[2022] UGSC 40

## THE REPUBLIC OF UGANDA

## IN THE SUPREME COURT OF UGANDA

## **AT KAMPALA**

**CIVIL APPLICATION NO. 57 OF 2021**

(An application arising out of Civil Application No. 56 of 2021 arising from Civil Appeal No. 11 of 2021)

#### **BETWEEN**

| 1. GLOBAL CAPITAL SAVE 2004 LTD | | | |---------------------------------|---------|--| | 2. BEN KAVUYA | <b></b> | |

AND

#### 1. ALICE OKIROR 2. ALICE OKIROR (ADMINISTRATRIX OF THE ESTATE OF LATE MICHAEL **RESPONDENT** OKIROR) $\cdots\cdots\cdots\cdots\cdots\cdots\cdots\cdots\cdots$

$\mathsf{S}$

#### **RULING OF MIKE J. CHIBITA, JSC**

This is an application brought by Notice of Motion under Rules 2(2), 6(2) (b), 41, 42 & 43 of the Judicature (Supreme Court) Rules, seeking the following reliefs:

An order for stay of execution of the decree and orders of $(a)$ the Court of Appeal entered in Civil Appeal No. 151 of 2012 pending the disposal of Civil Application No. 56 of 2021 pending before this Court.

# ⁵ (b) Costs of this opplicotion.

ll,' .r' 't,

The oppliconl swore on offidovil in suppori of the Nolice of Motion. The respondent hod not filed o reply by lhe lime of heoring.

At the heoring, the opplicont, Ben Kovuyo, wos in court represented by leorned Counsel Joseph Kyozze ond Muhumuzo Mwene Kohimo.

The respondent, Alice Okiror, wos in court represented by leorned Counsel Gilbert Nuwogobo. 10

Leorned Counsel Nuwogobo roised o preliminory point of low lo the effect thot one of the condilions for gront of on lnterim Order, to wil, filing ond service of o Notice of Appeolwos locking.

He submilted thot under rule 74(l ) of lhe Judicoture (Supreme Courl Rules) Directions, o Notice of Appeol must be served within seven (7) doys of filing. ln the instont cose, he conlinued, the Notice of Appeol wos served ofter nine (9) doys. 15

He referred court to the copy of the Nolice of Appeol ottoched to the opplicotion ond poinled out thot it wos received, stomped ond fees poid on 7m July, 2020 ond served on the respondent on l6rh July,2020, more lhon seven doys ofter filing. 20

Moreover, he conlinued, there wos no opplicolion for extension of time. He therefore contended thot there wos no Nolice of Appeol in low ond therefore, the opplicolion ought to be struck out for being incompetent.

5 10 ln reply, leorned Counsel Kyozze submilted thot lhe Notice of Appeol bore two dotes from the Registry. lndeed, it wos filed, slomped ond fees poid on 7m July, 2020. However, it wos on 9tn July, 2020 thot lhe Regislror doled ond signed il os duly lodged. The lime, therefore, he contended, slorted running on 9tn ofler the Regislror hod oppended her signoture, not before.

He lherefore osked courl lo find thot the opplicotion wos properly before courl.

#### CONSIDERATION BY COURT

The issue for considerotion by the preliminory poinl roised by leorned 1s Counsel Nuwogobo is whether the Notice of Appeol wos lodged on 7th July,2020 ihe doy fees wos poid, nolice received ond stomped by the Registry, or whether the Notice of Appeolwos not duly received, filed ond lodged until the Registror hod doted il os lodged ond oppended her signoture on 9th Jvly,2020.

zo Counsel referred courl lo rule 74(l ) of the Judicoture (Supreme Court Rules) Directions, which we reproduce for eose of reference"

"74. Service ol notice of oppeal on person offecled

(l) An inlended oppellonl sholl, before or wilhin seven doys ofler lodging notice of oppeol, serve copies of il on oll persons dheclly offecled by lhe oppeol; ..."

t

⁵ ll is cleor thot the specific rule cited by leorned counsel uses the word "lodging" o notice of oppeol. The copy of the nolice of oppeol cleorly shows thot il wos lodged on 9tn Jvly,2O2O. Thot is the dole when the Registror oppended her signoture.

It is sofe lo soy thot the process of filing the notice of oppeol storted on 7th wilh lhe poyment of the requisile fees, receiving ond stomping lhe documenls with lhe court stomp ond culminoted in the finol ocl of being doted ond signed by the Registror os duly lodged on 9tn July, 2020. 10

The dote thot is of essence. lherefore. is the finol dole of the process,

which in the inslonl cose is the 9tf, of Jvly,2020 ln ony cose, the rule cited by counsel for the opplicont himself uses the word 'lodging' os the operolive word. ll would be curious for court lo ignore the dole on which the document wos lodged os required by the rule ond go by onolher dote. 15

; 't'

l

llherefore find thol lhe nolice of oppeol wos lodged in courl ond duly signed on 9tn July, 2020. Service wos effecled on lhe respondenls within seven doys, on 1 6th July, 2020, os per court documenls.

The preliminory poinl roised by leorned counsel for lhe respondenls is therefore dismissed for locking meril. Costs willbe in the couse. 25

Consequently, counsel for the respondents is to file and serve an $\mathsf{S}$ affidavit of reply to the application and skeletal arguments by 3rd February, 2022

Any rejoinder should be filed and served by the applicant by 10^th February, 2022.

Ruling will be delivered on 17^th February, 2022 at 2.30pm.

Dated at Kampala this ....................................

Ave Palaita

Mike J. Chibita

#### JUSTICE OF THE SUPREME COURT

Delivered by the Reportion

$27/11/22$

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

Ll r

CIVIL APPLICATION NO. 57 OF 2O2L

(An application arising out of Civil Application No. 56 of 2O2ll

(Arising out of Civil Appeal No. 1l of 2O2ll

(Arising out of Civil Appeal No. 151 of 2OL2l

(Arising out of Civil Suit No. 149 of 2O1O)

#### BETWEEN

#### . GLOBAL CAPITAL SAVE 2OO4 LTD I

- e)

. BEN KAVTryA APPLICANTS 2

#### AND

### 1. ALICE OKIROR 2. ALICE OKTROR (ADMINISTRATRTX OF THE ESTATE OF LATE MICHAEL OKIROR

RESPONDENTS

## RULING OEI\trIKE J. !}IIETIA-TIEE

This is an application brought by Notice of Motion under Rules 2(2), 6(2) (b), 41, 42 & 43 of the Judicature (Supreme Court Rules) Directions, seeking the following reliefs:

(a) An order for stay of execution of the decree and orders of the Court of Appeal entered in Civil Appeal No. 151 of 2Ol2 pending ⁵ the disposal of Civil Application No. 56 of 2O2l pending before this Court.

\

(b) Costs of this application.

The applicant swore an affidavit in support of the Notice of Motion. In his affidavit the applicant stated that they were the unsuccessful parties both at the High Court and Court of Appeal hence filing SCCA No. 11 of 2O2l now pending before the Supreme Court.

He further stated that because the orders of the courts below are executable, execution could be effected before determination of the pending appeal. He averred that he filed a substantive application for stay and an application for an Interim Order of stay of execution before the Court of Appeal, vide CACA No. 212 of 2O2O and CACA No.

2O7 of2O2O.

He further averred that the Court of Appeal had failed to constitute a panel to hear the applications thereby heightening the imminent danger of execution of the decree.

He therefore prayed to this court to grant the Interim Order to prevent the appeal being rendered nugatory. He concluded by stating that the application raised pertinent questions of law meriting reconsideration by the Court.

The respondent hled an afhdavit in reply in which she denied the existence of a decree for execution. She further averred that having filed an application for stay in the Court of Appeal, which is still

⁵ pending, it amounts to abuse of process for the applicants to file the instant application in the Supreme Court.

\

She concluded by averring that there is a civil session underway in the Court of Appeal, which the applicants should tal<e advantage of instead of rushing to the Supreme Court.

¹⁰ She asked court to deny the instant application

In rejoinder, the applicant reiterated the averments made in his earlier affidavit and refuted some of the points raised by the respondent in her affidavit in reply.

At the hearing, the applicant, Ben Kavuya, was in court represented by learned Counsel Joseph Kyazze and Muhumuza Mwene Kahima.

The respondent, Alice Okiror, was in court represented by learned Counsel Gilbert Nuwagaba.

## CONSIDERATION BY COURT

20 The issue raised by learned Counsel Nuwagaba for consideration by way of a preliminary point was whether the Notice of Appeal was lodged on 7th July,2O2O the day fees was paid, notice received and stamp afhxed by the Registry, or whether the Notice of Appeal was not duly received, filed and lodged until the Registrar had dated it as lodged and appended her signature on 9th July, 2020.

?5 The preliminary objection was dismissed for lack of merit and parties filed written submissions thereafter.

- s The main argument of Counsel for the applicants was that there is an imminent threat of execution of the orders of the High Court and Court of Appeal where the applicants were the unsuccessful part5r. Counsel further stated that they filed a similar application for stay in the Court of Appeal, which is pending hearing. The reason given for - 10 the delay in hearing the pending application is apparently because of failure to constitute a panel, hence this application to the Supreme Court.

In support of their application, they referred court to Hassan Basajjabalaba and Another vs The Attorney General SCMA No. 04 1s of 2018, Patrick Kaumba Wiltshire vs Ismail Dabule SCCA No. 03 of 20 18, China Henan International Corp Group Co. Ltd vs Justus Kyabahwa SCCA No. 30 of 202 1, Hon. Theodore Ssekikubo & Others vs Attorney General & Others SCCA No. 04 of 2014, National Housing & construction Corp vs Kampala District Land zo Board & Anor SCCA No. 6 of 2OO2 and Kasaala Growers Corp

Society vs Jonathan & Anor SCCA No. 24 of 2OlO.

Counsel for the respondents, in reply gave a brief history of the case between the two parties. He conceded to the existence of substantive applications for stay of execution both in the Court of Appeal and in

2s the Supreme Court. He contended that the presence of these two applications in the two different courts was an abuse of court process that ought not to be allowed.

Counsel denied the existence of an imminent and serious threat of execution. As evidence of this, he stated that the decree cannot be 30 executed because it had not been approved as required by the law.

5 He referred court to rule 41(l) of the Judicature (Supreme Court Rules) Directions, which provides that applicants must first ltle an application for stay in the Court of Appeal.

I have carefully considered the pleadings, submissions and authorities by Counsel on both sides.

10 Rule 41(1) provides as follows: -

## "lllhere an application may be made either to the Court or to the Court of Appeal, it sha[ be made to the Court of Appeal flrst."

15 Indeed, rule 4 I (1 ) requires that parties must first file applications for stay in the Court of Appeal. By necessary implication, they then can proceed to the Supreme Court in case they have been denied relief. In the instant case, whereas an application was filed as envisaged by rule 41(1), no decision had been rendered by the time of filing this application in the Supreme Court. Neither had the same been fixed

20 for hearing.

> It would be remiss of this court to entertain a matter which is still pending before the Court of Appeal.

> I would agree that that this is abuse of court process, which this court, or any other court for that matter, should not condone. The

25 proper procedure would be to have the matter pending before the Court of Appeal disposed of before applying to this court to delve into the same matter.

The cases cited by Counsel for the applicants are all distinguishable. They are distinguishable by the single fact that none of them had a

similar application pending before the Court of Appeal at the time of $\mathsf{S}$ filing applications in the Supreme Court.

None of the cases cited addresses the issue raised by the instant application, to wit, entertaining an application for stay while a similar application is pending before the Court of Appeal.

I therefore find the authorities unhelpful and inapplicable in the 10 instant application.

Applicants are advised to pursue the application for an Interim Order of stay of execution that is pending before the Court of Appeal. Thereafter, if they so wish, they can file a fresh application to this court.

In the circumstances, this application is dismissed with costs to the respondents.

Dated at Kampala this $\frac{9}{\text{Maryc}}$ Mayof $\frac{1}{\text{Maryc}}$ 2022

lun Pilitz

Mike J. Chibita

## JUSTICE OF THE SUPREME COURT

Guarilas

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