THE REPUBLIC OF UGANDA

IN THE SUPEME COURT OF UGANDA

CIVIL APPLICATION NO.11/2009

BETWEEN

FLORAH RAMARUNGU………………………….APPLICANT
VS
DFCU LEASING CO. LTD.::::::::::::::::::::::::::::: RESPONDENT

(An application arising from a judgment of the Court of Appeal at Kampala in Civil
Appeal No. 60 of 2007 and an undated Ruling of Ruhinda Ntengye, Esq., Registrar, Court
of Appeal, in Civil Application No. 20 of 2009).

RULING OF TSEKOOKO, JSC.

This application has been brought by Florah Rwamarungu, the applicant, through the firm
of Kakuru & Co. Advocates, by a Notice of Motion under Rules 2(2), 6(2) and 42 of the
Rules of this court seeking for an order of stay. According to the notice of motion, the
applicant wants:-

“An Interim Order doth issue staying the order of the Court of Appeal in
dismissing Civil Appeal No.6o of 2007 and staying the ruling in the High Court
Misc. Appln. No. 115 of 2007 arising out of Civil suit No.753 of 2006 until the
hearing and determination of the substantive application of stay of execution
pending appeal herein.”

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With respect I think that this type of pleading is bad. It was during the hearing and
through my probing of applicant’s counsel when I was informed by counsel that the order
sought is a “stay of execution which has an injunctive affect”.

Be that as it may, the applicant sets out five grounds in the notice of motion to support it
along with affidavit sworn by her. In summary she wants a stay because:

 she has filed a notice of appeal;

The respondent replied through an affidavit sworn by Mr. Kenneth Akampurira, advocate,
opposing the application and in effect asserting that the application has neither merit nor
basis.

The background to this application is interesting as gathered from the pleadings filed
herein and the statements from the bar by both Mr. Kenneth Kakuru, counsel for the
appellant and from Mr. Kabiito Karamagi, counsel for the respondent. I am aware that
this is neither a trial of the suit nor the substantive application for stay. However, because
of the nature of the application and because of the opinion I intend to express on the role
of the Registrar of the Court of Appeal I risk being lengthy in giving the facts.

It seems Yusufu Rwamarungu, the husband of the applicant, got a loan from the
respondent for which his two omnibuses were the security. Yusufu Rwamarungu was
unable to clear the loan which became a debt amounting to shs.172,356,530/= by
26/7/2005. For some reason, he instituted HCCS No. 613 of 2005 against the respondent
in the Commercial Division of the High Court. On 20 th December, 2005, the two present
counsel for the parties entered a consent decree by which it was agreed, in paragraphs 3
and 4 thereof, that-

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 3 The two buses Reg. Nos. UAE 946N and UAE 956N – shall be advertised for
sale---------------.
4 The land comprised in LRV 1113 Folio 19 Nyabushozi, Block 52 plot 2
Ruyonza Kasana, Kinoni shall be advertised for sale in the press providing for
thirty (30) days’ return period………………..”.

On 29th September, 2006, Registrar of the High Court (by warrant of attachment and sale)
authorized a Mr. Mupeera Anthony, a Court Bailiff, to sell the suit land. The husband of
the applicant who had become the judgment-debtor was ordered to surrender the land
title. On 30/10/2006, by a written agreement of that date, the court bailiff sold the suit
land to one Muhumuza Crescent Kamunyu at Shs.61,000,350/=. It would seem from the
statement from the bar made by Mr. Kakuru, that when Yusufu Rwamarungu pledged the
suit land he did not obtain the consent of his wife, the applicant, who apparently resided
in the matrimonial house on the suit land. Subsequently, she instituted High Court Civil
Suit No.753 of 2006, seven months after the sale of the suit land. In the suit, she is
alleged to be challenging the validity of the mortgaging and the auctioning of the suit
land. Thereafter and on the basis of that suit, she instituted an unsuccessful application
in the High Court apparently seeking for a temporary injunction. She then appealed
against the decision of the High Court (declining to grant temporary injunction) to the
Court of Appeal. The appeal (No. 60 of 2007) was dismissed by the Court of Appeal on
20/2/2009. Thereafter she filed in the same Court two applications for stay of execution
of the High Court order which dismissed her application for an injunction. One of the
applications (No. 20 of 2009) sought an interim order of stay of execution while another
described as the main application (No.19 of 2009) sought for substantive orders of stay.
The latter is still pending in the Court of Appeal. The Registrar of the Court of Appeal
heard and dismissed application No. 20 of 2009 and refused to grant an interim order. He
opined that:
“…….there are no proceedings in this Court and consequently no notice of
appeal has been lodged in accordance with rule 76 of this Court rules. The Court
is therefore incompetent to entertain this application.------------.

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 …………I strongly believe that the application for an interim order and the
substantive application where there are no proceedings in this court ought to have
been filed in the Supreme Court----it is dismissed………………”.

Before I consider the merits of the application I must first make observations on the
ruling of the learned Registrar of the Court of Appeal.

During the hearing, I asked both counsel whether the learned

Mr Kakuru stated that the Registrar had no such powers. I notice first that both Court of
Appeal Civil Application No. 20 of 2009 which the Registrar dismissed and the
remaining Court of Appeal Civil Application No. 19 of 2009 were filed in Court of
Appeal on 10/3/2009, about14 days after Civil appeal No. 60 of 2007 was dismissed by
the Court itself. I expected the Registrar to have been aware of the disposal of that appeal.
I think that under Rules 12, 13, and 15 of the Rules of that Court the Registrar is expected
to look at documents before accepting them. Why did his Registry register the two
applications if they were irrelevant? Why did the Registrar not seek directions from the
Head of the Court of Appeal or a Justice of the Court of Appeal before entertaining the
application?

Secondly, there is apparently growing a habit in the Court of Appeal whereby a Registrar
of that Court hears applications for stay of execution of an order of that court and parties
are either verbally or by a ruling, such as the one under review, directed to apply for the
stay in this Court.

In this case the learned Registrar opined that the Court of Appeal was “incompetent to
entertain this application” because there were no pending proceedings in the Court. I am
not aware of any law or rule of practice which empowers a Registrar of the current Court
of Appeal in this country to make such orders. Further, by virtue of rule 2(2) of the Court

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of Appeal Rules that Court has inherent power to act even if a judgment has been made to
prevent injustice to a party. Rule (2)(2) reads:
“Nothing in the Rules shall be taken to limit or otherwise affect the inherent
power of the court,----------, to make such orders as may be necessary for
attaining the ends of justice or to prevent abuse of the process of any such court,
and that power shall extend to setting aside any judgments which have been
proved null and void after they have been passed, and shall be exercised to
prevent abuse of the process of any court caused by delay.”
In my view where a registrar makes a lawful order in the Court of Appeal, a party
dissatisfied with his order can apply for a reference to a single Judge of the Court.
Moreover in cases like this one where a party may apply to either the Court of Appeal or
to this Court for some order, that party ought to start with an application in the Court of
Appeal first: See Rule 41 of the Rules of the Supreme Court, the case S.Ct. Civil
Application No.18 of 1990 – L. M. Kyazze Vs Busingye.

Reference of Registrar’s decision to Judges of the same Court are intended to expedite
disposal of contentions within the Court since the procedure is less formal. It helps
internal cleansing, so to speak.

I think it is improper for a Registrar of the Court of Appeal to make a final decision that a
party cannot file an application for stay in that court. In any case it is trite that a court,
such as the Court of Appeal, has inherent powers to stay its own orders. One of the
reasons in support of this view is that such a court is best suited to make the order for stay
because it is better acquainted with the facts of the case than the superior appellate court.
As I think that hearing of applications such as this is conducted as if it is an appeal and
though I am not sitting in normal appeal against the Registrar’s ruling, the ruling of the
Registrar of the Court of Appeal appears to me to be a nullity and should be regarded as
such.

Merits of the Application.

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Mr. Kakuru, argued mainly that even if the house was sold before the suit from which the
present proceeding emanate was instituted, it is proper to grant a stay of execution since
the applicant is still living in the house. He argued that if stay in not granted, the main
application in this court for stay of execution will be rendered nugatory and the applicant
will be evicted from the matrimonial home. He further argued that if stay is not granted,
the main suit which seeks to remedy the actions of the applicant’s husband in mortgaging
the suit property will be rendered nugatory. He prayed that costs should abide the main
application. For the Respondent, Mr. Kabiito opposed the application. He submitted that
the suit land was sold on 30/10/2005 following a court warrant arising from a consent
judgment in a suit instituted by the husband of the applicant. The applicant filed the
present suit seven months after the sale of the suit land. So an interim order which can
only be granted in compelling circumstances can not be granted here. He relied on two
rulings of this court by Mulenga JSC, as he then was, which include Stanbic Bank (U)
Ltd Vs Atabya Agencies – Civ. Application No. 31 of 2004. He further contended that
the suit property is now in the hands of a third party who is not a party to these
proceedings.

He also argued that both the order of the High Court and that of the Court of Appeal
which upheld the former are not executable and so there is nothing to stay. Learned
counsel submitted that after the Registrar’s ruling the applicant should have referred that
ruling to a Justice of Appeal or should pursue Court of Appeal Civil Application No. 19
of 2009, instead of coming to this Court. He prayed for the application to be dismissed
with costs. In a short rejoinder, Mr. Kakuru maintained that because the applicant is still
in occupation of the suit property, the status quo should be maintained.

Rule 6(2) (b) under which the application was made reads, in so far as relevant, as
follows:

“………………..the institution of an appeal shall not operate……..to stay

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 (b)…..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, an injunction or
stay of proceedings as the court considers just.”

It is common ground that the suit from which these proceedings emanated has not been
disposed of. It is cause listed for hearing on 31/8/2009. The applicant sought a temporary
injunction in the High Court presumably to maintain the status quo. I have not seen the
ruling of the High Court dismissing that application but it is agreed by both Mr. Kakuru
and Mr. Kabiito that the application for temporary injunction was rejected apparently
because the court was satisfied that there was no evidence of irreparable loss and that
there was no status quo to maintain since the suit land had been sold and transferred some
seven months earlier to a third party who was not a party to the suit. An appeal against
that particular ruling to the Court of Appeal was also rejected and that Court upheld the
reasoning of the High Court. That appeal and the intended one to this Court are
interlocutory appeals. I do not appreciate how the two orders can be executed and
therefore how a stay of the same can be granted.

With respect I am not persuaded by the arguments of the applicant. There is no evidence
to justify my interference with the opinions of the trial judge which was upheld by the
Court of Appeal to the effect that the applicant has not proved that she will suffer
irreparable loss if the status quo is not maintained. There are no compelling
circumstances to justify the issuing of an interim order of stay of execution even if it is
possible to execute. The mere statement from the bar by counsel for the applicant that she
is in occupation of the house is not sufficient in as much as the same house was sold to a
third party long before she filed her suit and the purchaser of the house is not a party to
the suit.

I decline to grant the order. I dismiss the application with costs.

Delivered at Mengo this 8th day of July, 2009.

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J. W. N. TSEKOOKO.
JUSTICE OF SUPREME COURT.