National Forestry Authority v Robert Wayeba (Miscellaneous Application No. 12 of 2025) [2025] UGSC 34 (29 August 2025)

THE REPUBLIC OP UGAIIDA (Coran: Monica K. Mugenyi, JSC, sitfrng as a Single Judge) (Arising from Miscellaneous Application No. 11 of 2025 & Civil Appeal No. 334 of 2019) NATIONAL FORESTRY AUTHORITY (NFA) APPLICANT VERSUS ROBERT WAYEBA RESPONDENT Miscellaneous Application No. l2 of 2025 t/vtA1 I THE SUPREME COURT OF UGANDA AT KAMPALA MISCELLANEOUS APPLICATION NO. ,I2 OF 2025 I RULING A. lntroduction This Application is brought under section 98 of the Civil Procedure Act (CPA), Cap.282, Order 52 rules 1 and 3 of the Civil Procedure Rules (CPR), and rule 6 of the Judicature (Supreme Court Rules) Directions S.l '13-11 ('the Supreme Court Rules'). The applicant seeks an interim order of stay of execution of the judgment and orders of the High Cofi in Avil Suil No. 128 of 2013, pending the determination of the substantive application Miscellaneous Application No. 11 of 2025. The application additionally seeks an order for the release of any property (moveable or immoveable) previously attached in execution, until the determination of the Appeal that is pending before this Court. 3. The Application is supported by the afiidavit of Mr. Moses Muhumuza, the applicant's Director Corporate and Legal Affairc that was received in this Court on 7s lr,lay 2025. An affidavit in reply deponed by the Respondent was lodged in this Court on 28b May 2025 and an aflidavit in rejoinder, which bears no endorsement of receipt from the registry, was uploaded to the Electronic Case Management System (ECCMIS) on 29h May 2025 and received by opposite Counsel (in protest) on the same day. 4, At the hearing of the Applicalion, the applicant was represented by Mses. Jacqueline Namuddu and Gloria Akumu Blick while Messrs. Moses Kizza and lvan Atwine represented the respondent. The parties made oral submissions in the matter. B. Parties' Leqal Arquments 5. lt was argued for the applicant that the application essentially seeks to preserve lhe status quo of the property that was in contention tn Civil Suit No. 128of 2013 pending the disposal by this Court of the substantive application for stay of execution. Learned Counsel asserted that the applicant duly lodged a Notice of Appeal in respect of the Court of Appeal's dismissal of the appeal that was pending before that court, as well as a substantive application for stay of execution of that decision. However, as Miscellaneous Application No. I 2 ol'1025 2 W, 2. The background to this Application is that the High Court sitting in Jinja entered an ex parte judgment against the applicant in February 20'19. The applicant thereupon lodged an appeal against that decision in the Court of Appeal, which was on 26u, day of February 2025 dismissed by that court for wantof prosecution. The applicant then lodged a Notice of Appeal in this Court on 10t lVarch 2025, followed by a substantive application for stay of execution and the presenl application, both of which were filed on 7th May 2025. was pleaded in paragraph 7 of the affidavit in support of the present application, the service of a wanant of attachment and sale of the applicant's movable property by the respondent represents a senous threat of execution. Counsel sought to invoke the inherent powers of this Court under rule 2(2) of the Supreme Court Rules, to promote the ends of justice and prevent abuse of oflice. They additionally cited the Court's decision in Hwan Sunq lndustries Limited v Taidin Hussein & Others t20081uGSc 29, where the principles governing the grant of an interim stay of execution were restricted to the existence of a substantive application for stay of execution that is pending determination, as well as a serious threat of execution. 6. Conversely, leamed Counsel for the respondent questioned the competence of the Application given that the affidavit on record pertains to the substantive application for stay of execution, thus leaving the present application unsupported by any evidence of the assertions made in support of a grant of interim orders. In any event, the Application is opined to violate rule 41(1) of the Supreme Court Rules, which requires such applications to be made before the Court of Appeal prior to seeking he intervention of the Supreme Court. 7. Without preludice to the foregoing arguments, it is proposed that no Notice of Appeal was filed in this case contrary to the decision of this Court in Theodore Ssekikubo & Others v Attorney General t20131 UGSC 21 , where a Notice of Appeal was adjudged to be one of the prerequisites to the grant of an application of the nature presently before us. Reference is further made to Lawrence Musiitwa Kyazze v Eunice Businqye t19901 UGSC 13 for the proposition that another consideration in the grant of interim stay of execution is that the party seeking such orders deposit security for costs; but this was not forthcoming in this Application yet the decretal amount in quesiton had since accumulated to Ushs. 523,000,000/=. 8. Furthermore, citing Zu Mohamm K kawalia & Another 17 UGSC 7 it was argued that the allegation of imminent threat of execution ought to have been supported by a warrant of execution or other proof that the non-grant of the orders sought would inflict hardship and substantial loss to the applicant. ln Counsel's view, the affidavit on record makes no such averments but in any case, the applicant could claim a refund of monies obtained in execution in the event that it eventually emerges as the successful party in the pending Appeal. 9. By way of rejoinder, it was asserted that whereas the considerations outlined by leamed Counsel for the respondent would be applicable to substantive applications for stay of execution, the matter before the Court presently is an application for interim orders therefore the foregoing submissions it ', i^/i,[l Miscellaneous Application No. I 2 of 2025 are misguided, lt was further argued that the applicant was unable to seek those interim orders before the Court of Appeal as the respondent's advocates had not yet availed it with the decree in question. 10. Before delving into the application before me presently, I would advert to a point of law raised by learned Counsel for the respondent. lt has been pointed out that the applicant did not seek the interim orders sought in this application before the Court of Appeal, before accessing this court for the same, This is the lmport of rule 4'1(1) of this Court's Rules of Procedure. That procedural rule stipulates as follows: ('1) Where an application may be made either to the Court or to the Court of Appeal, it shall be made to the Court of Appeal first. (2) Notwithstanding subrule (1)ofthis Rule, in any civil or criminal matter, the Court may, in its discretion, on application or of its own motion, give leave to appeal and make any consequential 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 safequard the riqht of appeal, notwithstandinq the fact that no application has fffi Court of Aopeal. (ny emphasis) 11, Thus, clause (2) above empowers the Court with the discretion to entertain an application that falls shorl of clause (1) in accordance with rule 6(2) of the Supreme Court Rules. Rule 6(2)(b) makes provision for the grant of an order of stay of execution where the justice of a case so requires. lt reads as follows: (1) (2) Subiecl to subrule (1) of thi3 Rule, the institution of an appeal shall not operate to suspend any sentence or to stay execution, but the Court may - (a) ........... (b) in any civil proceedings, wfiere a Notice of Appeal has been lodged in accordance with Rule 72 o, these Rule3, order a stay of execulion, an injunc{ion or stay of proceedings as the Court may con3ider just. 12. Indeed, this Court has on several occasions exercised its discretion to entertain applications that were not lodged in the Court of Appeal prior to accessing the apex court. See Attornev General v Eddie Kwizera, Electoral Commission v Eddie Kwizera [20201 UGSC 8 and Hassan Basaiiabalaba & Another v Aftornev General [2018'l UGSC 56. Given that there is indeed a Notrce Miscellaneous Application No. I 2 o12025 + C. Court's Determination */ ofAppealon record, lwould exercise my discretion to entertain the application to avoid unnecessarily clogging work at the already busy Court of Appeal, 13. I now turn to the merits of the application. Thegrantof interim orders is governed by Rule2(2) ofthe Supreme Court Rules. That procedural rule recognizes the Court's inherent power to make such orders as may be necessary for aftaining the ends ofjustice orto prevent abuse ofthe process of any such court ... and shall be exercised to prevent abuse of the process of any court caused by delay.' The conditions tirat ought to inform for the grant of interim orders of stay of execution were delineated by this Court in Hwan Suno lndustries Ltd v Taidin Hussein & 2 Others t20081 UGSC 29 as follows: For an application for an interim order of stay, it suffices to show that a substantive application is pending and that there is a serious threat of execution before the hearing of the pending substantive application. lt is not necessary to pre-empt consideration of matters necessary in deciding whether or not to grant the substantive application for stay. (a) (b) (c) (d) The filing of a Notice of Appeal in accordance with Rule 72 of the Rules of this Court; The fling of a substantive Application for stay of execution; The evidence of an imminent threat of execution; That the Application should have been brought without delay. 15. Additionally, in Theodore Ssekikubo & 2 Others v Attornev General & 3 Others 120141 UGSC '11 , the Court did allude to the role of interim orders in preserving the status quo so as to allow for the determination of the issues in contention between the parties by the full court. '16. ln the matter before me presently, there is rndeed a pending substantive application - Criminal Application No. 11 of 2025 that was brought without undue delay, as well as a pending Appeal - Crininal Appeal No. 334 of 2019. Conlrary to the respondent's assertion, lhe court record bears a Notice of Appeal that was received by the Court Registry on 7b May 2025 17. Be that as it may, I am alive to the caution in Wilson Mukiibi v James Semusambwa [20031 UGSC 52 that interim orders ought to be allowed only in compelling circumstances to prevent a deflation of justice. This is reiterated in Uqanda Revenue Authority v Nsubuqa Guster & Another [20191 5 14. ln the latter cases of Muhammed Mohamed Hamid v Roko Conshuction Ltd [20171 UGSC 47 and Zubeda Mohammed & Another v Laila Kaka & Another [20171 UGSC 7, the Court established the following prerequisites for the grant of an intedm stay of execution: Miscellaneous Application No. I 2 of 2025 @; UGSC 15 and Theodore Ssekikubo & 2 Others v Attornev General & 4 Others (supra) where the preservation of parties right of appeal was balanced with the ends of justice as envisaged in Rule 2(2) of the Supreme Court Rules. 18. The present application essentially seeks to forestall the sale of three of its motor vehicles that are the subject of a wanant of attachment issued on 5th May 2025. That warrant of attachment is indeed sufficient proof of imminent threat of execution by the respondent. Whereas I am acutely aware of the lacklustre manner in which the litigation from which this application emanates has been handled by the applicant's lawyers, the justice of this case requires that the shortcomings of Counsel should not be visited upon their un suspecting client. lt would be an entirely different matter if there was material on record to suggest that a client was complicit in his/her advocates dilatory conduct, but that is not the case presently. 19, ln the result, having duly considered the law on the grant of interim orders, I would allow the application with the following orders: l. An interim order does issue staying the execution of the orders in Civil Suit No. 128 of 2013 pending the determination of the substantive application for stay of execution pending before this Court, namely, Miscellaneous Aoolication No. 11 of 2025. ll. Costs of this application to abide the cause. It is so ordered Signed this 27th day of August 2025. Monica K. 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