HIGH COURT at Kampala (Land Division), in the interest of justice has allowed two Miscellaneous Applications, one is No. 1141 of 2020 (Arising out of H.C.C.S No. 227 of 2005, H.C.C.S No. 622 of 2003 consolidated in Civil suit no. 2139 of 2016) in which the family of Sir Edward Muteesa II asked court to issue an order of stay of execution against Dr. Muhammed Buwule Kasasa (1st respondent) or any one else claiming for and on his behalf ugx 26Bn as compensation for the land comprised in and known as Kyadondo Block 237 Plots 178 and 388 land at Mutungo, Luzira.
In the second Application No. 1232 of 2020, Court agreed with the family of Sir Edward Muteesa II, for Uganda National Roads Authority (UNRA) not to pay Dr. Muhammed Kasasa Six billion, one hundred and eighty seven million , two hundred and twelve thousand, seven hundred and fifty hundred shillings (6,157,212,750) being the compensation sums due to the registered owner of property/land comprised in Kyadondo Block 237 plots 178 and 388, land at Luzira/Mutungo acquired for purposes of construction of the Kampala-Jinja Expressway.
(We shall expound more this second application in our other article).
In this application, court was informed how the ministry of Finance had already written to the Attorney General for his opinion as to whether Dr. Kasasa should be paid the expected payment of twenty six billion shillings (26,000,000,000/=) as compensation.
The family of Sir Edward Muteesa II contests that Kasasa is not the owner of this land claiming, their father was the rightful owner of this land.
Until court disposes off the main suit about who the owner of this land is, court agreed with the family of Sir Edward Muteesa II that Kasasa shouldn’t be given tax payers money by false pretence.
According to Muteesa’s family, Dr. Kasasa had already been issued with an impugned clearance from the Attorney General and the Office of the Prime Minister and was at the verge of receiving money from Government in regards to property that is still subject of the court matter vide Civil Appeal No. 152 of 2020 which is pending in the court of Appeal.
The order is aimed at restraining them from executing the order issued in H.C.C.S No. 622 of 2003 by way of demanding any payment/compensation from the Government institutions in respect to this suit land, pending the hearing and final disposal of Civil Appeal No. 152 of 2020 preferred by the applicants.
Thanks to presiding judge, Hon. Justice John Eudes Keitirima in his December 22nd 2020 wise ruling.
In this application, the applicants who included; The Administrators of the Estate of Sir Edward Muteesa II, Naalinya Dorothy Nassolo, Naalinya Sarah Kagere and Prince David Wasajja showed court that Dr. Kasasa is about to be paid twenty six billion shillings (26,000,000,000/=) as compensation for the suit land of which they contest his ownership and that, they would therefore suffer substantial loss if the said money is paid before the intended appeal is heard and determined on its merits.
Giving the court decision, Hon. Justice Keitirima said, “It is true that the Applicants lodged a Notice of Appeal having been dissatisfied with the ruling of this Court delivered on 20th March 2020. Subsequently a memorandum of Appeal was filed in this Court of Appeal vide Civil Appeal No. 152 of 2020.”
Justice Keitirima said, “It was held in the case of Mugenyi and Company Advocates versus National Insurance Corporation – C.A.C.A No. 13 of 1984 that the High court has inherent powers to stay its orders including those of execution.”
“I agree with the submissions by the counsel for the appellants (Sir Edward Muteesa II family) that the effect of dismissing Civil suit No. 622 of 2003 involving the parties here in gave rise to the 1st respondent’s (Dr. Kasasa) demand for payment/compensation from the said Government institutions in respect of the suit land on grounds that there is no pending case against him.” Said Justice Keitirima ruling that, “It would therefore render the intended appeal nugatory in event the applicants (Sir Edward Muteesa II family) are successful as they may have lost out on the compensation in respect of the suit land.”
This application was brought before High court against Dr. Muhammad Buwule Kasasa (Ist respond) and The Attorney General (2nd Respondent).
The applicants were seeking for orders that:
- An order of stay of execution be issued against the 1st
respondent or anyone else claiming for and on his behalf, restraining them from executing the order issued in H.C.C.S No. 622 of 2003 by way of demanding any payment/compensation from Government institutions in respect to the suit land, pending the hearing and the final disposal of Civil Appeal No. 152 of 2020 preferred by the applicants.
- Costs of this application be provided for. The application was supported by the affidavit of Prince David Wasajja hereinafter referred to as “the 4th applicant” who deposes inter alia:
- That the applicant filed Civil Appeal No. 152 of 2020 which is depending hearing in the Court of Appeal.
- That the Court of Appeal has already issued conferencing directives regard to the said appeal to ensure the expeditious hearing and disposal of the said appeal.
- That there is an eminent danger that the affecting and/or executing of the orders of this court vide H.C.C.S No. 622 of 2003 would render the main application and Civil Appeal No. 152 of 2020 nugatory.
- That the respondent has embarked on the process affecting and/or executing the aforementioned orders vide H.C.C.S No. 622 of 2003 which are being appealed against by the applicants and that the respondent has already extracted the said court order and a bill of costs to the tune of fourteen billion, four hundred and forty five million, eight hundred and forty thousand shilling (14,445,840,000/=) and has filed taxation application No. 50 of 2020 and caused taxation hearing to be served on the applicants.
- That the said taxation is in total disregard of the Court of Appeal orders vide Civil Appeal No. 102 of 2016 which is the to the effect that the costs shall abide the determination of the consolidated Civil Suit No. 2139 of 2016 on merit and which said suit is yet to be concluded by this court.
- That the applicants will suffer irreparable and substantial loss if execution is not stayed as it would inflict greater hardships for all stakeholders having a rightful claim and/or interest in the suit land than it would avoid, given that dismissing Civil Suit No. 622 of 2003 a central part of the consolidated Civil Suit No. 2139 of 2016 caused confusion as one arm of consolidated suit would partly be ongoing while the other being in execution.
- That the applicants are beneficiaries of the Estate of the late Sir Edward Muteesa II which formerly comprised in MRV 962 Folio 19 now comprised in Kyadondo Block 237 plots 37, 42, 39, 29, 43, 48, 56, 67, 59, 69, 70, 81, 82, 83, 88, 92, 111, 112, 114, 115, 142, 147, 148, 138, 103, 131, 150, 154, 155, 178. 179, 335 and 410 land at Mutungo, Luzira, Nakawa Division, Kampala District.
- That the impugned dismissal of H.C.C.S No. 622 of 2003 and
omission by the Court to hear the consolidated suit on its merits as ordered by the Court of Appeal having been dissatisfied with the ruling.
- That the 1st respondent has already extracted a Court order and/or Decree vide H.C.C.S No. 2139 of 2016 and he is in the process of enforcing, carrying out, effecting and/or realizing compensation/payment from Government using the said order or decree.
- That the application is intended to preserve the status quo of the suit property and the fact that H.C.C.S No. 622 of 2003 and H.C.C.S No. 227 of 2005 are consolidated suits comprised in H.C.C.S No. 2139 of 2016.
- That the said Civil Suit No. 622 of 2003 still forms part of the consolidated Civil suit No. 2139 of 2016 which consolidated suit is yet to be heard and determined on its demerits.
- That the ministry of Finance has already written to the Attorney General for his opinion as to whether the respondent should be paid the expected payment of twenty six billion shillings (26,000,000,000/=)
- That the respondent has already been issued with an impugned clearance from the Attorney General and the Office of the Prime Minister and it is at the verge of receiving money from Government in regards to property that is still subject of the court matter vide Civil Appeal No. 152 of 2020 which is pending in the court of Appeal.
- That there is eminent threat posed by the respondent causing and affecting dealings and/or compensation from UNRA in respect of the suit property which is subject to the aforementioned pending Civil Suits.
- That this application is intended to preserve the applicant’s right of hearing vide Civil Appeal No. 152 of 2020 which right will be curtailed once this application is not granted.
- That it is only fair, just, equitable and in the interest of substantive justice for this application to be allowed.
In his affidavit in reply, the Dr. Kasasa deposed inter alia:
- That on the 19th day of December 2018, this court issued a temporary injunction restraining him from receiving any compensation from Uganda National Roads Authority, National Water and Sewerage Corporation and other Government departments in respect of land mentioned in the said order.
- That he and the applicants on the 14th day of October 2019 before the dismissal of H.C.C.S No. 622 of 2003 entered into a consent order of variation of temporary injunction in which it was expressly agreed that Uganda National Roads Authority, National Water and Sewerage Corporation goes ahead with its compensation programs without any legal impediment.
- That at the time of entering the said consent variation order he was the registered proprietor of the land mentioned in the order particularly land comprised in and known as Kyadondo Block 237 Plots 178 and 388 land at Mutongo, Luzira and thus, he was the only person entitled to compensation.
In his affidavit in rejoinder the Prince David Kintu Wasajja (The 4th applicant) deposes inter alia:
- That the affidavit reply is diversionary and does not provide a substantive response to the application and should be ignored by this court.
- That this application is properly before this court and this court is vested with the jurisdiction to entertain this application.
- That the order sought to be stayed is not a negative order but rather a self-executing order capable of being acted upon, enforced or misused to dispose of the suit land while claiming compensation on grounds that there is no pending suit in total disregard of the pending appeal.
- That the respondent has indeed acted upon the dismissal orders as evidence from the letter dated 16th April 2020 from the Permanent Secretary to the Ministry of Finance where it was clearly stated therein that the respondent acting through Kampala Associated Advocates in a letter dated 27th March 2020 demanded compensation on part of the suit land comprised in Block 237 Plots 29, 48, 56, 59 and 67 just days after Civil Suit No. 622 of 2003 was dismissed.
- That the variation order was meant to remove the legal impediment to both Uganda National Roads Authority and National Water and Sewerage Corporation to acquire the suit land in public interest.
- That the applicants have never consented to UNRA and NWSC to go ahead and compensate the first respondent.
- That this application is in respect to stay of the orders issued in Civil Suit No. 622 of 2003 as opposed to the consent variation order and the question of estoppels does not arise.
- That the order subject to these proceedings is a self-executing order capable of being executed by the first respondent by way of disposing off the suit land and claiming compensation grounds that there is no pending suit.
- That the first respondent admits that the order is capable of being executed in costs but that it is also capable of being acted upon and the interest of justice demands the said order be stayed.
- That this application is not premature as the response commenced execution on the order issued by this court when he filed the taxation application vide No. 50 of 2020 which execution process by way of taxation was stayed pending determination of this application.
- That he is advised by his lawyers that there is no basis for security for costs and there is no legal requirement for furnishing security for costs in an application to stay of execution.
- That he is advised by his lawyers that the order sought to be stayed did not involve a decretal sum and the subject matter being land this court has the discretion to grant this application in absence of depositing security for due performance of a decree.
- That he is advised by his lawyers that the practice of this court is not to execute awards when the substantive causes are still pending or being challenged by the appeal process since the person paid would have been unjustly enriched if the appeal process turns out to be in favour of the applicants and that staying of the entire execution is necessary to avoid piecemeal execution.
- That Civil Appeal No. 52 of 2020 has high likelihood of success and is not based on procedural irregularity as falsely claimed by the first respondent and that the applicants have taken all the necessary steps in the appeal process.
- That the mistakes of court officials should not be visited on the litigants and that besides the mistake was cured when court finally endorsed the Notice of Appeal.
- That the respondent has embarked on the process of demanding compensation on grounds that Civil Suit No. 622 of 2003 which was a hindrance to him of being compensated has since been dismissed and this can be evidenced by the first respondent’s letter he wrote to the ministry of Finance requesting for his compensation.
- That the grant of this application is necessary to serve the ends of justice, to protect the applicants’ right of appeal and that it is fair and equitable that the application be granted.
“Counsel for the applicants and counsel for the first respondent filed written submissions the details of which are on record and which I have considered in determining this application.” Said Justice Keitirima in his ruling as he stopped Government compensation of UGX 26Bn to Dr. Muhammed Buwule Kasasa