Lubega & Another v Ssinabulya & 2 Others (Civil Application 10 of 2024; Civil Application 6 of 2024) [2024] UGSC 38 (7 May 2024)

5 THE REPUBLIC OF UGANDA, IN THE SUPREME COURT OF UGANDA AT KAMPALA CIVIL APPLICATION NO. 10 AND 006 OF 2024 (ALL AR|S|NG FRoM CoURT 0F AppEAL CrVrL AppEAL N0. 18 OF 20121 1. J0HN LUBEGA) 2. ANNETNAMPUUTA) APPLICANTS 10 15 20 25 30 VERSUS 1. JoHN SSTNABULYA) 2. DEZTRANTA NANNONo) 3. rvoNA NANZTRT) RULING OF CHRISTOPHER MADRAMA IZAMA, JSC The appticants Lodged Civil. Apptication No. 10 ot 2021+ under the provisions of rutes 2 (2), 42 and 43 of the Judicature (Supreme Court Rutes) Directions for an interim order of stay of execution to be granted pending the determination of the main apptication; Civit Apptication No. 006 of 202L f or stay of execution pending hearing and determination of the appeat. Second[y the appticants pray that the costs of the appLication are provided for. The grounds of the appLication as set out in the Notice of Motion are as f ottows: l. 0n 2nd April 202L, the Court of Appeal. detivered judgment in Civil. Appeat No 18 of 2012, setting aside the Judgment and orders of the High Court and substituting it with the Judgment of the Court of Appeat. 2. The appticants being dissatisfied with the decision of the Court of Appeat in CiviL Appeat No 018 ot 2012 fited a notice of appeat and wrote a letter requesting for proceedings on 3'd Aprll 2021+, to enabte them ...RESPONDENTS 1 5 10 l5 20 25 30 35 obtain the record of appeat and thereafter fite an appea[ in the Supreme Court. 3. The notice of appeal. and [etter requesting for proceedings was served upon the respondent's advocates and a copy of the notice of appeal. was atso served upon the Supreme Court of Uganda. 5. The respondents have since engaged the services of baitiffs T/a Jobka General Auctioneers and Court Bail.iffs who have issued an eviction notice to atl occupants of the suit property comprised in Kyadondo Btock 216 ptots 1218, 3960 and 3961. 6. The Court of Appeal. dectined to hear the appticant's apptication for an interim order of stay of execution on grounds that it Lacked jurisdiction. 7. The appticant was informed during the proceedings for the interrm order of stay of execution that it was next to impossibLe for the Court of AppeaL to constitute a panel of justices to handte the main apptication for stay of execution. 8. The respondents have through their agents destroyed a banana ptantation on the suit land. 2 4. The respondents have since obtained a decree which among other things requires the appticant to fite a return at the High Court Famity Division on the fite of the late Nabutya Petotatina 90 days from the date of the Judgment of the Court of Appeal.. Secondty, the order empowers the Commissioner Land Registration to canceI and reverse at[ entries made on the properties of the late Yozefu Bukenya and Petotatina Nabul.ya. 5 9. The apptication wit[ safeguard the appticant's right of appeat, for if it is not granted, the appticant's intended appeaI wilt be rendered nugatory. 10.The appticant has fited the main apptication for stay of execution pending the determination of the appeat. 10 11. The main apptication for stay of execution and intended appeal witt be rendered nugatory if an interim order of stay of execution is not granted. 15 12. lt is in the best interests of justice, equity and fairness that this apptication is granted. The apptication is atso supported by the aff idavit of Mr John Lubega, the f irst appl.icant who deposed to an affidavit on 22nd Aprll 2021t in which he 20 confirms the averments in the Notice of Motion. He particularty set out the orders of the Court of Appeal. that are sought to be stayed. The appticant atso attached the retevant notices of appeal and letter requesting for proceedings. Further the appticant attached the Judgment of the Court of Appeal., and a copy of the decree extracted therefrom. ln addition, the zs appticant attached a letter written by court baitiffs dated 9th Aprit 2024. He f urther deposed that on 1Sth ApriL 202lt, lhe respondents' advocates wrote a Letter giving at[ tenants seven days to vacate the suit property. He asserted that the respondents have made attempts to ptace containers on the suit property. Mr John deposed that the Court of Appeal. dectined to hear the 30 appticant's appl.ication in Civil. AppLication No 230 of 202L for an interim order of stay of execution on the ground that it lacked jurisdiction. The appl.icant was informed during the proceedings for the interim order of stay of execution that it was next to impossibte for the Court of Appeal to constitute a panel of justices to handte the main apptication for stay of 3s execution. He conctuded that the respondents, upon the Court of Appeat dectining to grant the interim order of stay of execution, proceeded to destroy a banana plantation on the suit property without fottowing the 5 process of execution. Further the appticants fited the main apptication for an order of stay of execution in Civit Apptication No. 006 of 202t+ pending the hearing of the intended appeat. The rest of the deposition repeats what is averred in the notice of motion. ln repty the respondents opposed the apptication and fited an affidavit of Mr. Buyera Zacharia, who atso acts as an attorney of the 2nd and 3'd Respondents by virtue of powers of attorney granted to him. Mr. Buyera deposed that he is conversant with the matter before the court and deposed to the affidavit in that capacity. Having read the notice of motion and the affidavit in support thereof, Mr. Buyera deposed that the appticant is not in physicaI possession of the suit premises. Secondty, the respondents are the registered proprietors of the suit property as proved by copies of search certificates attached to the affidavit. Further there are over 30 tenants on the suit properties and these tenants have no tenancy agreements or payment receipts issued to them by the appticants. The respondent's representatives and bail.iffs met the said tenants on 14th Aprit 2024 and they agreed to start paying rent to the respondents. Further, the appticant has been cottecting rent since January, 2008 which he has not accounted for to date. From January 2008 to March 2009, the rent coltected amounts to Uganda shitl,ings 78,525,000/= catcutated at the rate of Uganda shil.tings 5,235,000/= per month. Further the appticant was ordered by the High Court at a hearing on 21't Juty 2011 to account for rent he col.l.ected by 18th of August 2011 but did not. Mr. Buyera deposed that the appl.icant has no known ptace of abode or work and if he continues to cottect rent, it may never be recovered. He asserts that the appticant is using the present apptication and the intended appeat to continue trespassing on the suit properties and to defeat the respondent's recovery of over Uganda shittings 1,000,000,000/= in rent cottected since January 2008 to date. Mr Buyera Zacharia further deposed that the containers referred to in the appticant's affidavit were put on the suit property by the respondent's 10 15 20 25 30 4 35 5 agents and as such the respondent is in possession of that portion of the tand. That it is not true that the respondents destroyed the banana ptantation referred to in the affidavit in support of the apptication. Further the respondents are aware that there are serious disagreements between the occupants of that portion which was bushy and was a hideout for criminats. After the bushy part of the land was cteared by persons who are unknown to the respondents, the respondents took possession of that part of the [and. 0n the ground of advice of his tawyers Messieurs KBW advocates, Mr. Buyera deposed that the petition is prematurety filed in this court in that the Court of AppeaL stated that it did not have jurisdiction to hear the apptication and the jurisdiction was onty exercisabte by a panel of three justices of the Court of Appeat. Secondty the appticant made no attempt to fix the matter before three justices of the Court of Appeal. but simply fited the present apptication. Further he was advised by his tawyers Messieurs KBW advocates, that there is no prima facie case disctosed in the proposed grounds of appeal on the fottowing grounds. The Court of Appeal. considered at length the issue of the appl.icant's ctaim that he is a customary heir of Yozefu Bukenya in their judgment and rejected it. Further the marriage of Petotatina NabuLya to Yozefu Bukenya as a question of fact was estabtished in concurrent findings of the High Court and the Court of Appeal.. There was no counterctaim in the suit chattenging the letters of administration granted to Petotatina Nabutya. The court rrghtty found that she was the sote benef iciary (of the estate of Yozefu Bukenya) since the appticants are not lineal descendants, dependent retatives or any of them a customary heir of the Yozefu Bukenya. ln addition, Mr. Buyera deposed that no irreparabte loss wit[ be occasioned to the appticant if he accounts for rent he has cottected since 2008; and pays the rent he has been cottecting to the decree hotder and atso stops trespassing on the suit properties. That the suit property has atready been transferred to the decree hotders. He has been advised by his tawyers that 10 15 20 25 30 5 35 5 justice, equity and fairness demands that the etderty respondents enjoy the fruit of their 15 years' search for justice, unl.ike the two originaI pl.aintiffs who died when the proceedings were stitl going on (these are John Ssinabutya and Remigio Mwanje). 10 At the hearing of the appl.ication learned counsel Mr. Peter Mukidi Watubiri appearing with learned counsel Mr. Emmanuel' Kirya for the respondents white learned counsel Mr. John Bosco Mudde acted for the appticant. The appticant was absent whil.e the respondent had their attorney, Mr. Buyera Zachariah present in court. 15 Mr. Mudde had fited written submissions white Mr. Watubiri, had not. With [eave of Court Mr. John Bosco Mudde adopted his written submission and addressed the court oratl,y. Mr. Watubiri addressed the court in repLy oratty and Mr. Mudde in rejoinder submitted oratty. I adjourned the ruting for the 7th of May 202tt a112.00 Noon. Submissions of counse[ 20 The appl.icants counseI invited the court to address the issue of whether; 25 30 (1) The facts of the apptication disctose sufficient grounds for the grant of an order of interim stay of execution of the orders arising out of the judgment in Civil, Appeat No 18 of 2012 pending the hearing and finaI disposat of Civit Apptication No 006 of 2024 for stay of execution. (2)Whether the appticant is entitl.ed to the costs of the suit. The appticant's counsel submitted that the provision for the grant of stay of execution is made under the Judicature (Supreme Court Rul.es) Directions and rute 6 (2) (b) thereof which provides that " subject to subrule (1) of thls rule, ... The court may in any civil proceedings, where a notice of appeal has been lodged in accordance with rule 72 of these Rules, order a stay of execution... on such terms as the court may think just..." Counsel submitted that the apptication is for an interim order of stay of execution pending the hearing of the main apptication for the same orders and is made under Rute 2(2) of the Rutes of Court which provide interalia 6 7 s that "nothing in these rules shall be taken to limlt or otherwise affect the inherent power of the Court and the Court of Appeal, to make such orders as may be necessary for achieving the ends of justice or to prevent abuse of the process of any such court..." The apptrcant's counsel prayed that the facts of the appticant's case be read 10 in the context of the cited rutes and in that context, a notice of appeal was fited in accordance with rute 72 of Rutes of this Court. Further the order prayed for by the appticant is necessary to prevent abuse of court process given that there is a pending main apptication for stay of execution referenced as Civit AppLication No 006 of 202t+ which is yet to be heard and 1s determined on its merits. The same apptication is atso necessary for attaining the ends of justice. The appticant's counsel retied on Theodore Ssekikubo and 3 Others Vs Attorney General and others; Constitutionat Petition No 6 of 20]4 where it was hetd that "consideration for the grant of an interim order of stay of zo execution or interim injunction is whether there is a substantive apptication pending and whether there is a serious threat of execution before the hearing of the substantive apptication. Further it is an essentia[ requirement that a notice of appeat has been fited." Secondty the Supreme Court in Hwang Sung lndustries Ltd vs Tajdin Hussein and Others; Supreme Court zs Civit Apptication No 19 of 2008, per 0kel.l.o JSC hel.d that "in an apptication for an interim order of stay, it suffices to show that a substantive apptication is pending and that there is a serious threat of execution before the hearing of the pending substantive apptication. lt is not necessary to pre-empt consideration of matters necessary in deciding whether or not to grant the 30 substantive appticatron for stay. The appticant's counsel submitted that the appticants have proved by way of affidavit evidence that there is a notice of appeaI and a letter requesting for proceedings both of which were filed on 3'd April 202L and subsequentl.y served upon the respondents on 5th of April202l+. The notice of appeal was 3s served on the Supreme Court on 11th September 2021+. There is a substantive 5 apptication for stay of execution in Civit Apptication No. 006 of 2024 which is pending for hearing and for determination. Further, that there is a serious threat of execution which is evidenced by the eviction notice issued by Jobka General Auctioneers Court Baitiffs dated 9th of April, 202L lrying to evict the appl.icants from the suit property. Furthermore, the respondents' advocates wrote a letter giving tenants on the suit property a maximum of seven days to vacate the suit property. The respondents have attempted to ptace containers on the suit property and those attempts were thwarted. The respondent atso engaged agents who destroyed a banana ptantation betonging to the appticants. ln addition, the Court of Appeat in the decision of a singte Justice dectined to hear the appticant's prayer in Court of Appeal. Civit AppLication No. 230 of 2024 on the ground of lack of jurisdiction under section 12 of the Judicature Act. The court advised that it was impossibte under the prevaiting circumstances to get a panel of three justices to hear the main apptication for stay of execut ion. ln the premises, the appticants state that they have satisfied the grounds for grant of an interim order of stay of execution pending the hearing and determination of Supreme Court Civit Apptication No 006 ot 202L for stay of execution. Counsel prayed that this court be pteased to issue an interim order of stay of execution of the Judgment and decree arising from the Court of Appeat Civit Appeat No 18 of 2012 pending the hearing and determination of the main appl.ication for stay of execution and for the costs of the apptication abide the outcome of appeat. ln repl.y the respondent's counsel retied on the affidavit in repty of Buyera Zachariah. The respondents opposed the apptication on the grounds first[y, that the appticant's apptication had been premature[y fited. This is because, the singte justice of the court of apptied ruted that he had no jurisdiction to hear the apptication and referred it to a panel of three Justices of Appeat for hearing. He contended that the statement of Justice Oscar Kihika, JA that it was next to impossibte to get a panel of three justices to hear the apptication was not a judiciat decision and that the appticant ought to have 10 15 20 25 30 8 35 s written to the Registrar asking for the apptication to be fixed before a panel of three Justices. He submitted that this is a good reason for the court to dectine hearing the apptication. Secondty, Mr. Watubiri submitted that the decree and orders therein that the appticant wants stayed are not capabte of execution and thereof not 10 capabte of a stay order. Counsel submitted that orders (a) - (d) were dectarations of rights of the parties and not capabte of stay. ln paragraph (e) of the orders the appl.icants have been trespassers and this order cannot be stayed. With regard to order (f) the appticant was ordered way back by the High Court to fite an accounts of monies and property received from the 1s estate of Nabutya Petotatina (the deceased) within 90 days and the appl.icant did not and admitted in cross examination that he had not done so. Further the respondents have not apptied to execute the order for the appticant to account. With regard to order (g), the Commissioner for Land Registration was ordered to cancel and reverse atl entries made on the properties of the zo late Yozefu Bukenya and Petotatina Nabutya in comptiance with the High Court judgment, an order from which this appeal. arises or otherwise made on 12th of 2012, (the month is not stated) the date the said Judgment was detivered and the registered thereon and the respondents as administrators of the estate of the deceased. The three properties ptot 3960 2s Kyadondo bl.ock 216, pl.ot 2961 Kyadondo btock 216 and ptot 21218 Kyadondo in the names of the respondents. The respondents were registered on the properties before the High Court suit was f ited. The High Court ordered that the appticants be registered but the order was stayed by the Court of Appeal.. So the properties are atready in the names of the respondents and 30 there is nothing in respect of these properties where the tenants are, to execute or to stay, because the respondents are atready the registered proprietors. There is a caveat by the appticant Mr. John Lubega registered on 15th February 2008 on the three properties. With regard to the caveat, there is 3s no order that attows the Commissioner for tand registration to get the 9 5 property into the names of the respondents because it is atready in the names of the respondents. With regard to the eartier submission that the are no orders capabte of execution, the respondents counsel etaborated that the real matters in controversy between the parties regards possession of the three properties and that there are tenants on these properties (over 30 tenants). The tenants have no agreements or payment receipts with the appticant and the respondent's representatives met the tenants and tenants agreed to start deal.ing with the respondents. Two of the tenants have signed tenancy agreements which have been exhibited as exhibit D1 and exhibit D2. With regard to the attempt to evict the tenants, the tenants have agreed to recognise the respondents and the threat is no longer there. With regard to the container, the respondents are in possession of the part where the containers have been ptaced. Regarding the cteared banana ptantation, there were some disagreements between the occupants of the premises and when they banana ptantation was cteared, the respondents took possession of that part and that is the status quo. The appl.icant has been cottecting rent from 2008 to date. The appticant was ordered to account for the rent he had cottected by 18th of August 2011 and an extract of proceedings attached to the affidavit in repLy shows that the appticant in cross examination admitted that he had not accounted for the rent. The order had been obtained by consent of the parties. The respondent's counsel further submitted that under section 29 (a) of the CiviI Procedure Act, execution is supposed to be done by the court executing the decree which is the court that exercised originat jurisdiction in the matter. He suggested that in the circumstances, the apptication for stay of execution ought to have been fited in the High Court. However, there is no evidence of any attempt to appl.y for execution that has been furnished by the appticants. The appticants merety referred to letters of engagement between the respondents and the tenants of the property. ln the circumstances, the respondents are the registered proprietors and the 10 15 20 25 30 35 10 5 Court of Appeal. had decreed that the appticant is a trespasser. They had gone to the tenants saying that the man they had been paying rent to is a trespasser and that the tenants shoutd start deating with the respondents and they agreed. He contended that this was not an execution process but setf-hetp. ln rejoinder learned counsel Mr Mudde submitted that there is an execution process going on. The ctear exampte is the Letter of the court baitiffs to the effect that the appticant lost the appeal and the court dectared him a trespasser. That the tenants are not supposed to pay him any more rent. He contended that this was a ctear indication of the onset of execution and enforcement of the orders of the Court of AppeaL which the appettant or appticants have expressed their intention to appeat against. He contended that the court shoutd give the appticants a stay order so as to exercise a chance to appea[ against the orders and rutings of the Court of Appeat. Secondty, the respondents had indutged in the stashing of the banana ptantation behind the premises. This was an attempt to take possession of the suit property. Thirdl.y they engaged the tenants. The property is ctaimed by a family because the appticant is the customary heir of the tate Yozefu Bukenya. The respondents are administrators of the widow of the Late Bukenya who is atteged to have been a spouse of the deceased Bukenya. ln the circumstances, there is an intention to appeal against the judgment of the Court of Appeat. The appticant is in possession of the premises and is in controt of the tenants and has been the one cottecting rent from the suit property so what is being done is an attempt to change the status quo before the appeal. is heard in order to frustrate the appticant's effort to appeal against the ruting of the Court of Appeat. With regard to the apptication being premature, the appticant's counse[ submitted in rejoinder that the learned Justice of Appeal. ctearty said that it was ctose to impossibte for the appticant to get a panel of three judges of the Court of Appeat to hear an apptication for stay of execution. ln the premises there were speciaI circumstances that warranted the application to be fited direct to the Supreme Court. Counsel referred to the case of 10 15 20 25 30 11 s Lawrence Musiitwa Kyazze vs Eunice Busingye, Supreme Court Civit Apptication No. 018 of 1990. He contended that in that case it was decided that in special circumstances, an apptication may be fited direct to the Supreme Court. He submitted that the facts presented to the court disctosed speciaI circumstances fatting within the principtes. ln any case he submitted 10 that Rute 2 (2) ot the Judicature as (Supreme Court Rutes) directions gives the court inherent powers to make such orders as may be in the interest of justice inctuding matters of stay of execution. Further under rute 6 (2) (b), the court has powers to safeguard the right of appeat notwithstanding the fact that there is no apptication which has first been made in the Court of 1s Appeat. With regard to the decree of the Court of Appeat, the appl.icants counsel submitted that the orders therein are capabte of execution. There is an order of eviction after the hol.ding that the respondents were at at[ materia[ times trespassers on the suit property. An order was issued against the 20 appticants in favour of the appettants. With regard to the order to the Commissioner for land registration to canceI any entries made, the probtem is that the appticant has a caveat which woutd be cancetted enabting the respondents to deal with the property. 25 With regard to the agreement of the tenants to deat with the respondents, the appticants counsel submitted that the respondents promised to waive two months' rent off so that the tenants change their atl,egiance to the respondents. 30 0n the question that there was no execution process that has been engaged and that the respondents, the appticant's counset submitted that the respondents resorted to sel.f-hetp because there was no order of stay of execution. ln any case the court has powers to issue such orders for the ends of justice under rute 2 (D of the Judicature (Supreme Court Rutes) Directions. With regard to the question put by the court as to whether I make a ruting in the main apptication rather than in the apptication for an interim order, 35 L2 5 the appticant's counseI submitted that it woutd be acceptabte provided that an interim order is issued pending the ruting of the court in the main apptication in the circumstances of the case. ln repty to the question put by the court, the respondent's counsel submitted that in hindsight, they had filed affidavits in both apptications and it is ctear that the same materiat is being used and that there is a danger with interim orders in that in the event that it is given and somebody does not bother to fix the main apptication, and the appeat takes time, there woutd be an injustice. So as to save the courts time, it was better for the court to consider the main apptication. ln the premises, I issued an interim order staying the execution of orders numbers 6, 8 and 9 of the decree of the Court of Appeat. I further noted that orders 1,2,3, L and 5 were dectaratory orders, dectaring the rights of the parties which coutd onty be set aside if the appeat succeeded and they are not capable of execution through court process. The main apptication was fixed for ruting on the 7th of May 202L at 12 noon. Consideration of the apptication I have carefutty considered the appticant's appLication. When the appticant's counsel finished his submissions in the main, I asked him to address me on the powers of a Singte Justice under section 8 of the Judicature Act and why l, shouLd not handte the main appl'ication instead. Further, the respondent's counsel agreed that the grounds and evidence for consideration of the apptication for an interim order are the same as those in the main apptication. He agreed that I can exercise my powers under section 8 of the Judicature Act to deal with the main apptication for stay of execution once. Section 8 of the Judicature Act provides that: B. Powers of a single justice of the Supreme Court. (1) A singte justice of the Supreme Court may exercise any power vested in the Supreme Court in any interlocutory cause or matter before the Supreme Court. 10 15 20 25 30 13 5 (2) Any person dissatisfied with the decision of a singl.e justice in the exercise of a power under subsection (1) is entitted to have the matter determined by a bench of three justices of the Supreme Court which may confirm, vary or reverse the decision. Section 8 of the Judicature Act attows a singte justice of the Supreme Court to exercise any power vested in the Supreme Court in any intertocutory cause or matter before the Supreme Court. This inter alia attows a single justice to hear any appLication for stay of execution of the decree or order of the Court of Appeat under Rute 6 (2) (b) of the Rutes of this Court. The apptication in Supreme Court Civit Apptication No. 06 of 202t+ is for stay of execution pending the hearing and finat determination of the appeat by the Supreme Court of Uganda. A singte justice of the Supreme Court can hear this apptication. Further, I note that, apart from the order sought in Supreme Court Civit Appl,ication No. 06 of 202L, which is to stay execution pending hearing and determination of the appeat, the orders sought in the apptication for an interim order are the same save that it is for an interim order of stay of execution pending determination of the main appl.ication for stay of execut io n. Section B of the Judicature Act seems to be in conftict with the Judicature (Supreme Court Rutes) Directions and specificatl.y rute 50 (2) (b) thereof, which stiputates that a singte justice cannot hear an apptication for stay of execution, stay of proceeding or an injunction. Rute 50 (2) (b) provides that: 50. Hearing of apptications. (1) Every apptication, other than an appticatron inctuded in subrule (2) of this rul.e, shatl be heard by a singte judge of the court; except that the apptication may be adjourned by the judge for determination by the court. (2) This rute sha[[ not appty to the foltowing- (a) an appl.ication for leave to appeal, or for a certiticate that a question or questions of great pubtic or generat importance arise; (b) an appLication for a stay of execution, injunction or stay of proceedings; 10 15 20 25 30 1E 14 5 (c) an apptication The conftict between rute 50 (2) of the Judicature (Supreme Court Rutes) Directions, which does not attow a singte justice of the Supreme Court to hear an appl.ication for stay of execution, injunction or stay of proceedings and section 8 of the Judicature Act which attows a singte justice to exercise att powers of the Supreme Court in any intertocutory cause or matter has to be resotved in favour of uphotding the powers of a singte justice under section 8 of the Judicature Act. Rutes of Court are made under the Judicature Act. Whenever there is a conftict between a Parent Act and a Subsidiary Legisl.ation, the Parent Act shaLt prevaiI as stiputated under section 18 (A) of the lnterpretation Act. Section 18 (a) of the lnterpretation Act provides that: 18. GeneraI provisions retating to statutory instruments A simitar question was raised in the Court of Appeat in Hajj Ati Cheboi v Kiboko Mesutamu; Miscetlaneous Apptication No105 of 201L, and the court was required to interpret section 12 of the Judicature Act against rute 53 of the Judicature (Court of Appeat) Rutes Directions. ln that matter, there was an apptication for an interim order pending the hearing and determination 10 15 20 25 30 15 (4) Any provision of a statutory instrument which is inconsistent with any provision of the Act under which the instrument was made shatl be void to the extent of the inconsistency. Section 8 of the Judicature Act has an overriding effect on Rute 50 (2) (b) to the extent of its inconsistent provision barring a singte justice from hearing any intertocutory matter for stay of execution, injunction or stay of proceedings pending appeat. Because the Supreme Court has powers to hear atl intertocutory apptications, inctusive of powers to grant orders of stay of execution, injunction or stay of proceedings, a singte justice of the Supreme Court can exercise those powers under section 8 of the Judicature Act. 5 of Civit Misce[taneous Apptication No 104 of 2011t and Civit Appeat No 27 of 2014 in the Court of AppeaL. Kakuru, JA said at page 2 of the ruting that: "An application of this nature, which seeks an order of stay of execution pending an appeal before this court, is an interlocutory matter. A singte justice of thts court has power to hear and determine it. lt does not require a futt bench of this court. Section 12 of the Judicature Act provides as fotlows: - 10 16 I don't think that Rute 53 of the Rutes of this court which appears to bar a sing[e justice of this court from hearing an application tor stay of execution, injunction or stay of proceedings is relevant to the proceedings such as these before me. 15 The Judicature Act takes precedence over the rules of this court." The decision of the Court of Appeal. is not onty persuasive but a tegal.ty correct decision that is in Line with section 18 (a) of the lnterpretation Act, cap 3. lt presents the view that a Parent Act of Partiament overrides a statutory instrument which is inconsistent with it to the extent of the 20 inconsistency. I coutd in the premises, determine the main apptication for stay of execution in tight of the fact that the grounds in the notice of motion are the same and the affidavit in support gives the same facts and grounds for the notice of motion. The respondent's counsel asserted that thetr facts do not defer in their affidavit in repty to the main apptication. zs Further I have considered the submissions of both counset. ln an apptication for an interim order, counsel shoutd avoid, as much as possibte, addressing the court on the merits of the apptication. However, in their oraI address to this court, both counsel addressed the court on the merits. Apptications for interim orders are granted for instance on the grounds set out in Hon. 30 Theodore Ssekikubo and 3 Others vs The Attorney Generat and 0thers; Constitutionat Apptication No. 6 of 2014 which are that; there shoutd be a pending substantive apptication, there shoutd be is a serious threat of execution before the hearing of the substantive apptication and a notice of appeal shoutd have been fiLed. ln Hwang Sung lndustries Ltd vs Tajdin 3s Hussein and others; Supreme Court Civit Apptication No. 19 of 2008, the same grounds were set out and in addition 0ketLo JSC hetd that: "lt is not s necessary to pre-empt consideration of matters necessary in deciding whether or not to grant the substantive stay". I am persuaded that in an apptication for an interim order, there is no need to consider the merits but to establ.ish the threat of execution coupl,ed with the fiLing of the notice of appeaI and a substantive apptication. The main 10 concern is to preserve the right of hearing before the Court so that the main appeat or apptication is not rendered nugatory. There is no specif ic rute that provides for the grant of interim orders. Moreover, the term "interim" has the same meaning as the term "intertocutory" as both mean it is not the finaI order but a temporary order made pending determination of the main cause. ls Rute 2 (2) of the Rutes of this court attows the court to issue any orders as may be necessary to attain the ends of justice or to prevent the abuse of the process of such court caused by detay. Execution of a Court Judgment is through court process and it is hard to envisage such a process as an abuse of the process of court. if anything, Rul.e 6 (2) of the Judicature zo (Supreme Court Rul.es) Directions provides inter alia that the institution of appeal sha[[ not operate to stay execution. ln other words, it is necessary, after todging a notice of appeal in accordance with rute 72 of the Rutes, to further appty and obtain a stay of execution order for an order of stay of execution to be considered. A successfuI titigant is entitl.ed to enjoy the 2s f ruits of their Litigation untess otherwise there is an order staying execution. An interim order can therefore be issued in the interest of justice on the footing that the right of the appticant to be heard in the main appl.ication or cause woutd be rendered nugatory. The rationale for this was set out in Witson v Church (1879) Vot 12 Ch. D 454 where the Court of Appeat of 30 Engtand hetd that: As a matter of practice, where an unsuccessfuI party is exercising an unrestricted right of appeat, it is the duty of the court in ordinary cases to make such order for staying proceedings in the Judgment appealed from as witl prevent the appeat if successfuI from being rendered nugatory. The same rationate is used for stay of execution or injunction. The rationate is to maintain the status quo so that the main apptication or the appeat is 77 5 not rendered nugatory. ln terms of an apptication for stay of execution, this is to ensure that the decree or orders are not executed. There is a specific rute which attows temporary orders to be made for stay of execution to preserve the right of appeat and this is under Rute 41 (2) of the Judicature (Supreme Court Rutes) Directions which provides the purpose of an order of stay of execution where the apptication is made direct to the Supreme Court when no application for the same orders has been made to the Court of Appeat. Rute 41 (2) of the Rutes of Court provide that: (2) Notwithstanding subrute (1) of this rute, in any civiI or criminal matter, the court may, in its discretion, on apptication or of its own motion, give leave to appeal and make any consequentia[ order to extend the time for the doing of any act, as the justice of the case requires, or entertain an application under rule 6(2)(b) of these Rules to safeguard the right of appeal, notwithstanding the fact that no apptication has first been made to the Court of Appeal. (Emphasis added) The rute appties where an apptication is made direct to the Supreme Court, without an apptication first having been made in the Court of Appeat and the purpose of the apptication woutd be to safeguard the right of appeat. ln this case an apptication was first made to the Court of Appeat. Secondty, the hearing of an apptication under rute 4l (2) read together with ru[e 6 (2) (b) of the Rutes of Court confers discretionary powers on the Supreme Court and not the Court of AppeaL. Where the Supreme Court decides to hear and atlow the apptication, this woutd be so as to safeguard the right of appeat. ln this apptication both counseI addressed this court on aLL the grounds in the notice of motion. The grounds in the interim apptication are the same as those in the main appLication for stay of execution. The onty difference is that ground 1 of the main apptication sets out atl the orders issued by the Court of Appeat in the decree white in the interim apptication they are not set out in the notice of motion but are attached as the decree of the Court of Appeat in the affidavit of the first appLicant in support of the apptication for an interim order of stay of execution pending the hearing of an appIication for stay of execution atso pending the hearing and determination of the appeat. ln essence the two apptications for interim orders and for the 10 15 20 25 30 18 main orders are the same in terms of the grounds for consideration of the apptication. ln the premises, I issued an interim order lasting seven days pending ruting and the ruting shatl be on the merits of the apptication to conserve the time and resources of the court. I have the jurisdiction and I have a[t the materiats to consider the main apptication for stay of execution. The respondents counsel asserted that the affidavit in repty to the interim apptication is sufficient for the main apptication and the respondent does not intend to depart from it. At the hearing of the apptication Mr. Watubiri submitted that the apptication had been prematurety fited because the rutes require that the apptication first be filed in the lower court. Further the Court of Appeal. singl.e justice dectined to hear the apptication on the ground of want of jurisdiction and referred it to a paneI of three. ln addition, he contended that under section 29 of the Civit Procedure Act, an appl.ication for stay of execution shoul.d be fil.ed in the court which passed the decree. He submitted that, where an appeal resutts into a decree, the expression "court which passed the decree" means the court which exercised originaI jurisdiction in the matter. Further, under section tt5 (2) of the Judicature Act, the execution of an order or judgment of the Court of Appeal. may be executed or enforced as if it were an order or judgment of the High Court. That the appticant ought to have sought the stay of execution order before the High Court which exercised originaI jurisdiction in the suit. ln repty Mr. Mudde opposed this pretiminary objection to the apptication and submitted that the evidence demonstrates ctearty that the singl.e justice of the Supreme Court hel.d that he had no jurisdiction and atso stated during the proceedings (before his ruting) that it was next to impossibte to constitute a panel of three justices of the Court of Appeat to hear the apptication pending appeat to the Supreme Court. He submitted that the lower court and the Supreme Court had concurrent jurisdiction in applications for stay of execution. 10 15 20 25 30 3s 19 5 I have carefutty considered this objection and wit[ determine the issue in tight of the evidence and appticabte [aw. As far as the appLicabte law is concerned, rute 41 provides that apptications for stay of execution sha[[ first be made to the Court of Appeat. I wit[ refer to this rute later on. The law is that the appl.icant must first have tried to appty to the Court of Appeat, which he did, but the apptication was wrongty fixed before a singte justice who ruted that he had no jurisdiction in the matter which shoutd be ptaced before a panel of three justices. The appticant's counsel submitted that it was impossibte to proceed before a panel of three Justices of Appeal in the Court of Appeat according to the statement of Kihika, JA in the proceedings. I have considered these proceedings and decision of the SingLe Justice of the Court of Appeat. The apptication proceeded before a singte Justice in Court of Appeal, CiviL Apptication No. 0230 of 202L and is evidenced by annexure "H" in paragraph 10 of the affidavit of Lubega John, the first appticant, in support of the apptication. The appticant's counsel justified fiting the apptication in the Supreme Court on the words of the learned Justice of Appeat that putting the matter before a panel of three Justices of Appeal. was "next to impossibLe". The words referred to was in a diatogue between the learned justice and the lawyers. Thereafter the [earned Justice wrote a ruting. The words retied on are at page 14 of the record of proceedings whil.e the ruting of the learned Justice is at pages 21 - 22 of the record of proceedings. At page 14 the tearned justice stated as fottows. This is what your option is in my view because these are pecutiar circumstances, the rules atso state or the cases state that if there are special circumstances you can actualty go straight to the Supreme Court and this is the perfect special circumstances, you need urgent intervention. You have come before me as a singLe judge and telting you and you cannot change my mind because I am reading the law I do not have jurisdiction to entertain any of these matters because there is nothing pending before this court and to get the order that you want, that can only be granted by a panel of 3 Justices. To get those 3 judges is going to be impossibte. So those are the special circumstances which you need when you go to the Supreme Court. 10 15 20 ,q 30 3s 20 Mr. Mudde: I appreciate my Lord. Court: So you witt have evidence on my ruting that I do not have jurisdiction ptease take it back to the Registrar for ptacing before the panel of 3 judges. Now of course the exigence of your circumstances are such that you do not have the luxury or that time so rush to the Supreme Court and in your affidavit you have the evidence of the specra[ circumstances that I have just explained to you. ... The above passage demonstrates that the learned justice did not make a ruting here and in his words, he had exptained the special circumstances which entitted an appticant to fite an apptication direct to court. He coutd not however determine whether there were special circumstances as what amount to speciat circumstances is determined at the discretion of Supreme Court under rute 4l (2) of the Judicature (Supreme Court Rutes) Directions. At pages 21 and 22 the learned Justice of the Court of Appeal. finatty made a ruting that partiatty contradicts his exptanation of speciaI circumstances as to what the appticant shoutd do next when he sent the fite back to the Registrar when he ruted that: "... Upon perusing apptication, it appears that the main appeal it is Civit Appeat No 18 ol 2012 was resotved and the appticant has fited a notice of appeal intending to appeal to the Supreme Court. ln circumstances such as these ldo not have jurisdiction to entertain this appl.ication as it is not introductory nature. Section 12 of the Judicature Act is specific with regard to the jurisdiction of a single Justice of Appeat. A singte Justice exercises his or her jurisdiction in determination of intertocutory matters that is to say that there must be a pending appeat in this court for me to exercise the powers granted under section 12 of the Judicature Act. lam aware of the fact that the Court of Appeal has concurrent .jurisdiction with the Supreme Court in determining applications for stay of execution. However, that jurisdiction is exercised by a panel of 3 Justices of the Court of Appeat. It is for that reason that lam referring this appIication and the main apptication back to the registry so as to have the matter placed before the fu[l. bench of the Court of Appeat. 10 15 20 )< 30 35 2L 5 5 It is so ordered The order is dated 19th ApriL 2024 thereafter the app[icant f il.ed an apptication in this court on the 22^d of Aprll 202L three days later. lt is c[ear that the learned justice of the Court of Appeal gave the appticant's lawyer advice but this is not part of his ruting. ln his ruting, he ordered that the fite be ptaced before the futl. bench of the Court of Appeat. This is not what the appticant's lawyer pursued. lnstead of making some effort to have the appl.ication ptaced before a panel of three justices of the Court of Appeat, he decided to fite the apptication before the Supreme Court. The learned justice of the Court of AppeaL having hel.d that he had no jurisdiction in the matter, coutd not make a vatid and binding order other than that of dismissal or striking out of the appLication. He did neither. The learned singte Justice referred both apptications, namety the apptication for an interim order that had been fixed before him and the main apptication for stay of execution, to the registry to be ptaced before a panel of three Justices of Appeat. lt can therefore be concluded that the appticant's tawyers decided to fite another apptication direct in the Supreme Court without first having conctuded the appLication fil.ed in the Court of Appeat. There is a pending vatid apptication in the Court of Appeal. which is pending it being fixed before a pane[ of three Justices of the Court of Appeat. I further wish to note that fil.ing an apptication does not prima facie show whether it is intended to be ptaced before a panel of three justices of the Court of Appeat or before a singte justice. lt is the administrative action of the registrar, possibl.y at the request of the appticant, to ptace the matter before a singte Justice of AppeaL. They ought to have ptaced the appLication before a panet of three justices of the Court of AppeaL as there was no longer any appeat pending before the Court of Appeat. The appeaL had been determined and the appticant had fited a notice of appeal. intending to appeat against the decision of the Court of Appeat. ln the premises, the appl.icant did fil.e an apptication before the Court of Appeat and that apptication is yet to be heard and determined. lt shoutd have been ptaced before a panel of three Justices Court of Appeal but it was 10 15 20 25 30 35 22 5 placed before a singte Justice who rightty dectined to hear it because he had no jurisdiction under section 12 of the Judicature Act to hear it. lt fottows that the apptication is stil.t pending before the Court of Appeat and it has not been determined either by a stay order of other disposat order/s. The apptication was not dectined but merety ordered to be ptaced before a panel of three justices who has jurisdiction in the matter. The singte justice stated that it had to be ptaced before a paneI of three justices Court of Appeal. as it was improperty pLaced before him. That teft the apptication unheard and unresotved. ln the premises, the matter before this court woutd be prematurety heard or determined in the circumstances. Rute 4l of the Rutes of the Supreme Court provides that: 41. Order of applications to the court and to Court of AppeaL. (1) Where an apptication may be made either to the court or to the Court of AppeaL, il shall be made to the Court of Appeal tirst. (Emphasis added) (2) Notwithstanding subrule ('l) of this rute, in any civiI or criminal matter, the court may, in its discretion, on apptication or of its own motion, give teave to appeat and make any consequentral order to extend the time for the doing of any act. as the justice of the case requires, or entertain an application under rute 6(2)(b) of these Rutes to safeguard the right of appeal, notwithstanding the fact that no application has first been made to the Court of Appeal. (Emphasis added) Rute 41 of the Rutes of this Court when read in context provides that an apptication shatt first be fited in the Court of Appeat in terms of rul.e 41 (1). Thereafter it provides in rute 41 (2) the narrower circumstances under which an appl.ication may be made direct to the Supreme Court. ln terms of apptications for an order of stay of execution, injunction or stay of proceedings, the purpose of the apptication woutd be specificatty to safeguard the right of appeat. This is an exception to the generaL rute that the appl.ication f irst be fited in the lower court. ln G.M Combined (U) Ltd Vs A.K. Detergents (U) Ltd; (Civit Apptication No. 23 of 1994) n9941 UGSC 3 the Supreme Court considered rul.e 41 of the Rul.es of this Court and inter albhetd that it provides that the appLication for leave 10 15 20 25 30 35 23 shatt first be made informatty at the time the decision is made to court issuing the order or formatty within 14 days after the order intended to be appeated against is issued. Where the apptication is refused, it can then be fiLed in the Supreme Court. Whil.e that appLication deal.t with apptication for leave, rute 41 (2) inctudes in the genre of possibte apptications those apptications that can be made under rute 6 (2) (b) of the Rutes of Court and as submitted by the appticant's counsel the Supreme Court enjoys concurrent jurisdiction with the Court of Appeat in apptications for stay of execution pending the hearing and determination of an appeat. The conctusion is that an appl.ication was first made in the Court of Appeat and that apptication is stit[ pending. This ruting echoed a detaited judgment of the Supreme Court on rute 41 of the Rutes of this court which have not changed and when the Supreme Court heard appeats from the High Court and hetd that the High Court enjoyed concurrent jurisdiction in apptications for stay of execution, injunction or stay of proceedings with the Supreme Court. This was in Musiitwa - Kyazze v Busingye n9901 UGSC 13 (12 February 1990). At page 8 of the judgment, their Lordships stated that: The practice that this court shou[d adopt, is that in general - apptications for a stay shoutd be made informatly to the judge who decided the case when judgment is delivered. The judge may direct that a formaI motion be presented on notice (Order XLV|ll rute 1), after notice of appeat has been f ited. He may in the meantime grant a temporary stay for this to be done. The parties asking for stay shoutd be prepared to meet the conditions set out in Order XXXIX Rute 4 (3) of the Civit Procedure Rutes. The temporary apptication may be ex parte. lf the application is refused, the parties may then appty to the Supreme Court under Rute 5 (2) (b) of the Court of Appeat rutes where again they shou[d be prepared to meet conditions simitar to those set out in Order XXXIX Rute 4 (3). However, there may be circumstances when this court wit[ intervene to preserve the status quo. ln cases where the High Court has doubted its jurisdiction or has made some error of law or fact, apparent on the face of the record which is patpabty wrong, or has been unabte to deal with the apptication in good time to the prejudice of the parties or the suit property, the apptrcation may be made direct to this Court. lt may however be that this Court wi[[ direct that the High 10 15 20 25 30 )c 24 10 ln the circumstances of this appl.ication, Court of Appeat enjoys concurrent jurisdiction with the Supreme Court in apptications for stay of execution pending an appeal to the Supreme Court. lt is a situation where formatty an apptication coutd be made in the High Court or to the Court of Appeat as envrsaged under Rute 41 (1) the Rutes of this Court. The matter before this court is that there is stitt a pending apptication before 1s the Court of Appeal where the apptication for stay of execution was first made. The issue of fiting the apptication direct to the Supreme Court without having argued the apptication in the Court of Appeat shoutd be carefutty weighed against the rute attowing the apptication to be fl.ed directLy to the Supreme Court. This has not happened. There is an apptication for an zo interim order of stay of execution pending another apptication for a stay of execution order pending appeal. to the Supreme Court fil.ed in the Court of Appeat. These apptications have not been heard. Moreover, the singte justice before whom the apptication for an interim order was ptaced ruted that he had no jurisdiction to consider the apptication. The order of the 2s learned justice remains for enforcement and is that the matter be ptaced before a panel of three justices. Specificatty, he ordered that: /t is for that reason that I am referring this application and the main application back to the registry so as to have the matter placed before the full bench of the Court of Appeal. lt is so ordered. "The aff idavit of John Lubega in support of 30 this appLication onty deposed that after the Court of Appeal. dectined to grant the interim order, the appticant fited a main apptication and another apptication for an interim order of stay of execution in this court. 35 ln as much as procedural rutes are handmaidens of justice, the appticant erroneousty fil.ed this apptication because his apptication in the Court of Appeat was not dectined and remained pending by the time he fited further applications in the Supreme Court. lt was ordered to be ptaced before a 25 Court shoutd hear the apptication first, or that an appeal be taken against the decision of the High Court, bearing in mind the interest of the parties and the costs invotved. The aim is to have the application for a stay speedity heard, and detays avoided. 5 pane[ of three justices. The onl.y basis of the apptication before me is that it was next to impossibte to constitute a panel of three Justices of Appeal. to hear the matter before the Court of Appeal,. The appticant ought to have withdrawn the apptication before the Court of Appeat and settted for the Supreme Court which woutd determine whether there were special circumstances to warrant the apptication being f ited directl.y in the Supreme Court. Rule 41 (1) provides that the appticatron shaLt first be fited in the Supreme Court. The wording of rute 41 (2) does not support the appticant's apptication in this court either because it stiputates that notwithstanding that an appLication has not been fited in the Court of Appeat, one may be fite direct to the Supreme Court. An apptication has been fited in the Court of Appeal. and it is stil.t pending. Further, the wording of rute tt1 (2) of the Judicature (Supreme Court Rutes) is inter atia that: (2) Notwithstanding subru[e (1) of this ru[e, in any civiI or criminal matter, the court may, in its discretion, on apptication or of its own motion, give leave to appeaI and make any consequentiaI order to extend the time for the doing of any act, as the justice of the case requires, or entertain an application under rule 10 25 30 35 26 ln any case, the appticant shoutd have demonstrated by affidavit evidence that attempts were made by him or counsel to have the matter ptaced before a panel of three justices and their efforts proved futite. The words of 1s Kihika, JA do not prove that it was impossibl.e to constitute a panel of three justices. The grounds for saying so were not stated. He advanced a possibte speciaI reason why the appticatron coutd be referred to the Supreme Court but this had to be estabtished in evidence. lf it was estabtished, then it was up to the appticant to hazard it. lt was the duty of the Registrar of the Court 20 of Appeat to have the matter ptaced before a Panel of three justices. There is no evidence to suggest that this was even done as ordered by the Court. ln any case there was a diatogue in Court before Justice Kihika, JA where what he stated coutd be interpreted as a possibte suggestion but quoted out of context. 6(2)(b) ot these Rules to sateguard the right of appeat, notwithstanding the fact that no apptication has first been made to the Court of Appeal. (emphasis added). ln otherwords, the fact of there being no appl.ication in the Court of Appeat does not bar this court from making an order of stay of execution to safeguard the right of appeat. But where a simitar apptication is pending before the Court of Appeat, what shoutd the Supreme Court do? The Civit Procedure Act has a specific provision where two matters are frl.ed before two courts enjoying concurrent jurisdiction. Section 6 of the CiviI Procedure Act, cap 71 provides that: 6. Stay of suit. No court sha[[ proceed with the trial of any suit or proceeding in which the matter in issue is atso directty and substantiatty in issue in a previousty instituted suit or proceeding between the same parties, or between parties under whom they or any of them ctaim, titigating under the same titte, where that suit or proceeding is pending in the same or any other court having jurisdiction in Uganda to grant the retief ctaimed. The appLication or suit f ited earl.ier shat[ he heard white the apptication f ited later in another court having jurisdiction in the matter sha[[ not be proceeded with when the eartier apptication is stit[ pending. An apptication is a suit. Section 2 (x) of the Civil. Procedure Act defines a suit inctusivety as foItows: (x) "suit" means atl civiI proceedings commenced in any manner prescribed Apptications by notice of motion are commenced as prescribed under the rutes by Notice of Motion. I woutd have without prejudice considered whether the Supreme Court can consider the appLicant's apptication direct. Nonethetess the Civit Procedure Act is existing law at the time of promutgation of the Constitution in 1995 under articte 27 L of the Constitution. The meaning of a "suit" has not been modified by any other [aw after the Constitution of the Repubtic of Uganda came into force in October 1995 and my task is to ensure that the appLication fited Latter does not proceed as this is barred by statute. 10 15 20 25 30 35 27 5 10 15 25 20 The Court of AppeaL has jurisdiction in the matter. ln the premises, I sustain the pretiminary objection to the apptication being heard by the Supreme Court when there is another pending apptication in the Court of Appeal, seeking exactty the same orders as sought in the appl.ications before the Supreme Court. lnstead of staying proceedings of the matters prematurety fited in this Court, I strike out the apptication for an interim order in Supreme Court Civil' Appl.ication No. 10 of 2021t as wetl as the main apptication for stay of execution in Supreme Court Civil Apptication No. 006 ot 202L as it is barred from berng heard under section 6 of the CivilL Procedure Act. This is coupted with rute 41 (1) of the Rutes of this Court which requires that the apptication shatL f irst be fited in the lower court and the appticant f ited an apptication in the lower court which is pending resotution. Further, no apptication was first fited direct to the Supreme Court as envisaged under rute 41 (2) of the Rul.es of this Court. Last but not least the striking out of the two apptications is with costs to the respondents. Dated at Kampata the 7th day of May 202tt Christopher Madrama lzama Justice of the Supreme Court 5ab',a'-9 b t'Lla A l" C.*l )'' [1A n2 "'^'-^ C,t n''t lZort" 6"1 /",1a//' * +lskn t 1./^,)V,./r1c d,t-znc,- LLP C4" 28