[1999] UGHC 59


## BEFORE THE HONOURABLE MR. JUSTICE G. TINYINONDI

## RULING

This was a notice of motion brought under section 101 of the Civil Procedure Act and 0.48, rr.1 and 3 of the Civil Procedure Rules. It sought an order of stay of execution inclusive of stay of taxation of the Respondents' bill of costs till the appeal in the Court of Appeal is disposed of.

These grounds were preferred, namely,

- $1.$ The Applicant intended to appeal against the whole decision of this Court delivered on 19/6/98 and had filed a notice of appeal dated $22/6/98$ for that purpose. - The Applicant applied for a copy of the proceedings of 2. this Court on $22/6/98$ , copies of which application were copied to the two Respondents. - 3. The intended appeal was likely to succeed.

The application was accompanied by an affidavit sworn by the Applicant. He deponed, inter alia, that the record of proceedings had not yet been supplied; that his Counsel had been served with a taxation notice dated $25/9/98$ for hearing on $6/10/98$ ; that if he is

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forced to sell his only plot 28 Factory Road, Ntinda LRV 1952 in order to pay the Respondents' bill of costs it will be very difficult to recover that amount and his taxed bill of costs from them in case his appeal succeeds.

The Respondents filed an affidavit in reply.

At the hearing Counsel for the Applicant stated that the application was based on the aforementioned section of the Civil Procedure Act and rules of the Civil Procedure Rules. He added Rule 5(2)(b) of the Court of Appeal Rules and Directions 1996 and 0.39, r.4 of the Civil Procedure Rules which were not cited in the notice of motion. He put reliance on JOSEPH OWOKO vs. E. MUGALU: 1976 HCB 332. He submitted that, firstly, the Applicant would suffer substantial loss if taxation of the 2nd Respondent's bill of costs, estimated at Shs.10,278,000/=, was not stayed because the Applicant would be forced to sell plot 28 Factory Road, Ntinda and the purpose of his appeal would be defeated. Second, that the notice of appeal was filed without any. Nor was there any delay in filing this notice of motion because the taxation notice was served on their firm on $28/9/98$ . Thirdly, that since this was not a decree for money in which case the Respondent could not say that he will suffer because he is not paid, if the appeal failed the Applicants' said plot 28 Factory Road, Ntinda would be sufficient security for the Respondents' costs. That on the other hand if the appeal succeeded and the Applicant would have sold plot 28 Factory Road, Ntinda, in settlement of the Respondents' costs it could prove difficult to recover that money; the Applicant would not have a chance of obtaining a plot in a similar location and putting up a similar building; and the Applicant would find it difficult to recover from the Respondents the costs of the appeal.

Counsel for the 2nd Respondent submitted as follows. He opposed the application on the ground that the mere fact that an appeal had been instituted did not automatically act as a stay of

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execution. As regards Counsel for the Applicant's contention that there was no delay, Counsel for the 2nd Respondent stated that it had not been revealed that the notice of appeal was served on the Respondents. Counsel referred to paragraph 3 of the affidavit in reply and submitted that it had not been controverted. That therefore the appeal was incompetent as was this application. Counsel referred both to Rule 75 of the Court of Appeal Rules and in RE. A J'OKELLO vs. M/S KAYONDO & CO., ADVOCATES.

Counsel for the 2nd Respondent further argued that the practice of this Court was to require an intending applicant to furnish security for the decretal amount or deposit in court of the Respondents' costs. That whereas there was no order of this Court for the decretal sum there was an order for costs. That therefore there was every reason to have the bill taxed so that the Applicant could know what to deposit or pay out.

Having heard Counsel and perused the parties' respective documents and the law I have come out with the following opinion. The law regarding stay of execution pending the determination of an appeal arising from the High Court appears to me to be as follows. The case of LAWRENCE MUSINITWA KYAZZE vs. EUNICE BUSINGYE: C. APPLICATION NO.18/90 was decided by the Supreme Court in February 1990. After an exhaustive discourse of the law the Supreme Court had this to say -

"... It is significant that express power to grant power to stay is given to the Supreme Court in Rule $5(2)$ (b) without any corresponding power given to the High Court in the Civil Procedure Act and its Rules.

Had the legislature wished to make provision for a stay of execution in the High Court that could have been done as UJJAGAR SINGH vs. RUNDH COFFEE ESTATES LTD: [1966] E. A.263 will illustrate such provision having been made in Kenya. For some reason such provision was not made in Uganda."

In passing I should mention that today appeals from the High Court go to the Court of Appeal of Uganda instead of the Supreme Court and the Rules of the Supreme Court were accordingly modified in their application to the Court of Appeal.

Back to the decision in $KYAZZE's$ case (ante). The Supreme Court went on further -

"The practice that this Court should adopt is that in general application for stay should be made informally to the Judge who decided the case when judgment is delivered. The Judge may direct that a formal motion be presented on notice (O. XLVIII,r.1) after notice of appeal has been filed --- The parties asking for a stay should be prepared to meet the conditions set out in Order XXXIX Rule 4(3) of the Civil . Procedure Rules ...."

The case of KAMPALA BOTTLERS LTD vs. UGANDA BOTTLERS LTD: CIVIL APPLICATION NO.25/95 was decided in August 1995. The distinguished Justices of the Supreme Court referred to the KYAZZE case (aute). They stated -

"The matter is governed by 0.39, r.4 of the Civil Procedure Rules ..... In our opinion once the above three conditions are fulfilled by the Applicant then the order of stay ought to be granted regardless of whether the appeal will fail or succeed."

The conditions under $0.39, r.4(3)$ are:

"(3). No order for stay of execution shall be made under subrule (1) or sub-rule (2) unless the court making it is satisfied -

that substantial loss may result to the party $(a)$ applying for stay of execution unless the order 'is

$made;$

- application has been made without $(b)$ that the unreasonable delay; and - that security has been given by the applicant for $(c)$ the due performance of such decree or order as may ultimately be binding upon him."

Let me try to fit the facts of the present application in the Ruling of the aforementioned Supreme Court and $0.39, r.4(3)$ (ante). According to the Court record the notice of appeal was filed on The present application was filed on $1/10/1998$ . $29/6/1998.$ Therefore according to the guidelines of the Supreme Court in KYAZZE's case (ante) the Applicant satisfied the procedure and there is no need for direction by this Court that he files a notice of motion application. Counsel for the Respondent asked me to rule that the Applicant had not revealed to this Court that the notice of appeal was served on the Applicant and that therefore the appeal was incompetent with the consequence that the present application was also incompetent. I do not wish to presume to make a ruling as requested by Counsel for the Respondent. I leave that issue for the Court of Appeal.

With regard to the requirements of $0.39$ , $r.4(3)$ (ante) I am satisfied that there is sufficient evidence that the Applicant will suffer substantial loss if a stay of execution is not ordered. He might be compelled to sell his property to meet the Respondents' costs. To get an offer of another plot of land, let alone in Ntinda, may prove illusory. To put up a structure of any magnitude may prove a nightmare. I am also satisfied that this application was made without delay. It was deponed that the taxation notice was served on the Applicant's advocates on 28/9/1998. This evidence was not controverted. The present notice of motion application was filed in Court on 1/10/1998. The third condition under 0.39, $r.4(3)$ is that security for the due performance of the decree and order as may be ultimately.binding on the Applicant must

have been given. I find that no such security has in fact been given. However, I am of the considered view that fundamentally this application is brought under Section 101 of the Civil Procedure Act. That section reserves in the courts inherent power

"to make such order as may be necessary for the ends of justice ....".

In the present case the Plaintiff intends to appeal against this Court's judgment. The decree involved $\mathbb{F}$ s not one for payment of money which would make the Respondent suffer because of delay. The decree involves plot 28 Factory Road, Ntinda, which could be a subject of attachment if the appeal failed. The ends of justice in this case call for security for costs to be deposited in court'.

I therefore make the following orders:

- The application for stay of execution, inclusive of the $1.$ taxation of the Respondents' bill of costs, is hereby allowed. - The Applicant shall deposit in Court the Certificate of 2. Title of unencumbered plot 28 Factory Road, Ntinda as security for the Respondents' costs pending final disposal of the appeal, if any. - 3. - The costs of this application shall abide the event of the appeal.

G. Tinvinondi JUDGE $31/03/99$

$31/01/99$

$\textsc{Kulumba}\xspace$ Kiyingi - for the Applicant Kangwamu - for the Respondents.

<u>Court</u>: Ruling delivered.

Deputy Registrar

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