Kigongo and Another v Nantume (Civil Application 83 of 2003) [2003] UGCA 19 (13 October 2003)

THE REPUBLIC OF UGANDA

IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

10 CORAM: HON. LADY JUSTICE L. E. M. MUKASA-KIKONYOGO, DCJ; HON. MR. JUSTICE A. TWINOMUJUNI, JA HON. LADY JUSTICE C. K. BYAMUGISHA, JA

CIVIL APPLICATION NO. 83 OF 2003

| 1. | JOHN<br>KIGONGO | | |----|-----------------|--| | | | |

APPLICANTS 2. FATUMA NASSIMBWA.

VERSUS

FLORENCE NANTUME RESPONDENT

(Arising out of H. C. C. S. No.654 of 2000)

RULING OF THE COURT

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30 John Kigongo and his daughter Fatuma Nassimbwa, hereinafter to be referred to as the 1st applicant and 2nd applicant respectively, filed this application under Rule 5(2) (b) of the Rules of The Court of Appeal Rules, Directions 1996. They are seeking an order of this court to stay execution of the judgment, decree and all orders emanating from HCCS No. 654 of 2000 decided against them. The application is supported by an affidavit sworn by the 2nd applicant. When the application was called for hearing on 25th September 2003 neither Florence Nantume, the respondent, nor her counsel was present, although there was evidence that they were duly served. No explanation was given for the non attendance. On the application of Mr. Mukasa Ssebugenyi, Counsel for the applicants, the hearing of the application proceeded ex-parte.

The background of the matter briefly is that, the respondent sued her husband, the 1st applicant and step daughter, the 2nd applicant, in HCCS No. 654 of 2000 in the High Court sitting at Kampala. The suit was decided in her favour exparte.

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Aggrieved by the decision of the court, the applicants filed an application to set aside the exparte judgment and a second one for staying execution. They were both dismissed. The applicants, hence, filed a notice of Appeal to this court and this application for stay of execution.

The application is based on four grounds contained in the notice of motion and read as follows:-

"1. The applicant being dissatisfied with the decision of Hon. Justice Okello has preferred an appeal from the same.

- 2. That the appeal has reasonable chances of success. - 3. That the appeal may be rendered nugatory if a stay of Execution is not granted. - 4. That substantial and irreparable loss may result to the applicants if execution is not stayed."

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On perusal of the record we noted an affidavit sworn by Mukwatanise, the respondent's agent and a court bailiff where he deponed inter alia that he had been given a warrant of execution in No. C. S. 654 of 2000 by the deputy registrar of the High Court. From his averment, this application is overtaken by events because there is nothing to stay as he had carried out execution.

With leave of the court counsel for the applicants produced documents which indicated that following the issue of a warrant of arrest in execution, the 1st applicant was arrested and detained in civil prison. However, according to a letter by Kamugisha B. Moses S. P. Officer in charge of II. G. Prisons Murchison Bay addressed to the deputy registrar of the High Court copied to the Regional Prisons commander, the warrant of arrest was set aside. The respondent failed

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to remit subsistence allowance for the maintenance of the 1st applicant. He was, hence, subsequently released.

As it was rightly pointed out by counsel for the applicants it is not clear, whether execution was carried out as alleged by the respondent's agent. The reason for issuing two warrants in execution namely a warrant of arrest and attachment of property at the same time is hard to find. Further, surprisingly no mention was made of it by respondent's agent, the court bailiff.

Again there are some irregularities in the agreement of sale annexed to the affidavit, which makes it suspect because it seems it was tampered with. Further, non attendance by both the respondent and her counsel may be interpreted as loss of interest on their part as they had notice of the hearing date but opted not to attend court.

30 We are satisfied that in the interest of justice this application should be granted.

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For the aforesaid reasons it is hereby ordered that the judgment, decrees and all orders made in HCCS No. 654 of 2000 are stayed pending the determination of the intended appeal or further orders of the court. The costs will abide the result of the intended appeal.

10 Dated at Kampala this day of. 2003

L. E. M^'MUKAsk'-KIKONYOGO DEPUTY CHIEF JUSTICE

PPEAL

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C. K. ^E GISHA JUSTICE OF APPEAL