[2023] UGCA 158

#### ⁵ THE REPI'BLIC OF UGANDA

## II{ THE COURT OF APPEAT OF UGANDA AT KAMPAIA

#### CIVIL APPLICATIOI{ NO. 145 OF 20123

## (Aristng from COA-OO-CA-O 1 3 1 -20231

# /AR STIf OUT OF HGtt COTIRT C|WL SuIT NO.93O OF 2022)

#### JUNACO lT) LTMTTED 1

- JUSTINIAN LAIUBERT 2 - VEDASTINA JUSTINIAN 3 . APPLICANTS

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#### VERSUS

#### DFCU BANK LIMITED RESPONDENT

## CORAM: HON. MR. JUSTICE OSCARJOHN KIHIKA, JA

## fsrrvclE JUsTrcE)

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#### RULII{G

This application is brought under Rules 2 (2l,(bl,6(2)(bl,a4(1) and 53(2)(b) of the Judicature (Court of Appeal Rules) Directions, for an order of stay of execution of the partial judgment of the High Court in Civil Suit No.93O of 2022 pending the hearing and determination of the appeal under DRFT-COA-OO-CV-CA-0769- ,occ

#### JURISDICTION

The jurisdiction of this Court to grant a stay of execution is set out io Rulc 6(2) (b) and Rule 2(2) oJ the Rules o.f th{s Court which mandates the Court to grant a stay of execution, an injunction or order a stay of proceedings on such terms as the Court may deem ht. This Court has inherent powers to make such orders as may be necessary for attaining the ends ofjustice.

This is a substantive application for the grant of an order of stay of execution, that is being entertained by a single judge of this Honourable Court. This court has in the case of Uganda Revenue Authority Vs Natlonal Soclal Securlty Fund Civtl Appllcatlon No. 43 of 2o23 held that a single justice of appeal, does 2(

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5 have jurisdiction to hear and determine this substantive application for stay of execution.

### Background

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The background to the application, as can be determined from the pleadings, is as follows;

- 10 The Respondent filed a summary suit vide HCCS 930 of 2022 for the recovery of UGX 12,817,499,272 (Uganda Shillings Twelve Billion, Eight Hundred Seventeen Million, Four Hundred Ninety-Nine Thousand, Two Hundred Seventy-Two) from the Applicalts. This claim arose from three facilities that were advanced to the 1"t Applicant by the Respondent. - 15 The Applicants filed Misc. Application No.1560 of 2022 for leave to appear and defend HCCS 93O of 2022 disputing the amounts claimed by the Respondent.

When Misc. Application No. 1560 ol 2022 came up for hearing on the 25th of November 2022, the learned trial judge Hon. Justice Stephen Mubiru, entered partial judgement for the Respondent in the sum of UGX 5,478,421,OT | (Uganda

20 Shillings Five Billion, Four Hundred Seventy-Eight Million, Four Hundred Twenty-One Thousand and Seventy-One).

The Applicants being dissatisfied with the partial judgement, hled a notice of Appeal and a letter requesting for a record of proceedings.

- 25 In the meal-time, Respondent commenced execution proceedings against the Applicants under EMA Nos. 002 and 003 of 2023 in which it sought to garnishee the lst Applicant's funds held with National Water and Sewerage Corporation. The Applicants applied to the High Court of Uganda for an order of stay of execution, however the said application was dismissed by Hon. Justice Stephen Mubiru on the 29th of March 2023. - 30 The Applicalts now seek an order for stay of execution of the partial judgment and orders issued by the High Court in HCCS No.930 of 2022 pending the final disposal of the appeal under DRFT-COA-00-CV-CA-0769-2022.

The grounds of the application for stay of execution, as stated in the Notice of Motion and affrdavit in support of the application sworn by Lambert Justlnlan on the 3rd of April 2023 are as follows;

L Tfe Applicants intend to appeal against the partial judgment of Justice Stephen Mubiru deliuered on 25h Nouember 2O22.

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That a notice of appeal and letter requesting for a record of proceedings $\mathsf{S}$ $I\!I.$ have since been filed and the intended appeal falls under DRFT-COA-00-CV-CA-0769-2022.

$I\!I\!I.$ That the Respondent has applied for execution of the order of Court under *EMA Nos. 002 & 003 and seeks to garnishee the Applicants' funds held with National Water and Sewerage Corporation.*

$I V.$ That the Applicants applied for stay of execution pending appeal of the partial judgement, the same was dismissed on the 29^th day of March *2023 by the trial judge.*

- $V.$ That the Applicants now seek a stay of execution of the order of Court pending appeal under DRFT-COA-00-CV-CA-0769-2023. - VI. *The intended appeal has high chances of success and it will be rendered nugatory if the stay of execution is not granted.* - VII. The Applicants will suffer substantial loss and injury if the stay of *execution is not granted.*

$\cdot\,$

*This application has been brought without unreasonable delay.* VIII.

The Respondent filed an affidavit in reply deponed by **Lilian Namusisi** on the 24^th of April 2023, opposing the application. The grounds for opposition, as set out in the affidavit in reply, can be surmised as follows;

- *I.* The pending appeal has no likelihood of success nor is there anything pleaded to demonstrate high likelihood of success of the appeal. - $I\!I.$ *Partial judgement of UGX 5,478,421,071(Uganda Shillings Five Billion,* Four Hundred Seventy-Eight Million, Four Hundred Twenty-One Thousand and Seventy-One) was entered on admission by the Applicants by the trial court in Misc. Application No. 1560 of 2022. - $III.$ There is no evidence that the Applicants will suffer substantial loss by complying with the order to pay the sums of money in Misc. Application No. 1560 of 2022.

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- $I V.$ *The Applicants aver that the persons to suffer loss are National Water* $\mathsf{S}$ and Sewerage Corporation, United Bank for Africa and the citizens of this country who are not party to the main suit HCCS No. 930 of 2022: DFCU *Bank Limited Vs. Junaco (T) Limited & 2 others.* - $V$ . The matters raised by the Applicants regarding third party claims are 10 within the jurisdiction of the execution court and ought to be raised by *the garnishee.* - VI. The Applicants have not presented nor undertaken to present any *security for due performance of the order as required by law.* - VII. *Granting this application will greatly prejudice the Respondent who must make provisions for the outstanding sums.* - At the hearing of this application, Davis Tusingwire and Jagwe Ibrahim 20 appeared for the Applicant, while the Respondent was represented by **Andrew** Munanura. The Respondent's officers Mr. Muhammed Lusiba and Ms. Lilian **Namusisi** were present in court.

Both parties, filed written submissions which were adopted by the Court.

#### 25 Applicant's submissions

Counsel for the Applicants submitted that the law governing applications for stay of execution are set out under Rule 6(2) (b), of the Rules of this court. They stated that Rule $6(2)(b)$ gives the court discretion to stay execution in civil proceedings where a notice of appeal has been lodged in accordance with Rule 76 of the Rules of this court.

Counsel relied on the decisions of **Gashumba Vs Nkudiye Civil Appeal No. 24** of 2015 and Dr. Ahmed Muhammed Kisuule Vs Greenland Bank (In **Liquidation)** in which the Supreme Court held that if a court was to grant an application for stay of execution, the Applicant must establish that the appeal has a likelihood of success, or that a prima facie case of his right to appeal exists; an Applicant will suffer irreparable damage or the appeal will be rendered nugatory if a stay is not granted and that the application was instituted without delay.

5 Counsel then submitted that the question for consideration by this court is to determine whether the Applicants have adduced sufficient reasons to justify grant of a stay of execution.

Counsel for the Applicants addressed the court on the considerations for the grant of an order for stay of execution.

Counsel in a nut shell submitted that the Applicants' appeal raises issues which merit consideration by the court. Counsel argued that a careful consideration of the Application and supporting affidavit show that the learned trial judge passed judgement without an account of the transaction which was necessary to determine the dispute. 10

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Counsel relied on the case of Gashumba Vs Nkudlye Ctvtl Appeal lto. 24 of 2O15 for the proposition that even though the court is not deciding the appea.l, it must be satisfied that the appeal raises issues which merit consideration by the court.

On the issue of irreparable damage, Counsel referred to Black's Law Dictlonary, 9th Edltlon at page 447 which defined "irreparable damage" to mean; 20

## odam.ages that cannot be ea.sllg ascertalned becquse there ls no fixed pecunlary standard. nt e a.surc ment'

Counsel argued that the l"t Applicant had a relationship with National Water and Sewerage Corporation to which it supplies materials necessary for the performance of its statutory duties, and that the successful performance of the same was based on the Applicants delivering the materials using funds from the statutory body. Counsel further argued that the Applicants' operations would be stifled if the stay were not granted and that if the stay were not granted the Respondent would have benefited where it shouldn't benefit. 25 30

Counsel further submitted that the Applicants had demonstrated their dissatisfaction with the partial decision on ground of absence of arr account, then the appea-l would likely be rendered nugatory.

On the consideration regarding balalce of convenience, Counsel relied on the learned author Musa Ssekaana who in his book Clvll Procedure and Practice in Uganda 2"d Edltlon at page 263 noted: 35

#### "The Court must be satisfied that the comparative mischief, hardship or $\mathsf{S}$ inconvenience which is likely to be caused to the applicant by refusing the injunction will be greater than that which is likely to be caused to the opposite party by granting it."

Counsel then asserted that there was sufficient evidence from the Applicants that the balance of convenience was in their favour since execution of the order 10 of Court without determination of the appeal would cause inconvenience to the Applicants.

Finally, Counsel submitted that the present application had been instituted without delay and provided the time lines within which this application had been brought. Counsel concluded by submitting that this was a proper case for the grant of a stay of execution order.

#### **Respondent's submissions**

Counsel for the Respondent started off by contending that the Court must balance the interest of the judgement creditor to enjoy the benefits of his/her litigation and the appellant(s) right of appeal. He relied on the case of **Wilson** Mukiibi Vs. James Ssemusamba Civil Application No. 9 of 2003 (SC).

Counsel agreed with Counsel for the Applicants on the grounds that must be satisfied for the grant of a stay of execution as cited in the case of **Gashumba Vs** Nkudiye Civil Appeal No. 24 of 2015. Counsel however contended that the Applicants did not only fail to fulfill the conditions but had failed to show 25 sufficient cause why the Respondent should postpone the enjoyment of the benefits of the partial judgement.

Counsel for the Respondent then addressed the court on the conditions required for the grant of an order of stay of execution.

- With regard to prima facie case Counsel was of the view that the Applicants had 30 not established a prima facie case. He submitted that the Applicants had not attached a memorandum of appeal to their affidavit in support nor even stated their grounds of appeal therein for the court to determine the chances of success. Counsel relied on the case of **Uganda Revenue Authority vs National Social** - Security Fund Civil Application No. 43 of 2023 for this argument. 35

With regard to substantial loss/irreparable damage, Counsel for the Respondent argued that the Applicants had not supplied material to the court to establish substantial loss. Counsel again relied on the case of **Uganda Revenue Authority** vs National Social Security Fund Civil Application No. 43 of 2023 which held

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that an Applicant for stay of execution would fail on this ground if there is no material before the Court by way of evidence to demonstrate irreparable damage.

Counsel argued that a perusal of the Applicants' affidavit reveals that the persons to suffer loss are National Water and Sewerage Corporation and United Bank for Africa who are not party to H. C. C. S 93O of 2o22 DFCU Bank Vs

- Junaco(Tl Llmlted & 2 Others nor the pending appeal. Counsel further argued that paragraphs 9 and 13 of the Applicants' affidavit in support are at conflict. The money held by National Water and Sewerage Corporation cannot be for purchase of water treatment materia-i and at the same time belong to United Bank for Africa. He contended that the Applicants would not suffer any loss. 10 - With regard to the balance of convenience, Counsel for the Respondents submitted that the balance of convenience in this case favours the Respondent who lent money to the l"t Applicant, whose repayment is now at stake. Counsel further relied on the case of Uganda Revenue Authorlty vs Natlonal Social Securlty Fund Civll Appllcatlon No.43 of 2o23 which held that in the absence of any document indicating the grounds of the grounds of the intended appeal on record, the balance of convenience favours the Respondent which has a judgement in its hands. 15 20

Counsel also reiied on the case of Shumuk Properties Ltd Vs Guaranty Trust Bank (Uf Ltd Ctvtl Appllcatlon No. 22O of 2O18 where the court found that the balance of convenience tilted in favour ofthe bank because the Respondent Bank had financial capacity to pay and the Respondent was being deprived of money it lent as well as money it uses to provide loans. 25

Counsel additionally argued that the Applicants had not presented nor undertaken to present any security for due performance of the order as required by the law. He relied on the case of Lawrence Muslltwa Kyazze vs Eunlce Buslngye SCCA No. 18 of 1990 for this proposition.

Finally Counsel submitted that this application had been brought in bad faith given that the intended garnishee process arose from an admitted debt.

## Applicants' Submisslons ln reJolnder

On the issue prima facie case, Counsel for the Applicants argued that Rule 6(2)(b) the Judicature (Court of Appea-l) Rules does not envisage a memorandum of appeal being lodged with the application and is not a consideration while considering applications of this nature.

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$\mathsf{S}$ On the ground of substantial loss/irreparable damage, Counsel argued that whereas the Respondent had argued that even if money was paid out to it and it lost the appeal, it had capacity to refund it, there was no evidence of the Respondent's ability to pay nor documentation of its financial standing.

On the issue of balance of convenience, Counsel argued that the facts in the case of Uganda Revenue Authority vs National Social Security Fund Civil 10 **Application No. 43 of 2023** were distinguishable from the present application. Counsel argued that the record and memorandum of appeal had been filed on the 17^th day of April 2023 both on ECCMIS and Court Registry. Counsel submitted that memorandum of appeal was therefore on record.

With regard to the matter of security for due performance Counsel argued that 15 Rule $6(2)(b)$ the Judicature (Court of Appeal) Rules does not mention any condition for security for due performance and that the case of Lawrence Musiitwa Kyazze vs Eunice Busingye SCCA No. 18 of 1990 was distinguishable as the judges in that case were resolving an issue regarding a stay of execution filed in the Supreme Court before the same has been heard by 20 a judge of the High Court.

Lastly, on the issue of the application having been brought in bad faith, Counsel for the Applicants argued that this was not the case. The Applicants are contending that payments to the bank were made over and above the facilities provided to the tune of UGX 3,005,960 539 (Uganda Shillings Three Billion, Five 25 Million Nine Hundred Sixty Thousand Five Hundred Thirty-Nine). Counsel further argued that the Applicants are aggrieved by the partial judgement delivered and seek an audit to ascertain the amounts owed.

#### 30 Consideration of the Application

As stated before, the law governing grant of a stay of proceedings, an injunction or stay of execution is basically rule $6$ (2) (b) of the Rules of this Court. This rule empowers this court, in civil proceedings, where notice of appeal has been lodged in accordance with rule 72 of the Rules of this Court, to order a stay of proceedings, stay of execution or grant an injunction.

The power granted to this court by rule $6(2)$ (b) is discretionary and, as has been decided severally, this discretion must be exercised judiciously and on wellestablished principles.

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The principles governing the exercise of the discretion conferred by rule $6$ (2) (b) $\mathsf{S}$ have been laid down by a number of cases.

The Supreme Court of Uganda in the case of Hon. Theodore Ssekikubo & Others vs Attorney General & Others Constitutional Application No. 6 of 2013, re-stated the principles to be as follows;

10 "(1) Applicant must establish that his appeal has likelihood of success; or a prima facie case of his right of appeal.

# (2) That the applicant will suffer irreparable damage or that the appeal will be rendered nugatory if a stay is not granted.

# (3) If 1-2 above have not been established, Court must consider where the balance of convenience lies."

The principals above stated lay down the conditions precedent that have to be met before court can exercise its discretion to grant an order for stay of execution.

The question to be determined by this court is whether the Applicants have satisfactorily met these conditions precedent. The issues hereinafter framed are aligned to the conditions precedent to be met for this Court to exercise its discretion.

#### 1. Whether the Applicant has established a prima facie case of its right 25 of appeal or likelihood of success.

I have carefully read the submissions by counsel for the Applicant and the Respondent, the affidavits on record and the law, regarding this issue.

The grounds, as stated by the Applicants in the Notice of Motion and the supporting affidavit, are stated to be as follows;

- $\boldsymbol{I}.$ The Applicants intend to appeal against the partial judgment of Justice Stephen Mubiru delivered on 25^th November 2022. - $\boldsymbol{II}.$ That a notice of appeal and letter requesting for a record of proceedings have since been filed and the intended appeal falls under DRFT-COA-00-CV-CA-0769-2022.

- $\boldsymbol{III.}$ That the Respondent has applied for execution of the order of $\mathsf{S}$ Court under EMA Nos. 002 & 003 and seeks to garnishee the Applicants' funds held with National Water and Sewerage Corporation. - That the Applicants applied for stay of execution pending appeal 10 $IV.$ of the partial judgement, the same was dismissed on the $29^{th}$ day of March 2023 by the trial judge. - $V$ . That the Applicants now seek a stay of execution of the order of Court pending appeal under DRFT-COA-00-CV-CA-0769-2023. - $VI.$ The intended appeal has high chances of success and it will be rendered nugatory if the stay of execution is not granted. - $VII.$ The Applicants will suffer substantial loss and injury if the stay of execution is not granted.

## VIII. This application has been brought without unreasonable delay.

25 The Applicants, in ground VI of the Notice of Motion, have stated that their appeal has got high chances of success. This is also reflected in paragraph 14 of the affidavit in support of the application which states thus;

## "That the pending appeal has a high likelihood of success and the same will be rendered nugatory if a stay is not granted"

- 30 Counsel for the Applicant in his submissions, argued that a careful consideration of the Application and supporting affidavit show that the learned trial judge passed judgement without an account of the transaction which was necessary to determine the dispute. I have carefully read the application and the supporting affidavit. There is nothing contained in the supporting affidavit that supports - Counsel's assertion that there is evidence to show that the learned trial judge 35 passed judgement without an account of the transaction. No such evidence was proffered.

The Applicants may have indeed stated that their appeal has a high likelihood of success, they however are required to go beyond making mere statements.

40 It is incumbent upon applicant(s) in circumstances such as these to properly articulate and demonstrate that they have an arguable case on appeal. In order

5 to do so, the Applicants must avail to the Court, via affidavit, the ruling or judgement which is the subject of appeal and a draft memorandum of appeal.

In the case of Osman Kassim Vs Century Bottling Company Ltd Civil Appeal **34 of 2019**, the Supreme Court of Uganda stated thus;

"It is trite that in order to succeed on this ground, the Applicant must, apart from filing the Notice of Appeal, place before Court Material that 10 goes beyond a mere statement that the appeal has a likelihood of success........the Applicant did not find it necessary to attach to his affidavit in support of the application a draft Memorandum of Appeal to indicate the proposed grounds of appeal....the important questions are not even mentioned in his affidavits so as to give court an idea about the 15 possible ground of his intended appeal. We are in the circumstances unable to establish the likelihood of success in the absence of evidence"

The Applicants in the instant case did not attach the Memorandum of Appeal nor did they deem it necessary to attach the decision of the High Court from which their appeal arises. Counsel for the Applicants, in submissions in 20 rejoinder, argued that the Memorandum of Appeal had been filed on ECCMIS and that therefore it was on record for Court to consider.

I respectively disagree with Counsel for the Applicants. In an application such as this, Court considers the Notice of Motion and the supporting affidavit that are before it. Court is not expected to go on fishing expeditions on behalf of the Applicants in search of evidence.

Section 103 of the Evidence Act squarely lays such burden on the Applicants. It provides as follows;

## "103. Burden of proof as to particular fact

The burden of proof as to any particular fact lies on that person who 30 wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person."

It is the Applicants who have to satisfy Court that they have a prima facie case on appeal. In order to do so they ought to have provided the necessary evidence.

The Supreme Court in the case of **Gashumba Maniraguha vs Sam Nkudiye Civil** 35 Application No. 24 of 2015, in effect held that the likelihood of success, is the most important consideration in an application for stay of execution. Therefore, it is incumbent upon the Applicant to avail evidence, or material to the court in

⁵ order for it to establish whether or not the Applicant has a prima facie case on appeal.

The circumstances of the Osmen Kessim case (supra/ are very similar to the application now before this court. Apart from the statement that the Applicants' appeal has high chances of success there is nothing else that has been provided. The Applicants have not even mentioned the important points of law in their

affidavit. The points of law were raised in the Applicants' submissions.

However, as I held in the case of Uganda Revenue Authority v8 Natlonal Soclal Securlty Fund Civtl Appllcatlon No. 43 of 2023, and do so reiterate the point in this instance, submissions of Counsel are not evidence, the Court cannot go by Counsel's submissions alone.

In the circumstances I would therefore hnd that the Applicants have failed to establish a prima facie case on appeal or likelihood of success.

# 2. Whether Appllcent wlll euffer lrreparable damage or that the eppeal wlll be rendered nugetory lfa stay ls not granted.

Counsel for the Respondents referred me to Black's Law Dlctionaryr 9th Edltlon at page 447 which defined "irreparable damage" to mean;

#### 25 oda ntages thc:t calrnot be easllg ascertalned because there ls no fixed pecunlary standard, rrnc asu"e rne nt,

This definition of irreparable damage has long been adopted by our courts. In my understanding, the applicant has to show that the damage bound to be suffered is such that it cannot be undone. No amount of monetary recompense can restore the injured party to the position he or she was before the damage was visited on the individual.

In the instant case, the subject matter sought to be preserved is pecuniary. It has a measurable value. The Applicants seek to prevent the Respondent from recovering UGX 5,478,42 1,071(Uganda Shillings Five Billion, Four Hundred Seventy-Eight Million, Four Hundred Twenty-One Thousand and Seventy-One).

The Respondent is a bank which is in the business of dispensing loans. It would be incumbent upon the Applicant to prove, on the balance of probabilities, that if no stay of execution were granted, and the Respondent were allowed to 35

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garnishee these monies, there would never be any chance of recovery from the 5 same.

In the case of Sulaiman Muwonge Vs AG Constitutional Application No. 07 **of 2012** it was held that: $\mathbf{0}$

"The burden is upon the applicant to convince court, that, if a temporary 10 injunction is not granted, he is likely to suffer irreparable damage in respect of which he cannot be adequately compensated by way of monetary damages."

I have carefully read the Notice of Motion and the affidavit in support of thereof. 15 The evidence touching on the issue of irreparable damage is to be found in paragraphs 9 to 13 which are reproduced below:

"9. That the Applicants are likely to suffer substantial loss and injury if the execution is not stayed because the Respondent will garnishee funds in the possession of National Water which funds are used inter alia to purchase water treatment chemicals

10. That the relationship between the $1^{st}$ Applicant and the garnishee is that the $1^{st}$ Applicant supplies water treatment chemicals, water pumps, 25 water meters to the garnishee who in turn supplies safe water to Ugandans.

11. That this relationship and the duty to supply safe water to Ugandans $\bullet$ by National Water the inconvenience of many Ugandans who depend on the services of National Water unless execution is stayed pending appeal.

12. That the threat of execution is imminent and if not stayed it will disrupt the operation and business of the $1^{st}$ Applicant and the operation of National Water & Sewerage Corporation in dispensing its mandate to Ugandans.

13. That not only will the operation of National Water be disrupted, but that the money sought to be garnished belongs to United Bank of Africa (Tanzania) Ltd. [Herein annexed is a copy of a demand letter to NWSC marked RX7]"

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Applying the definition of irreparable damage earlier provided to the facts, I have $\mathsf{S}$ been unable to find from the above paragraphs what irreparable damage the Applicants are likely to suffer if the order for stay of execution is not granted. What I see, are complainants or pleas on behalf of entities and the Ugandan public which are not parties to this application, as Counsel for the Respondent rightly pointed out in his submissions. 10

The Applicants, in my view have failed to discharge the burden of proving that they are likely to suffer irreparable damage in respect of which they cannot be adequately compensated by way of monetary damages. I am therefore unable to find that the Applicant will suffer irreparable damage.

With regard to whether or not the appeal will be rendered nugatory if the stay of execution is not stayed, the Applicants have satisfactorily proved that there is indeed eminent danger of execution of the partial decree that was passed by the lower court. However, I am unable to find, as stated before, that there is a prima facie case on appeal. Such an appeal would not in my view be rendered nugatory.

### 3. Balance of Convenience

25 In the **Osman Kassim** case (supra), the Supreme Court had this to say when it was considering the issue of balance of convenience;

"The status quo is that the Court of Appeal has dismissed the applicant's appeal with costs to the respondent. He is in the process of filing an appeal to this Court against that decision. However, in the absence of any 30 document indicating the grounds of the intended appeal on record, we are of the view that the balance of convenience favours the respondent which has a judgment in its hands"

- I take guidance from and are indeed bound by the approach adopted by the 35 Supreme Court as it considered the issue of balance of convenience in the circumstances of the facts that were before it. I say so, because the circumstances pertaining to this application are not too dissimilar to those that pertained in the **Osman Kassim** case (supra). - 40

Counsel for the Applicants, in his submissions in rejoinder had argued otherwise. However, as noted earlier, the Applicants did not submit in evidence, as required by the Evidence Act, any document that would have afforded this Court the benefit of the grounds of the appeal.

$\mathsf{S}$ The Applicant has filed a Notice of Appeal and that is not in issue. However, according to paragraph 5 of the Applicants' affidavit its deponed;

#### "5. That to date the Applicants have never been supplied/provided with the said record of proceedings to enable us prepare the memorandum of 10 appeal."

The Applicants by their own admission have not prepared a memorandum of appeal. That, I my view did not prevent them from providing a draft memorandum of appeal so as to help the court determine whether or not the intended appeal had a likelihood of success.

That being the case, this Court is of the view that the balance of convenience does favour the Respondent which has a judgement in its hands.

#### **Conclusion and Orders** 20

Given the findings above, I find no merit in the application and order as follows;

1. The application is dismissed.

- 2. The administrative interim order that was entered by consent of both parties on the 26^th of April 144 2023 in Misc. Application No. 144 of 2023 is hereby vacated. - 3. The costs of this application shall abide the outcome of the appeal. 30

I so order

Dated this ........ $05$ th....................................

JUSTICE OF AP

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