[2024] UGHC 1216


### THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT KAMPALA

## (LAND DIVISION)

## **MISCELLANEOUS APPLICATION NO.0353 OF 2024**

## (Arising out of Taxation Application No. 017 of 2024)

(All arising out of Civil Suit No. 552 of 2021)

RASHID RUMAN ::::::::::::::::::::::::::::::::::::

### **VERSUS**

ANGURIA JOSEPH::::::::::::::::::::::::::::::::::::

## **BEFORE: HON LADY JUSTICE NABAKOOZA FLAVIA. K**

#### **RULING**

- 1. This application was brought by chamber summons under the provisions of Section 98 of the Civil Procedure Act, Order 22 rules 26 and 89(1) of the Civil Procedure Rules seeking the following orders: - a. An order for stay of execution be issued. - b. The taxation proceedings be stayed. - c. Costs of the application be provided for. - 2. The application is supported by the affidavit of Mr. Rashid Ruman. The grounds of the application are that the Respondent filed a bill of costs vide Taxation Application No. 0017 of 2024, arising from Civil Suit No. 552/2021, which was fixed for hearing on 20/03/2024; that at the time of filing the taxation application, the Applicant had lodged an appeal in the Court of Appeal vide Civil Appeal No. 1032 of 2023 which is pending determination. That the Respondent was served with all the appeal documents through his lawyers Soita & Co. Advocates who acknowledged service; and that the Applicant shall be prejudiced by the taxation which may lead to execution and his appeal shall be rendered nugatory.

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$-2024$

3. The Respondent opposed the application in his affidavit in reply wherein he raised preliminary objections. He stated that Civil Appeal No. 103212024 has no likelihood of success because the essential steps were not followed and that he has since filed Civil Application No. 14212024 in the Court of Appeal, awaiting endorsement and fixing of a hearing date, wherein he is seeking to have the said appeal struck out with costs. That the Applicant's appeal does not operate as a stay to bar him from filing his bill of costs which he rightly did. Further, that the Applicant has not demonstrated any ground warranting a stay of execution and taxation; and that there is no imminent danger of execution as there are no taxed costs to be executed at the moment.

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- 4. In rejoinder, the Applicant deposed that the application has been properly brought after following procedures under the law. That Civil Appeal No.1032/2023 has high chances of success and that the question of whether the mandatory steps of filing an appeal were complied with is a reserve of the Court of Appeal. That he shall be prejudiced by the taxation proceeding which is the first step of execution and that the Respondent shall not be prejudiced by the stay of taxation proceedings since Civil Appeal No. 1032 of 2023 shall determine all the rights and remedies of parties, including costs. - 5. Representation: The Respondent was represented by M/s Soita & Co. Advocates while the Applicant was represented by M/s JS Mayanja-Nkangi & Co. Advocates. Counsel for the parties filed written submissions which have been considered. - 6. The following issues were raised by the Respondent's Counsel for determination by this court; - i. Whether the Applicant has proved any grounds for staying the taxation of the Respondent's bill of costs in Taxation Application No. 017 of 2024? - ii. Whether the Applicant has satisfied the grounds for the grant of an order for stay of execution? - iii. Whether there are any remedies availab/e for the partie\*

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- 7. In the submissions, the Respondent's Counsel raised on 4 preliminary objections to the effect: - i. That the application is incompetent since it seeks redundant orders using alien procedures; - ii. That the affidavit in support of the application is fatal and incurably defective as it purports to seek an order for stay of execution where there is absolutely no application for execution filed on court record of issuance of execution; - iii. That the application does not disclose a cause of action against the Respondent requiring stay of taxation proceedings; - iv. The application is an abuse of court process and it should be dismissed with costs. - 8. Regarding the 1^st preliminary objection, the Respondent's Counsel submitted that the application was brought by way of chamber summons yet no law provides for stay of taxation to be brought by that procedure. Secondly, that the Applicant did not state any law upon which he relied on to apply for stay of the taxation of the Respondent's bill of costs as no such law exists. That the application is therefore incompetent and ought to be dismissed since the Applicant adopted an alien procedure. - 9. On the 2^nd preliminary objection, Counsel for the Respondent relied on **Obwatan** John Steven Vs Wakholi James & Ors, HCMA No. 0180/2022, where court cited the Supreme Court decision of Hwang Sung Industries Ltd Vs Tadjaudin Hussein & Ors Civ. Application No. 79 of 2008, and stated that "the general rule is that courts should not order for stay where there is no evidence of an application for execution of a decree; that an order for stay must exist from an existing application for execution". He also relied on the cases of Onyait Gabriel Vs Okiror Patrick HCMA No. 154/2022 and Chandiru Alice Vs Amandua Fenisto & 2 Ors HCCS No. 19/2014 for the argument that there is no pending application for execution on court record or any other court hence making this application premature, fatal and incurably defective.

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- 10. Regarding the 3'd Objection, the Respondent's Counsel relied on Order 6 rule 30 (1) of the CPR and submitted that, if the Respondent has not filed an applicatlon for execution, it follows that the application seeking stay of execution does not disclose a cause of action against the Respondent and ought to be dismissed. - 11. Regarding 4th preliminary objection, Counsel for the Respondent relied on the case of King's College Buddo Staff Savings Scheme Ltd Vs Lukanga Bosco Zaverio Samula (Civil Suit No. 2612020) citing the case of Muchanga Investments Ltd Vs Safaris Unlimited (Africa) Ltd & 2 Ors, CA No. 25|2OOO where court held 'that since the plaint did not disc/ose a cause of action against the defendant, the suit was frivolous, vexatious and an abuse of court process'. He submitted that since the application does not disclose any tenable cause of action against the Respondent and is incompetent for having been brought under an alien procedure, it is frivolous, vexatious and an abuse of couft process for that purpose and should be dismissed. - 12. In reply, the Applicant's Counsel relied on the Supreme Court decision of Osman Kassim Ramathan Vs Century Bottling Co. Ltd SC Civ. Application No. 35 of 2019 and argued that taxation is part of execution and constitutes eminent threat. That all the High court decisions cited by the Respondent's Counsel are not good law having been overruled by the Supreme Court in Osman Kassim Ramathan Vs Century Bottling Co. Ltd (supra). That this application was rightly brought under Order 22rule26 of the CPR since there is a pending appeal which may be prejudiced by the taxation proceedings. That the preliminary objections are baseless and should be disregarded for lack of merit.

# Resolution of the Preliminary Objection.

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13, With regard to the first preliminary objection, it is noted that the instant application was brought under Order 22 Rules 26 and 89(1) of the Civil Procedure Rules. Rule 26 provides that where a suit is pending in any court against the holder of a decree of the cout in the name of the person against whom the decree was passed, the court may, on such terms as to security or otherwise, as it thinks

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fit, stay execution of the decree until the pending suit has been decided; and Rule 89(1) provides for the procedure which is summons in Chambers.

- l4. According to the record of HCCS No. 522 of 2021, there is no order that stands to be executed save the order on costs. In view of that, it is evident that the provisions of the above laws do not apply to the facts of this case. Therefore, the application was brought under a wrong law and procedure. - 15. Nevertheless, the law enjoins courts to administer justice between the pafties without undue regard to procedural technicalities as provided for under Afticle L26 (2) (e) of the Constitution of the Republic of Uganda, 1995. Procedural technicalities include bringing an application under a wrong law or procedure. Thus, in Asiimwe vs Air Uganda & 2 Ors HCMA No. 74Ol2OL4 Madrama J. (as he then was) observed that "by using admittedly, the incorect form ie. by notrce of motion instead of chamber summons it does not invalidate the proceedings or render them incompetent so long as the High court has iurisdictron in the matter and no prejudice has been occasioned to the opposed party. The obiection on the ground that the application had been brought under a wrong law and procedure is overruled" ,

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- 16. In this case, the court has the jurisdiction to enteftain the application, and the Respondent has not proved any prejudice suffered. For that cause, I find that the fact that the application was brought under a wrong law and procedure is not ^a sufficient ground for rendering it incompetent. - 17. Similarly, in Thembo Gideon Mujungu Vs Mbuju Jackson HCMA No' 03/ 2023, Mugabo J. pointed out that 'an appea/ does not act as a stay of execution neither does it bar taxation of costs; a party that files an appeal or an application for review has to take an extra step of applying for stay of execution and if granteQ the taxation of costs and attendant execution may be halted'. ln addition, in Miscellaneous APPLICATION No' 1647 OF 2O221 Formula Feeds Limited & 2 Ors Vs KCB Bank Limited, Mubiru J observed thal "steps that demonstrate a serious expression of an intent to execute include; extracttng the decree,

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presenting and having a bi// of costs taxe4 applying for lssuance of a warant of execution and issuing a notice to show cause why execution shou/d not issue".

- 18. In this case, I agree with the Applicant Counsel's submission that filing a bill of costs in court is a step towards execution. For that cause, filing this application was a prudent step to halt the execution process. Besides that, execution is a process, and not an event. The Applicant is not expected to wait for issuance of a warrant of execution to apply for stay of execution. - 19. In view of the above, I find that the application is not seeking redundant orders. Consequently, the first preliminary objection is overruled. - 20. The above observations and finding automatically dissolve the rest of the preliminary objections in the negative. This is in view of the fact that they involve the argument that the application seeks redundant orders, which I have already found in the negative. Accordingly, the said objections are overruled as well. I shall now determine the merits of the application. - 21. The issues raised above are amended and merged into hvo, that is: - a. Whether the Applicant has met the conditions for grant of an order for stay of execution/taxation ? - b. What remedtes are available?

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Issue No.l: Whether the Applicant has met the conditions for grant of an order for stay of execution/taxation proceedings ?

- 22. Order 43 Rule 4 (3) of the Civil Procedure Rules, relied on by the Respondent's Counsel, provides conditions which must be satisfied for couft to grant a stay of execution. Since taxation is a step towards execution, the court shall rely on the same conditions mutatis mutandi. The conditions are: - 1. That substantia/ /oss may result to the app/icant unless the stay of execution is granted; - 2. That the application has been made without unreasonable delay; and - 3. That the applicant has given security for due performance of the decree or order as may ultimately be binding upon him.

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- 2l. The above conditions were re-echoed by the Supreme Court in Dr. Ahmed Muhammed Kisuule vs. Greenland Bank (In Liquidation) SCCA No.07 of 2010; Lawrence Musiitwa Kyazze vs. Eunice Busingye, Civil Application No. 18 of 1990. - 24. It is noted that similar conditions are stated by several other authorities, say; Kyambogo University vs Prof. Isaiah Omolo Ndiege CACA No.341 of 2013. However, the court shall consider the said similar conditions either expressly or impliedly under statutory conditions provided by O.43 Rule 4(3) of the Civil Procedure Rules SI 7L-L as reproduced above. - 25. Regarding the first condition, in Tropical Commodities Supplies Ltd & Others vs International Credit Bank Ltd (In Liquidation) t20041 2 EA 331, it was held that:

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The phrase substantial loss does not represent any particular amount or size; it cannot be qua/ified by any partrcular mathematical formula. It refers to any loss great or sma//: of real worth or value as distinguished from a /oss that is merely nomina/.

- 26. I have perused the Applicant's affidavit in support and the annexures but found no assertion demonstrating any loss which cannot be quantified by any paticular mathematical formula which may befall him. Besides that, as noted before, there is nothing executable vide HCCS No.522 of 2021 except costs. This then implies that the orders in that suit, if taxation is complete, will involve payment of money only. - 27.fhus, in Formula Feeds Ltd & Others vs KCB Ltd M/A No.1647 ol 2022, court properly observed that execution of a money decree is ordlnarlly not stayed since its satisfaction does not amount to substantial loss to the Applicant; and that where the Respondent is not impecunious, the remedy to the Applicant would be restitution in the event the appeal succeeds.


- 28. In this case, there is no proof that the Respondent is impecunious. Therefore, I agree with his Counsel that the Applicant has not demonstrated any substantial loss hence, failure to fulfill this condition. - 29. As regards the second condition, I am convinced that the application was filed within reasonable time. This is so because it was filed about three weeks after the application for taxation was filed by the Respondent (on 20th of February, 2024, the latter application having been filed on 24th of JanuarY,2024). For that cause, I find that the second condition has been satisfied. - 30. Regarding the third condition, there is no indication that the Applicant has furnished security for due performance of the decree as may ultimately be binding upon him. The Respondent's Counsel rightly submitted on this.

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- 31. Nevertheless, over a time, Courts have reasoned that the third condition is not mandatory; and that in deciding whether or not to order compliance with the condition, each case must be determined on its merits (Steve Sahabo vs. Larissa Kaneza HCMA No.524 of 2019). The courts have always propounded that "fre decision whether to order for security for due peiormance must be in consonance with the probabi/ity of success of the appeal' (Kawanga vs. Namyalo & Anor; H. C. M,A No.12 of 2017). This view is premised on the need to guard against the filing of frivolous and vexatious appeals which may never succeed and yet have an effect of escalating the costs of litigation, as the Respondent and his Counsel have lndicated. - 32. Thus, in the absence of evidence that the Applicant has furnished security for due performance of the decree as may ultimately be binding upon him, he or she must demonstrate that the intended appeal has a likelihood of success. - 33. Counsel for the Respondent relied on Formula Feeds & 3 Ors Vs KCB Bank Ltd (HCMA No. 1647 of 2023) and submitted that although the Applicant lodged Civil Appeal No. 1032 of 2023, he has not demonstrated the likelihood of success, and that the mere mentioning of an appeal does not accord it that status. He added that the couft must be satisfied that the Applicant's Appeal raises a prima facie case with likelihood of success; and should find that this condition has not been met.

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- 34. In rejoinder, the Applicant submitted that Civil Appeal No. 1032 of 2023 has high chances of success. That the plaint disclosed a cause of action and that the trial judge made an error which occasioned a miscarriage of justice. - 35. I have had the benefit of perusing the Applicant's memorandum of appeal and the grounds therein. Beyond that, the Applicant has not sufficiently demonstrated in this application how any of the grounds alluded to will likely succeed. Thus, it is difficult for me to consider if his appeal has a likelihood of success, as the Respondent's Counsel has argued. Accordingly, I find that the last condition has not been proved. - 36. In conclusion, the first issue is found in the negative.

#### 37. Issue No.2: What remedies are available?

- 38. Without prejudice to the finding above, the court is inclined to invoke its inherent powers under Section 98 of the Civil Procedure Act Cap.71, under which the application was brought, and nevertheless grant the application on condition that the Applicant provides security for due performance of the decree/order which may ultimately be binding on him. - 39. In the absence of a taxed bill of costs, the Applicant shall furnish Ugx.10,000,000 (ten million shillings) as security for due performance of the order/decree as may ultimately be binding upon him within 60 days of this ruling, lest the application shall stand dismissed. - 40. The said monies shall be deposited on the Official account of Registrar, High Court and receipt exhibited to this court. - 41. I make no orders to costs let each party bear their own costs.

Signed, dated and delivered at Kampala this $\frac{2}{\sqrt{3}}$ day of $\sqrt{10}$

Nabakooza Flavia. K

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