THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT MPIGI

MISCELLANEOUS APPLICATION NO. 321 OF 2018

(ARISING FROM CIVIL SUIT NO.30 OF 2017)

KUSHABA RONALD:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPLICANT

VERSUS

1. COMMISSIONER FOR LAND REGISTRATION

2. JANE BITALI BISASO::::::::::::::::::::::::::::::::::::::::::::RESPONDENTS

BEFORE:  THE HON. JUSTICE EMMANUEL BAGUMA

RULING

1. This is an application for stay of execution. It is brought under Section 98 of the CPA, Order 22 r 23 and Order 52 r 1 and 2 of the CPR CAP 72-1. It is seeking for orders that;

• The enforcement/ execution of the judgment and orders of Justice Masalu Musene Wilson of 22/11/2018 be stayed until the disposal of the appeal.
• Costs of the application be provided.

1. The applicant being dissatisfied with the whole of the decision of the trial Judge filed a notice of appeal and a letter requesting for a certified record of proceedings on the 22nd November 2018. Both notice of appeal and the letter requesting for a certified copy of the proceedings were served on the respondent.
2. The grounds upon which the application is based are as below;

• The applicant has filed a Notice of Appeal against the judgment and has also requested for the certified copy of record of proceedings.
• The Applicant is in possession of the suit land, grazing and watering their animals thereon.
• That upon the delivery of the judgment, the 2^nd respondent is threatening to enter onto the suit land.
• That if this application is not granted, the appeal will be rendered nugatory.
• That the appeal has high chances of success because the land against which orders were made was not the suit land, among other grounds.
• It is in the interest of justice and balance of convenience that this application is granted to preserve the status quo pending the hearing of the appeal.

1. The application is supported by the affidavit of the applicant in which the grounds of the application were emphasized which are;

• On the 22/11/2018, Hon. Justice Musene Masalu Wilson delivered a judgment in the main suit and made orders on property that was not part of the suit land.
• The applicant being dissatisfied with the said judgment filled a Notice of Appeal and a letter requesting for a certified record of proceedings were served on the respondent.
• That upon the delivery of the said judgment, the 2^nd respondent is threatening to forcefully enter the suit land without executing a decree to that effect.
• The conduct of the 2^nd respondent of threatening to enter the suit land without a court decree and before the disposal of the appeal is likely to put his cattle to a serious danger of dying because of lack of water and pasture.
• The applicant has at all material times beenusing the suit land for purposes of grazing and watering his animals
• That the appeal will be rendered nugatory if this application is not granted pending the disposal of the appeal hence causing a miscarriage of justice.

1. Both counsel in their written submissions on court record argued
2. In the submissions filed in court on 14^th February 2019, counsel for the respondent raised a preliminary objection on whether the application is competently before this Honorable Court.
3. He submitted that for court to grant an order of stay of execution there must be an application for execution of the decree before the court. He stated that it is an agreed fact between the parties that there is no application for execution or any threatened execution for that matter and he cited case of MOHAMMED MOHAMED HAMID V ROKO CONTRUCTION LTD, SUPREME COURT MISCELLANEOUS APPLICATION NO.23 OF 2017.
4. Counsel for the applicant on the other hand submitted that the claim that the application is incompetent simply because the 2^nd respondent has not formally applied for execution is without any legal basis. He stated that the applicant’s prayer number one is clear that what he is praying for is not purely stay of execution in its technical sense. His application is that the enforcement/ execution” be stayed. He referred Court to the case of THE KABAKA OF BUGANDA V. MALE H.MABIRIZI K. KIWANUKA, High Court Civil Division Misc. Application No. 395 of 2017. He argued that the 2^nd respondent’s affidavit confirms that she is in the process of ensuring that the orders of the judge are implemented. He stated that in Paragraph 8-10, the 2^nd respondent stated that “the applicant has filed this application as a further attempt to delay and ultimately deter my lawful and rightful use of the suit land…………the applicant’s access to the suit land was extinguished by the permanent injunction restraining the applicant from further trespassing on the suit land……..the applicant once again forcefully trespassed onto the suit land and reported another case of Criminal trespass.
5. It is noted from the submissions of the counsel for the respondent that there is no application for the stay of execution of the decree of court and for that reason, there no threat of execution. However looking at the case of THE KABAKA OF BUGANDA V. MALE H.MABIRIZI K. KIWANUKA, where the issue before court was whether or not the orders of this court are capable of being executed and the term execution was defined to mean to carry out or to put into effect.
6. It is the evidence of the 2^nd respondent in her affidavit that following the results of the Civil Suit No. 30 of 2017, the applicant trespassed on to her suit land and even reported a criminal case against him. In the case of PARLIAMENTARY COMMISSION V. FRANCIS BYAMUGISHA AND URA MISC. APPLICATION NO. 219 OF 2016, it was held that a court order can either take effect immediately or be subject to execution proceedings to be realized. (value added)
7. Also in the case of KYAMBOGO UNIVERSITY V. PROF.ISIAH OMOLO NDIEGE CIVIL APPLICATION NO.341 OF 2013, it was held that for an order to be stayed such an order must be capable of being executed. The purpose of an order of stay of execution is to preserve the status quo and protect the applicant’s right of appeal being rendered nugatory.
8. Section 98 of the Civil Procedure Act provides that “Nothing in this Act shall be deemed to limit or otherwise affect the inherent power of the court to make such orders  as may be necessary for the ends of justice or to prevent abuse of the process of the court”
9. Considering the reasoning in the authorities and the law as above given, it is noted that there is no order of execution on record. But the fact that the 2^nd respondent is already using the results of the judgment to report the applicant for trespass to the suit land raises threat on the applicant’s life and his properties on the land in question. This court finds that the applicant has a right to appeal and in so doing the status quo has to be maintained not to make the appeal nugatory. The preliminary objection is dismissed. See a case ofSSEKIKUBO AND OTHERS V ATTORNEY GENERAL, Supreme Court Constitutional Application No.6 of 2013.
10. Counsel for the respondent on the issue of whether the application has sufficient reasons to justify the grant of stay of execution referred court to the case of GASHUMBA MANIRAGUHA V, SAM NKUNDIYE CIVIL APPLICATION NO. 24 OF 2015, the Supreme Court Quoted with approval the case of HON. THEODORE SEKIKUBO V AG CONSTITUTIONAL APPLICATION NO.06 OF 2013, Where it was stated that;

• The applicant must establish that his appeal has a likelihood of success, or a prima facie case of his right to appeal
• It must be established that the applicant will suffer irreparable damage or that the appeal will be rendered nugatory if a stay is not granted.
• If 1 and2 has not been established, court must consider where the balance of convenience lies;
• The Applicant must also establish that the application was instituted without delay.

1. On the first principle, he submitted that the applicant’s application does not reveal any pertinent issues that would merit the consideration of this court. He argued that it is not enough to take steps such as filing a notice of appeal and a letter requesting for proceedings of the trial court, this honourable court must be satisfied that the appeal raises grounds which merit consideration.
2. On the other hand counsel for the applicant submitted that a quick look into the judgment by Masalu Musene J reveals that it is the applicant who sued the respondent to recover his land from the 2^nd respondent. It is also visible that in her written statement of Defence, the 2^nd respondent did not raise any counter-claim against the applicant. He stated that the expected outcome would be either to allow the applicant’s suit or to dismiss it.
3. He argued that in a turn of events, the learned judge framed issue NO.1 as whether the plaintiff lawfully acquired the suit land? This issue was first of all not compliant with Order 15 rule 1(1) of the CPR which provides that issues arise when a material proposition of law or fact is affirmed by one party and denied by the other. He submitted that in the instant case, the plaintiff’s case was not that he did not lawfully acquire his land but that the 2^nd respondent was illegally registered onto his land. He averred that the issue would be “whether the 2^nd defendant was illegally registered onto the plaintiff’s land”? He submitted that this matter raises triable issues at appeal whether a court can frame an issue in a way that defeats the plaintiff’s case to make him appear less important.
4. counsel for the applicant in his submissions gave a brief of the findings of the judgment of Justice Musene upon which the judge faulted and they are as below;

• At page 5 of the judgment that…. the plaintiff did not acquire the suit land lawfully since the person that sold the suit land originally did not have the authority to sell and all the subsequent purchasers could not have obtained title when the person who originally sold had none.
• Page 7 that the 1^st defendant confirmed that the 2^nd defendant was rightly registered as the proprietor of the suit land.
• Pages 7-8 that;

• 1. A declaration that the 2^nd Defendant is the lawful owner of the suit property.
• 2. A declaration that the 2^ndDefendant lawfully obtained the Certificate of Title for land comprised in Gomba Block 83 plot 5.
• 3. A permanent injunction is granted restraining the plaintiff from further trespassing on the suit land.

1. He argued that there would be no way the judge could grant such positive orders to the respondent who never filed any counter-claim against the applicant. He submitted that this amounted to granting remedies not pleaded by the respondent which is an outright infringement of the applicant’s right to a fair hearing.
2. On the second principle, counsel for the respondent submitted that the applicant neither shows the nature of loss he would suffer nor what injury would result to him which could not be atoned for in damages. He stated that mere stating that the alleged actions of the 2^nd respondent are likely to put his cattle to a serious threat of dying because of lack of water and pasture is not enough because the applicant is illegally occupying 91 acres surrounding the suit land and there is no threat of death of the applicant’s cattle as there is plenty of land on which the applicant can graze.
3. Counsel for the applicant submitted that the term irreparable damage has been defined in the case of JAKISA V. KYAMBOGO UNIVERSITY, High Court at Nakawa Misc .Application No. 549 of 2013 where it was stated that “irreparable damage does not mean that there must not be physical possibility of repairing injury, but means that the injury must be a substantial or material one, that cannot be adequately compensated for in damages”. He argued that the decision defeats the claim by counsel for the 2^nd respondent that if the applicant’s cattle dies, the value can be ascertained. He stated that apart from the cattle being for commercial, the type of cattle indicated in annex C to the 2^nd respondent’s affidavit in rejoinder are also a cultural heritage, which cannot be adequately compensated in damages. He further submitted that there is no grazing landand water source point available anywhere in the surrounding places and that if the order is not stayed and the 2^nd respondent is permitted to continue with her activities, she may demolish his residential house, cattle and even the water sources hence causing substantial loss.
4. On the third principle, counsel for the respondent submitted that the applicant does not explain how the appeal would be rendered nugatory if an order for stay is not granted. Apart from casually stating so under paragraph 8 of his affidavit in support of the application, the applicant’s affidavit is silent on how the appeal would be rendered nugatory.
5. Counsel for the applicant in his submissions in respect of this principle referred court to the case of PARLIAMENTARY COMMISSION V. FRANCIS BYAMUGISHA AND URA MISC. APPLICATION NO. 219 OF 2016) and stated that several declarations and orders were made against the applicant of which are to make him not only homeless but also landless hence with no means of survival. He submitted that the 2^nd respondent has already reported him to police on the claims that he is trespassing on his own land. He stated that the applicant has been threatened with an eviction and that if these actions are indeed left to happen, then the appeal will serve less meaning hence the need to stay the orders of this court.
6. On the fourth principle, counsel for the respondent submitted that in HC.C.S NO.30 of 2017 was entered in favour of the 2^nd respondent. The 2^nd respondent rightly states under paragraph 3 of the affidavit in reply that she is the lawful owner and registered proprietor of the suit land and this is not uncontroverted by the applicant and there is no evidence adduced by him to the contrary.
7. Counsel for the applicants submitted that the balance of convenience is in favour of the applicant who, despite threats from the 2^nd respondent has remained in possession and utilization of the suit property.
8. On the fifth principle, counsel for the respondent submitted that the 2^nd respondent’s family is in actual and physical possession of the suit land. It is the 2^nd respondent’s evidence under paragraph 16 of the affidavit in reply deponed by Jane Bital, that the order sought by the applicant are intended to alter the status quo as he is not currently in lawful possession or occupation of the land. He stated that the applicant is not in possession and his continued trespass onto the land/ continued contempt of court does not and should not amount to possession by any means.
9. Counsel for the applicant in his submissions on this principle referred court to the case of JAKISA V. KYAMBOGO UNIVERSITY (Supra) and averred that the status has to be measured from the date of judgment and ask who was in possession and who is in possession as of to date as parties wait for the outcome of the appeal. He submitted that even the 3rd order of the judge restraining the plaintiff from further trespassing on the suit land indicates and connotes the status quo on the land; that the applicant was in possession at the time of judgment and the order to stop that possession by preventing the applicant from further trespassing being in possession which he challenges through the appeal.

CONSIDERATION OF THE APPLICATION BY COURT

1. The jurisdiction of this Court to grant a stay of execution is set out in Order 43 r.4 (1 &2) of the Civil Procedure Rules which provides that;

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.

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.

1. Under Section 98 of the Civil Procedure Act provides that;
2.  
3. However, like all judicial discretion, it must be exercised on well-established principles. Therefore the court to which an application for stay of execution pending appeal is made must put in to consideration the fact that the appeal if successful will be rendered nugatory.
4. I have looked at the submissions of both counsel and the affidavits on record.
5. The principles under which an application for stay of execution can succeed were well settled in the case of GASHUMBA V. NKUDIYE CIVIL APPLICATION NO.24 OF 2015 cited with approval the case of HON THEODRE SSEKIKUBO AND ORS V. THE ATTORNEY FENERAL AND ORS CONSTITUTIONAL APPLICATION NO.03 OF 2014. They included

• The applicant must show that he lodged a notice of appeal
• The applicant must establish that his appeal has a likelihood of success; or a prema facie case of his right to appeal.
• It must also be established that the applicant will suffer irreparable damage or that the appeal be rendered nugatory if a stay is not granted
• If 1 and 2 above has not been established, court must consider where the balance of convenience lies.
• That the applicant must also establish that the application was instituted without delay.

1. Regarding the first principle there should be a pending appeal. According to the record, the applicant filed a Notice of Appeal on the 22^nd/11/2018 on the same day the judgment was delivered. The notice was filed within the prescribed time by the law. I find that this principle was fulfilled.
2. On the second principle that there should be a likelihood of success, counsel for the applicant submitted that the judgment by Masalu Musene J reveals that it is the applicant who sued the respondent to recover his land from the 2nd respondent. It is also visible that in her written statement of Defence, the 2nd respondent did not raise any counter-claim against the applicant. He stated that the expected outcome would be either to allow the applicant’s suit or to dismiss it.
3. He argued that in a turn of events, the learned judge framed issue NO.1 as whether the plaintiff lawfully acquired the suit land? This issue was first of all not compliant with Order 15 rule 1(1) of the CPR which provides that issues arise when a material proposition of law or fact is affirmed by one party and denied by the other. He submitted that in the instant case, the plaintiff’s case was not that he did not lawfully acquire his land but that the 2nd respondent was illegally registered onto his land. He averred that the issue would be “whether the 2nd defendant was illegally registered onto the plaintiff’s land”? He submitted that this matter raises triable issues at appeal whether a court can frame an issue in a way that defeats the plaintiff’s case to make him appear important.
4. He gave a brief of the findings of the judgment of Justice Musene upon which the judge faulted and they are as below;

• At page 5 of the judgment that…. the plaintiff did not acquire the suit land lawfully since the person that sold the suit land originally did not have the authority to sell and all the subsequent purchasers could not have obtained title when the person who originally sold had none.
• Page 7 that the 1st defendant confirmed that the 2nd defendant was rightly registered as the proprietor of the suit land.
• Pages 7-8 that;

• 1. A declaration that the 2nd Defendant is the lawful owner of the suit property.
• 2. A declaration that the 2nd Defendant lawfully obtained the Certificate of Title for land comprised in Gomba Block 83 plot 5.
• 3. A permanent injunction is granted restraining the plaintiff from further trespassing on the suit land.

1. He argued that there would be no way the judge could grant such positive orders to the respondent who never filed any counter-claim against the applicant. He submitted that this amounted to granting remedies not pleaded by the respondent which is an outright infringement of the applicant’s right to a fair hearing. This court therefore finds that the complaints raised by the counsel for the applicant above, indicate arguable grounds of his appeal.
2. The 3rd principle is that it must be established that the applicant will suffer irreparable damage. Paragraph 6 and 7 of the applicant’s affidavit indicates that the applicant has at all material times been using the suit land for purposes of grazing and watering his animals and that the conduct of the 2nd respondent of threatening to enter the suit land without a Court decree and before the disposal of the appeal is likely to put his cattle to a serious danger of dying because of lack of water and pasture. It is however noted that counsel for the respondent objected and stated that the applicant has over 91 acres of land where he can pasture his animals but the applicant argued that there is only one water source where his animals can get water and that’s what the respondent wants to take away from him. Given the objection by counsel for the respondent, this court finds that since the applicant’s claim is that he is the one in possession of the land in question where he lives with his family, it is presumed that he will suffer irreparable damages. This principle is proved.
3. On the issue of whether the appeal will be rendered nugatory if a stay is not granted, counsel for the applicant argued that several declarations and orders were made against the applicant of which are to make him not only homeless but also landless hence with no means of survival. He submitted that the 2nd respondent has already reported him to police on the claims that he is trespassing on his own land. He stated that the applicant has been threatened with an eviction and that if these actions are indeed left to happen, then the appeal will serve less meaning hence the need to stay the orders of this court. This principle is also proved.
4. Following the applicants affidavits; the applicant stated that he is the one in actual possession of the suit property where he lives with his family and he has animal farm. He pastures his animals on the land and the house thereon. It is in his affidavit in rejoinder that the 2^nd respondent reported the case of Criminal Trespass SD REF: 05/09/2018 at Maddu Police Station after obtaining the judgment, where he forcefully wants to evict the applicant, his family and animals. Considering the above, the balance of convenience is found in favour of the applicant.
5. On the forth principle, the judgment by Justice Masalu Musene was delivered on the 22/11/2018 and a Notice of Appeal was filed on the same day and the Notice of Motion was filed on the 20^th/12/2018. It is therefore my considered view that the application was lodged without unreasonable delay.
6. The applicant having fulfilled all the above requirements for the grant of an application for stay of execution, I consequently allow the application. The costs shall abide by the results of the appeal.

Emmanuel Baguma