THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
CIVIL APPLICATION NO. 632 OF 2007
(Arising from Miscellaneous Cause No. 22 of 2007)
(Also arising from Luwero Land Tribunal Claim No.79 of 2007)
BEFORE: HON. JUSTICE RUBBY AWERI OPIO
The grounds upon which the application was based are contained in the affidavit of the Applicant Mr. Livingstone Nsumba Membe. The salient paragraphs are paragraph 2, 4, 5, 6, 7 which are to the effect that:-
(c) That judgment was entered in my favour in May 2006.
(d) That the Application unreasonably took almost a year before deciding to appeal.
Under Order 43 Rule 4 (3) of the Civil Procedure Rules stay of execution may be granted by court upon being satisfied that:
In the premises I find that this application does not fall under Order 43 Rule 4 of the Civil Procedure Rules.
This application was further based under Section 98 of the Civil Procedure Act which gives court inherent jurisdiction.
Further more Section 33 of the Judicature Act grants this court general powers to grant any remedies as any of the parties to a case or matter is entitled to in respect of any lawful or equitable claim properly brought before it. It is under the above provisions of the law that I would consider this application for stay of execution. The contention by Counsel for the Respondent that Section 98 of the Civil Procedure Act does not operate where there is existence of specific procedure does not hold water because that section grants court wide powers to prevent or correct any form of injustice. See: Mugenyi & Co. Advocates vs National Insurance Corporation [1992-93] HCB 82.
Under the said provisions of the law the Applicant has to satisfy court that:
In the instant case the Applicant instituted his claim No. 79 of 2004 in Luwero District Land Tribunal and the tribunal ruled against him in May 2006. Under the Land Tribunal Regulations, the Applicant was required to appeal within sixty days but he decided to sit on his rights for almost one year when he decided to apply for leave to appeal out of time. In my view that constituted unreasonable delay and the common sense I can derive from it is that he had lost interest in the claim and that leave to appeal out of time could have been a mere afterthought.
As far as substantial loss is concerned, the burden is on the Applicant to show that his appeal has real prospects of success and that if stay is not granted he would suffer substantial loss.
In the first place the Applicant has not shown how his application for leave to appeal out of time has prospects of success. The Applicant’s affidavit falls short of explaining why he failed to take the necessary steps at the right time. Secondly there was no evidence to show that his appeal had some prospects of success. There was submission from the bar that the Applicant was in actual possession of the land and that he had developed the same with pineapple plantation under NAADS programme and that he has a socio-cultural attachment to the land. However, the law is that submissions from the bar does not constitute evidence. In the above submission is to be believed then this court would also believe the submission by the Respondent’s Counsel that the appeal is not likely to succeed because the Applicant also signed as a witness on the Sale Agreement passing the suit property onto the Respondent as per evidence on record. Balancing the circumstances of this case the only conclusion I can draw is that the Applicant has failed to show that his application is genuine and it is accordingly dismissed with costs. I so order.
HON. JUSTICE RUBBY AWERI OPIO
The Applicant present in person.
Respondent in court.
Nsamba Abbas for Respondent.
Applicant’s lawyer absent.
Ruling read in Chambers as in Open Court.
HON. JUSTICE RUBBY AWERI OPIO