[2023] UGCA 55

#### ⁵ THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT KAMPALA CIVIL APPLICATION NO.628 OF 20.22 (Arising from Civil Application No.6O2 of 2o.221 (Arising from Miscellaneous Application No.2O6 of 2O2Ol (Arising from High Court Civil Appeal No. OO1 of 2()18) IGGA JAWADDU::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPLICANT

#### VERSUS

### FINANCE TRUST BANK LIMITED:::::::::::::::::::::::::::::::::::::::RESPONDENT

This application was brought under the provisions of section 98 of the Civil

Procedure Act CAP 71, Section 33 of the Judicature Act CAP 13 and Rules 43 &,44 of the Judicature ( Courl- of Appeal Rules) Directions SI 10-13 seeking for orders that; an interim order of stay issues; restraining the respondent, its servants, agents and/or any person acting on its behalf from executing andl or enforcing the decree of Joycc Kavuma, J in Igga Jawadu & 2 Ors V Finance Trust Bank Ltd in HCCA No. OO t of 2018 pending the determination and disposal of the substantive application vide Civil Application No.6O2 of 2022 and costs of the application abide the result of the appeal. 15 20

#### Background

The background to the appliczrtion is that on the 21"1 day of August,2O2O, judgment was entered in favour of the respondent in HCCA No. OO1 of 2018. Dissatisfied with the judgment and orders of the learned trial Judge, the llPage 25

⁵ applicant appealed to this Court vide Civil Appeal No.94 of 2O2O. Having been served with a Notice to Show Cause Why Execution should not issue, the applicant filed an application for stay of execution in the High Court of Uganda at Mbarara vide Miscellaneous Application No.2O6 of 2O2O which was dismissed with costs. The respondent filed a bitl of costs for the said application. The applicant filed a substantive application for stay of execution before this Court vide Civil Application No.6O2 of 2022 and the instant application. 10

# Grounds of the application

The grounds in support of the application are contained in the Notice of Motion and affidavit in support briefly stating that being dissatisfied with the judgment and orders of the High Court, the applicant filed an appeal and a letter requesting for a typed record of proceedings. He then filed an application for stay of execution in the High Court at Mbarara and the same was dismissed on 15th December, 2O2l hence the instant application. The applicant further stated that he had since received another application for execution by way of arrest and detention in civil prison and a notice to show cause why execution should not issue. 15 20

He contended that he has since filed another application for stay of execution vide Civit Application No.6O2 of 2022 but the same has not been fixed for hearing yet. That the appeal pending before this Honourable Court is not frivolous and vexatious and thus has a high likelihood of success and if ^a warrant of arrest issues against him, he will suffer irretrievable and substantial loss in so far as he will be deprived of his right to liberty albeit the

2lPage

⁵ pendency of the substantive application for stay of execution. The applicant added that it was it was fair, reasonable, equitable and in the interests of substantive justice that this Honourable Court be pleased to grant this application.

# Grounds in opposition

- The respondent opposed the application stating briefly that the applicant's application was devoid of merit, frivolous, vexatious and a total abuse of Court process. That the applicant hacl already complied with the orders of the lower Court by duly settling the entire principal sum and he is only left with the costs of the suit. The respondent further stated that the application had been brought with inordinate delal, and it's the same reason the lower Court 10 - dismissed the application for st-ay of execution. 15

The respondent contended that he was not aware of the substantive application and execution had already taken place by the applicant paying the respondent all the principle debt as decreed by the lower Court. Further that this application was a 'nvaste of time to deny the respondent from recovering the costs of the suit in the lower Court and no notice of appeal has ever been served on the respondent. That the applicant is awakened by execution and is guilty of dilatory conduct and unreasonable delay.

#### Representation

At the hearing of the application, Mr. Ayebazibwe Isaac appeared for the applicant while the respondent was represented by Mr. David Nsobani holding brief for Mr. Jackson Agaba. The applicant was in Court. 25

# 5 Applicant's submissions

Counsel for the applicant submitted that Rule 2(2) of the Rules of this Court grants this Court inherent powers to make such orders as may be necessary for attaining the ends of justice. He added that the applicant had satisfied all the conditions necessary for the grant of an interim stay of execution as stated 10 by the Supreme Court in Hwang Sung Industries Ltd V Taidin Husseln &

2 Ors, SCCA .l\Io. I9 of 2OO8. He submitted that the applicant had filed ^a substantive application pending hearing before this Court referenced as Civil Application No.602 of 2022.

Counsel further submitted that a serious threat of execution had been 1s established by affidavit evidence under paragraphs 8 and 19 of the affidavit in support of the application and annextures D, E, J and K and the applicant had been served, with two applications for execution by way of arrest and detention in civil prison and a Notice To Show Cause Why Execution Should Not Issue had been served on the applicant. He added that if a warrant of 20 arrest issues against the applicant, he will suffer irretrievable and substantial loss in so far as he will be deprived of his right to liberty, albeit the pendency of the substantive application for stay of execution. He relied on @uiliano Gariggio V Calaudio, Supretne Court Civil Application No. S of 2073 for the proposition that once a decree is extracted then the respondent could if 25 he wished proceed to execute.

Counsel contended that unless the respondent establishes that the applicant has been arrested and detained in Civil Prison pursuant to the warrant of arrest and that a return of execution has been duly filed, then the instant

4lPage

⁵ application is not overtaken by events. He relied on Hwang Sung Industries Ltd V Tajdin Hussein 6o 2Ors SCCA No.79 of 2OO8 for the proposition that in an execution by attachment and sale, both components must be completed in order to complete execution. He prayed that the application be allowed and costs be in the causc.

#### Respondent's submissions 10

Counsel for the respondent raised 2 preliminary objections first that the instant application and its submissions are alien and foreign before this Court and the applicant and his counsel have smuggled the same onto the Court record because on 2.d Septemb er, 2022, the respondent's counsel was served

with a copy of Civil Application No.628 of 2022 arising from Civil Application No.602 of 2022, also arising from Miscellaneous Application No.206 of.2O2O, arising from High Court Civil Appeal No. OOl of 2018 which was fixed for Sft September, 2022 at 10:30am and the respondent through its Manager affirmed an affidavit in reply opposing the application. He added that both counsel appeared on the 8th day of September, 2022 at 1O:3Oam when Civil Application No.628 of 2022 came up for hearing and this Court gave schedules as to the filing of the written submissions. On 20tH September, 2022, the applicant's counsel served the respondent's counsel with alien written submissions in Civil Application No.1O6 of 2022 arising from Civil Application No.6O 2 of 2022 arising from Court of Appeal Civil Appeal No.94 of 2O2O arising from High Court Civil Appeal No. O0l of 2018 which was either served or fixed before this Court for hearing and/or determination. In 15 20 25

counsel's view, the purported Civil Application No.1O6 of 2022 whose

- s submission was smuggled onto the Court record offended Rule 2 of the Rules of this Court which gives this Court power to prevent abuse of its process and Rule 28(3) and (a) of the Rule s of this Court as the respondent has never been called by this Court to respond to the same. - The second preliminary objection raised by counsel for the respondent was 10 that the affidavit in support of the application was incurably defective and the same did not comply with section 6 of the Oaths Act, CAP 19 which is in pari material with section 5 of the Commissioner for Oaths (Advocates) Act, CAP 5. He added that according to the said rules, the requirement that a deponent of an affidavit should appcar before a commissioner for oaths serves two very 15 important purposes, namely; to identify the person named as the deponent and to assess his/ her mental fitness. Counsel relied on Kakooza John Baptist V The Electoral Commission & Anor, Election Petltion Appeal No. I 1 of 2OO7 for the proposition that where a deponent of an affidavit signs and forwards the affidavit to a Commissioner for Oaths without him being 20 present is a blatant violation of the law regarding making of affidavits and must not be condoned in anYwaY.

Counsel further submitted that in the instant application, the affirmant of the affidavit in support of the application neither signed the affidavit nor appeared before the Commissioner for Oaths who commissioned it because his 25 signature was either scanned or photocopied from a different document and "planted" on the affidavit. He added that he had looked at the copy of the aflidavit on Court record as weil as the one served on Counsel and none of them bears the original signature. In counsel's view, the person who alleged

6lPage

⁵ to be the deponent of the affidavit did not even know its contents let alone seeing and signing the same.

Regarding the merits of the application, counsel submitted that there was no ground at alt to warrant the grant of thc instant application. counsel submitted that the purpose of interim orders is to maintain the status quo pending the determination of some rights however in the instant application, the applicant has paid off the principal sum and the interest to zero balance and that is the status quo. In counsel's view, there was nothing to stay in this application as the applicant had complied fully with the decree and orders of the lower Court by duly paying and settling the principal sum to zerobalance.

- Counsel contend.ed that for appiications of this nature to be granted, there must be an existing appeal pending andl or a substantive application before this Honourable Court which shall be rendercd nugatory if the stay is not granted. He added that the applicant does not have any existing appeal or any substantive application before this Honourable Court because the purported 15 - appeal was filed out of time without leave of Court and in any case the applicant shall not suffer any lc,ss if this application is denied. Counsel further contended that the applicant had not demonstrated through his affidavit in support of the application that he will suffer any substantial loss if the order is not granted. The applicant was already guilty of unreasonable delay as the ruling for which the applicant is seeking to stay was delivered on 15th December,2O2l. 20 25

Counsel submitted that the applicant had no main application for stay of execution pending before this Court since execution had already taken place

TlPage

⁵ as the principal sum in the decree that the applicants seeks to stay has already been paid in fult but the applicant filed the instant application to deny the respondent from recovering its costs of the suit. He prayed that the application be dismissed and costs awarded to the respondent.

# Submissions in rejoinder

Regarding the Preliminary Objection that the applicant had smuggled the instant application onto the Court record, counsel submitted that the instant application was mistakenly referenced as Civil Application No.106 of 2022 instead of Civil Application No.628 of 2022 which in counsel's view was ^a matter of form but not substance and as thus a technicality which Court should not have undue regard to. He added that it was a mistake of counsel which the applicant should not suffer and relied on Banco Arabe Dspanol ^V 10 15

Bank of tlganda, SCCA AIo.8 of 1998 for the proposition that a mistake of counsel should not be visited on the litigant.

On whether the applicant's affidavit in support of the application was sworn before a Commissioner for Oaths, counsel submitted that thc conclusions by counsel for the respondent that the applicant's signature was scanned are baseless and counsel made outrageous statements of fact from the bar which he ought to have deponed in an affidavit. He added that allegations requiring comparison of signatures are so grave and require that a forensic expert studies and makes a report on the same and the person against whom the said allegations are made has a right to be heard on the same. He relied on Mugume Benjamin & 5 Ors V The Attorneg General & Attor, Constitutional Application No. S of 2015 where Court observed that the 20 25

SlPage 5 submission by counsel for the respondent was not supported by any evidence and thus it was from the Bar

Regarding the merits of the application, counsel submitted that there was an imminent threat of execution by way of arrest and detention in Civil Prison despite the pendency of the substantive application and the main appeal. Counsel added that the allegations by counsel for the respondent that Civil Appeal No.94 of 2O2O was filed out of time and without leave of Court was baseless and unfounded. because the determination of the competency of the appeal cannot be determined in the instant application. He added that the applicants had filed a substantive application vide Civil Application No.602 of

15 2022. He reiterated his earlier prayers.

I have carefully considered the Notice of Motion, the affidavit in support, the annextures thereto as well as the law and authorities relied upon. I have also considered the submissions of counsel on either side.

20 Counsel for the respondent raised 2 preliminary objections which I would dispose of before delving into the merits of the application. First he submitted that the instant application and its submissions are alien and foreign before this Court and the applicant and his counsel have smuggled the same onto the Court record.

25 It was argued for the respondent that on 2"d September, 2022, the respondent's counsel was sen'ed with a copy of Civil Application No.628 of 2022 arising from Civil Application No.602 of 2022 then on 20ft September, 2022, the applicant's counsel scrved the respondent's counsel with alien written submissions in Civil Application No.106 of 2022 arising from Civil 9lPage

5 Application No.6O2 of 2022 which was either served or fixed before this Court for hearing andl or determination. In reply, counsel for the applicant submitted that this was a mistake of counsel which could not be visited on the applicant.

The Supreme Courtin Bo;nco Arabe EspanolV Bank of Uganda, SCCA ^hlo.8

10 of 7998 held that a mistake, negligence, oversight or error on the part of counsel should not be visited on the litigant. Such mistake, or as the case may be, constitutes just cause entitling the trial Judge to use his discretion so that the matter is considered on its merits.

I agree with counsel for the applicant that referring to the instant application 1s as Civil Appiication No.106 of 2022 instead of Civil Application No.602 of ²⁰²² was an error which cannot be visited on the applicant.

The second preliminary objection raised by counsel for the respondent was that the affidavit in support of the application was incurably defective and the same did not comply with section 6 of the Oaths Act, CAP 19 which is in pari 20 material with section 5 of the Commissioner for Oaths (Advocates) Act, CAP 5.

Counsel for the respondent submitted that in the instant application, the affirmant of the affidavit in support of the application neither signed the aflidavit nor appeared before the Commissioner for Oaths who commissioned zS it because his signature was either scanned or photocopied from a different document and "planted" on the affidavit. In reply, counsel for the applicant submitted that the conclusions by counsel for the respondent that the applicant's signature was scanned are baseless and counsel made outrageous

l0 lPage

⁵ statements of fact from the bar which he ought to have deponed in an affidavit and that allegations requiring comparison of signatures are so grave as they require that a forensic expert studies and makes a report on the same.

I note that when this matter came up for hearing, counsel for the respondent did not raise this matter neither did he depone an affidavit in regard to the

same. This issue came up in his submissions in reply and I cannot therefore go into issues of subjecting the said signature to a forensic expert because pleadings are closed. 10

The preliminary objections raised by counsel for the respondent are overruled and I will proceed to determine, the application on its merits.

- Rules 6 l2l, 42 l2l and 43 of the rules of this court give wide discretion to this Court to grant interim or substantive orders of stay of execution for purposes of preserving the right of appeal, but this should be where special circumstances exist. See: Lawrence Musiituta Kga.zze aersus Eunice Supremle Court Ciuil Appeal No. O78 of 1990. 15 - ln Ciuil Application No. O19 of 2OO8, Hwang Sung Industries Ltd. us. Tajdin Hussein and 2 Others (SC/, Okcllo, JSC held that: - 20

"For an application for an interim stay, it suffices to shottt that ^a substantiue aoolication is pendinq nd that there TSA threat of execution fore the heari.nq of oendina substantiue aoolication. It is not necessary to pre-empt consideration of matters necessary in deciding whether or not to grant the substantiue application for stay.

⁵ Suffice to add that the burden lies upon the applicant to proue to Court on a balance of probabilities the requisite conditions that must be satisfied before an interim order is granted. " Emphasis added.

ln Zubed.a Mohamed. & Sa,drtt Mohamed V Lrr;ila Kaka Wallia & Anor, Supreme Court Ciuil Reference No. O7 of 2016 which cited with approval Huan Sung Industries Ltd. as. Tajdin Hussien and 2 others SCIUIA No. 79 of 2OO8, the Supreme Court stated as follows;

In summary, there are three conditions that an applicant must satisfy to justtfu the grant of an interim order:

- 7. A competent Notice of APPeal; - 2. A substantiue application; and - 3. A serious threat of exeantion."

The applicant deponed under paragraph 5 of his affidavit in support of the application that he had filed a Notice of Appeal. The said Notice of Appeal was attached and marked as annexture "B".

Counsel for the respondent submitted that there was no appeal as the applicant filed the purported appeal out of time and without leave of Court. 20

I note that the judgment in l{igh Court Civil Appeal No. OOl of 2018 was delivered on 21"t August, 2019, the applicant filed a Notice of Appeal on 2"d September,2Ol9.

Rule 76(2) of the Judicature (Court of Appeal Rules) Directions require a Notice of Appeal to be lodged within 14 days after the date of the decision against which it is desired to appeal. 25

12 lPage

⁵ I therefore do not agree with counsel for the respondent that the applicant filed the Notice of Appeal out of time. The applicant has fulfilled this condition.

On whether there is a substantive application, the applicant deponed under paragraph 20 of his affidavit in support of the application that he had filed a substantive application refercnced as Civil Application No.602 of 2022 pending hearing and determination by this Court. I note that the applicant did not avail this Court with a copy of the said application.

Regarding existence of a serious threat of exccution, Counsel for the applicant submitted that a serious threat of execution had been cstablished by affidavit evidence under paragraphs 8 and 19 of the affidavit in support of the application and annextures D, E, J and K and the applicant had been served

with two applications for execution by way of arrest and detention in civil prison and a Notice To Show Cause Why Execution Should Not Issue had been served on the applicant. He added that if a warrant of arrest issues against him, he will suffer irretrievable and substantial loss in so far as he will be deprived of his right to liberty, albeit the pendency of the substantive application for stay of execution. 20

In reply, counsel for the respondent submitted that execution had already taken place as the principal sum in the decree that the applicants seeks to stay had already been paid in full but the applicant filed the instant application to deny the responclent from recovering its costs of the suit.

In ltrritson Miktibi us James Ssemusambwa, Citld'l Application No. OO9 of 2OO3 (SC), Mulenga, JSC, helcl with regard to an application for an interim order that:-

13 lPage

L5

5 "A partA seeking a staA of execution must satisfy the Court that there is suffi"cient cause whA the partg utith judgment should postpone the enjogment of its benefits. It is not sufficient for the judgment debtor to sag that he is uulnerable, becantse the successlftrl party may take out exeantion proceedings. It must be shoun that if execution proceeds there may be 10 some irreparable loss caused...

The Inteim Order ought to be made only in compelling circumstances, to preuent defeat of justice, and stictly pending ascertained hearing of a substantiue application by the full Court."

The respondent attached annexture "A" showing that the applicant had 1s indeed fulfitled his obligation by settling the entire principal sum. I therefore agree with counsel for the respondent that there was nothing to stay as the applicant had paid the entire principal sum. The respondent only seeks to recover his costs from the applicant.

The applicant filed an application for stay of execution in the High Court of 20 Uganda at Mbarara and the same was dismissed hence the instant application. I am of the view that by filing these numerous applications, the applicant is only denying the respondent from enjoying the benefits of his judgment. The applicant has not demonstrated that will suffer any irreparable loss should the respondent proceed to recover his costs. He merely deponed 2s that if a warrant of arrest issues against him, he will suffer irretrievable loss as he will be deprived of his right to liberty.

In the result, I decline to grant the interim order of stay of execution sought by the applicant.

14 lPage

The application is dismissed and costs shall abide the cause of the main $\mathsf{S}$ application.

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

$\mathcal{L}_{\mathcal{S}}$

Cheborion Barishaki

$10$

JUSTICE OF APPEAL