[1992] UGHC 51

The Hon. Mrs. Justice F. M. S. E. gonda- Ntende

## THE APPU IN OF UGLIDA

## IN THE RIGH WOULD OF COMNDA AT KAMPALA

## CIVIL SUIT NO. 78 OF 1992

EDWARD BAMUGYE ) $1.$ **:::::::::::::::::** PLAINTIFFS GEORGE MAYANJA ) $2:$ VERSUS

1. LIBYAN ARAB UGANDA BAEK ) :::::::::: DEFENDANTS ABSIMNA ENTERPRIS.3 (U) LED ) $2.$ BEFORE: The Honourable Mr. Ag. Justice M. Kireju RULING.

This is an application by Notice of Motion brought under $\mathcal{L}(\mathcal{A}) = \mathcal{L}(\mathcal{A})$ S. 101 of the Civil Procedure act and Or. 48 r. 1 and 2 of Civil Procedure Rules and other enabling provisions of the law. The applicant George Mayanja who is a second plaintiff in the main suit, seeks an order to stay execution of the Ruling/Order made on 20/3/92 in Givin $\mathfrak{su}_1$ : No. 78 of 1992 in so far as it relates to payment into court U.3hs.65, $\&33$ , 477/= within 30 days from the said date and/or that this court extends the lifespan of the interim injunction pending the determination of the appeal against the said ruling/order pending in Supreme Court. The applicant also proved that the application be heard exparte within the ambit of $C_2$ . 48 r. 2 of the Civil Procedure Rules. The application is supported by the affidavit sworn by the applicant George Mayanja on 29/6/92.

The brief background to this application is that, the applicant together with withward Bamugye, filed a suit against the respondents/default to namely The Lybian

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Arab Up. 2. Park as first defendant and Absimna Subervision (J) Lt. as 2nd defendant. The plaintiff set it a declar tion that there was no guarantee contract between Wou and the defendants on which the 1st defendant is band to muthorise an agent M/S Mukasa Semoga Auctions to sale the plaintiffs' property by public suching with the second defendant got no authority from its Board of Directors to over draw its account and turn the overloaft into a loan and lastly that the plaintiff never authorised the 2nd defendant to secure a loan from the 1st defendant by over drawing the 2nd defendant's. account. In its written statment of defence the 1st defendant denied any claim by the plaintiff and avered that under the mortgage the 1st defendant had power to sell the mortgage lands either by private treaty or by public auction if there is default in payment of the moneys due.

when a can

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Subscuent to the filing of the suit the plaintiffs also applied for a temporary injuction restraining the defendants from disposing of their property until the final determination of the main suit. An interim injuction was granted by his Lordship Ag. Justice Tinyinondi on 20/3/92 on condition that the plaintiff deposit into court Shs.65,283,477/= within 30 days from the date of the ruling and failure to do so would automatically discharge the injuction. At the hearing of the raid application, the two plaintiffs were represented by Mr. Kafuko of Kafuko and Ntuyo Advocates and the 1st defendant was represented by Mr. Kirenga of Kireja and Mdozireho Advocates. The second defendant was not empresented, liongh for the background.

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At the- hearing of this application th-.- applicant;. George liukasa /c.s represented by a new firm of advocates namely ?'/S Muhanguzi and Co. Advocates. Mr. Mugisha learned counsel for the applicant when presenting the application applied to this court to be allowed to -proceed ex-parte under Or. 48 r\* 2 of C. P. R.-which is as follow,

} " No motion shall be made without notice to the parties affected there-hy provided that the court, if satisfied that the delay caused by proceeding in- the ordinary way would or might entail irreparable or serious mischief, may make an order ex-parte upon such terms as to costs or otherwise, and subject to such undertaking, if any as to- the court may seem just, and ^j . any party affected by such order may move to set it asldaa^f

•Counsel submitted that according to para. ⁹ of the affidavit in support of the application, M/S Mukasa Senoga Auctioneers Advertised in New Vision, newspaper of Tuesday 9/o/92t sale of the applicant's property comprised in Busiro Block 337 plot 22 at Kyengera and that of the 1st plaintiff to wit Kyadondo Block ²⁶⁵ plot ⁷⁷ at Bunamwaya and Kyadondo Block 20 plot 254 at Busegu by public auction on 4/7/92 10.00 a.m. The said? the subject of the said suit. Counsel contended that in view of the i. tended sale., serving other parties and any further delay in hearing this application would entail irreparable or s-rious mischief evisaged under Or. ⁴⁸ r. ² in so far as .-dvurtisod nr -erties av?- worth Shs.200,000^0^0/= which by xrceca:.- ths; amount in aispure. f'-i,rh>v

contended that if the application is not heard exparte, whatever order that, may be passed by this court may be rendered ^um-v ory or useless as the propety would have been sold ■an'' the buyer acquires, ^a good title thereby defeating the intorc-?:t of justice..

After listening to the submission by counsel for the applicunc/qocond plaintiff I was convinced that this matter •'r.'.s urgent and -I accordingly allowed the application to proceed arto under the provisions of Or. 48 rr.2 of Civil Procoduro Rules•

.. Turning to .the main application counsel for the applicant submitted ¹ t'iuv the applicant/plaintiff has filed an appeal against th-.: rvling/order of this honourable court which is still pending in the Supreme Court. He referred court to pare, ² and nnnoxture ¹ B^f to the affidavit. At this point I drew counsel's attention to annexture 'B^r which was a notice appeal filed on behalf of the 1st plaintiff, and the name of the applicant were not motioned any wh-\_re, thus ideating that the appeal was only,.made by the 1st plaintiffs ' Counsel submitted that the applicant due to ill health could not follow up t:\*e progress of the case. But that when the applicant went to his former lawyers on 26/6/9?. ho -/as informed that they had otained an induction but they had filed notice of appeal on his behalf on 2/'-i/92 to Supreme Court and he believed the same to be trueo According to paragraphs ¹⁰ and ¹¹ of affidavit, r,:iu. vstan. i-;o.s developed between the lawyers a.id th: a ? r.t and he accordingly withdrew instructions cud instructed *N/S* Muhanguzi and Co. Advocates to take o-^r r

In the alternative counsel for the applicant submitted that in ^c ^e the court finds that there is no appeal the court should invoke the provisions of S. 101 of C. P. R. The court should use its inherent powers to allow the applicant have the ruling/order.stayed or life span, of induction expended pending the applicant's leave to appeal to the Supreme Court. Counsel submitted at length about the inherent -power ox the court and referred me to explanatory notes contained in All Indian Report (AIR) Commentries on the Code of Civil Procedure Vol. 5 of 1908 6th -3d. 1957 Vol. at 1o01» Counsel submitted that S. ¹⁰¹ was in parim^tcria with S. 151 of the Indian Procedure Code and therefore the commetaries could be applicable to this court. Counsel contended that in the above cited commentary it was stated that in administering justice as prescribed by a code there are two necessary shortcomings.

- (1) There will always be cases and circumstances which are not covered by the express provisions of the code where in justice has to be done. The reason is that the legislature can foresee only the most natural and -ordinary events and no rules can regulate for al?. time to come so as to make express provision against all inconvenience which are infinite in number ^nd so that their dispositions 3hall express - all the cases that may probably happen. - ??.) The prescribed rules of procedure may be abused, or so used as to give a mere formality, the significance of substantive effect and thus obstruct instead of facilitating the administration of justice".

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Counsel further submitted that court has inheret powers to do the right and to undo a wrong in the course of the administration of justice. Counsel summitted that it reals be a great miscarriage of justice in this case if the court incisted on the strict provisions of the law, that the av licent should have filed a notice of appeal and therefore nothing can be done for him. Counsel futher submitted that it would be against the interest of justice if the applicant's former lawyers' failure to take the necessary steps to file an appeal in his names should be taken against him;

第一切が、戦争が、戦争に

On the second ground of application counsel submitted . that the intended appeal is likely to succeeed in so far as the le rned Judge erred in law when after considering the princide of balance of convenniance, exercised his discretion wrongfully and unjudiciously by imposing a very hash, meconsciousnable and injust condition that the plaintiff pay into court Shs.65,283,477/= within 30 days from the date of the ruling and failure to do so would automatically disching the injunction. Counsel contended that this was a very important point of law which should be exhausted by the Supreme Court and therefore the applicant should be affineded an opportunity of having the same resolved.

Countel further submitted that as stated in para 15 and 16 of the affidavit, unless the orders which are being pray d for are granted the properties which have already bean ilvertised for sale would be sold by the time the applicant applies for leave to appeal, by the time the application is board and the subsquent appeal is heart. The Avis would be rendered nugatory to the detriment of tar applicant. $1.1/7$

$\mathsf{G}$ Counsel contended that the substative suit in this court has great chance of succeeding in so far as there was no gu rantee contract between the plaintiffs and the first defendant on which the 1st defendant based itself to authorine M/S Mukasa Senoga Auctioneers who are its agents to sale the applicant's property as well as that of the 1st plaintiff. Secondly the 2nd defendant did not have any. authority from his Board of Directors to overdraw its account and turn the overdraft into a loan. That the plaintiffs did not authorise the 2nd defendant to get a loan from the 1st defendant by overdrawing the 2nd defendant's account. Lastly that before the purported rele can take place the value of the mortaged properties have to be est blished which was not done in the instant case. Counsel submitted that these were highly contentions issues which need a lot of evidence and hence the parties should be accorded the apportunity to have them resolved on merit.

Counsel further submitted that if properties were sold, the applient would suffer irreparably as it would not be easy for him to look for colossal amount of money to acquire alternative chunks of land and later on developing them to the proparties current standard.

In conclusion counsel submitted that in the interest of justice the life span of the interim injuction be extended or that the operation of the ruling as regard the condition of depositing Shs.65,283,477/= be stried punding the determination of the applicants appeal. Cumpel further prayed that this court orders the defend mts or their agents not to sell by public with a or otherwise disposing the 2nd plaintiff's properties or operationed until the disposal of the appeal in co for as

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it relates to the ruling of this honourable court or until Curther order. And that costs of this application be provided for.

I have had the benefit of reading Justice Tinyinondi's ruling, where he granted a temporary injuction on the condition of balance of convenience but directed the applicants/ plaintiffs to deposit into court Shs.65,283,477/= within 30 Jays from $20/3/92$ if they failed to do so the temporary injuction would automatically be discharged. From the court record it is apparent, that this money has not been: paid into court as directed and therefore the temporary injuction has lapsed and thats why the plaintiffs properties were advertised main by the 1st defendant for sale. The applicant's prayer in this application is that the lifespan of the interim injuction imposed by this court be extended or stayed until the determination of the appeal against the said ruling.

As already stated the interim injuction has expired, and I therefore find it a bit odd to try to extend something which is non existent. I therefore find that I cannot extind the interim injuction as it has already expired.

What the court is left with is whether it can stay the ruling/order pending the determination of the appeal. The notice of Appeal filed on $2/4/92$ on which the applicant bases his application does not include his name. However, has cransed has strongly argued his case basing on S. 101 th Civil Procedure Act. That even if the court was convinced that there is no appeal pending the applicant should still to when an opportunity to file and procedure the noted proy 4 that court evokes its inherent process under the

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said Act. From the annexture 'A' namely medical forms on which the applicant ettended hospital, I am convinced that the applicant vas Gaost of the period from January, 1992 to the procent time even when he appeared in court at the heaving of this application he was moving with the fid of crutches. The applicant had instructed a lawyer to promotive his case and he thought all was well until on $26/6/92$ when he learned from his former lawyers that he had to deposit in court Shs.65,283,477/= and that his proporties had been advertised again for sale by public nucli it on $4/7/92$ . The applicant assumed that the appeal was also on his behalf since the firm of lawyers had all along been instructed to represent both plaintiffs.

The former lawyers of the applicant are therefore being blamed for failing to include the name of the plaintiff in the notice of appeal, and also for failing to file other necourancy documents to enable the appeal to take off. Although the applicant was also not very vigilant in following up his case, I think the lawyer was also negligent in omittin; the applicant's name from the notice of Appall and failing to file other documents in time az required by law. A layman who instructs a lawyer to handle his case puts hisself at the mercy of the lawyer, and the lawyer should be restorable for the case and if the lawyer is no longer interacted in the case he should withdraw from the cose after informing those concerned rather than just abondoning the clse as it appears was the case in this suit. In the mediant curreposited case namely, Civil Application No. 2/92 Z mu Holumansi, Ernest Ndivalana Kakembo -vs- Sulaiman Lule. Justice Section J. S. C. allowed an application to appeal out of bone where the delay to file the necessary papers what day t. the regligence of the advocate. $...$ /10

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In the present 'application, I .-Iso feel that t'-i . .pplicant should. *•. ^&gt;'c* be deprived of his right of appeal because of a nogli,;cnc 1?/ yer. The plainfiffs properties which involve ^a lot ■■;! money ?rc- in danger of being sold and if there is no r^m^dial relief nfforded to them by court the applicants property will be sold and th.; suit which is pending before this ^c u:rt v/ill bu. nugatory. I am also of the same vie<7 with for the applicant that the issue on which the appo .1 io grounded is of legal i-portance and should be given a chance to be heard and determined by the Supreme Court.

In the interest of justice, I would give the applicant a c'.innco t\*.» persuc- the appeal in the Supreme Court so that the p.. ttor i.c determined on merit, And I would not wish to '.ssocl to myself with any thing which will add to the deplorable history of delay which ^h .s already occurned in this c-.fjo, especially with reg rd to the impending appeal I thervo order that the Rulin^Crder of this court dated 20/3/92 be r.t -.yc-d on condition that the ap.lic-ant take steps within 1p days from the date hereof towards filing an appeal against the said Ruling/Order. Failure to do so within the stipulated time will automatically discharge this order.

If the ipplic nt complies "ith the said condition, the ^R a'. ihg/Order shall further be st • ^y • ?d until the ⁿ ppeal is and d..t«rmined or until further orders from thio ■:

In ore'e? tr« give effect to this order, the Respondents/ Def '.ants their agents are direct ".d not to sell by public ageti. oe;-jx-\*. i.;o dispose of the suit property during ch\*

£ubsi-tnce of this »rdor unless 9vh\*>rwi:;e dir: *;',e* ? hy this c ?urt

The Registr.-.r is directed to give a copy of this order to the parties who were not represented nt the hearing of this application. The costs to this application will be borne by the applicant.

•^/PvA /-• J.v- . v -/ M. KIREJU ^(5 • JUDGE.

9/7/92

## 9/7/92

Ruling delivered before Mr. Moses Kazibwe - holding brief for Mr. Mub'i-ha Counsel for the 2nd plaintiff/applicant Mr. Oburu Court Clerk.

M. KIDEJU

9/7/92