[1988] UGSC 4


AT MENGO

MANYINDO, D. C. J; ODOKI, J. S. C.; and ODER, J. S. C.) (CORAM: CIVIL APPLICATION NO. 11 OF 1988 Stay neveridici

**BETWEEN**

SOMALI DEMOCRATIC REPUBLIC .............. APPLICANT AND

ANOOP SUNDERLAL TREON ................. RESPONDENT

mus (come), receiving RULING OF ODER, J. S. C.

This is an application by Notice of Motion under rule 5 of the Rules of this Court, by which the applicant seeks a stay of execution of the decree in High Court Civil Suit No. 976 of 1987, in which the applicant was the unsuccessful defendant and the respondent the successful plaintiff. We heard the application on 4.11.1988 and granted it, but reserved our reasons, as were died those of a preliminary point of objection which was raised by the Counsel for the respondent. WE will now give my reasons, beginning with those on the preliminary point of objection.

The point of objection was that the decree sought to be stayed was not extracted and annexed to the Notice of Motion when it should have been done, according to whe Counsel for the respondent. In the absence of the decree, according to Counsel, this court is being asked to stay a decree which does not exist. For that reason this application should be dismissed. To this objection, Ir. Kateera, Counsel for the applicant, replied that rule 5 under which this application is-brought does not stipulate that the decree sought to be stayed should first be extracted. We accepted Mr. Kateera's arguments and dismissed the respondent's first objection. The Rule under which this application was brought states as follows:

"5(1) No sentence of death or coporal punishment shall be carried out until the time for giving notice of appeal has expired or, where notice of appeal has been given, until the appeal has been determined.

Subject to the provisions of subrule (1), $(2)$ the institution of an appeal shall not operate to suspend any sentence or to stay execution, but the court may -

$(a)$ **.....................**

in any civil proceedings, where a notice $(b)$ of appeal has been lodged in accordance with rule 74, order a stay of execution; on such terms as the court may think just."

It is clear that there is no requirement in this rule that an application for a stay of execution pending appeal should be accompanied by the decree in question. Nor, apparently, is such a requirement laid down in any other law or decided authority. Rule 5 may be contrasted to rule $85(1)$ (h), which states that for the purposes of an appeal from a superior court in its original jurisdiction, the record of appeal shall contain copies of certain documents, including the decree or order. In the instant case, although a copy of the decree did not accompany the Notice of Motion, a copy of the judgment did; and we consider that the judgment-sufficiently informs this court about the decree which is sought to be stayed. There was no merrit in this objection; and thats why we rejected. U

WIT now turn to the main application. The main ground of the application is that disposal of the appeal which the applicant intends to institute against the judgment of the lower court in that suit may take a longer period than that in which the applicant was ordered to vacate the suit premises (hereinafter called "the house"). To the Notice of Notion are attached two affidavits, both dated 27.10.1988; one deponed to by Mr. Kateera as Counsel for the applicant and the other by one Mohamed Abdulkadir Warsame, Charge de Affairs of the applicant Embassy. Particulars of the grounds of this application are to be found in these affidavits. They are to the effect that the applicant has filed a notice of appeal dated 31.10.1988, a copy of which is annexed to Mr. Kateera's affidavit; that the Registrar

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of this Court had informed the applicant that the next session of the court in which the intended appeal would be heard is likely to be in the new year; that the intended appeal stands a good chance of success; that the suit premises are the only residence of the applicant Ambassy and as such, it would cause great inconvenience and embarrassment if the judgment is executed before the intended appeal is disposed of; that in the circumstances it is necessary that the status quo be preserved to avoid the applicant being evicted and the property disposed of which could defeat the whole purpose of the appeal; and that the respondent resides in London and will not be prejudiced since if the proposed appeal is dismissed, he is assured of the rent during the period of stay.

In his submission in support of the application, Mr. Kateera referred to the two affidavits and elaborated for emphasis the grounds stated therein. Commenting on the judgment of Kityo J., the learned Counsel said that the learned judge erred in holding that because the applicant did not register the transfer of the house, the sale transaction became voidable; and that the learned judge had ignored the whole of the applicant's evidence. According to Counsel, in the exercise of its discretion, the court has to take into account the possibility of the appellant winning. For this proposition, he relied on the case of Wilson vs. Church (No. 2) (1879) 12 CHIR 454. In the instant case, according to Counsel, there are two grounds on which the applicant intends to appeal against the judgment of the lower court in the said suit. One is that the learned trial judge, held that because the applicant did not register the transfer of the house, the sale transaction became voidable; and two that the learned trial judge ignored the whole of the applicant's evidence. As in Counsel's view, these grounds of appeal have a chance of success, the intended appeal. would be rendered nugatory if the stay being sought was refused. For instance, the respondent may sell off the house.

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The purpose of the appeal would therefore be lost. Moreover, the respondent is not in desperate need of accommodation, and would be compensated by economirent if the applicant lost the intended appeal; and, finally eviction would cause hardship and embarrassment to the applicant because it does not have any other alternative residence.

In reply, Mr. Womutuba, for the respondent, submitted that the applicant's fear that the respondent might sell off the house was unfounded. Horeover such a sale could be prevented by entry of a caveat. Secondly, the learned Counsel said that the respondent is inconvenienced by having to stay in hotels whenever he is in Kempala, whereas he could live in the house on such occasions if it were vacant. In contrast the applicant being an labasey, could be assisted by the host (Uganda) Government to obtain an alternative accommodation, such assistance would avaoid any possible embarrassment. Moreover, Counsel contended, the applicant has not indicated what efforts (if any) it had made in finding alternative accommodation. Counsel also said that the applicant could also prosecute the intended appeal, within 90 days from the date of the judgment sought to be stayed. As it is, the applicant has not shown what serious steps it had taken to prosecute the appeal. In the circumstances, according to Counsel, the applicant has not shown good cause to justify the stay being sought. On this point he relied on the case of Kampala City Council vs. National Pharmacy Ltd. (1979) HCB, 215 (Court of Appeal). Finally Counsel prayed that if this application were successful, the applicant should be ordered to deposit as security for costs Shs. 200,000/=, under rule 5(2)(b). of the Rules, because the intended appeal is not likely to succeed.

In the case of Kampala City Council vs. National Pharmacy Ltd. (supra) in which an application was brought, like in the instant case, for stay of execution pending appeal under Rule 5(2) (b), this court said that a stay

of execution can only be granted if it is satisfied that there is good cause to do so and that there are special circumstances to justify such a course. That test is still the law, and Miconsider that the circumstances in the instant case meet that test. According to the judgment of Kityo J., the applicant has to vacate the house by 20.1.1989 just about one month from the date of this ruling. According to the affidavits of Mohamed Abdulkadir Warsame and Mr. Kateera, Counsel for the applicant, the current session of this court was ending towards the end of October, 1988, when this application was heard and the Further, next session would probably in the new year. and considering the time it might take to prepare the record of appeal, the period of three months within which the applicant must vacate the house would expire before the intended appeal is heard. For these reasons, the Counsel for the respondent contended that it is necessary to preserve the status quo until the disposal of the appeal. We accept this contention.

Other reasons advanced by the learned Counsel and which we accept as justifying a stay of execution are that the applicant has been in the house for 13 years, during which the respondent could apparently do with alternative accommodation when visiting Kampala, which he does from London where he normally resides. I the circumstances, as Counsel says, the respondent could afford to wait until the disposal of the appeal. There are also merrits in the applicant's contentions, which I accept, that finding alternative accommodation in Kampala even for an Embassy which may have the assistance of the host government, is a difficult problem. Such a problem can, in my view, be taken into account in an appropriate case.

With regard to the applicant's contention that the intended appeal, in case it succeeds, should not be rendered futile, UK consider that the rule which the Court of Appeal of England laid down in the case of Wilson vs. Church (supra) is still good law.

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This is that where an unsuccessful party is exercising an unrestricted right to appeal, it is the duty of the Court in ordinary cases to make such order for staying proceedings under the judgment appealed from er will prevent the appeal, if successful, from being numetery. But the court will not interfere if the appeal appears not to be bonafide, or there are other sufficient exceptional circumstances. In the instant case the merrits of the grounds of the intended appeal cannot, of course, be gone into here, but as put by Counsel for the applicant, they appear to be bona fide. This, in My view, is another reason which favour maintaining the status quo. If stay were to be refused, the appeal if successful would be rendered nugatory. For example, as suggested by the Counsel for the applicant, the respondent could cell off the house before the appeal is disposed of. With respect, I do not accept Mr. Womutuba's contention that such a sale could be prevented by entry of a caveat. In my view the effecacy of such a caveat is doubtful against the clear judgment State Higheau. millifying a purported sale, provisions of Sections 148 to

ir. Letutube, Counsel for the respondent, proved for recurity for costs in the sum of Shs. 200,000/= $\frac{1}{2}$ in the event of a stoy being granted. Tisee no merrit in this proper. Rule 104 of the Rules provides for mendatory payment of Shs. 2,000/= as security for costs by a party lodging a civil appeal. In the instant case, I assume that the applicant will pay such a deposit on lodging its appeal. Moreover, the respondent has not justified to us the need for the much larger sum of Shs. 200,000/= as security for costs.

I would order that the costs of this application be in the cause.

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