[1997] UGCA 25

## THE REPUBLIC OF UGANDA

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## IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

## (CORAM: MANYINDO, DCJ; $\mathcal{L}$ , OKELLO, J; S. G. ENGWAU, J; APALICATION CIVIL APPEAL NO.21/96

**BETWEEN**

TEDDY SSEEZI CHEEYE & ONOR ............... APPELLANT

- VERSUS -

ENOS TUMUSIIME ........................... RESPONDENT

(Arising from H. C. C. S. No. 805/95 delivered on 28-10-96, Mr. Justice A. Kania)

## RULING OF THE COURT

This joint application was brought by the two applicants, Teddy Sseezi Cheeye and Uganda Confidential Ltd. under Rules.5(2)(b), $41$ , $42(2)$ and $43(1)$ of the Rules of this Court for orders that the execution of the High Court Decree passed on 28/10/96 in Civil Suit No.805 of 1995, be stayed pending the determination of the appeal whose notice dated 04/11/96 was filed on 05/11/96; and that costs of this application abide the result of the appeal.

The background to the application is as follows. The respondent had sued the applicants in the High Court for damages for defamation. At first, the suit proceeded ex-parte and judgment was given against the applicants who promptly successfully applied for an order setting aside the ex-parte judgment. Thereafter, the applicants filed their written statement of defence and the suit was fixed for hearing. On the hearing day,

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the applicants and their counsel again did not appear and the court once again ordered the hearing of the suit to proceed ex-Before the ex-parte hearing was concluded however, parte. counsel for the applicants appeared in court and sought the indulgence of the court to set aside the order for ex-parte proceedings and to allow him and the applicants to take part in the proceedings. That application was refused. Then, the applicants applied to the trial Judge for leave to appeal against that decision but that application too was refused. Thereafter, the case proceeded ex-parte and judgment was given against the applicants on 28/10/96 in which Ugshs.10,000,000/= was awarded against them as general and aggravated damages.

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On 05/11/96, the applicants filed in this court a notice of appeal against that ex-parte decision of the High Court. Then on 06/11/96, the applicants applied to the High Court for a stay of execution of the decree pending the determination of the appeal. That application was dismissed by the High Court for want of sufficient cause. Hence this application under Rule $5(2)(b)$ of the Rules of this Court.

Four grounds were given for the application, namely;

- The applicants have instituted an appeal against the 1. decision of Honourable Justice A. Kania in High Court Civil Suit No.805 of 1995, as Civil Appeal No... of 1996. (No. serial number had been given when the notice was filed). - The trial Judge erred in law when he excluded the $2.$ applicants from the trial. - The amount of Ugshs. 10,000,000/ $=$ awarded to the 3. Respondent in the HCCS No.805 of 1995 as general

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danages was lnordlnately exeesslve and based on wrong prlnclples.

⁴ That the appltcants lrreparable danage ^s granted. \$ri11 suffer grave lnjustlce 1f a stay of execution 1s and not

o

The appllcants supported thetr appllcation by an affidavlt of ?eddy Sseezl Cheeye dated 72/72/96. The poslt-1on of the appllcants from that affldavit does not dlffer from the grounds given above. ft Is in effect that r-he amount a\$rarded agalnst them by the Hlgh Court as damages 1n that c j.vl1 sult ls grossly excesslve and that if a stay of executlon 1s not- granted, they wl11 suffer grave lnlustlce and lrreparable loss and danages.

There ls an affldavtt ln reply deponed to by Enos K. Tumusllme the respondent on 13/07/91 . Prom thls affldavlt the respondent took the stand that the appllcants d1d not shov, any sufflclent. cause for an order of stay of executlon pendlng the appeal. He denled that the appllcants would suffer any irreparable Loss, lnjury or damages because the amount to be pald 1s liquldated and could be refunded by respondent 1n the event of the appeal succeeding.

Thls court has origlnal Jurlsdlctlon under Rule 5(2)(b) of 1ts RuLes to order a stay of executlon vrhere notlce of appeal has been lodged 1n accordance vrlth Rule 75 of the eourts Rules. As there 1s no dlspute over the lnterpretatlon of thls rule, we deem 1t not necessary to reproduce it here. We are satlsfled that the instant applicatlon 1s properly before us. Notlce of appeal was duly lodged in accordance vrlth Rule 75, and the appllcatlon for stay of execution of thls decree was flrst brought ln the Hlgh eourt as requlred under Rule 41.

At the hearlng, grounds 2 and 3 whlch vrere on the excluslon of the appllcants by the trlal Judge from the tr1al, and on the excessiveness ot the damages awarded by the Hlgh Court to the respondent respeetlvely, tere not pursued as they vrere lrrefevant to thls appllcatlon because they are matters for the appeal. This court could not go int-o them in thls appllcation.

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Ground one whlch is that the appllcants had lnstltuted an appeal agalnst the deelslon of the Hlgh Court 1n clvll sult No.805 of 1995 vra6 also not pursued because lnstltutlon of appeal per se by RuIe 5(2) of this Cou rts Rules constltutes no ground for stay of executlon. Rules 5l2l of the Rules of thls eourt states.

" subj ect to not ope rate sub-rule 1, the tnstltutlon of an appeal sha1l to suspend any sentence or to stay execution. "

That lett only ground 4 vrhich 1s grave lnjustlce and lrreparable 1s not granted. that the appllcants wl11 suffer damages 1f a stay of executlon

In his subnisslon 1n reply to Hr, Kabega's Bubmlsslon, Hr. Kakuru for the appllcants eonceded that the appllcants do not at present have cash to pay the decretal surn. That concesslon 1s very reveallng. ft lndicates the true reason for thls appllcatlon for stay of executlon as lmpecunlousness, The appllcatlon 1s t,hus belng used to buy tlme for the appllcants to raise the necessary money. Counsel of both partles conceded that for a stay of executlon pendlng appeal to be ordered, an appllcant. nust show sufflcient cauBe. That 1s the correct posltlon;:1aw. The contentlon by Hr. Kakuru of lmpeeunlousness as a ground for ^a stay of executlon 1s not tenable in our oplnlon as 1t does not anount to a sufflclent cause for the grant of stay of execution pendlng appeal,

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The Supreme Court of Uganda in Civil Application No.9/90 Francis Hansio Micar vs Nuwa Walakira dealt with the matter now at hand. In that case, the Court was dealing with a preliminary objection which challenged its jurisdiction to hear application under Rule 5(2)(b) of the Rules of that Court. This is what it said regarding stay of execution.

"There are many cases where High Court may order a stay and one such case may be to preserve the status quo pending appeal. It would be unwise in some circumstances to defeat a statutory right of appeal by for example demolishing the subject matter of a suit so that the appeal is rendered nugatory..... Again a stay may be necessary when it comes to the notice of any court that an alleged fraud has been practised upon it affecting its decree or when courts action is in doubt through want of jurisdiction."

The above passage does not state specifically what amounts to a sufficient cause and application was apparently stated obiter. But it illustrates the type of circumstances that can be considered amounting to sufficient cause for an order of stay of execution. Such include where the subject matter of a case is in danger of being destroyed, sold or in any way disposed of. In such case a stay is ordered to preserve the status quo; or where the decree in question is affected by a glaring flaw in the record of the lower court as to make the appeal very likely to succeed. Sufficient cause will vary from case to case, but in our view impecuniousness does not amount to sufficient cause.

Mr. Kakuru further argued that because the applicants do not have cash at present to pay the decretal sum, if a stay of execution is not ordered, they will suffer grave inconvenience as their property may be attached and sold in execution or the first applicant may be sent to a civil prison. It appears to us that

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Mr. Kakuru was putting inconvenience as a ground for an order of stay of execution pending appeal. We cannot agree because in every execution a judgment debtor must be inconvenienced some how.

We agree with Mr. Kabega, Counsel for the respondent that the applicants have not shown sufficient cause to justify the grant of an order of stay of execution. In the result we see no merit in the application. We dismiss it with costs to the respondent.

Dated at Kampala. St. .... day of Febrary ... 1997.

naugrida Manyindo

Deputy Chief Justice

Judge

rasay S. G. Judge

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