[2022] UGCA 326

# THE REPUBLIC OF UGANDA

# IN THE COURT OFAPPEAL OF UGANDA AT KAMPALA MISCELLANEOUS APPLICATION NO 542 OF 2022

(Arisingfrom Civil Application No ... of 2022)

(Arisingfrom Civil Application No 88 of 2022)

(ArisingJrom Civil Application No. B4 of 2022)

(Arisingfrom C:ivil Application No.309 of 2022)

(Arisingfrom Commercial Court Civil Suit No.3g7 o/2013)

#### BETWEEN

# I. CHARLES BYAMUGISHA 2. BYAMUGISHA BABY COACH &SONS TRANSPORT COMPANY LTD....,..,,.....,APPLICANTS

#### AND

# PAULINUS CHUKWU EJIOFOR.,... ..., RESPONDENTS

# RULING BY CHRISTOPHER GASHIRABAKE JA

# (SINGLE JUSTICE)

#### Introduction

The Applicants filed this application seeking for orders that an interim order staying execution of a default Decree vide High court commercial civil Suit

25 No.387 of 201 3 be stayed pending the hearing and determination of the main application for stay ofexecution and costs of this application to be in the cause.

This application was brought by way of Notice of Motion under section l2 of the Judicature Act cap 13 and Rules 2(2),43 and 44 of the Judicature (court of Appeal Rules) Directions S.l l3-10, for Orders that:

- ⁵ l. An interim order staying execution vide HCT Commercial Civil Suit No.3g? of 2013 doth issue until the determination of the application for sray of execution which is pending hearing before this Honorable Court. - 2. Costs ofthis Application be provided for.

Mr. Byamugisha charles swore an affidavit in support of the application stating ¹⁰ the grounds that:

- l. Vide Misc. Application 309 of 2016, the trial Judge in Civil Suit No.387 of ²⁰¹³lifted the veil of M/S Byamugisha baby Coach & Sons Transport Co. Ltd and allowed the Respondent to enforce the Decree in Civil Suit No.3g7 of 2013 against the l.'Applicanr herein. - 15 2. being dissatisfied with the decision ofthe trial Judge in Misc. Application No.309 of 2016, lhe Applicants filed Miscellaneous Application No. l6l of 2019 seeking for extension of time within which to appeal against the afore mentioned decision which application was dismissed by Court ofAppeal that the Applicant did not have a righr ofappeal. - 3. Following the said decision of Court of Appeal, rhe Applicants filed Miscellaneous Application No.64 of 2022 in the High Court Commercial Division which application was denied and dismissed. 20 - 4. The Applicants have now filed Miscellaneous Application No.gg of ²⁰²² seeking leave to appeal against a decision in 3g7 of 201j. - 5. Miscellaneous Application No.88 of2022 had high chances ofsuccess and is pending determination by this Honorable Court. 25 - 6. The Respondent is pressing ahead with executing a default decree in HCT Civil Suit No.387 of 2013 by way of Carnishing the I't Applicants bank accounts. - 30

7. The Applicant has filed a main application for stay of execution which is pending hearing and determination before this Honorable Court

8. lt is fair, just and equitable that this application is allowed.

Mr. Paulinus Chukwu Ejiofor swore an affidavit in Reply opposing this application. He averred that after the default judgement was entered the Applicants engaged in endless litigations all aimed at having the default decree set aside to no avail. That at the end ofthe protracted litigation the Respondent applied to court for the execution of the decree in HCCS No.3g7 of 2013, against 35

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⁵ the 2nd Applicant as the original Applicant only to find that, the 2d Applicant was a sham. He then made an application that was granted for him to lift the veil and proceed against the l't Appticant. That as much as the Respondents made an application for Garnishee vide Misc. Apptication No.80 of 2022 the process did not yield any fruit. Furthermore, he averred that there's no existing Appeal as ^a basis for this Application.

Mr. Charles Byamugisha swore an affidavit in rejoinder averring that the procedure adopted in extracting the order offended the taw because he was not notified of the ruling. That the Apptication and appeal have a high likely hood ofsuccess. He averred that he has filed a main application for stay of execution 1s and the application seeking leave to appeal is pending before this court. He

further averred that there is a serious threat of execution that the bill of cost in between the Respondent and the garnishee has been taxed.

## Reprcsentntion

The Applicants were represented by Mr. Jackson Ntwatwa. The Respondent was represented by Mr. Arthur Murangira. 20

# Submissions for Counsel for the Applicant.

counsel submitted that the principles which an application of stay of execution can succeed were well espoused in Hwang Sung Industries Ltd vs. Tajdin Hussein supreme court civil Application No.l9 of 200g where it rvas held that:

- l. The Applicant must show that a substantive application is pending. - 2. That there is a serious threat ofexecution before the hearing ofthe pending substantive application.

⁵ Counsel submitted that regarding the first principle the Applicant filed ^a substantive application on 20ft May 2022, and it is pending hearing and determination before this court.

Regarding the existence of a threat, counsel for the Applicant submitted that there is a serious threat of execution of the decree vide HCT commercial civil

- Suit No.387 of 2013. Counsel submitted that in paragraph l7 the Applicant averred that the Respondent filed an application for execution of the decree vide HCT Commercial Civil Suit No.387 of 2013 and gamished the l.tApplicants personal bank account. 10 - Counsel further submitted that it is mandatory for the Applicants to furnish security for due performance and they furnished security for due performance of the decree in the High Court Commercial Division through EFT Vide the Registrar High Court Account No. 003010088000012 in Bank ofUganda at ^a tune of UGX 92,351,000/: (Ninety-Two Million Three Hundred Fifty-One Thousand Shillings) 15 - counsel submitted that court should find it pleasing to exercise its discretion to grant this application. 20

## Submissions of counsel for the Respondent.

Counsel for the Respondent started his submission by raising two preliminary points of law. counsel submitted that the application is misconceived, barred in law and an abuse ofthe court process and ought to be dismissed. counsel further submined that there is no known main application of Stay as required by law. It was counsel's submissions that for an application to qualify as .,substantive,' means that it must have been properly registered in this court and given a number followed by its being signed and sealed pending its fixing for hearing. That the 25

Applicants have failed on this ground. 30

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- ⁵ The second preliminary objection is to the effect that the mother application (Misc. Application No.88 of 2022) is misconceived as well. That the said application is not a miscellaneous application, but it is a Miscellaneous cause. Secondly, the Applicant is merely attempting to re-litigate civil Application No.161 of 2019- charles Byamugisha and Anor vs. paulinus c Ejiofor a matter - which was fully heard and determined by the full court, and which is on all fours with the said Miscellaneous Application No. 88 of 2022. 10

on the merits of the Application, the Respondent submitted that the application does not satisfy the key conditions necessary for the court to exercise its discretion under Rule 2(2) ofthe court ofAppeal Rules to grant an interim order

of stay. counsel disagreed with the submissions of the Applicants that he has to only fulfill two conditions for the order to be granted. He argued that the Applicant seeking for a grant of an application must prove that: 15

- l. Existence ofa substantive application pending in court. - 2. Serious threat ofexecution or some other lhreatening act before determination of the main application.

3. Existence ofa Notice ofAppeal.

Counsel relied on Ssentongo Denis vs. Kagimu Bashir -Civil Application. No ¹²²of 2019 and Semyato Godfrey & 3 others vs. Letshego (U) Ltd Civil Application. No. 284 of 2017. Counsel further submitted that in Ssentongo,s case (Sttpra) Remmy Kasule JA. Suggested other conditions such as:

- l. Whether the Applicant has any right ofappeal in spiteof the lodgment ofthe Notice ofAppeal - 2. Whether Applicant is not utilizing the application to cause inordinate delay to the prejudice ofthe opposite party. - 30 - 3. Whether or not the Applicant is guilty ofdilatory conduct - 4. Any other relevant matters.

In addition to the earlier submission counsel submitted that the Applicants have not demonstrated to the satisfaction of this court that there is a serious threat of

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⁵ execution. That the best the Applicants have demonstrated is the fact that the Respondent made an application for Garnishee Orders against the lst Applicant as far back as 2019 vide Misc. Application No.929 of 2019 fited in the now defunct Execution and Bailifls Division which was later transferred to the Commercial Division and re-registered there as Miscellaneous. Application. No.80 of2022. 10

On whether there is a Notice of Appeal, counsel submitted that there is no evidence ofa Notice of Appeal. Counsel further argued that they do not have ^a right of appeat against the decree in HCCS No. 387 of 2013 or Miscellaneous Application No. 309 of 2016. Counsel submitted that the Applicant,s Notice of Appeal in this Court was struck out vide Civil Application No 389 of 2019.

Furthermore, counsel argued that the Applicants are utitizing this application to cause delay in the Respondent's right ofjustice. Further still the Applicants were guilty of dilatory conduct. For the last seven years the Applicants have been on a wild Goose chase denying the Respondent the fruits ofjustice.

Counsel argued that incase this case finds it prudent to grant this application, it should order the Applicants to pay security ofdue performance ofthe decree to ^atune of UGX 400,000,000/: to cover UcX397,978,920l: which is the current outstanding decretal sum. 20

It was counsel's prayer that the court grants the Respondent the costs of the application.

In rejoinder to the submissions of the Respondent, the Applicant submitted that annexure C attached to the Applicants' submissions was filed in this court on 26th July 2022 seeking for temporary order of stay of execution ofjudgment and decree of the High Court in Civil Suit No287 of 2013, pending the main application No.88 of 2022 which seeks leave to appeal.

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- ⁵ Counsel for the Applicant submitted that the new practice of filing cases in this court under Eccmis system, the registry staff were denied powers to register cases as it rvas before, and such mandate was left to the Registrar of this court to register and give case number to any case filed in this court. When the matter is filed in court it is received by court in the registry by stamping and inserting the - date on when such case is being filed in court. Thereafter a case is scanned through Eccmis and awaits a draft number to be given by the Registrar of this court and after a Civil application number is given by the Registrar through Eccmis. By the time the application was fixed for hearing, the main application which was filed on 20s May 2022 had not yet been given a Civil application number save for the draft number ll8/2022 which is clearly mentioned in our earlier submissions. 10 15

## Consideration of Court.

The Respondent raised two preliminary objections which I believe will be resolved by addressing the main application.

- The law goveming the grant of interim application for stay has been well articulated in several cases by this court and the Supreme court. It is well established that for any court to grant an interim Order ofstay the Applicant must satisfu court the existence of: 20 - l. A Notice of Appeal; - 2. A substantive application ofstay; 25 - 3. A serious threat of execution.

See Hwan Sung Industries ltd vs Tajdin Hussein and 2 others Civil Application No. l9 of 2008, Dr. Ahmed Muhammed Kisuule vs. Greenlantl Bank (In liquidation) Miscellaneous Application no, 7 of 2010 and Zubeda Mohamed &Anor vs, Wallia & Anor, Civil Reference No7 of 2016.

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5 10 As regards the Notice of Appeal the Applicants have been evasive on this point of law. The Applicants do not aver anywhere that they f iled a notice of Appeal. The mandate of this court to grant an interim stay ofexecution arises from Rule 6 (2Xb) of the Court of Appeal Rules, which requires rhat the Applicant must have filed their appeal in accordance with Rule 76 of the same Court of Appeal Rules. The Supreme Court re-echoed this in Dr. Ahmed Muhammed Kisuule vs. Greenland Bank (In liquidation) Miscellaneous Application No. 7 of

2010, while referring to Rule 72 of the Supreme Court Rules which is an equivalent to Rule 76 of the Rules of this court. The court stated that:

> "For an application in this Court for a stay of execution to succeed the applicant must first show subject to other facts in a given case, that hdshe has lodged a notice ofappeal in accordance with Rule 72 ofRules ofthis Court..."

Considering this ground alone, this Application fails because a Notice of Appeal is the root that holds all the other conditions that an Appticant must satisfy their existence. Otherwise there is nothing that the substantive apptication can stand

- 20 on. The Applicant averred that there is a substantive application for stay filed in this court through Eccmis. According to Ihe Eccmis process getting a draft no is not evidence enough that one has filed their matter. Ilthe matter is still in draft number, the court is not aware of that Application. The process is complete when the Registrar registers the said matter and it acquires a new registration number. - 25 The Eccmis process is quite fast, and it cannot be that the Applicant could have failed to get registered over all this period of time. I therefore find that the Applicant has failed to prove that there is a substantive application filed in this court. But even if the filing process was complete the Substantive Application had no leg to stand on since there is no Notice of Appeal filed in this court. - 30 Lastly the Applicant must prove that there is a threat ofexecution. In Paragraph 17 of the affidavit in support of the Motion, the Applicant averred that the Respondent filed an application for execution in the High Court of Uganda

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Commercial Division at Kampala and garnished his personal bank court. $\mathsf{S}$ However, according to the record, the garnishee proceedings were contested by The court found that the learned Deputy Registrar the garnishee bank. misdirected herself when she made the Garnishee nisi, absolute. Court discharged the garnishee order absolute in the sum of Shs. 287,174,642/= and substituted it with the sum of Shs. $55,671,729/$ =. The reduction of the garnisheed 10 sum did not dispose of the garnishee order I therefore find that there is a serious threat of execution.

This ground therefore succeeds.

In conclusion, even when the Applicants have proved on the balance of probability that there is a serious threat, the failure to prove that there is a Notice 15 of Appeal as required under Rule 6 $(2)(b)$ and a substantive application for stay of execution disarms this court of its discretionary power to grant the interim stay of execution. This court can only exercise its discretion under Rule 2 (2) of the Rules of this court if the Applicant has satisfied court of the existence of the three set principles. 20

It is therefore my finding that this Application lacks merit. It is hereby dismissed with costs to the Respondent.

I so order;

$\overline{14}$ ,

Dated at Kampala this.................................... 25 .....2022

C. GASHIRABAKE

**JUSTICE OF APPEAL**