THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

(EXECUTION AND BAILIFFS DIVISION)

MISCELLANEOUS APPLICATION NO. 724 OF 2016

(ARISING FROM EMA NO. 2455 OF 2015)

(ARISING FROM CIVIL SUIT 106 OF 2014)

1. SSEMWANGA SABITI
2. WASSWA ABDALLAH ………………………………… APPLICANTS

1. KATO HAMIDU
2. YUDAYA NAMITALA ………………………………… RESPONDENTS

BEFORE LADY JUSTICE FLAVIA SENOGA ANGLIN

By this application made under S.9 CPA, 0.22 rr 23(1) and 26 and 0.52 rr 1,2 and 3 C.P.R, the Applicants sought orders of this court staying execution pending the disposal of the revision of the decree in Civil Suit 166/2014 and a High Court Civil Suit of 2013, whose number was not indicated in the application.

Costs were also applied for.

The grounds of the application briefly are that:-

1. The Applicants have a pending case against Respondents in respect of the same subject matter at Masaka High Court.

1. The Applicants were not heard in Civil Suit 106/2014 which proceeded exparte.

1. On 14.12.15, the Execution Court ordered for stay of execution of the decree to allow the Applicants time to challenge it.

1. It is in the interests of justice that this application be allowed.

The application is supported by the affidavits of both Applicants which were read and relied upon at the hearing.

There is an affidavit in reply deponed by the First Respondent where it is insisted that the Applicants were heard in the lower court, but only failed to file a defence where upon interlocutory judgment was entered against them on 20.02.15.

Therefore on 01.04.15, the Applicants were informed that they had no audience since they did not file a defence.Their oral application for leave to file a defence out of time was rejected.

Their Counsel was advised to file a formal application to set aside the interlocutory judgment and for leave to file a defence and was granted and adjournment to 20.05.15.However that, neither application nor defence was filed.

On 20.05.15, the Applicants / Defendants and their Counsel did not attend court although the date had been fixed at their instance; where upon hearing proceeded exparte.

Judgment was delivered on 17.08.15.When summoned to show cause why execution should not proceed, the Applicants were advised to file proceedings to set aside exparte judgment but they did not do so.

Another order for eviction of the Applicants was issued by the trial court on 10.02.16 and it was executed on 13.05.16 and the Applicants were evicted from the suit premises.

That the Applicants deliberately refrained from defending the main suit although they were given opportunity to do so.

They have no valid claim to suit land which has already been sold to a third party who has taken possession of the same.The land is therefore no longer in control of the Respondents.

There is an affidavit in rejoinder deponed by the First Applicant.He insists there is a Civil Suit in Masaka High Court, challenging the validity of the Letters of Administration granted to the Respondents.

The Respondents are the Defendants and have filed a defence.

The suit at Masaka once disposed of will determine the questions raised in Civil Suit 106/2014 of Makindye.

That therefore execution ought to be stayed in the interests of justice as the decree sought to be executed is the subject of other proceedings in another court.

The proceedings to set aside exparte judgment could not be filed as the mother file had been sent to the Execution Court.

That since lawyers were duly instructed but did not carry out their instructions; the Applicants cannot be condemned unheard for the mistakes of their Advocates.

The execution arising out of Civil Suit 106/2014 has not been fully completed and court has powers to stay execution pending the determination of the legality of the Letters of Administration by High Court Masaka.

There is also a reply to the First Applicant’s rejoinder, contending that the rejoinder contains distortions to suit the Applicant’s application.

The affidavit is in essence a re-affirmation of the matters deponed upon in the affidavit in reply.It was agreed by both Counsel that the affidavit be disregard by Court; when hearing took off on 01.12.16.

Counsel for the Applicants went through the application asserting that it seeks to stay execution pending the disposal of High Court Miscellenous Application 174/16 before Masaka High Court which seeks to re-instate Civil Suit 46/13 that was before the same court.

The suit involved the same parties before this Court, and seeks to give the Applicants an opportunity to be heard before they are condemned.

It was then submitted that court has powers under 0.22 r 26 and S.9 CPA to stay execution where there is a pending suit between the parties in another city.  The case of Hwangsung Industries Ltd vs. Tajdin Hussein and 2 Others SCCA 19/08 was cited in support.

Contending that the Applicants had proved that there is a pending application in another court of the same jurisdiction, Counsel prayed court to allow the application, pending disposal if the application in Masaka with costs to the Applicant.

The application was opposed by Counsel for the Respondents.  He pointed out that it arises out the execution proceedings from HCCS 106/14 between the parties, handled by Makindye Grade 1’s Court.  The property is at Katwe, Kampala.

He then went through the affidavit in reply emphasizing that, the Applicants were evicted and the property handed over to the Respondents.  And that the property has been sold off, and execution completed but Applicants filed this application.

It was argued that, it will be an injustice to stay an execution that has been completed and the suit property disposed of to a third party.  The alleged Civil Suit in Masaka was also dismissed and since there is no pending suit, 0.22 r26 C.P.R does not apply to the circumstances of this case.

That the Applicants sat on their rights although they were ably represented and decided not to defend the suit.

Counsel then prayed for dismissal of the application.

In rejoinder, Counsel for the Applicants asserts that there is a pending application before Masaka High Court.  And that failure to stay execution will render that application nugatory.  Interim stay of execution was granted by the Registrar and the Applicants are in possession of the property where they reside and the property has never been passed on to the Respondents.

He reiterated earlier prayers.

Under S.98 C.P.A, court has inherent powers to make any order for the ends of justice and to prevent abuse of the process of court.

While under 0.22r23 (1) “court may stay execution upon sufficient cause being shown….”

And r 26 of 0.22 provides for “stay of execution pending suit between the decree holder and judgment debtor”.

Principles have been laid down in decided cases setting out the circumstances under which execution may be stayed.

However, it has also been made clear that “the guiding principles would depend on the individual circumstances and merit of each case.  The individual circumstances of each case would determine whether the case falls within the scope and parameters of any other laid down principles.”

One of the factors to be considered in an application for stay of execution is “whether the outcome of the appeal would be rendered nugatory, if execution is not stayed”. – Refer to East African Development Bank vs. Blueline Enterprises Ltd [2006] EA 51 (CAT).

Court has taken notice of the circumstances of the present case where the parties belong to one family.

The Applicants are contesting/challenging the grant of letters of Administration to the Respondents which led to the suit out of which the decree sought to be executed arose.  The submissions of each of the parties as to what transpired in the suit have already been set out in this ruling.

It is true as pointed out by Counsel for the Respondent that the decree was eventually executed and that the Applicants were evicted from the suit land.

However, it is clear from the court record that execution ensued while the current application was pending hearing before this court.

Further that, when it was brought to the notice of the court that execution had ensued, the court directed the Registrar to recall the warrant, on the ground that the pending application would be rendered nugatory; which was done; without any indication that execution had been completed.

The Applicants went back to the land once execution warrant was recalled and as matters stand now they are in occupation of the disputed land.

While court has no intention of encouraging impunity and the practice and principles laid down by decided cases strongly condemn contempt of court orders, it is apparent that the situation in this case arose as a result of conflicting orders of this court.

If a stay of execution is not allowed considering the above circumstances and the Applicants given a chance to prosecute the matter pending in Masaka Court, the application will be rendered nugatory.

The alleged third party can take other appropriate legal remedies open to him.

Stay is accordingly granted pending the disposal of the application at Masaka and the Applicants directed to fix the same for hearing and notify the Respondents.

Costs will abide the outcome of the application pending before Masaka High Court.

Flavia Senoga Anglin

JUDGE

27.02.17