THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
(EXECUTION AND BAILIFFS DIVISION)
MISCELLANEOUS APPLICATION NO. 1200 OF 2016
(ARISING OUT OF EMA NO. 816 OF 2016)
(ARISING OUT OF COMMERXCIAL DIVISION CIVIL SUIT 369 OF 2011 AND MISCELLENOUS APPL. NO. 766 OF 2015)
THE MOTOR CENTER (EA) LTD ………………………………… APPLICANT
ABDALLAH KIIZA SSEMBEREGE….………………………… RESPONDENT
BEFORE LADY JUSTICE FLAVIA SENOGA ANGLIN
This application made under 0.43 r4 (3) C.P.R, S.98 CPA and S.33 Judicature Act, seeks orders of this court staying execution in HCCS No. 369 of 2011 pending the determination of the Appeal in the Court of Appeal.
Costs of the application were also applied for.
The grounds for the application are that:-
- The Applicant has filed a notice of Appeal in Court of Appeal appealing against the whole decision and orders therein.
- There is the current application for stay of execution.
- The Respondent has applied for execution and obtained a notice to show
- The Appeal has high chances of success.
- The Applicant shall suffer substantial loss if execution is not stayed.
- If execution is not stayed, the appeal shall be rendered nugatory.
- It is in the interests of justice that the application be allowed.
There is a supporting affidavit deponed by Barbra Kembabazi which was read and relied upon at the hearing.
There is an affidavit in reply of the Respondent filed on 13.10.16: where it is contended that, the judgment intended to be appealed against was reviewed and a decree extracted on 26.02.16- Annex “RE”. Bill of costs was taxed interparty by consent of the lawyers for both parties.
The notice of appeal is allegedly intended to appeal against Miscellenous Application 766/15 which granted the review in favor of the Applicant.
Notice of appeal was filed out of time.
The copy of the notice of appeal has never been served on the Respondent or his lawyers neither has any copy or letter requesting for proceedings or any memorandum of appeal.
When notice to show cause was issued in June 2016, and fixed for 07.06.16, the Applicant filed this application as an excuse to stay execution.
Without any appeal having been filed, this application and all the Applicant’s actions are an abuse of court process intended to delay justice.
The parties filed written submissions.
Counsel for the Applicant gave background to matter: where it is clearly indicated that judgment in Civil Suit 0369/11 was set aside and a review done. A decree was extracted from the review although the Applicants were not informed of the final position of the referee. Notice of appeal was filed on 08.04.16 against the decision in Miscellenous Application 766/15.
The Respondents applied for execution and hence this application seeking to stay execution.
It was then submitted that the purpose of staying proceedings pending appeal is to preserve the subject matter in dispute, safeguard the rights of the parties and not render the appeal nugatory. The case of Musitwa Kyazze vs. Eunice Busingye SCCA 18/90  IV KALR 55 was cited in support.
Further that the questions to answer in the application are:-
- Whether there is an arguable appeal.
- Whether the appeal would be rendered nugatory if the application is not granted.
The merits of the intended appeal should not be delved into at this stage.
Asserting that the Appeal of the Applicant has high chances of success, Counsel relied upon the case of Hwang Sung Industries Ltd vs. Tajdin Hussein and 2 Others SCCA 79/2008, to conclude stating that “there is a serious threat of execution before the appeal is heard and therefore court should intervene to serve substantial justice.”The case of Abundant Life Faith Church of Uganda vs. JB Walusimbi CA 38/2004 was also referred to together with the case of Joyce Mugisha vs. Idah Herura SCCA 09/2006 and Idah Herura vs. Joyce Mugisha CA 02/2006 to emphasize that “justice is better served for both parties if execution is stayed pending appeal”.
Counsel further indicated that the Applicant was willing to deposit security for costs amounting to Shs. 30,000,000/- within two months from the date of the ruling.
In reply, it was argued for the Respondent that, during the hearing of the case, it was agreed that the matter was about reconciliation of figures.Two auditors were appointed by the parties but failed to come up with an agreed reconciliation.Court appointed another referee who after meeting with the parties and looking at the reports of the earlier auditors filed a report indicating that the Respondent was entitled to Shs. 47,710,000/- from the Applicant.
The report was adopted by court and judgment delivered on 28.08.15.
On 25.09.15, the Applicant sought to set aside the judgment and decree and to have the matter reviewed.
On 12.01.16, the award of the referee was set aside and the referee was requested to reconsider the award.
A report was made by the referee on 02.02.16.A decree was extracted from the review on 26.02.16.The Respondent’s Bills of Costs were taxed on 07.04.16.
However, on 08.04.16, the Applicant filed a notice of Appeal against the review that had been granted in his favor.
It was argued that, to try and appeal against orders in his favor, the Applicant was abusing court process.More so as the said notice of Appeal was filed two months and twenty one days from the date of the decision the Applicant was allegedly intending to appeal from.
The notice of Appeal was never served on the Respondent, proceedings have never been requested for by the Applicant and no memorandum of Appeal has ever been filed.
To file the application for stay on the day scheduled for hearing notice to show cause was a mere excuse to stop execution.
After the interim order of stay was granted by the Registrar, the Applicant abandoned this application, which was then fixed and served by the Respondent.
It was then submitted that, courts have held that “a stay of execution should be granted if a court is satisfied that there is a good cause to do so and that there are special circumstances to justify such course.” – Somali Democratic Republic vs. A.S. Treon SC CA 11/88.
Counsel pointed out that in the present case, the appeal is a sham and an abuse of court process only designed to delay justice.
That Rule 76 (2) of the Court of Appeal Rules requires a notice to be lodged within fourteen days from the date of the decision desired to be appealed from.
The notice of appeal in the present case was filed on 08.04.16 purportedly intending to appeal from a decision made on 12.01.16, more than two months after the decision was made. The Applicant never filed any application for leave to appeal out of time.
The case of Sandi and Another vs. Ali Mukunyu  HCB 51 was relied upon for the holding that “an application for stay of execution is to be made to the High Court if sufficient cause is shown before time within which to appeal expires.”
Contending that the Applicant had failed to show any special circumstances and good cause to justify the stay, it was asserted that the application is frivolous and only intended to defeat justice.
That Applicant has not shown how he will suffer substantial loss.Counsel relied on the case of Tanzania Cotton Marketing Board vs. Cogecot Cotton Co. SA [1995-1998] EA 312, where the case of Bensidhar vs. Pribku Dayal was cited with approval, to state that “it is not enough merely to report the words of the code and state that substantial loss will result; the kind of loss must be specified, details must be given and the conscience of the court must be satisfied that such loss will really ensue.”
Further that, “The words substantial cannot mean the ordinary loss to which every judgment debtor is necessarily subjected when he loses his case and is deprived of his property in consequence. That is an element which must occur in every case and since the code expressly prohibits stay of execution as an ordinary rule, it is clear the words “substantial loss” must mean something in addition to all different from that”.
Court was also urged to note that “pendency of an Appeal is not a bar to a successful party’s right to enforce a decree obtained even by execution.” – See Uganda Revenue Authority vs. Tembo Steels Ltd HCT MA 0521/2007.
The case of Editor in Chief the New Vision Newspaper vs. Ntabagoba CA C.A 63/2004 was relied upon to contend that “such things as likelihood of the intended appeal succeeding and willingness of the performance of the decree or order are not legal requirements for consideration whether or not to grant stay of execution.”
Also that courts have emphasized that “…an order for stay of execution must be intended to serve a purpose and a legitimate one for that matter.” – See Tahar Fourati Hotels Ltd vs. Nile Hotel (Int.) Ltd Miscellenous Application 614/2003 from Miscellenous Application 22/2003 where Justice Lugayizi cited the case of Mugenyi vs. NIC SCCA 13/1984.
Reiterating that the actions of the Applicant are only intended to frustrate the Respondent by abusing court process, which actions should not be condoned by court, it was prayed that the application be dismissed with costs to the Respondent.
It was also pointed out that the application ought to have been made by Notice of Motion under 0.52 r1 and not by Chamber Summons.
There is a brief rejoinder by Counsel for the Applicant reiterating earlier submissions and denying that the Appeal is frivolous or vexatious.He emphasized that “the High Court may for sufficient cause stay execution of a decree” and that sufficient cause has been shown by the Applicant in the present case.
I have carefully gone through the submissions of both Counsel and the proceedings on record and given them the best consideration I can in the circumstances.
The background to the claim of the Respondent out of which this application arises is clearly brought out by the Respondent in its submissions in reply to the Applicant’s submissions, earlier referred to in this ruling.
Suffice it for me to state that I am more persuaded by the submissions of Counsel for the Respondent.This court finds that the Applicant has not satisfied court that there is good cause to stay execution or that there are special circumstances to justify the stay.
It is apparent that when the judgment of the trial court and the award which the Applicant claims to wish to appeal against were reviewed and set aside.It was at the instance of the Applicant.
A review of the award was done and a report placed before the court.As a result of that review, court entered judgment in the terms set out in the decree of 26.02.16.The amount due and owing to the Respondent was reduced to Shs. 47,654,000/-.
There is no indication whatsoever that the Applicant ever took any action to appeal the decision until notice to show cause was issued by court on 05.05.16 and Applicant summoned to appear in court on 07.06.16.The notice of Appeal was then filed on 08.04.16 and no further action has been taken by the Applicant to file the memorandum of Appeal.Equity aids the vigilant
In any case mere filing of an appeal is not sufficient ground by itself for staying execution – 0.43 r 4 91) C.P.R when as it can be discerned from the conduct of the Applicant that there is intention to duly delay the conclusion of the matter, which in my view amounts to abuse of court process.There has to be an end to litigation.
While the Applicant proposes to deposit Shs. 30,000,000/- as security for costs – the time of two months requested for, that is two months from the date of the ruling is unreasonable, lending credence to the Respondent’s contention that the Applicant is bent on frustrating him from getting the fruits of his judgment.
The application is accordingly disallowed for those reasons with costs to the Respondent.
The Applicant could show good faith by at least proposing to pay the Respondent in reasonable installments.
Flavia Senoga Anglin