[2024] UGCommC 151

# 5 **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA COMMERCIAL DIVISION MISC. APPLICATION NO. 345 OF 2024 (ARISING FROM MISC APPLICATION NO. 2637 OF 2023)** 10 **(ARISING OUT OF CIVIL SUIT NO. 1407 OF 2023)**

#### **JAMADA LUZINDA ] APPLICANT**

**VERSUS**

### **1. HARDSCREEN LOGISTICS LIMITED**

- **2. EQUITY BANK UGANDA LIMITED** - **3. ALEMU ISAAC ] RESPONDENTS**

20 **Before: Hon. Justice Ocaya Thomas O. R**

### **RULING ON PRELIMINARY OBJECTION**

#### **Background:**

25 The Applicant brought this Application under the provisions of Order 22 Rules 26 and Order 43 Rules 4 of the Civil Procedure Rules S. I 71-1, Section 98 of the Civil Procedure Act Cap 71.

The Application seeks orders that;

- a) Execution of the Order of the Commercial Court in Miscellaneous Application No. - 30 2637 of 2023 Jamada Luzinda V Hard Screen Logistics Limited, Equity Bank Uganda Limited and Alemu Isaac be stayed pending the disposal of the appeal. - b) Costs of this application be provided for.

The brief facts are that the Applicant filed an Application vide Miscellaneous Application No. 35 2637 of 2023 (Arising out of Civil Suit No. 1407 of 2023) and a ruling was made in favor of 5 the 2nd Respondent. The Applicant filed a Notice of Appeal being dissatisfied with the ruling and subsequently this Application to stay the execution pending the outcome of the Appeal.

When the Application for the stay of execution came up for hearing on the May 3, 2024, Counsel Golloba Mohammed for the 2nd Respondent raised points of law that;

- 10 1. That the Appeal by the Appellant is premised on a wrong format, as it was commenced by a Notice of Appeal as opposed to Notice of Motion under Order 50 Rule 8. - 2. That the Applicant is in contempt of Court by failing to deposited the 30% worth of security under regulation 13 of the Mortgage Act regulations.

#### 15 **Representation:**

The Applicant was represented by the by Counsel Lutaaya Ernest from MLM Advocates and Counsel Golloba Mohammed from Simmul Advocates for the 2nd Respondent.

#### **Evidence and Submissions:**

20 Both counsel made oral submissions in court in support of their respective cases and I have considered all the submissions of the counsel before arriving to the ruling below.

#### **Decision:**

## **Point of law 1: That the Appeal by the Appellant is premised on a wrong format, as it**

25 **was commenced by a Notice of Appeal as opposed to Notice of Motion under Order 50 Rule 8 and the Appeal was filed out of time.**

Order 50 of the Civil Procedure Rules provides that wherever in the Act or in the rules under the Act it is provided that any act or thing may be done by such officer as the court may appoint, that act or thing may be done by the registrar.

To this, Order 50 Rule 3 provides the Registrar with the powers to hear and rule on all formal steps preliminary to a trial and all interlocutory applications.

The Miscellaneous Application No. 2637 of 2023 is the nature of those that falls under Order

35 50 Rule 3 as the Applicant was seeking for a temporary injunction and the same order goes ahead to provide for other mechanisms post decision making of the registrars as being the


5 law that gave the registrar the powers, it also assigned how to appeal the decision making arising from the powers given to the registrar.

Order 50 Rule 8 provides that; any person aggrieved by any order of a registrar may appeal from the order to the High Court. The appeal shall be by motion on notice.

10 It is important to pay keen attention to the usage of the wording "shall" in Order 50 Rule 8 in light of the special powers given to the registrars under Order 50 Rule 3.

The Supreme Court in *Sitenda Sebalu V Sam K. Njuba and Electoral Commision, Election Petition Appeal No. 26 of 2007* observed that;

- 15 "*It is common ground that although prima facie the use of the word "shall" in a statutory provision gives the provision a mandatory character, in some circumstances the word is used in a directory sense. The contention is on how to determine where the word has been used in either sense*". - 20 As stated earlier, the usage of the word "shall" in this instant is intended to be a mandatory command on the specific mode to institute the special appeal from the orders of the registrar under Order 50 Rule 3.

The Drafters of the legislation are well aware of the mode of instituting an appeal to the High 25 Court from the lower court which is by way of a Notice of Appeal which itself serves the purpose of a by standers notice if not conjoined with the Memorandum of Appeal. However, the mode of Notice of motion which has to have an affidavit in support attached with the hearing date fixed is to enable court and the opposite party appraise themselves of the ground of appeal which in effect carries the intention of Order 43 Rule 1 on the format of a

30 memorandum of Appeal in so far as concise grounds of appeal are outlined and mostly it is to enable expeditious dispensation of the Appeal arising from Order 50 Rule 3 so that the main case can be handled expeditiously too as those appeals are from pre-trial and interlocutory matters.

- 5 Counsel for the Appellant submitted that the Notice of Appeal is proper under Order 44 Rule 1 (q). Provision of the aforementioned order is on Appeals as of right, be that as it may, this contention is not on whether it is an Appeal as of right or discretionary however it is on the propriety of the mode of Appeal which even an Appeal as of right has to follow the proper format prescribed. - 10

Counsel for the 2nd Respondent further objected that the purported Appeal was filed out of the prescribed time period. Counsel submitted that the ruling was delivered on the 15th January 2024 and that the Applicant applied for the record of proceedings on the 30th January 2024 which was after the lapse of the days. The order was extracted and signed by 15 the Registrar on the 17th April 2024 and that even in consideration of the date of the signing of the order, the purported Appeal was still filed out of time because there is no Appeal filed yet. In response, Counsel for the Appellant submitted that while computing the days within

20 Section 79(1) b of the Civil Procedure Act provides that Every Appeal shall be entered within 7 days of the date of the order of a registrar, as the case may be; but the appellate Court may for a good cause admit an appeal though the period of limitation prescribed by this section has elapsed.

which to file an Appeal, the time period in taken to get the certified copies are excluded.

25 Section 79(2) provides that in computing the period of limitation prescribed by this section. The time taken by the court or the register in making a copy of the decree or order appealed against and of the proceedings upon which it is founded shall be excluded.

The ruling having been delivered on the 15th January 2024, the time starts running then and 30 without any proof of a letter requesting for the typed records of proceedings and/or order within the 7 days which could have stopped the running of time in consideration of Section 79(2), then Section 79(2) cannot be evoked as an exception to limited time. The Applicants applied for the record of proceedings 15 days later on 30th January 2024, way past the 7 days limitation period.

- 5 Section 79(1) gives the Appellate Court powers for a good cause to give a lee way to Appellants who filed out of time. In this instant case, the Applicants did not apply to court neither did they, during the oral submissions or even as an alternative in the event should Court find that they filed out of time, provide any good cause let alone any cause for this matter as to why they filed the purported Appeal out of time. - 10

The Applicants filed the purported Appeal out of time and did not even move Court or attempt to show any good cause to allow court to grant them an extension of time within which to file the Appeal. The issue of the limitation of time in this Application is subsequent to the propriety of the mode of commencement of the Appeal which as noted is equally 15 wrong.

Therefore, having made a wrong and out of time filing in court which leaves the Applicants with no Appeal case, there cannot be a stay of execution without a subsisting Appeal. See **Hon. Theodore Ssekikubo and Others V. The Attorney General and Others,** 20 **Constitutional Application No. 03 of 2014.**

In the premises, I find no Appeal has been commenced.

# **Point 2: That the Applicant is in contempt of Court by failing to deposit the 30% worth** 25 **of security under regulation 13 of the Mortgage Act regulations.**

Counsel for the 2nd Respondent further submitted that the Applicant having not paid the 30% deposit of security worth of the forced sale value of the mortgaged property to the 2nd Respondent under regulation 13 of the mortgaged Act as ordered has acted in contempt of Court.

It is trite that a conditional court order's existence is tied to the fulfillment of the condition. Failure to fulfil the condition discharges any other relief sought whose relevance is hinged on the fulfillment of the condition. See *Nakato Margaret V. Housing Finance Ltd, Miscellaneous Application No. 1800 of 2021.*

- 5 The Applicant's failure to comply with the payment of 30% deposit as ordered by the Registrar in pursuit of his stay of execution is not only an act of contempt of court but also all subsequent reliefs sought after the grant of the condition is a nullity because the Applicant did not follow court orders. - 10 Notwithstanding the mode of filing this Appeal, the failure in fulfilling the condition alone makes this Application dead on arrival. See *Nadia Manji (Suing through her lawful Attorney Paul Akol) V. I & M Bank Uganda Limited and Fontana Auto Parts Uganda Limited, Miscellaneous Application No. 170 of 2024.*

#### 15 **Conclusion:**

In the premises, I make the following Orders;

- a) No Appeal has been commenced from which this application arises and therefore it is incompetent. - b) The Applicant is wrongfully before this Court as conditions precedent by this Court - 20 have not been fulfilled and the Applicant is in contempt of Court. - c) The 2nd Respondent is awarded the Costs of this Application.

Dated this\_\_\_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_2024, delivered electronically and uploaded on ECCMIS. 3rd May

**Ocaya Thomas O. R**

**Judge**

30 **3rd May 2024**