[2022] UGCommC 77

### REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA ICOMMERCIAL DIVISIONI Miscellaneous. Application. No. 50 of 2020 (Arising from EMA 562 of 2019 (Arising from CAD/ABR No. l5 of 2018)

### BYAMUGISHA JULIUS ARINAITWE: : : : : : : : : : : : : : : : : : : : : : : : : : : :APPLICANT

#### VERSUS

### SHIFA LOVE WOOD:::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT

Before: Hon. Lady Justice Cornelia Kakooza Sabiiti

#### RULING

This application was brought under Section 98 Civil Procedure Act, Order 22 Rule 26, Order 52 r l, 2 & 3 of the Civil Procedure Rules, Sl 7l-t fbr orders that; stay of execution be granted and costs olthe application.

The grounds of this application were laid in the af'fidavit of Byamugisha Julius Arinaitwe, he stated that; He entered into a sale agreement with the respondent for the sale of a kibanja measuring 50 decimals in Lubowa. The respondent took possession of the said land and she is in occupation. Four years after the transaction, the respondent sought to rescind the transaction and hence trled the head suit against the applicant at CADER. That the Arbitrator abused her powers under the Act and hence made an erroneous and grossly inflated award that has caused great prejudice and injustice to him. That he has flled an application fbr setting aside the arbitral award which application has high chances of success. C/n That respondent has commenced execution proceedings for enforcement of the arbitral award vide EMA No. 562 of 2019. That it is in the interests of.iustice that 4/?/4rtapplication is granted to prevent the pending suit at the Commercial Court lrom being rendered nugatory.

The application was opposed by Shifa Lovewood who deposed that; On the l Tth day of December 2018. Ms. Belinda Lutaya Nakiganda an Arbitrator with the CADER delivered her judgement/award in CAD/ABR NO. I 5 of 201 8. in which she was the successlul party and the applicant was ordered to pay Ushs. 230,000,000/: tbllowing his breach of a land sale agreement. That she registered the award on thc 6'h day of February 2019 with the High Court Commercial Division and duly served the same on the applicant. That she proceeded to execute the said Award vide EMA No. 562 of 2019 and a warrant ol arrest was issued by this court on the lOth day ofJuly 2019 against the applicant.

That the applicant reached out to her and they executed a consent order, the terms of which were that the applicant would pay Ushs.12.000,000/: befbre 3l't January 2020 and the balance in four installments ol Ushs 54,500,00/: liom 2nd February 2020to 2nd February 202l. That as at 6th February 2020, the respondent had not fully paid the Ushs. 12,000,000/: payable by 3 l't January 2020 nor the Ushs. 54,500.000/: payable by 2"d February 2020.

That clause 4 ofthe consent order specifically provided that il'the applicant lailed to pay any of the installments, she would proceed with execution by way of arrest or attaching and selling the property of the applicant. That this application is a ploy by the applicant to delay execution and deny her an opportunity to enjoy the lruits of her arbitral award. That if this court is inclined to grant a stay of execution, the applicant should be ordered to deposit the entire decretal sum or security in this court. She prayed that this application is dismissed with costs.

In rejoinder, Byamugisha deposed that; the proceedings giving rise to the arbitral award were flawed in substance and hence his application challenging the same. That he was advised by his lawyers that once he successlully challenges the @.bitral award, the schedule ol payment contained in the consent order and the various warrants of arrest against him will collapse and be olno effect. That an arbitral award can be set aside lbr oltending the Act.

dr

nk7

#### Representation.

The applicant was represented by M/s Mushabe, Munungu & Co. Advocates and the respondent by M/s Ekirapa & Co. Advocates.

This court gave directives in which parties should file their submissions. None of the parties' submissions are on file, nonetheless I have determined the application based on the pleadings on file.

#### Resolution.

The issue drawn from the pleadings is whether the execution of the award in CAD/ABR I 5 of 2018 should be stoyed?

Conditions lbr stay of execution are provided fbr in Order 43 Rule 4(3) of the Civil Procedure Rules provides;

"3) No order Jbr stay ofexecution sholl be nnde under sub-rule (l)or (2) of this rule unless lhe court making it is satisfied-

(a) That substantial loss may result to the party applying for stay of execution unless the order is nade;

(b) That the application has been made withoul unreasonable delay, and

(c) That security hos been given by the opplicantfor the due performance of the decree or order as may ultimately be binding upon him or her. "

ulr

It is clear from the above provisions of the law that a party seeking stay of execution has to satisfy court on the conditions provided hereinabove. Meaning, if the appticant fulflls the above requirements, Court can go ahead and stay ry/r/-\*ecution. I will therefore consider whether this application meets these requirements.

# i) Substantial loss

The grounds advanced by thc applicant in his alfldavit are that; he entered into a sale agreement with the respondent tor sale of Kibanja measuring 50 decimals in Lubowa, the respondent took possession and fbur years later, the respondent sought to rescind the transaction and llled a suit against him in CADE,R. That the arbitrator abused her powers and erroneous and grossly intlated the award to the applicant's prejudice. That the application has filed an application for setting aside the arbitral award which application has high chances ofsuccess. That the respondent has commenced the execution proceedings lbr enforcement of the arbitral award Vide EMA No. 562 ol20l9. The application should be granted to prevent the pending suit being rendered nugatory.

From the above pleadings, the application has neither demonstrated any substantial loss nor substantiated the same. I believe that the provisions of Order 43 r 3 CPR are mandatory and not optional. Ordinarily. a successful party should not without good rcason be deprived ol the fruits of a judgmenVdecree in thcir favour. 'Ihe court must be satisfied as to the conditions laid in Order 43.

A number ofauthorities have observed that substantial Ioss cannot mean ordinary loss of the decretal sum or costs which must be settled by the losing party but something more than that. In the case ol'Steel Rolling Mills Limited & Anor vs Gestation Economique Des Mission Catholique & Anor (supra) Mukasa. [-. ^J cited the case of Pan African Insurance Company (U) Ltd vs lnternational Air Transport Association High Court Misc. Application No. 86 of ²⁰⁰⁶where the applicant merely stated that il the decree is not stayed the CrW applicant will sulfbr substantial loss and stated: "The deponent shoulcl have gone Pilfl;step further to lay the basis upon which court can make a finding that the ' applicant will suffer subslantial loss as olleged. The applicanl should go beyond the vague and general asserlion ofsubstantial loss in the event o stay order is not

granled. " The Leamed Judge also cited the case of Banshidar vs Pribku Dayal Air 4I 1954 where it was stated: " lt is not merely enough to repeat the words of the code and state thot substantial loss vill result, the kind of loss must be given and the conscience of court must be satisfed that such loss will really ensure"

The applicant has neither pleaded nor demonstrated any substantial loss that will be occasioned to him if the award is not stayed. I have therelbre established no substantial loss that may occur to the applicant.

ii) Unreasonable delay

The arvard was delivered on l7'r'December 2018, the applicant waited up until 24th January 2020 to tlle this application (13 months). I consider this pcriod unreasonable for an application of this nature that should be rather imminent.

iii) Sccurity lbr duc perlbrmancc ofthc decrcc.

Furthermore, it is a mandatory requirement under Order 43 CPR that execution is stayed only on condition that the applicant has before or at the liling of the subslantive application lbr stay, lurnished due perlbrmance of the decree. The applicant has demonstrated no commitment or willingness in his application or in the supporting aflldavit to fumish security tbr due performance oldecree or costs.

The applicant has t'ailed to prove thc essential conditions tbr court to grant an order lbr stay of execution. 'Ihe Suprcme Court in Musiitwa Vs Eunice Busingye CA No. l8/1990 directed that a party seeking a stay should be prepared to meet the conditions set out in Order 43 r 4(3). 'fhe applicant has not satisfied this court on all thc conditions fbr stay of execution. In the premises. I find that this application is void of any merit. 'fhis application is hereby dismissed with n\Jryosts to the respondent.

uaf

It is so ordered

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collent

# **CORNELIA KAKOOZA SABIITI** $\boldsymbol{JU D G E}$

Date: 29^th August 2022