[2023] UGSC 42

# THE REPUBLIC OF UGANDA

# IN THE SUPREME COURT OF UGANDA AT KAMPALA

5 (CORAM: MWONDHA, TIBATEMWA EKIRIKUBINZA, CHIBITA, MUSOTA, MADRAMA, JJSC}

MISCELLANEOUS Cause NO. OO12 OF 2022

AND

MISCELLANEOUS CAUSE NO. 13 OF 2022

CHINA ROAD BRIDGE CORPORATION APPLICANT VERSUS WELT MACHINEN ENGINEERING LTD RESPONDENT AND CHINA ROAD BRIDGE CORPORATION ........... , APPLICANT AND (1) WELT MACHINEN ENGINEERING LTD (2) ATTORNEY GENERAL RESPONDENTS

20 IARTSTNG. FROJr COMBINED Su"REME COURT CnnL APPEATS JVO. . I3 & 14 O? 2019)

#### RULING OF THE COURT

25 The applicant brought this application under rules 6(2) b,42(11 & (2) and 43(1) of the Judicature (Supreme Court Rules) Directions for the orders that this Court stays execution of the judgment and orders of the Supreme Court in the consolidated Civil Appeals Judgment No. 13 and 14 of 2019, China Road Bridge Corporation v. Welt Machinen Engineering Limited and Attorney General and China Road Bridge Corporation v. Welt Machinen Engineering Limited, pending determination of the Application for recall and review of the above mentioned judgment. 30

The Applicant also filed Miscellaneous Cause No. 13 of 2022 which was brought by the same Applicant but with two respondents China Road and Bridge Corporation versus ( 1) Welt Machinen Engineering Ltd and (2) Attorney General

5 It was brought under Section 98 of the Civil Procedure Act, Rules 2(2).,6 (21 (b), a2 and 43 of the Judicature (Supreme Court Rules) Directions S, I No. ¹³- 11) and it was seeking for orders that

- (l) An Interim Order of Stay of Execution be granted to Stay the Execution of the judgment and orders of the Supreme Court in SCCA No. 13 and 14 of 2Ol9 and the main Application for Stay of Execution, which had been filed in this Court. - (2) Costs to be provided for:-

But before we reproduce the grounds of Miscellaneous Cause 12 of 2022 we would state on the onset that though Miscellaneous Application No. 12 was brought before this Court under Rules 6(2)(b), 42 (11 and (2) and a3 [) of this Court Rules, And Miscellaneous Cause 13 of 2022 was brought under S.98 of the Civil Procedure rules and rule 2(21 of 6(2) (b), 42 and 43 of this Court Rules. The subject matter is Stay of execution in interim and so it is inconsequential. We are disposing of, Miscellaneous Cause No. 12 of 2022, which means Miscellaneous Cause 13 of 2022 shall fall by the way side following the disposal of Miscellaneous Cause 12 of 2022,

The grounds supporting the Application Miscellaneous Application 12 of 2022 were contained in the affidavit attached to the Notice of Motion deposed by one Ding Jianming Deputy General Manager of the Applicants company and briefly stated as follows:-

- (1) That the Applicant has hled an application for review and recall of the judgment and orders of the consolidated Supreme Court Civil Appeals No. 13 and 14 of 2Ol9 in this Court. - (2) That the application for review and recall has high chances of success for the following reasons.

- (a) The Supreme Court judgment and orders directed the first respondent to pay the sum of 23,995,130,000 / = to Nakapiripirit District Land Board whereas what was due to the said Land Board was Shs287,694,151 1=. - (b) New evidence has come up to show that the Applicants monies previously deposited in the High Court amounting to Uganda Shillings 20,744,711,4901-- has already been paid to the first respondent and to Okurut Okalebo, Outuke & Co Advocates in the sum of Uganda Shs.4,786,537 ,OOO l= with whom the applicant has no dealings at all. - (c) The sum of Shs.20,457,617,339 being the difference between what was earned by the applicant under the interim pa].rnent Certificates and deposited in the High Court by UNRA and subsequently paid out to the first respondent and Okurut, Okalebo and Outuke Co Advocates is the Applicants money and needs to be secured pending the Application for review. - (3) That unless the Order for Stay of Execution is granted the judgment and orders will be executed and the l st Respondent will pay the decretal amount to the Nakapiripirit Land Board within 60 days of the judgment i.e. from 2"d February,2022. - (4) Unless the order is granted the application for review will be rendered nugatory and the applicant wili be denied her rights and benefits of the Application for review and will further suffer financial loss. - (5) The applicant is ready to provide security for due performance of the orders as may ultimately be binding. - 30 (6) That it's in the interest of justice that their application is granted.

## 2"d Respondent reply

The second Respondent filed an affidavit in reply deponed by Wanyama Kadoli Principal State Attorney General Chamber and opposed the application as follows:

(1) That he makes no admissions of all the contents of the affidavit in support of the application and so denied all the contents.

- (2) That there was no serious threat of execution before the hearing of the pending substantive application. - (3) That the Application for review and recall of the judgment has no merit or any chances of success. - (a) That there is no pending appeal before this Court. - (5) That the Applicant has not provided evidence of threat of execution to warrant the orders sought. - (6) That the contents of paragraph 4 and its sub of the affidavit in - support of the application are not within the 2"d respondents' knowledge. - (7) That the consolidated impugned judgment of the Supreme Court found that the rightful entity to receive the compensation pursuant to Article 241 of the Constitution and Sections 59 and 60 of the Land Act is the Nakapiripirit District Land Board. - (8) That the Nakapiripirit District Land Board is a body established under the provisions of 5.56 (l) and (2) of the Land Act Cap 227 of the Laws of Uganda and is a body corporate with perpetual succession, ^a common seal and may sue or be sued in its own name. - (9) That this Court ordered the lst respondent to pay the sum of 23,995,130,000/ = (Twenty three billion, nine hundred ninety five million one hundred thirty thousand) to Nakapiripirit District Land Board within 60 day from the date of the Order being the value of the granite stone that was wrongfully exploited from the Kamusalaba rock by the appellant Company. - 30

(10) That the application was misconceived and abuse of Court process.

(11)That it was in the interest ofjustice, good conscience, public interest and equality that the orders sought are not issued.


#### Background

As discerned from the facts of the whole case as provided in the impugned judgment of SCCA No 13 and 14 ol 2Ol9 it has a checkered history because of the multiplicity of proceeding perpetuated by the trial Court at Soroti. It culminated in two High Court suits, about 8 miscellaneous applications and resulted in abuse of the process of Court. The suits impugned S.7 of the CPA.

Ttwo appeals in the Court of Appeal, and most importantly the Supreme Court Appeal Judgment from which this application arose from was not the original suit but one of the Misc. applications. The facts show that Mlsc, Application l{o 7OO of 2016 by Welt Michinen Engineering Limited v. Attorney General was filed seeking orders that judgment on admission be entered in its favour in accordance with the lst respondents prayers and the unequivocal admissions of the 2"d respondent and for costs to be provided for. Pursuant to this Misc. Application HCCS No. 278 of 2()16 was settled. Both parties filed a consent judgment on 116 August 2016 in the following terms.

(1)The defendant/respondent be paid the sum of shs 10,505,296,659 l= (shillings ten billion, five hundred and five million two hundred ninety six thousand, six hundred fifty nine only) being the value of 165, 053, 85 tonnes of granite extracted outside location licence area LL7l94.

(2) The plaintiff/ applicant be paid the sum of (Eight biliion six hundred and seventy eight thousand nine hundred sixty eight million six hundred and seventy eight thousand nine hundred ninety nine only) being the vaiue of 561,974,4a tonnes of granite from location licence area LL 1 194 (sic).

Each party to bear its own costs. The defendant was permanently restrained upon admission from making any claim or taking beneht from the right of the plaintiff in the value of the granite mentioned in (2) above among others.

The applicant appealed to the Court of Appeal but the Court of Appeal dismissed the appeal. The Applicant appealed to the Supreme Court. The Supreme Court allowed the appeal and ordered that the 1st Respondent refunds the sum of 23,995,130,000/ = the value of Aggregates as per the Contract Bills of Quantities be paid to the Nakapiripirit District Land Board.

### Representation

At the hearing of the application Mr. Tumusiime Enos represented the Applicant and Mr. Terrence Kavuma represented the first respondent, the learned State Attorney Ms Imelda Adong represented the 2nd respondent (Attorney General)

## Applicant submlssion

## Counsel identilied four issues that were submitted on as follows:-

- ( 1) Whether the applicant filed an application for recall and review of SCCA Nos. 13 and 74 of 2079. Counsel submitted that under paragraph 2 of the Application, the applicant stated that the Applicant has filed an application for recall and review of the Judgment in SCCA No 13 and t4 of 2019. The copy of the said Application Misc. No. 14 of 2O22 and the Application had been fixed for hearing on 26ft April, 2022. 15 20 - (2) On the issue whether the Application for review and recall has high chances of success. Counsel submitted that the application for review was brought under Sections 82 (b) of the Civil Procedure Act, Rules 2(21 of the Judicature (Supreme Court) Rules. Under ruie 35 (l) of the said rules, an error arising in any judgment from accidental slip or omission may be corrected by Court on the application of any interested person so as to give effect to what was the intention of the Court when the judgment was given. - Counsel submitted that the applicant was an interested person and filed the application for review and recall of the judgment and orders as above stated in Misc. Application No. 1,4 of 2022. He further

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submitted that at page 2 paragraphs (b) (i), (ii) and (iii) and in Ding Jianmings affidavit paragraph 4, stated the grounds of the Application for recall and review of the impugned judgment as follows:-

- (a) The Supreme Court mistook the value as the costs of the crashed aggregates that was applied to the road surface as contained in the Contract Bill of Quantities whereas not and this called the correction of judgment. - (b) The applicant has obtained fresh evidence that out of Shs20,958,174,49O l= of the funds deposited in Court, the first respondent took Shs 15,958,174,490 l= and total stranger to the applicant Okurut, Okalebo Outuke & Co. Advocates took the balance 4,786,537,OO0/= and this calls for correction of judgment. - (c) New evidence has come up to prove that Nakapiripirit District Land Board is entitled to Shs287,694,151 l= but not shs 23,995,130,000/= and the balances of the moneys deposited in Court of Ug. Shs.20,457O17,339 l= is due and owing to the applicant and the judgment and orders should be accordingly corrected. Counsel submitted that from the foregoing the main Application for recall and review of the impugned judgment and orders of the Supreme Court Civil Appeal No. 13 and 14 of 2Ol9 has very high chances of success. - (3) Whether the Applicant will suffer irreparable damage/substantial loss if the stay is not granted. Showed that if the prayers are not granted the l"t Respondent will pay to the Nakapiripirit District Land Board. That the execution was eminent since the Court ordered the l"t respondent to pay within 60 days from the date of the judgment which was on 2"4 Febns.ary, 2022.

Further Counsel submitted that the Applicants money which was sequestrated from UNRA was Ug.shs.20,744,7ll,49O l= and the applicant stands to lose it and yet it's substantial. He further submitted that this will lead her to bankruptcy. Counsel also added that once the money is paid to the Nakapiripirit District Land Board, it will irretrievably be lost as the applicant does not know of any

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financial resources or otherwise of the said District Land Board from which the applicant can recover the money.

Counsel submitted that unless the prayer of Stay of Execution is granted, the applicant will suffer irreparable damage and or substantial loss to her finances as it is likely to become bankrupt and the Application for review will be rendered nugatory.

- (4) Whether the Applicant has met the following conditions for stay of execution:- - (a) Whether the application has been filed without undue delay. - Counsel submitted that judgment was delivered on 2.d February, 2022, That this application was liled on 24tt\ February, 2022. Therefore the application was filed/made without undue delay. - (b) Whether the Applicant has given security for the due performance of the Decrees/Orders as may be ultimately be binding on it.

Counsel submitted that in paragraph 8 of the affidavit of the Deputy General Manager Ding Jianmings, in support of the application the applicant made a commitment to provide security for due performance of the orders as they may be ultimately be binding on her.

Counsel further submitted that the applicant therefore had already deposited in Court Ug. Shs.20,744,714,49O l= which was sufficient security for the amounts that the subject matter of this application. He further submitted that it would be double jeopardy if the applicant was asked to provide more security in this matter. 20

Counsel submitted that the Applicant had satis{ied all the conditions for the grant of stay of execution pending the hearing and disposal of Miscellaneous Application No 14 of 2022. 25

Counsel prayed that this Court stays execution of the judgment and order of SCCA No. 13 and 14 pending determination of Miscellaneous Application

No. 14 of 2022 in as far as paying to the Nakapiripirit District Land Board Ug. Shs.23,995,130,000/ = is concerned (2) Costs be provided for. 30

#### 2"d Respondent submissions:-

Counsel for the 2'd respondent raised two issues (i) whether there was ground for grant of the order sought and (ii) whether Counsel showed that the applicant has sufficient grounds to grant the order sought. Counsel submitted among others that the jurisdiction of the Supreme Court is prescribed and cannot be invoked to circumvent the principles of finality of Court decisions.

He submitted, inter alia, that there was no pending appeal lodged in accordance with the rules of this Court, and the applicant adduced no evidence on possible irreparable loss to be suffered if application was not granted. 10

Counsel submitted that the jurisdiction of this Court is provided in "rule 6 (2) (b) of this Court Rules."

"SubJect to the sub rule (If the institution ofan appeal shall not operate to suspend any sentence or stay execution but the Court may

- (al..... - (b) In any Civil proceedings, where a notice of appeal has been lodged in accordance with rwle 72 of the Rules of this Court may order a stay of execution ... on such items as the Court may deem just."

Counsel submitted, that the rule gives discretion to Court, which discretron must be exercised on well-established principles. Counsel relied on the case 25

of Hon Theodore Sekikubo and others v. Attorney General Constitutional Appllcatlon No. O6 of 2O13, which restated the principles as hereunder:-

- ( 1) That applicant must establish that his appeal has a likelihood of success or a prima facie case of his right to appeal. - (2) It has to be established that the applicant will suffer irreparable damage or that the appeal will be rendered nugatory if the stay is not granted.

- (3) If 1 and 2 above are not established Court must consider where the balance of circumstance lies. - (a) That the applicant must show that the application was instituted without delay.

Counsel contented, that there is no appeal and in the aflidavit in support of the application, this was conceded to by the Deputy Manager of the Applicant. Counsel argued that rule 6(2) (b) only applies to situations where there is a pending appeal, and so it does not apply to this situation. And further that the Applicant has not provided any evidence of eminent threat of Execution of the order and that the likelihood of success of the recall and review of the application have not been established. Counsel prayed that the application be dismissed with costs.

## Consideration of the Application 15

This is an application brought under ruie 6(21(b\ 42(Il and (2)and 43(l) of this Court rules for stay of execution of the judgment and orders pending the disposal of the review and recall of the application for the consolidated appeals 13 and 14 of 2019. It sought for costs to be provided for.

Rule 6(2)(b) of this Court rules provides inter alia as follows:- "Subject to sub rule (I) of this rule the institution of an appeal shall not operate to suspend any sentence or to stay of execution, but the Court may (a) ..'

25 (bf in any civil proceedings where the Notice of Appeal has been lodged in accordance with nile 72 of these rules order a stay of execution, an injunction or stay of proceedings as the Court consider just."

Definitely this was not an application for Stay of execution pending determination of a substantive application pending disposai/ determination of an appeal. It is an application pending recall and review. Review is provided for under the Civil Procedures Act S. 82

## "Any person considering himself or herself aggrieved

- (a) By a decree or order from which an appeal is allowed by this Act but from which no appeal has been preferred or - (b) By a decree or order from which no appeal is allowed by this Act, may apply for a review of judgment to the Court which passed the decree or made the order, and the Court may make such order on the decree or order as it thinks fit."

This means that the rules provided in the Civil Procedure Act and Rules thereto Cap 7 7 apply since this application was not an application pending appeal as provided for in rule 6(2)(b) of this Court Rules.

We are cognisant of the fact that, the requirements necessary for stay of execution pending Appeal have been put in place by case law in a number of cases like Theodore Ssekikubo (Supra), to assist in justifying the grant of the order of the Stay of Execution. We are of the view that in an application such as this those requirements may be applied with modification as the justice of the case demands.

This application is for review under S.82 of the Civil Procedure Act. There rs distinction between appeals, review and recall of judgment, as will be seen later in this ruling. Therefore ruie 6(2)(b) of this Court Rules cannot be invoked.

It would be an abuse of the process of Court.

The above compels me to address the definitions of appeal, review and recall of judgment before I deal with the merits of this application.

²⁵ Appeal is defined as a challenge to a previous legal determination. It is directed towards a legal power higher than the power making the challenged determination see (legal information institute www.law.cornel.edu)

Whereas recall has three definitions according to the Black's Law Dictionary 9fr Edn. The third definition is the one relevant for this purpose. Recali means revocation of judgment for factual or legal reasons, annuiment, 30

cancellation or reversal or a judgment or retract. Whereas review means a second or subsequent reading or code broadly over.

According to decided cases in other jurisdictions of the Commonwealth for example India, the Supreme Court has affirmed that the power to recall is different from the power of altering, or reversing judgment. The court has held that there's a vital signilicant difference between the words alter, review and recall.

- Tbe PunJab o, Daninder Slngh Bhutlar and others 2012 Cr LI Supreme Court of India (decision on 7 December 2011, it held, "if a judgment has been pronounced without jurisdiction or in violation of principals or natural justice or where an order has been pronounced without giving opportunity of being heard to a party affected by it or there where order was obtained by abuse of Court process which would really amount to its being without jurisdiction, inherent powers can be exercised to recall such order for reasons that in such an eventuality the order becomes a nullity... In such an eventuality the judgment is manifestly contrary to the audi alteram partem rule of Natural Justice. 10 15 - 20

It was observed that the party seeking recall has to establish that it was not at fault.

See also the case of Supreme Court of Uganda - Mohammed Mohammed Hamid (Applicantl v. Roko Construction Limited (Respondent) Ruling of Mwondha JSC). Misc. Cause No. 18 of 2Ol7 dated 29lJaal2Ol9. I am aware that the decision is of persuasive nature but it lays down important principles for grant or non-grant of review or recail causes and the interlocutory proceedings like this one of stay of execution pending determination of review or recall of judgment and orders Applications.

From the above it is clear the mixing of review and recall of orders and judgments is not proper because the two words review and recall according to the authorities cited are not synonymous to be used interchangeably. 30

Rule 6(2)(b) is there to secure a stay of execution pending a decision of the pending Appeal. The vital significant difference is that in recall the decision must have been taken without jurisdiction and in violation of principals of natural justice and there is a decree holder and a judgment debtor after the final Court decision. The parties filing such applications have to be clear so as to avoid disguising reviews and recalls as 3rd appeals in the final Court. And clearly S.82 of the Civil Procedure Act provides and for review only not

recall.

Going to the merits of this Application, the Applicant raised five issues already pointed out in this ruling.

We will resolve the issue of whether the application has high chances of success. The applicant's main submission was that he obtained fresh evidence that, out of the money paid into the High Court by UNRA, the lst Respondent took Shs 15,958,174,490 | = and the lawyers Ms Okurut, Okalebo and Outuke & Co. Advocates took the sum of 4,786,537,000/= Eaking a total of 20,744,711,4901= from the High Court of Uganda. It was deposed that the Land Board was only supposed to be paid 2Ii7,694,15L/= not 23,995'13O,OOO. Counsel also submitted that the Supreme Court mistook the value of the Kamusalaba Rock to be the same value as the costs of the crashed aggregates that was applied to the Road Surface as contained in the contract Bill of Quantities. And this needed to be corrected. Counsel submitted that the applicant has obtained other fresh evidence that out of Shs20,958,179,49O l= of the funds deposited in Court by the lst respondent took Shs.15,958,179,49O l= and a tota-l stranger to the Applicant Okurut, Okalego, Outuke & Co Advocates took the balance of Ugshs4,780,537 ,OOO l- which calls for collection of judgment. Counsel also submitted that new evidence has come up to prove that Nakapiripirit 1C 20 25

judgment and orders should be accordingly corrected. And that show that the main Application for review has high chances of success.

District Land Board is entitled to Shs.287,694,151/= but not

shs20,457,017 ,339 / = is due and owing to the Applicant and so the

Considering the above foregoing it is evident that the applicant is adducing fresh evidence by bringing up ligures and calculations which were not part of the record and therefore this Court did not make any mistake in its decision above stated which requires correction. I am aware that this is an application for review but the rules of this Court prohibits this Court to have discretion to take additional evidence (rule 30 (l) of this Court Rules. This application is an incidental application arising from the final decision of this Court on appeal. So the rule 30(l) of this Court rules is applicable to the facts and circumstances of this application.

There was nothing on record which included or mentioned costs of extraction, crushing and laying out. The above stated show that the likelihood of success of the application for review is not there. Besides the whole transaction was marred and or based on an illegality in that the Administration of Nakapiripirit assumed the powers of the District Land Board of Nakapiripirit to enter into contract with the Applicant, when it had no power to do so. The applicant therefore cannot be protected. Last but not least, the Court orders were to be effected within 60 days from the date of judgment, 2na February 2021 which has long lapsed so there is nothing to stay. 10

The discretionary powers of this Court to grant or not to grant are in Rule of (2l,(21 of this Court rules. This Court has powers inherent to make such orders as may be necessary to achieve the ends of justice. 20

It is clear to me that this application would be dismissed with costs to the 2"d respondent. The reason is that there's no sufficient reason to justify the grant of the order sought and so the issue of likelihood of success is answered in the negative.

The Court having determined that Nakapiripirit District Local Government clearly lacked the capacity to contract or enter into any agreement regarding the suit Rock and that the rightful entity to contract with regarding the suit Rock was Nakapiripirit District Land Board and having declared the applicants transaction with Nakapiripirit Local Government void ab nitio/illegal as it contravened the provisions of the Constitution and Land

Act, the applicant took itself out of the protection of the law as the foundation of its transaction was an illegality.

In the case of Hilda Wilson Namusoke & Anor vs. Owalla's Home Investment Trust (E. A) & Anor. SCCA No. 15 o 2017, Justice Prof. Tibatemwa-Ekirikubinza, JSC adopted Black's Law Dictionary 9^th Edition @ 185 definition of the term "illegality"

- (i) An act that is not authorised by law. - (ii) The state of not being legally authorised.

(iii) The state or condition of being unlawful.

She went to add that "not every illegality is rooted in fraud. Some 10 unauthorised actions may be a result of ignorance of the law." (Emphasis added)

A court of law cannot enforce an illegal contract. This position is contained in a maximum "*Exturpi Causa non oritur action*." The application of this principal was discussed by this Court in the case of **Active Auto Mobile** Spares Ltd vs. No. 21 of 2001, where the Court adopted the passage by Lindley L. J in the case of **Scott vs. Brown Doering -MCNO1 & Co (3)** $(1892)$ 2 QD, 724 at 728 as follows:

"... no Court ought to enforce an illegal contract or allow itself to be 20 made the instrument of enforcing obligations alleged to rise out of $a$ contract or transaction which is illegal if the illegality is duly brought to the notice of the Court, and if the person invoking the aid of the Court is himself implicated in the illegality. It matters not whether the defendant has pleaded the illegality or whether he has not. If he evidence by the plaintiff proves the illegality, the Court ought not to assist him."

This position is trite. Equity will not allow a remedy that is contrary to the law. This is based on the maxim that "Aequitas sequitur legem" which mean "Equity follows the law."

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Again in the case of Active Auto Mobile Spares Ltd vs Crane Bank Ltd and Anor, (Supra) it was stated that:

"lf a plalntlff cannot mo,lntaln his ccuse of actlon wlthout showlng, as part of such cause of action, that he has been gulltg oJ ltlegalltg, then the Court uill not asslst hlrzr."

What is important is the fact that there is a nexus between the improper or illegal act to the right sought to be enforced by the applicant.

There is a clear nexus between the applicant company's improper acts and the very rights he seeks to enforce. The failure of the applicant to do due diligence to establish the right entity to transact with, especially when the rightful entity is clearly stipulated in the Constitution and the Land Act, the fact that the applicant paid Shs50,000,000/= (Fifty million shillings only) for the suit Rock to the Nakapiripirit Local Government which it now claims to have been worth 287 ,694,151 I = (TWo hundred eight seven million, six hundred ninety four thousand, one hundred and fifty-one shillings) shows bad faith on the applicants part and intent on its part to take short cut so as not to pay the real value for the Rock to the detriment of Nakapiripirit l,ocal Government.

Also, the crushed aggregate can no longer be taken back to Rock to establish the real value of the Rock that was illegally crushed. What is clear however is that the applicant having illegally processed the suit Rock into aggregate cannot seek the aid of Court since to do that would mean rewarding the applicant for going against the law. 20

,< 30 Furthermore, the case of Mukwano Enterprises Limited vs Ranchhobhai Shlvabhai Patel and Anor, SCCA No 16 of 2O19 on which the applicant seeks to rely on as an authority for the review of its case, a similar prayer was made by the applicant who had perpetuated an illegal transaction for the refund of monies that had been paid by the applicant company to clear a debt that was owed by ATM (in liquidation) in pursuit of its illegal transaction and monies that were subsequently spent on repairs of building. This Court denied the prayer and cited the applicants'

participation in the illegality as a precluding factor for the applicant company to claim the refund. This case though cited by the applicant does not support the applicant company's case but rather goes against it.

Ordering for the recovery of the said sums would be condoning improper conduct. The purpose of the aforesaid principles is to protect the integrity of the Court. The Court would lose the moral authority to order litigants to abide by the law if it engaged in promotion of illegal / improper conduct.

The chances of success of the application for review cannot be there according to the above.

This application is evidence of abuse of Court process and, "the Court has to look for sufliciently compelling reason that may justify granting of the order of stay of execution Bought. And this sufficiently compelling reason, must be outwelghing the importance of finality and justify the opening up questions following the procurement of the order in open Court which appeared to have been finally answered (sic). See AID Ltd v. The Federal Airports Authority of Nigeria [2O2O] EWACA (M585(CA| Coulson LJ further said, "when considering an application to reconsider, the Courts need to ensure that their jurisdiction must be carefully patrolled so that the principle of finality in litigation is not undermined. (The Law Society cazette (Article by Mosood Ahmed https: / /www.co.uk>S ¹). 10 15 20

For purposes of completion on resolution of the other issues raised whether the Applicant would suffer irreparable damage or substantial loss. It is evident from the facts that all the activities of the applicant were marred with illegalities right from the start of the purported execution of the contract between the company and Nakapiripirit Local Administration Board to the detriment of the District Land Board which is a body corporate and constitutionally and legally mandated to allocate, lease and sell. This was a void contract and or illegal Contract which could not be enforceable by both parties under the law.

It is interesting that despite the consent judgment entered on admission which had one of the terms as follows: the defendant (Applicantf is restrained upon admission from making any claim or taking benefiting from the right of the plaintiff in the value of granite mentloned ln (2) abovef, the Applicant filed this application for review contrary to what they agreed on This is further illustration of the abuse of process of Court by the applicant.

There was nothing to justify the grant of the order for stay of execution. The execution was to be done 60 days running from 2nd February 2Ol2 it apparent that this application was overtaken by events.

The issue of whether the application was filed without undue delay becomes academic and since the applicant was trying to benefit from an illegal and void contract, the question of delay or not delay cannot arise.

On the issue whether the applicant has furnished security in light of what has been determined above it is of no effect/consequence since it is only in a case where the applicant has shown that the application has a likelihood to success which is not the case for this application. 15

So on the balance of convenience the application fails as it has no merit

Accordingly it is dismissed with costs to the 2nd respondent and Miscellaneous Cause 13 of 2022 stands dismissed.

Dated at Kampala this aet rtv ^q 2023. day of \J

Mwondha, JUSTICE OF THE SUPREME COURT

Min Pulata

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Chibita JUSTICE OF THE SUPREME COURT

Dund hur

.............<br>Musota JUSTICE OF THE SUPREME COURT

| 5 | THE REPUBLIC OF UGANDA, | |----|------------------------------------------------------------------------------| | | IN THE SUPREME COURT OF UGANDA AT KAMPALA | | | (CORAM:MWONDHA, TIBATEMWA, CHIBITA, MUSOTA & MADRAMA, JJSC) | | | MISCELLANEOUS CAUSE NO 12 OF 2022 | | | AND CONSOLIDATED WITH | | 10 | MISCELLANEOUS CAUSE NO. 13 OF 2022 | | | (ARISING FROM COMBINED SUPREME COURT CIVIL APPEALS NOS 13 AND<br>14 0F 2019) | | | cHtNA RoAD BRTDGE CoRPoRAT oN)<br>APPLICANT | | | VERSUS | | 15 | WELT MACHTNEN ENGTNEERTNG LTD)<br>RESPONDENT | | | AND | | | cHtNA RoAD BRTDGE C0RPoRATT0N)<br>APPLICANT | | | VERSUS | | 20 | t. WELT MACHTNEN ENGTNEERTNG LTD)<br>2. ATToRNEYGENERAL)<br>RESPONDENTS | | | RULING OF CHRISTOPHER MADRAMA IZAMA, JSC |

The Appticant f rl.ed Miscel.[aneous Apptication No. 13 of 2022 f or an interim order of stay of execution of the orders of the Supreme Court in Supreme Court Civil Appeats Nos 13 and 14 of 2019 until the main apptication; Miscetlaneous Cause No. 12 of 2022,is heard and determined.

Second[y, the appticant fited the main cause being Miscettaneous Cause No ¹²ot 2022 this appl.ication citrng rules 6 (2) (b),42 (1) and (2) and 43 (1) of the Judicature (Supreme Court Rutes) Directions for orders that thrs court stays execution of the judgment and orders of the Supreme Court in

- ⁵ combined Civit Appeal.s Nos 13 and 14 of 2019, China Road Bridge Corporation vs We[t Machinen Engineering Ltd and the Attorney Generat, and China Road and Bridge Corporation vs Wett Machinen Engineering Ltd, pending the determination of the apptication for recat[ and review of the judgment and orders in SCCA Nos 13 and 14 of 2019 and for the costs of the - appLication to be provided for. 10

The apptications came for hearing at the same time and therefore the hearing of the main apptication in Miscettaneous Cause No. 12 of 2022would determine the outcome of Miscettaneous Cause No. 13 of 2022 and these apptications are therefore consotidated. ln the premises, Miscettaneous Cause No. 12 of 2022 witt be determined f irst.

ln Miscettaneous Cause No. 12 of 2022, lhe grounds of the appLication are contained in the Notice of Motion and further rn the affidavit of the Mr. Drng Jianming, the Deputy GeneraI Manager of the appl.icant. The grounds of the apptication averred in the Notice of Motion are that:

- 1. The Appl.icant has fited an apptication for review and recall of the judgment and orders in SCCA Nos 13 and 14 of 2022 which is pending hearing in the Supreme Court. 20 - 2. The apptication for review has a high chance of success for the fottowing reasons: - a. The Supreme Court judgment and orders directed the first respondent to pay the sum of Uganda shittings 23,995,130,000/= to Nakapiritpirit District Land Board whereas what is due to the said Land Board is Uganda shil.tings 287,69L151/=. - b. New evidence has come up to show that the appticants monies previousty deposited in the High Court amounting to Uganda shil.tings 20,7t1L,711,L90l= has already been paid to the first respondent and to 0kurut, Okatebo, 0utuke & Co. Advocates rn the sum of Uganda shiLtings ot L,786537,000/= with whom the appticant has no deal.ings at al.l.. - c. The sum of Uganda shiLtings 20,A57 ,017,339/-being the difference between what was earned by the appticant under the 35

⁵ interim payment certificates and deposited in the High Court by Uganda NationaI Roads Authority and subsequentty paid out to the f irst respondent and 0kurut, 0kal.ebo, 0utuke & Co. Advocates is the appLrcant's money and needs to be secured pending the appLication for review.

- 3. Untess the order of stay of execution of the judgment and orders of the Supreme Court in SCCA No 13 and 14 of 2019, is granted, the first respondent woutd pay the decretal amount to the Nakapiritpirit District Land Board within 60 days of the judgment i.e., from ² February 2022. - 4. Untess the order of stay of execution is granted, the apptication for review wil.t be rendered nugatory and the appticant wiLt be denied her rights and the benefits of the apptication for review and further wit[ suf f er serious f inancia[ [oss. - 5. The appticant is ready to provide security for due performance of the orders as may uttimatety be binding on her. - 6. lt is in the rnterest of justrce that this apptication be granted.

The facts in support of the apptication are deposed to by the Deputy Genera[ Manager of the appl.icant Mr. Ding Jianming white the affidavit in opposition is that of the second respondent and deposed to by the Principat State Attorney Mr Wanyama Kodoti.

The facts in support of the appLication and deposed to by the Deputy General Manager of the appticant Mr. Ding Jianming are that on 2nd February 2022 the Supreme Court of Uganda deLivered the Judgment and orders rn combined Civit Appeats Nos 13 and 14 ot 2022 between China Road Bridge Corporation and the first respondent and between China Road Bridge Corporation and the first respondent and the Attorney GeneraI according to a copy of the judgment annexed. ln that Judgment the Supreme Court directed the first respondent to pay the sums averred in the grounds of the appeat. The appl.icant was dissatisfied with the Judgment and orders and fited an apptication for review in the Supreme Court to recall and review the

said judgment and orders on the fottowrng grounds.

- ⁵ The appticant averred that the Supreme Court mistakenly took the value of Kamusataba rock to be the price in the bitts of quantities payabte to the District Land Board. However, the correct value of the rock before extraction is that comprised in the bitts of quantities attached to the contract for works for Moroto - Nakapiritpirit and is that the amount earned by the - appLrcant under the lnterim Payment Certificates less the cost of btasting the rock, crashing it into aggregates, transporting and taying it on the road, according to a table showing the vatue of the raw rock payabte to the District Land Board of Uganda shil.tings 287,694,15tt/= in Annexure ^B attached. Secondty, the appticant obtained fresh evidence from the High 10 - Court of Uganda that out of the monies paid out rnto the court by the Uganda National Roads Authority, the first respondent was paid a sum of Uganda shittings 15,958,17L,490/= and the lawyers Messieurs 0kurut, 0katebo, Outuke & company advocates were paid a sum of Uganda shittings 4,786,537,000/= making a totaI of Uganda shil.tings 20,7 t+L,711,490/=. 15 - Further, whereas the Supreme Court ordered the first respondent to pay Uganda shil.tings 23,995,130,000/= to Nakapiritpirit District Land Board, onl.y the monies due to the said Land Board is onl'y Uganda shil.tings 287,69t+]511= being the vatue of the rock before extraction, crashing, transport and ptacement on the road. The batance of Uganda shittings 20,t+57,017,339/= is 20 - due to the appticant from the first and second respondents, and this error ought to be corrected through review and recat[ of the judgment and orders of this court. 25

He deposed that he betieves that the application has high chances of success for reasons stated. That if the orders made are not stayed but executed, and the apptication for review succeeds, the orders sought woutd be rendered nugatory. That untess an order of stay of execution is granted, the applicant stands to lose the sum of Uganda shitl.ings 20,457,017,339/= which would cause serious financial [oss to the appticant and lead to her bankruptcy. Further that the appticant is ready to provide security for the 30

due performance of the orders as may uttimatety be binding on her. 35

- ⁵ The second respondent namely the Attorney GeneraI opposed the apptication and fited an aff idavit of the Principal. State Attorney Mr Wanyama Kodoti in repl.y to the apptication. Mr Wanyama Kodoti stated that he read and understood the contents of Miscettaneous Cause No 12 of 2022 and the evidence of Ding Jianming in the supporting affidavit. He observed that the - apptication is seeking orders of stay of execution, to stay the execution of the judgment and orders of the Supreme Court in the Consotidated S. C. C. A Nos 13 and 14 of 2019, pending the apptication for review and recatl of the said judgment and orders of the Supreme Court. He deposed that there was no serious threat of execution before the hearing of the pending substantive 10 - application. Secondty that the appl.ication for review and recall of the Judgment has no merit or any chance of success. Thirdty, that there is no pending appeal before this court. Fourthl.y that he knows that the appticant has not produced any evidence of a threat of execution to warrant the grant of an order of stay of execution. Fifthty that the appticant has not proved 15 - that it woutd suffer irreparabte injury or loss if the order of stay is not granted. Further that the contents of the deposition about the vatue of the rock extraction and any atleged errors of the Supreme Court was not within the knowtedge of the deponent. 20

## Representation.

²⁵ At the hearing of the appeal learned counsel Mr. Enos Tumusiime, appeared for the respondent Learned CounseI Mr. Terrence Kavuma represented the first respondent and the learned Senior State Attorney Ms lmetda Adong represented the Attorney Generat. The court was addressed by way of written submissions and ru[ing reserved on notice.

## 30 Submissions of counsel

The appl.icants counseI submitted that the appticant, who is a contractor executed a contract with the Uganda National Roads Authority to construct the Nakapiritpirit - Moroto Road. The appLicant executed a contract with ^a district locat government to extract the granite from the Kamusataba rock (hereinafter referred to as the rock) for the road construction purposes. The

- ⁵ ^first respondent ctaimed a right to the said rock and sued the appticant for the vatue of the rock. Whereas the f irst respondent suit was dismissed, the court ordered the appticant to pay royalties of the stones from the said rock to the Government of Uganda. The first respondent later executed a consent Judgment with the second respondent and attached Uganda shitLings - 20,74L,711,L90/= ot the appticant's money from Uganda NationaL Roads Authority. The appl.icant appeated to the Court of Appeat and the Court of Appeat dismissed the appeat. The appticant thereafter appeated to the Supreme Court and the Supreme Court atlowed the appeal but ordered the first respondent to refund the sequestrated sum of Uganda shil.tings 10 - 23,995,130,000/=, the vatue of the aggregates as contained in the contract bitt of quantrties and costs to be paid to the District Land Board where the rock is situated and not to the appticant. 15

CounseI submitted that new evidence had come up showing that out of the sum of Uganda shittings 20,744,711,L90/= of the appl.icants funds deposited

- in court by UNRA, the first respondent was paid a sum of Uganda shittings 15,958,11L. L90l= and the batance of Uganda shittings 4,786,537,000/= was paid to the aforementioned lawyers who had no deatings at atl. with the appLicant. Further new evidence had emerged and proves that the vatue of the rock before extraction, crashing, transporting and Laying on the road is 20 - Uganda shittings 287,694J51/= and that is what the District Land Board is entitted to. The batance of Uganda shitl.ings 20,tt57,017,339/= betongs to the appticant. Further the appticant fited Misceltaneous Apptication No 14 of 2022 to recatl and review the Judgment of the Supreme Court and the appl.icant has fixed it for hearing on 26th of ApriL 2022. That the Supreme 25 - Court ordered the first respondent to pay the sum of Uganda shittings 23,995,130,000/= to the District Land Board within 50 days from 2nd February 2022 and the appticant brought the apptication for stay of execution of the order untiI the appl.ication for recat[ and review of the judgment is heard and disposed of. 30 - The appticants counsel submitted on four issues. The first issue is whether the appticant has fited an application for recat[ and review of the Judgment 35

⁵ in SCCA No 13 and 14 of 2019. The appticants counsel referred to the appl.ication and the aff idavit in support and submitted that the appLicant has ^fited the apptication for review and reca[[ of the judgment and orders under which the apptication is brought.

0n the second issue of whether the appl.ication for recatl and review has a high chance of success, the appticant's counsel submitted that under section 82 (b) of the Civil. Procedure Act, and rutes 2 (2) and 35 (1) of the Judicature (Supreme Court Rutes) Directions, an error arising in any judgment from an accidental slip or omissron may be corrected by the court on the apptication of an interested party so as to give effect to what was the intention of court when judgment was detivered. 10 15

Counsel submitted that there is no doubt that an interested person can f i[e an apptication for recal[ and review of the Judgment as aforesaid and the grounds for the review are contained in the affidavit of the deponent in support of the appl.ication which has been reproduced above. From those premises, he submitted that the main apptication for recall and review of the judgment and orders of the Supreme Court in the Supreme Court Civil Appeat No 13 and 1l+ of 2019 has a very high chances of success.

0n the question of whether the appticant wit[ suffer irreparabte damage or substantial loss if the stay of execution apptication is not granted, the appticants counseI reIied on the affidavit in support of the apptication. He submitted that the affidavrt proves that untess the orders are granted, the ^first respondent woutd pay the appIicant's money to the District Land Board. That execution is rmminent since the court ordered the first respondent to pay within 60 days. Further the appticant's money was sequestrated from

- UNRA rn the sum of Uganda shil.tings 20,74L,711,L90l= and it stands to lose this money which is quite substantial to the District Land Board. As the Deputy General Manager of the appticant who is also the deponent to the affidavit in support of the apptication stated, it woutd cause serious financiaI [oss to the appticant which witt Lead to her bankruptcy. Secondl.y that if the 30 - funds are paid to the District Land Board, it witl. be irretrievabty lost as the appl.icant does not know of any financial resources of the District Land 35

- ⁵ Board from which he can recover that money. ln the premises the appticant's counsel submitted that untess the order of stay is granted, the appticant wit[ suffer substantia[ [oss and irreparabte damages to its finances or its existence as it is tikel.y to become bankrupt and the apptication for review witt be rendered nugatory. - The appticant's counsel further submitted on whether the appticant has met the conditions for stay of execution. These are: 10

Whether the apptication had been fil.ed without undue detaf He submitted that Judgment was detivered on 2 February 2022 and the instant apptication was fited on 24 February 2022 and therefore it was made without undue del.ay.

Second[y whether the appticant has security for the due performance of the decree/order as may uttimatety be binding on it? Counsel. submitted that the appticant has committed to provide security for the due performance of the orders as may uLtimatety be brnding on her. Secondty the appticant had

- atready deposited in court a sum of Uganda shil.tings 20,1L4,711,490/= which is sufficient security for the amounts that are the subject matter of the appl.ication. That rt wil.t be doubte jeopardy if the appticant was asked to provide more security in this matter. ln the premises he contended that the appticant has satisfied at[ the conditions for the grant of a stay of execution pending the hearing and disposal. of MisceLl.aneous Apptication No 14 of 20 25 - 2022. fhe appticant further prayed for the costs of the application be provided for.

ln repty, the second respondent's counsel by way of background regurgitated the facts and submitted that judgment was rendered in the fottowing manner. Firstty, it was decided that granite stone is not a mineraI but a stone commonty used for buil'ding purposes. Secondl.y that the Mining Act, does not appty to a substance excluded from the definition of a mineral in the Constitution. That the [ocation Iicences Nos LL 1194 and LL 1195 hetd by the first respondent are nut[ and void. Fourthty that the rightfut entity to 30

hotd and altocate Land is not any person in the District but the District Land 35 ⁵ Board. Fifthty the first respondent shatl pay a sum of Uganda shil.tings 23,995,130,000/= to Nakapiritpirit District Land Board within 60 days from the date of the Judgment, being the vatue of the granite stone that was wrongty exptoited from the rock by the appetl.ant company. Lastl.y that Partiament may pass a law to regulate the expectation of any substance exctuded from the definition of mineral when ex provided for commercial purposes in accordance with articte zLL (6) of the Constitutron. Lastty each party was to bear its own costs. 10

Fotlowing the judgment of the Supreme Court, the appticant fited an appl.rcation for review of the judgment together with an apptication for an interim stay of execution as wet[ as the current apptication seeking for an order of stay of execution. These apptications were served on23March2022 and the Attorney GeneraI fited the repties to the appl.ication on 25 March 2022.|n the Miscettaneous Apptication No 12 of 2022, the appl.icant sought orders which are indicated in the appLication. 15

- The second respondent's counseI submitted on the issue of whether there are grounds for an order of stay of execution? He submitted that the appticant has not raised any grounds for the grant of an order of stay of execution. Secondty, the second respondent's grounds of opposing the apptication are contained in the aff idavit of the Wanyama Kodoti, a PrincipaL 20 - State Attorney at the Attorney Generat's Chambers. He submitted that based on the grounds in the affidavit, the jurisdiction of the Supreme Court is circumscribed and cannot be invoked to circumvent the principte of ^finatity of court decisions. The jurisdiction of the Supreme Court to grant a stay of execution under rule 6 (2) (b) of the . Judicature (Supreme Court 25 - Rutes) Directions onty gives discretion in civit proceedings where a notice of appeal. has been todged in accordance with rute 72 of the Rutes of the Supreme Court to stay execution in appropriate cases and on terms that it thinks fit. That judiciat discretion must be based on the exercise of wettestabtished principtes. Further the second respondent's counseI submitted 30 - that the paramount duty of the court to which an apptication for stay of execution pending appeal is made is to ensure that the appeal., if successfut, 35

- ⁵ is not rendered nugatory. Further that this court has rn a number of cases Laid down the principtes governing the exercise of the discretion conferred by the rutes. Particutarty counsel relied on Hon. Theodore Ssekikubo & Others vs Attorney GeneraI and another; Constitutionat Apptication No 06 of 20'13 for the fottowing principtes. That the appticant must estabtish that his - appeat has a Likelihood of success, or a prima facie case of his right to appeat. Secondly it must also be establ.ished that the applicant wit[ suffer irreparable damage or that the appeal witl. be rendered nugatory if a stay is not granted. Thirdty if the conditions in 1 and 2 above have not been estabLished, the court must consider where the bal'ance of convenience Iies. 10 - Fourthty the appticant must al.so estabtish that the apptication was instituted without de[ay. 15

The second respondent's counsel contends that the most important issue for determination by this court is whether the appticant has adduced sufficient reasons to justify the grant of a stay of execution. He submitted that in the current situation, there is no pending appeaI as the appeaI had been conctusivety determined on 2nd February 2022. ln the premises the appLicants have not establ.ish the f irst ground for the grant of an application for stay of execution as there woutd be no appeal to be rendered nugatory.

Secondly, the application for review or recatl of judgment is not an appeal.. Counsel retied on the definition of an appeal under Rute 3 (b) of the Rutes of the Supreme Court to mean an appeal or intended appeaL. He submitted that the Supreme Court is the highest appeLtate court in Uganda and there is no higher court that the Supreme Court in terms of articte 132 (1) of the Co n st itut io n. 25

He submitted that the pending application for the recall and review of the Judgment is not an appeal. and it is not made to a higher authority but the same court. ln the premises he submitted that there is no basis on which this court can even consider the batance of convenience, there being no pending appea[. 30

- ⁵ Further, counsel submitted that the appl.ication is wrongty before this court without any law to support it because 6 (2) (b) of the Rules of this court onty provides for situations where there is a pending appeal but does not appty for the appLrcation of the nature before the court. Counsel reLied on Dr Ahmed Mohammed Kisuu[e vs. Greentand Bank (ln Liquidation); Supreme - Court Civil. Apptication No 07 of 2020 where the court emphasised that an application for stay of execution can on[y succeed where the appticant proves that he or she has todged a notice of appeat in accordance with Rute 72 of lhe Rules of this court. 10

Further the appIicant's counseI submitted that the other factors considered for grant of an order of stay of execution are at[ subject to the precondition that a notice of appeat must first be todged against the decision of the Court of Appeat. ln the premises, there is no evidence of a threat of execution to warrant the grant of an order of stay of execution. 15

Lastl.y the second respondents counsel submitted that the apptication for the recatl and review of the Judgment has no chance of success at atl and for that reason prayed that the apptication is dismissed with costs to the Attorney Generat. 20

## Consideration of the Appl.ication

I have carefutty considered the appticant's apptication, the affidavit in repLy as wetl as the submissions of counsel from either side. Further I have had the benef it of reading in draft the judgment of my learned senior sister Hon. Lady Justice Mwondha, JSC dismissing the apptication of the appticants inter atia on the core issue that the amount of Uganda shiLtings 23,995,130,000/- ought to be paid to the Nakapiritpirit District Land Board and this reflects the outcome of the Ruting of the Supreme Court. 25

I very respectfutty do not agree that the apptication be dismissed and I give my reasons hereunder.

To start with proceduraI issues, the second respondent's counseI objected to the apptication on the ground that there rs no appeal pending in the

- ⁵ Supreme Court and therefore the Supreme Court has no jurisdiction to consider it. That rute 6 (2) (b) of the Judicature (Supreme Court Rul.es) Directions, onty comes into ptay when there is an intended appeat to the Supreme Court. She argued that the minimum requirement for a vaLid apptication for stay of execution, is a notice of appeaI under rute 72 of the Rutes of this Court. Obviousty, 6 (2) (b) of the Judicature (Supreme Court 10 - Rutes) Directions, does not appty to the circumstances of this appeal. because it provides that:

(b) in any proceedings, where a notice of appea[ has been lodged in accordance with rute 72 of these Rules, order a stay of execution, an injunction or stay of proceedings as the court may consider just.

Further, Rute 72 (1) provides that:

72. Notice of appeat

(1) any person who desires to appeaI to the court shatl give notice in writing, which shaL[ be lodged in dupticate with the registrar of the Court of Appeat.

- ln the circumstances of this appeal., ConsoLidated Supreme Court Appeats Nos 14 and 13 of 2019 was disposed of in a Judgment dated 2^d February 2022 and therefore there is no appeaI pending before this court. lt fottows that the authority cited by the parties' counseI which interprets rute 6 (2) (b) of the Rutes of the Supreme Court and the principtes derived from that rute 20 - are not directty apptrcabte. Both parties addressed court on the decision of this court in Dr. Ahmed Muhammed Kisuule vs Greentand Bank (ln Liquidation) Supreme Court Civit Appl.ication No. 07 of 2010 where the appl.ication was brought under rute 5 (2) (b) of the Rules of this Court. Secondty in that decision it was hetd that an appLicant must satisfy the court 25 - that a notice of appeaI had been fiLed under ruLe 72 of the Rutes of this court as an essentiaI ingredient to succeed in an apptication for stay of execution. 30

The appl.icant's appl.ication is not an apptication for stay of execution pending appeaI but rather an apptication for stay of execution pending an apptication to recatl and review the Judgment of this court which was

L2

detivered on 2nd February 2022. That being the case, the questron is whether 35

⁵ the appl.ication can be considered under the provisions of rule 2 (2) of the rules of this court which provides that:

> (2) Nothing in these Rutes shatl be taken to [imit or otherwise affect the Inherent power of the court, and the Court of Appeat, to make such orders as may be necessary for achieving the ends of justice or to prevent abuse of the process of any such court, and that power shatl extent to setting aside judgments which have been proved nut[ and void after they have been passed, and sha[L be exercised to prevent an abuse of the process of any court caused by delay.

The appl.icant atso cited rul.e 2 (2) of the Rutes of the Supreme Court and has fil.ed an appticatron for review and recat[ of the Judgment of the Supreme Court and therefore acknowtedges the fact that there is no appeaI pending before this court. The principtes for appLication of rute 2 (2) of the Rules of this court shoutd be derived among other things from the rute itsetf and which rule is worded differentl.y from ru[e 6 (2) (b) of the Rutes of this court. 15

Further the applicant moved under section 82 of the Civit Procedure Act which provides that: 20

Any person considering himsetf or herself aggrieved -

(a) by a decree or order from which an appeal is atlowed by this Act, but from which no appeal has been preferred; or

(b) by a decree or order from which no appeat is attowed by this Act, may apply for a review of Judgment to the court which passed the decree or made the order. and the court may make such order on the decree or order as it thinks fit.

WhiLe section 82 (b) of the Civit Procedure Act appl.ies to the High Court, its appLication in the Supreme Court may be doubted because the law was enacted in January 1929, that is before the promulgation of the Constitution of the Repubtic of Uganda 1995 which created the Supreme Court for the ^first time. Further that the highest appettate court then heard appeats from the High Court was the Court of Appeat of Uganda. An appeal lies from the Court of Appeal. of Uganda since October 1995, to the Supreme Court which

⁵ is a new or recentty created court and it hears appeats from the appettate court. Section 1 of the CiviI Procedure Act provides that:

This Act shatl extend to proceedings in the High Court and magistrates courts

White the Supreme Court coutd not have been in contemptation of the legistature at the time of enactment of the Civil Procedure Act, the same cannot be said of the Judicature Act which was promutgated in 1996. Section 7 of the Judicature Act, cap 13 [aws of Uganda is clear that for purposes of hearing an appeat, the Supreme Court has powers and jurisdiction vested in the original court from which the appeat original.ty emanated. lt provides that:

- 7. Supreme Court to have powers of the court of original jurisdiction. For the purposes of hearing and determining an appea[, the Supreme Court shall have aL[ the powers, authority and jurisdiction vested under any written law in the court from the exercise of the original jurisdiction of which the appeaI originatty emanated. 15 - It is therefore clear that section 82 (b) of the Civil. Procedure Act is appticabl.e to the Supreme Court by virtue of it having exercised appettate jurisdiction as a second appettate court in a suit originating from the triaI court and in this case, High Court. Such an appl.ication for review of the Judgment can be fited under the inherent powers of the Court and the question being under what grounds or circumstances can this jurisdiction be invoked. 20 25

Rute 2 (2) of the Judicature (Supreme Court Rutes) Directions enables the Court to make such orders as may be necessary for achieving the ends of justice or to prevent abuse of the process of such court and the power extends to setting aside judgments which have been proved nutl and void

after they have been passed. 30

ln the circumstances of this appLication, the appticant's grievance is addressed in the apptication for review and our task in this apptication is to establish whether there are any grounds for which the court may exercise

its jurisdiction to review its own decision. Secondly, whether the applicant 35

⁵ is a person aggrieved. The appticant wants a review of the order of the court awarding the District Land Board of Nakapiritpirit a sum of Uganda shittings 23,995,130,000/=. This award can be found at page 76 of the Judgment of the Supreme Court where Chibita, JSC in the tead Judgment of court said as fottows:

lwoutd proceed to determine the quantum of compensation due to Nakapiritpirit District Land Board. 10

> The monetary va[ue of the aggregate that was presented to the High Court of Uganda in a va[uation report made by the Chief Government Va[uer cannot be retied upon because it was ordered by a court that lacked jurisdiction and therefore the proceedings thereunder were of no consequence.

> The eva[uation of the excavated aggregate can onLy be found in the Procurement Ref No: UNRAArVorks/09/10/00001/18/01 UNRA lD No 142 VoLume 5: Priced BiLt of Guantities which formed part of the contract for works for Moroto Nakapiritpirit Road. The Priced BiLt of 0uantities pLaced the cost of granite stones to be used in the construction at Ugx. 23,995,130,000/=.

> This evidence was presented in the proceedings of HCCS No. 16 2014. AIL these monies were paid to the first respondent pursuant to the decision of the Court of Appeal..

That money ought to be paid to Nakapiritpirit District Land Board, the const itut ionally sanctioned entity to hotd, aLtocate, se[[ as we[[ as lease the suit rock. Conceding to the first respondent's hotding the money would amount to unjust enrichment.

The appeal succeeds in part.

Fottowing the above finding of the court, an order was issued to pay the said sum to the Nakapiritpirit District Land Board.

The contention of the appticant is that the above sum inctudes its labour and the cost for btasting and processing the rock and that the cost of the rock before processing it is Uganda shittings 281,69t+,151/= which is what ought to be paid to the Distrrct Land Board. The rest of the amount belongs to the appticant to take care of its costs in processing such as the procuration of exptosives for btasting the rock. the costs of equipment for the work, labour

⁵ et cetera. These costs cover the costs of btasting, processing and transporting the rock up to the time it is poured on the road for construction.

Ctearl.y there are some arguabte points which may be considered inctusive of the fact as to whether this is new evidence or whether it is avartabl.e in the court proceedings from which inferences may be drawn to reach ^a conctusion as to the just entittement of the District Land Board in terms of the quantum of compensation. lt has to be emphasised that no new evidence ought to be taken by the Supreme Court in the circumstances. Particularty retevant is rute 30 (1) of the Judicature (Supreme Court Rutes) Directions which provides that:

30. Power to reappraise evidence 15

(1) Where the Court of Appeat has reversed, affirmed or varied a decision of the High Court acting in its originaI jurisdiction, the court may decide matters of Law or mixed law and fact. but shatl not have discretion to take additionaL evidence.

The Supreme Court has no discretionary powers to take additionat evidence. However as considered from the quoted passage in the Judgment on appeat, the issue of entittement of the District Land Board was ^a consequential issue and determined by the Supreme Court after reaching the conctusion about who is entitted to the sum of money originatty paid to the first respondent Messrs Wett Machinen Engineering Ltd. The court however reviewed the record in HCCS No. 16 of 2014. This was avaitabte on the record and therefore it is not a new fact but what may be considered from the evidence on record. 20 25

I have accordingl.y read the record of appeal. in this Court in Civil. Appeat No. 1lt of 2019 China Road & Bridge Construction Vs Wett Machinen Engineering Ltd and was able to estabtish some facts about the sum of money in issue.

The action originatty arose from High Court Civit Suit No 0016 of ²⁰¹⁵ wherein Welt Machinen Engineering Ltd f ited an action against the applicant in this apptication, UNRA and the Nakapiritpirit District LocaI Government (a thrrd party) The action was inter alia for injunction restraining the defendants from trespassrng upon the suit tand. They wanted a finding that

- ⁵ the defendants had no right to extract and mine granite stones f rom the suit tand. They also sought speciaI damages of Uganda shitLings 8,582,022,000/=, aggravated and exemptary damages, interests and costs of lhe suil. They averredlhal the defendants were carrying out quarrying activities on the "Kamusataba Rock" where the ptarntiff had a prospecting licence or ^a location lrcence for purposes of mining. However, the record shows in exhibit P 17 the contract bitt of quantities wherein the appticant was quoting for purposes of the contract what it woutd charge for crushed aggregate CRR. The sum of money quoted is Uganda shitl.ings 23,993,130,000/=. Further I have examined the Judgment of the High Court. The court awarded shiLtings 500,000,000/= as general damages. Secondty the court made an order that the appticant to this appl.ication was to render an account of the quantity of aggregates extracted from the suit property. Thirdty at page 23 of the Judgment of the High Court, the cost of the crushed aggregate was awarded on the basis of the testimony of PW4 Mr Ronatd Otaki from UNRA who had presented the approved Bitl. of Quantities from UNRA. The triat judge pegged the award on the basis of the testimony of PW4 that the vatue in the bitt of quantrties was about Uganda shiLtings 23,000,000,000/= and assessed speciaL damages at 4 bittion shitLings for loss on account of excavations on the suit property which she awarded to the ptaintiff. The 10 15 20 - special damages were derived for the budget of crushed aggregate of 23 bittion shiLtings. 25

For purposes of an appl.ication for stay of execution, there are arguabte points as to whether the actuaI sum payabte is the sum awarded by the court based on the bitt of quantities issued by the appticant. The resolution of that question ought to be Left to the determination of the apptication for the recatl and review of the Judgment of this court but in the circumstances I note that it shows a high chance of success of the apptication. lt atso reveats the source of the amount awarded by the Supreme Court to the District Land Board. This sum was money quoted by the appticant for btasting and processing rock into aggravate and was payable to it by the 30

Emptoyer, Uganda National Roads Authority. The appticant's apptication ⁵ atteges the arguabte point that the award appropriates its labour and resources which was used to produce the aggregates.

ln the premises, there are arguabte points for consideration by the Supreme Court in the apptication for review that is pending. SecondLy, the question of whether the apptication has a tikel.ihood of success is answered by the

^finding that there are arguable points for consideration by the court. 10

The respondents counseI submitted that there is no evidence that execution is imminent. However, the judgment of the court is that payment shoutd be made within 60 days. There is therefore a potential danger, based on the order of the court that the money, the subject matter of the apptication for

- review woutd be paid over to a third party and therefore the appl.icant's application woutd be rendered nugatory. None of the parties revealed where this sum is and such a cotossal sum which was atready paid by UNRA shoul.d not be Left as a mystery. There is no evidence that Wel.t Machinen or any other person has paid the Nakapiritpirit District LocaI Government. This 15 - is a question of fact. 20

As far as rute 2 (2) of the Rutes of this Court are concerned, the Supreme Court in Uganda Revenue Authority vs Nsubuga Guster and another; Supreme Court Miscel.laneous Apptication No 16 of 2018 [2019] UGSC 15 hetd that rule 2 (2) gives the court very wide discretionary powers to make such orders as may be necessary to achieve the ends of justice. Further that one of the ends of justice is to preserve the right of appeal and to hetp the parties to preserve the status quo before their dispute can be considered on the merits by the ful.t court according to the rutes and the main concern being whether there is a serrous threat of execution before hearing of the substantive appticatron. ln Theodore Ssekikubo and 4 others vs the Attorney

- General and 4 others, Supreme Court Constitutional Appl.ication No 4 of 201ltl201lt) UGSC 11, the Supreme Court held that the grant of interim orders is meant to hetp the parties preserve the status quo untiI the main issues between them are determined in the main apptication. These principLes 30 - rhyme with the decision of the Chancery Division of Engtand in Witson v Church (1879) 12 Ch. D 454 that: 35

"As a matter of practice, where an unsuccessfuI party is exercising an unrestricted right of appeat, it is the duty of the court in ordinary cases to make such order for staying proceedings in the Judgment appeated from as wit[ prevent the appeaL if successfuI from being rendered nugatory."

10 15 The purpose of an apptication for stay of proceedings, stay of execution or an injunction issued at this leveI is to maintain the status quo to enabte the appticant or the appetlant to have their pending matter heard before the status quo is changed to their detriment. lt therefore preserves their right to have the order chaLtenged in the appl.ication for review and recat[ of the judgment on appeal before it is imptemented thereby changing the status quo. Where the status quo is changed, the money woutd be paid to Nakapiritpirit District Land Board which is a third party and not a party to the appeat. lf the review succeeds, the effort to retrieve the money woutd have to be made against a third party rn fresh proceedings and therefore wou[d potentialty be to the inconvenience of the appticant.

20 The principte appticabte therefore is the same principte appticabl.e to the grant of interim orders of stay of execution pending determination of the main appLication so that the status quo is maintarned to preserve the right of the appticant to be heard before what is chal,tenged happens or the subject matter changes hands.

25 30 Itherefore find merit in the appticant's appLication and wit[ issue an order of stay of execution of the Judgement and orders of the Supreme Court in combined Civil. Appeal.s Nos 13 and '14 of 2019 China Road Bridge Corporation vs Wett Machinen Engineering Ltd and Attorney General and China Road Bridge Corporation vs Wett Machinen Engineering Ltd pending the hearing and determination of the appl.icants apptication for review and recat[ of the Judgement and Orders in SCCA No. 14 of 2019 or untiL further orders of this court. The costs of this appticatron sha[[ be in the cause.

Because Civil. Appl.ication No. 13 of 2022 is an apptication for an interim order for stay of execution pendrng the hearing of this appl.ication, which has now

35 been heard and determined, it is overtaken by events. Civil. Apptication No. 13 ot 2022 accordingty stands dismissed with no order as to costs.

$\mathsf{S}$ Dated at Kampala the day of July 2023

$\mathcal{Z}$ Christopher Madrama Izama

Justice of the Supreme Court

$10\\$

# THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT KAMPALA

# MISCELLANEOUS CAUSE NO.12 OF.2O22

### CONSOLIDATED WITH

# MISCELLANEOUS CAUSE NO.13 OF 2022

(Aising from consolidated Supreme Court Ciuil Appeals No. 13 & ¹⁴ of 2019)

[CORAM: MWONDHA; TIBATEMWA-EKIRIKUBINZA, CHIBITA, MUSOTA, MADRAIUA, JJSC.]

### BETWEEN

#### CHINA ROAD BRIDGE CORPORATION : : : : : : : : : : : : : : : : : : APPLICANT

AND

WELT MACHINEN EI{GINEERII{G LTD : : : : : : : : : : : : : : : : : : RESPOI{DENT

AITD

#### BETWEEN

## CHINA ROAD BRIDGE CORPORATION: : : : : : : : : : : : : : : : : : APPLICANT

AND

I. WELT MACHINEN ENGINEERING LTD 2. ATTORNEY GENERAL :::::li::::::::::: RESPONDENTS

#### RULING OF PROF. TIBATEMWA-EKIRIKUBINZA, JSC (Dissentl.

I have had the opportunity to read in advance the decision of the majority Justices.

I have also read the decision prepared by my learned brother Hon. Justice Christopher Madrama Izama, JSC which is a dissent from the majority decision.

I respectfully differ from the Ruling of the majority and I agree with the reasoning of Hon. Justice Madrama, JSC that the application for stay of execution has merit and ought to be granted on the premise that there is an arguable point on the compensatory sum of Uganda Shillings $23,995,130,000/$ = awarded to the District Land Board of Nakapiritpirit by this Court in consolidated Civil Appeals No.13 and 14 of 2019 vide China Road Bridge Construction vs. Welt Machinen Enginnering Ltd.

Dated at Kampala this $\frac{1}{2}$ day of $\frac{1}{2}$ 2023.

In us alemore. PROF. LILLIAN TIBATEMWA-EKIRIKUBINZA JUSTICE OF THE SUPREME COURT.