on the individual facts of each case”.
S.38 (3) of the Judicature Act is also applicable to the circumstances of this case. The circumstances already referred to in this case where the Fourth Respondent claims a viable title over the disputed land, the possibility of a threatened or apprehended waste cannot be ruled out. So as already indicated this is a proper case for issue of an injunction to maintain the status quo. The ends of justice demand so.
Although the Fourth Respondent argues that the appeal will proceed even without orders sought by the Applicant, the balance of convenience demands that the status quo be maintained to prevent any unpleasant eventualities. As the saying goes “being prepared is not cowardice that is why the safari ant moves with its fangs ready to strike”.
The subject matter of the appeal is land capable of permanent alienation for example by transfer to a third party, which would render the appeal nugatory. “Court will accordingly exercise its discretion in favor of the Applicant, so as to give benefit to the appeal to be attended to on its merits”. – See P.K Sengendo vs. Busulwa Lawrence & Another (Supra).
There are also many other issues raised in this application for example as to why the suit was struck out, which can only be properly determined on appeal. This is supported by the First and Third Respondents. I will therefore not delve in the issue of the alleged contempt by the Applicant, so as not to preempt the decision of the Court of Appeal.
And since the Applicant is said to be in possession of the suit land and the Bill of Costs of the Fourth Respondent is not yet taxed, this court does not find it necessary to order security for due performance.
If the Applicant loses the appeal, she will have no choice but to vacate the land.
The application is allowed for all those reasons. The status quo of the disputed land to be maintained pending the hearing and determination of the appeal.
Costs of the application will abide the outcome of the appeal.
FLAVIA SENOGA ANGLIN