[1994] UGHC 66

THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA MISCELLANEOUS APPEAL NO. 30 OF 1994 $TRANSOCEAN(H)$ T. TD. ..... APPELLANT. VERSUS

Han Au Justice Eyanda Nitemale

KATENDE, SSEMPEBWA & CO. ADVOCATES .......... RESPONDENT. BEFORE:- The Honourable Mr. Justice J. W. N. Tsekooko

## ORDER

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This matter was instituted by Chamber Summons under the provisions of 0.19 Rules 26 and 89 (1) of Civil Procedure Rules and S. 101 of the Civil Procedure Act. The summons seeks for an order to stay execution of the taxation costs order issued by taxing officer dated 9th March, 1994 the day of taxation. There is an appeal filed in objection to the order of taxation persuant to S. 61 of the Advocates Act, 1970 and Rule 3 of the Taxation of Costs (Appeals & References) Rules.

The application is supported by affidavit of Mr. Beisa sworn on 24th March, 1994. The respondent swore affidavit in reply through Mr. Buwule, Advocate.

At the start of the hearing I asked Mr. Mwesigwa counsel for the appellant to satisfy me that the application was properly before the court as it was instituted under 0.19 Rule 26 of Civil Procedure Rules.

Learned counsel submitted that the application was properly before the court and that in any case the summons had cited S. 101 of Civil Procedure Act as an alternative procedural law.

For the respondent, Mr. Wateema submitted that the application is not properly before the court. That the procedure adopted is wrong. He further submitted that S. 101 of Civil

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procedure Act was inapplicable where there is ^a specific law, which is S. ⁶¹ (5) of the Advocates Act. Mr. Wateema's objection is mainly on the basis that in this case there is no suit pending between the parties. ^A suit in the Advocates Act is by S. ⁸² defines in same way as under S. ² of Civil Procedure Act.' But that doesn't help the applicant in my view, whatever the case.

The appeal was instituted under Section ⁶¹ (1) of the Advocates Act, 1970\* .. It. appears to me that it is subsection 5 of that section which governs stay of executions.

S. ⁶¹ (5) states:

"An appeal or reference under the provisions of this section shall not act as ^a stay of execution unless the taxing officer or a judge so orders'1. This subsection has the same effect and operates as Order 39 Rule ⁴ (1) of Civil Procedure Rules with the consequence that actually the application for stay of execution of the taxing officer's Orders should have been made under S. 6\*1'(5) of Advocates Act and not under the Civil Procedure Rules.

I have not seen any provision in the Advocates Act, 1970 which suggests any contrary view.

I should also observe that from the wording of S. ⁶¹ (5) the- application for stay of execution ought preferrably to begin V/ith the taxing officer.

In the circumstances I agree with Mr. Wateeba that the application is not properly before this court.

I am aware that I have inherent powers to stay executions of the Court's orders. But this course would be resorted to where failure to do so would cause utter injustice. I am not persuaded that there are justifying circumstances for my exercise of inherent powers to stay the orders where the application for stay is brought under a wrong law.

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*f'*

In conclusion I think that the application is incomptent. I don't therefore need to consider the rest of the submissions. The application is accordingly struck out with costs to the respondent. That means my interim stay order lapses-.

*k-'-e ¹ '* TSEKOOKO

J ^U ^D G- ^E 20/6/1994.

21/6/1994 at 9.04 a.m. Applicant absent. Sekabanja for applicant. Kawesa for respondent. Muyanja court clerk.

& /' - J. W-4. TSEKOOKO

JUDGE 21/6/1994