Kato & Anor v Nalwoga (Civil Application 12 of 2011) [2011] UGSC 23 (30 June 2011)

# Kato & Anor v Nalwoga (Civil Application 12 of 2011) [2011] UGSC 23 (30 June 2011) [ Share this document on WhatsApp opens in new tab __](https://api.whatsapp.com/send?text=Kato+%26+Anor+v+Nalwoga+%28Civil+Application+12+of+2011%29+%5B2011%5D+UGSC+23+%2830+June+2011%29+-+https%3A%2F%2Fulii.org%2Fen%2Fakn%2Fug%2Fjudgment%2Fugsc%2F2011%2F23%2Feng%402011-06-30) [ Share this document on X opens in new tab __](https://twitter.com/intent/tweet?text=Kato+%26+Anor+v+Nalwoga+%28Civil+Application+12+of+2011%29+%5B2011%5D+UGSC+23+%2830+June+2011%29+-+https%3A%2F%2Fulii.org%2Fen%2Fakn%2Fug%2Fjudgment%2Fugsc%2F2011%2F23%2Feng%402011-06-30) [ Share this document on Facebook opens in new tab __](https://www.facebook.com/sharer/sharer.php?u=https://ulii.org/en/akn/ug/judgment/ugsc/2011/23/eng@2011-06-30) [ Share this document on LinkedIn opens in new tab __](https://www.linkedin.com/sharing/share-offsite/?url=https://ulii.org/en/akn/ug/judgment/ugsc/2011/23/eng@2011-06-30) [ Share this document by email __](mailto:?subject=Take%20a%20look%20at%20this%20document%20from%20ULII:%20Kato%20&%20Anor%20v%20Nalwoga%20\(Civil%20Application%20%E2%80%A6&body=https://ulii.org/en/akn/ug/judgment/ugsc/2011/23/eng@2011-06-30) [ Download RTF (135.4 KB) ](/en/akn/ug/judgment/ugsc/2011/23/eng@2011-06-30/source) Toggle dropdown * [Download PDF](/en/akn/ug/judgment/ugsc/2011/23/eng@2011-06-30/source.pdf) Report a problem ##### Is there something wrong with this document? Problem category *Incorrect informationMissing informationNo PDF downloadDocument is emptyDocument is not accessible on my deviceOther What's the problem? * Your email address * CancelReport problem __ * Share * [ Download RTF (135.4 KB) ](/en/akn/ug/judgment/ugsc/2011/23/eng@2011-06-30/source) * [Download PDF](/en/akn/ug/judgment/ugsc/2011/23/eng@2011-06-30/source.pdf) * * * * * Report a problem __ ##### Kato & Anor v Nalwoga (Civil Application 12 of 2011) [2011] UGSC 23 (30 June 2011) Copy citation * __Document detail * __Related documents * __Citations \- / 3 Citation Kato & Anor v Nalwoga (Civil Application 12 of 2011) [2011] UGSC 23 (30 June 2011) Copy Media Neutral Citation [2011] UGSC 23 Copy Court [Supreme Court of Uganda](/en/judgments/UGSC/) Case number Civil Application 12 of 2011 Judges [Kitumba, JSC](/en/judgments/all/?judges=Kitumba%2C%20JSC) Judgment date 30 June 2011 Language English Summary Read full summary __ ##### Ask AI Ask questions and understand this document faster using AI. __Ask AI * * * Skip to document content **THE REPUBLIC OF UGANDA** **IN THE SUPREME COURT OF UGAN****DA** AT KAMPALA **CIVIL APPLICATION NO. 12 OF 2011** BETWEEN 1\. JOEL KATO} 2\. MARGARET KATO} ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPLICANTS AND NUULU NALWOGA ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT _[An application arising from the judgment of the Court of App_ _eal_ _at_ _Kampala in Civil Appeal No_ 79 _of 2009 dated_ 21st _March 201_ _1]_ _**RULING OF KITUMBA JSC**_ This application has been bought by the two applicants by Notice of Motion under Rules 2(2),6(2), (b) 41(2) and 42(1) (2) of the Rules of this Court. It seeks for an interim order of stay of execution against the respondent in respect of the judgment and decree in C.A. Civil Appeal No 79 of 2009 until the final disposal of the main application for stay of execution pending in this court. I t also seeks that the costs of this application be provided for. _The main grounds of the application are:_ 1. That there is a serious threat of execution of the decree in C. A. _Civil Appeal No_ 79 _of_ 2009 and the applicants' residential house will be demolished following the extraction of the decree, surveying of the suit land and filing of the bill costs by the respondent. b) that there is a substantive application for stay pending before this court. c) That the applicants will suffer substantial loss and their appeal as well as the main application will be rendered nugatory if this application is not granted 4. That the application has been made without unreasonable delay by the applicants. 5. That in the interests of justice the application be allowed so that the status quo is maintained. The application is supported by the affidavit of the first applicant in which he repeats the statements contained in the main grounds of the application. He also avers that according to the judgment of the Court of Appeal dated 17th March 2011, orders evicting the applicants from the suit land and condemning them to pay a colossal sum of damages of Shs.l00,000,000j= to the respondent were given. The following documents are attached to the 1st applicants' affidavit as annextures and marked accordingly, the decree in _C_ _ivil_ _Appeal No_ 79 _of 2009_ is "A", the Notice of Appeal is "B" counsel's letter to the Registrar of the Court of Appeal, requesting for typed copy of the proceedings is "C" the Bill of Costs is "D" and the taxation hearing notice is "E". The respondent in her affidavit in reply denied the applicants' allegations. In paragraph 3 of her affidavit, she averred that the applicants were not under any threat and would not suffer irreparable loss in case of execution because they do not own the _"bibanja"_ on the suit land and they do not reside there. In paragraph 4, she averred that the applicants were illegally constructing a house on her land comprised in Kyadondo Block 215 Plot 975 at Kulambiro. That the applicants permanently live outside the country and since the late 1990's they abandoned the house to a caretaker. The background to the application as can be discerned from the affidavit in support of the application and the annextures thereto and the affidavit in reply, is that the respondent is the registered proprietor of land comprised in Kyadondo Block 215 Plot 975 at Kulambiro. The applicants bought the "bibanja" on that land from other people and not the respondent. The applicants filed a suit against respondent in the High Court claiming that they were lawful owners of _"bibanja"_ on the respondent's land. The respondent counter claimed that she was the registered proprietor of the suit land and had never sold _"bibanja"_ to the applicants. She counter-claimed for damages. The High Court decided the suit in favour of the applicants. The respondent appealed to the Court of Appeal in _Civil Ap_ _peal_ _No_ _79_ _of_ _2009._ On 1 7th March 2011, the Court of Appeal allowed the appeal and ordered that the applicants be evicted from the suit land as they were trespassers. The Court of Appeal ordered them to pay damages to the respondent amounting to Uganda Shillings one hundred million (100,000,000/=) and condemned them to costs in both courts. The applicants' counsel filed a Notice of Appeal on 28-3-2011 and on the same day wrote a letter to the Registrar of the Court of Appeal applying for a copy of the proceedings. A decree was extracted and counsel for the respondent filed a bill of costs which according to Annexture E was to be heard on the 6th April 2011. On 24th May 2011 counsel for the applicants filed in this court the instant application and the substantive application for stay of execution which is Civil _Application No_ 12 _of 2011._ During the hearing of the application, the applicants were represented by learned counsel Mr. David Kaggwa and learned Counsel Mrs. Dorothy Nandugga Kabugo and Miss Irene Akurut appeared for the respondent. In his submissions the applicants' counsel referred to the Notice of Motion and repeated the contents of the affidavit in support. He argued that if the decree is executed, the applicants will suffer irreparable loss which cannot be atoned by damages. He submitted that in an application of this nature, what one has to show is that the Notice of Appeal has been filed in time, there is a substantive application and that there is a serious threat of execution before hearing the substantive application. Counsel submitted that all these three conditions have been satisfied. In support of his submission he referred to the authority of _**Hw**_ _**an**_ _**Sung Industries Ltd Vs Tojdin Hussein and**_**2** _**Oth**_ _**ers,**__C_ _ivil_ _Application No_ 19 _of_ 2008\. _SC,_ which was quoted with approval in _**Alcon International Ltd Vs New Vision Printin**_ _**g an**_ _**d**_ _**Publishing**_**Co** _**Ltd and the Editor**_**in** _**Chief New Visio**_ _**n an**_ _**d**_ _**Sunday Vision.**__Civil Application No_ 04 _of_ 2010 SC _(Unr_ _eporte_ _d)_ Counsel prayed this court to allow the application. In opposition to the application, Mrs. Kabugo for the respondent submitted that the application is premature, has no merits and should be dismissed with costs. She, too, heavily relied on the affidavit in reply. She argued that Counsel for the applicant has not been diligent. The judgment was delivered on 17/03/2011 but he did not file the application until the decree was extracted and bill of costs filed. This was in May 2011. She submitted that there was no appeal on record and she had not been served with the substantive application. She did not therefore, know whether such application exists. She argued that there was no serious threat of execution and that the respondent in her affidavit in reply had averred that the land has not been surveyed. She further submitted that that in order to allow the application for stay of execution, the following conditions must be satisfied. (1) _Substantial loss may result_ to _the applicants_ _(2) There_ is _a likelihood of success of the appeal_ (3) _The application has been made without unreasonab_ _le del_ _ay_ _and_ _(4) The applicant has given security for due performanc_ _e of t_ _he_ _decree or order as ultimately may be binding on him._ Counsel submitted that the applicants do not reside within the jurisdiction of the Court and they have no known assets in this country. In the alternative she argued that if this court is inclined to allow the application the applicant should be ordered to pay additional security for costs. In support of her submissions she quoted the following authorities: _**Dr. Ahmed Mohamed Kisuule Vs Greenland Bank**_ in liquidation SC. _Civil Application No_ 10 _of_ 2010\. _**Lawrence Musiitwa**_ _**Kyaz**_ _**ze**_ _**Vs Eunice Busingye.**_**Civil Application No18 of 1990** _**B**_ _**C**_ In rejoinder counsel for the applicants submitted that the application is not premature since a Notice of Appeal has been filed under Rule 72 of the Rules of this court. Additionally depositing security for costs is not appropriate under this application. I have read the pleadings and listened to the submissions of both counsel. Rule 6 (2) (b) the Rules of this court which provides for 10 stay of execution states: _**(2) "Subject**_**to** _**sub role**_**(1)**_**of this rule, the instit**_ _**ution**_ _**of**_**an** _**appeal shall not operate**_**to** _**suspend any sent**_ _**ence**_**or****to** _**stay execution but the court may:**_ _**(a)……………………………………..;**_ _**(b)**_**in** _**any civil proceedings, where a notice of app**_ _**eal h**_ _**as**_ _**been lodged**_**in** _**accordance with rule**_**72** _**of thes**_ _**e Rul**_ _**es,**_ _**order**_**a** _**stay of execution,**_**an** _**injunction**_**or** _**stay**_ _**of**_ _**proceedings**_**as** _**the court may consider just."**_ This is the rule which provides for stay of execution whether interim or substantive. However, there are different principles 25 which the court must consider when considering an interim stay and a substantive stay. In the instant application for an interim stay of execution, the court in addition to considering that a notice of appeal has been filed and there is a substantive application has to consider whether there are special circumstances warranting the granting of such an interim order. An example of that would be the immediate destruction of the suit property, I respectively agree with the following statement in _**Hwan Sung Indus**_ _**tries**_ _**Lt**_ _**d**_ _(Supra)_ _**"--**__**-**__**for**_**an** _**interim order of stay,**_**it** _**suffice**_ _**s**_**to** _**s**_ _**ho**_ _**w**_ _**that**_**a** _**substantive application**_**is** _**pending**_ _**and**_ _**th**_ _**at**_ _**there**_**is a** _**serious threat of execution b**_ _**efore**_ _**th**_ _**e**_ _**hearing of the pending substantive applic**_ _**ation.**_ **It is** _**not necessary**_**to** _**pre-empt consid**_ _**eratio**_ _**n**_ _**of**_ _**matters necessary**_**in** _**deciding whether**_**or** _**no**_ _**t**_**to** _**grant the substantive application for stay**_ _**."**_ I appreciate the submissions by counsel for the applicants that counsel for the respondent has based her submissions on factors to be considered by court for a substantive stay of the execution. I have, however, found it difficult to believe the pleadings of the applicants and submissions of their counsel from the bar. The applicants' counsel filed the instant application in this court only after the decree had been extracted and the taxation hearing notice issued. Besides, counsel did not attach the judgment of the Court of Appeal as an annexture to the affidavit in support of the application. Counsel for the applicants filed this application in this court and not the Court of Appeal which had heard the appeal and was well acquainted with the facts. When counsel was asked by Court why he did not file the application in the Court of Appeal, his reply was that he had the choice to file this application in either Court. _Rule_ 41 _of the Rules of this court provides;_ (1) _Where an application may be made either_ to _this c_ _ourt_ or _to_ _the Court of Appeal] it shall be made to the Court_ _of App_ _eal_ _first_ _._ _(2) Notwithstanding sub rule_(1) _of this rule] in an_ _y civil_ or _criminal matter]___the court may, in its discr__ __etion__ __]___on_ _application_ or _of its own motion] give leave_ to _ap_ _peal_ _and_ _make any consequential order to extend time for_ _the do_ _ing_ _of any act] as the justice of the case requires] or_ _entert_ _ain_ _an application under rule_ 6(2) _(b) of these_ _Rules_ _to_ _safeguard the right of appeal] notwithstanding the_ _fact_ _tha_ _t_ _no application has first been made to the Court of_ _Appea_ _l_ _.__**(Underlining mine)**_ I am aware that this court has been hearing and granting such 40 applications but that is discretional according to the circumstances of each application. In my view, that is what is meant by the provision in sub rule (2) that I have underlined. I am fortified in this view by the authority of _**Lawrence**_ _**Musii**_ _**tw**_ _**a**_ _4_ _5_ _**Kyazze Vs Eunice Busingye Civil Application No**_**18** _**of 19**_ _**90.**_ _ In that application, the Supreme Court was faced with a situation similar to the instant one and it had to interpret the provisions of rule 41 of the Rules of the Court. Counsel for the respondent objected to the application for stay of execution on the ground that the applicant had not made the application first in the High Court. _The Supreme Court stated thus:_ _**"There must be substance**_**to** _**the application**_ _**both**_**in** _**form and content; This court would prefer th**_ _**e Hig**_ _**h**_ _**Court**_**to** _**deal with the application for**_**a** _**stay**_**on i****ts** _**merits first, before the application**_**is** _**made**_**to** _**th**_ _**e**_ _**Supreme Court. However, if the High Court ref**_ _**uses**_**to** _**accept jurisdiction,**_**or** _**refuses jurisdiction for ma**_ _**nifest**_ _**ly**_ _**wrong reasons,**_**or** _**there**_**is** _**great delay, this Cou**_ _**rt ma**_ _**y**_ _**intervene and accept jurisdiction**_**in** _**the inte**_ _**rest**_ _**of**_ _**justice.**_ _**This court may**_**in** _**special and probably rar**_ _**e cas**_ _**es**_ _**entertain**_**an** _**application for**_**a** _**stay before the Hig**_ _**h Cou**_ _**rt**_ _**has refused**_**a** _**stay,**_**in** _**the interests of justice**_**to** _**t**_ _**he**_ _**parties. But before the court can**_**so** _**act**_**it** _**must**_ _**be**_ _**appraised of**_ _all the_ _**facts. "**_ I t should be noted that this application to the Supreme Court was made before the Court of Appeal was established by the 1995 Constitution. I am not convinced that Counsel for the applicants has filed this application in this Court in good faith and with due diligence. I base my opinion on the fact that counsel filed this application after the taxation hearing notice had been served on him. He did not even attach a copy of the judgment of the Court of Appeal but only a decree. In my view the reason for that might not be hard to find. Most probably, he did not want this court to have a full picture of the case. On inquiry from learned counsel for the applicants, this court learnt that he did not even consult counsel for the respondent on whether she could agree to a stay or not. He simply rushed to this court to argue the matter so as to secure an interim stay, which if granted would lock out the respondent from use of her land for a considerable time. In my opinion, failure to file the application in Court of Appeal and to attach a copy of the Court of Appeal judgment, failure to serve counsel for the respondent with substantive application for stay of execution coupled with failure to consult counsel for the respondent are all indicative of bad faith and abuse of process. Before I take leave of this ruling, it must be stated that counsel should always observe Rule 27 of the Rules of this court. There was a list of authorities to be referred to but no actual authorities were filed until the court had requested for them. This was after the hearing of this application. In the result, I dismiss this application with costs to the respondent. **Dated at Kampala** this 30th day of. June 2011 **C.N.B. KITUMBA** **JUSTICE OF THE SUPREME COURT** #### __Related documents #### More documents like this one ▲ To the top >