Abii Clinical & Laboratory Services Limited v Crown Health Care (U) Limited (Civil Application 177 of 2024) [2024] UGCA 288 (3 October 2024)

## THE REPUBLIC OF'UGANDA

### IN THE COURT OF APPEAL OF UGANDA AT I(AMPALA

## CIVIL APPLICATION NO. L77 OF 20/24

(Aising from Ciuil Appeal No. 99 of 2024) (Arising from Miscellaneous Application I[o. 1586 of 2022)

#### ABII CLINIC & LABORATORY SERVICES LIMITED aaaaaaaaaaaaaaaaaoaoaaaaaaaaoooo APPLICANT

#### VERSUS

cRowN HEALTH CARE (Ul LIMITED RESPONDENT

## BEFORE: HON WSTICE OSCAR KIHII(A, JA

(Sitting as a single Justice)

### RULING OF COURT

This application was brought under Rule 2(2), 6(2),(b), 42(3), 43(1) and 44(ll of the Judicature (Court of Appeal Rules) Directions seeking for orders that;

- 1. An Order doth issue staying execution and implementation of the Decree in Civil Suit No. 789 of 2Ol7 by the Respondent, his agents, servants or any person acting on his authority pending final determination of Civil Appeal No . 99 of 2024. - 2. Costs of the application be provided for.

The Applicant filed an affidavit in support of the Notice of Motion deponed by Nasser Katumba sworn on the l2th' of March 2024, with grounds upon which the application is premised. The grounds are briefly as follows;

- 1. The Applicant filed Miscellaneous Application No. 1586 of 2022 for orders that the ex parte proceedings conducted and the judgment entered be set aside but the application was dismissed. - 2. Dissatisfied with the dismissal order, the Applicant filed Civil Appeal No. 99 of 2024 pending before this court. - 3. The dismissal of Miscellaneous Application No. 1586 of 2022 allows the Respondent to execute and implement the decree in Civil Suit No. 789 of 2017 which proceeded ex parte. - 4. Civil Appeal No. 99 of 2024 has high chances of success because it raises serious questions to wit Civil Suit No. 789 of 2OL7 having proceeded ex parte despite court having been informed that counsel in personal conduct of the matter was indisposed. - 5. There is an imminent threat of execution of the decree in Civil Suit No. 789 of 2Ol7 , the Respondent having applied to execute the decree by attaching the Applicants medical equipment, which are the Applicant's tools in trade. - 6. The Applicant will suffer irreparable damage if the equipment is impounded and subsequently sold to third parties since the equipment has patients private, medical data and the sarne cannot be atoned for in damages.

The Respondent filed an affidavit in reply deponed by MUHEREZA FRED sworn on the 19th of Aprll 2024 and opposed the application on grounds briefly that;

- <sup>1</sup> The Applicant did not have any defence in the main suit and the claim that the payrnents had been made were not supported by evidence. - This application is meant to delay the Respondent from benefiting from the fruits of the judgment. 2 - The Respondent equally deals in the supply of medical equipment and its business has been adversely affected by the refusal by the Applicant to pay the money owed to the Respondent. 3 - In the event that this court is inclined to grant the order of stay of execution, the Applicant should be ordered to pay the entire sum decreed with interest. 4

## BACK GROUND

The background to this application, which is rather checkered, is as follows;

The Respondent filed Civil Suit No. 789 of 2017 seeking to recover UGX 473,O99,44O f - frorn the Applicant being the unpaid balance on assorted items which had been supplied by the said Respondent between the l7b day of April 20 16 and the 13th day of December 2016.

It appears that the matter was initially allocated to Hon. Justice Duncan Gaswaga, who at one point dismissed the suit for want of prosecution. The Respondent then filed an application to have the suit reinstated. That application was heard by Hon. Justice Cornelia Kakooza Sabiti on the Sth of May 2022 who granted the

application. It would appear that Counsel for the Defendant (the Applicant in this application) did not appear on the said date, and had not bothered to file a reply to the application for reinstatement of the main suit. The main suit was then fixed to be heard on the 2l"t of June 2022.

When the matter came up for hearing on the 2l't of June 2022, the Applicant sent a one Adyebo Patience who claimed to be a representative of the Applicant. The said Adyebo Patience told the presiding Judge that Counsel for the was indisposed and thus sought an adjournment of the matter. Apparently, there was no evidence produced proving that Counsel for the Applicant was indisposed, consequent upon which the presiding Judge ordered that the matter proceed ex-parte. The residing Judge proceeded to hear the Respondent's witness and eventually delivered judgment in favour of the Respondent on the 29th of August 2022. It was not until the 10th of November 2022 that the Applicant filed Misc. Application No. 1586 of 2022 seeking orders that the ex-parte proceedings conducted and judgment entered on the 29th August 2022 be set aside. The Applicant also filed High Court Miscellaneous Applications Nos. 1583 of 2022 and 1584 of 2022 for interim and substantive stay of execution respectively. The applications were filed pending the determination of the application for setting aside the ex-parte judgment.

Hon. Justice Cornelia Kakooza Sabiiti heard Misc. Application No. 1586 of 2022 and on the 23,a of November 2023 dismissed the application with costs to the Respondent herein. Being dissatisfied with the ruling, the Applicant lodged a Notice of Appeal on the 3 1"t of January 2024 and also requested for the record of proceedings.

In the meantime, the Respondent initiated execution proceedings seeking to recover the decretal sum of UGX- 47 3,099 ,44O <sup>f</sup>: plus interest and costs of the suit. The Applicant then filed the present application seeking orders to stay execution of the judgment in Civil Suit No, 789 of 2OL7, the pending final determination of Civil Appeal No. 99 of 2024, an appeal against the decision of Hon. Justice Cornelia Kakooza Sabiiti dismissing Misc. Application No. 1586 of 2022 which, as stated before, sought orders that the exparte proceedings conducted and judgment entered on the 29th August 2022 be set aside.

## Representation

When this application came up for hearing on the 19th of April 2024, Mr. Gibson Munanura appeared for the Applicant, while Mr. Richard Sebikale together with Mr, Innocent Bape appeared for the Respondent. The parties filed written submissions and the sarne were adopted as their legal arguments.

## Consideration of the application

I have carefully considered the affidavits and the submissions of both parties. I have also perused the authorities provided by counsel for which I am grateful.

The jurisdiction of this court to grant a stay of execution is set out in Rule 6 l2l p) of the Rules of this Court which provides that;

6. Suspension of sentence q.nd stag of execution.

(2) SubJect to subntle (1) of thfs ntle, the lnstltution of an appeal shall not operate to suspend ang sentence or to stag execution, but the court mag-

(a) ...

h) fn ang cttrll proceedlngs, where a notlce of appeal ho,s fuen lodged ln accordance uith ntle 76 of these Rules, order a stag of execution, dft inJunctlon, or a stag of proceedlngs on such term.s as the court mag thtnk Just.

The rule gives this Court the discretion, to grant a stay of execution, however that discretion must be exercised on well-established principles.

The Supreme Court in the application by Hon. Theodore Ssekikubo & Others vs. The Attorney General and Another, Constitutional Application No 06 of 2013 clearly re-stated the principles as follows:

"Itt order .for the Court to grant an appllcatlon for a. stag of exectttion;

(1) The appltcatlon must establfsh that his clppeal has a llkelihood of success; or a prima facie co,se of his rtght to appeal

(2) It must, al.so be establtshed that the Appltcant wlll suffer irreparable damage or that the appeal utill be rendered nugatory tf a stag ls not granted.

(3) If 7 and 2 aboae has not been established, Court must conslder uthere the balance of conaenlence lles.

# F) fhat th,e Appltcant must al.so establlsh that the appltcatlon wrl,s instttttted utlthout delag."

The issue for determination by the Court is whether the Applicant has adduced sufficient reasons to justify the grant of a stay of execution.

Before I delve into the merits of this application, I find it pertinent to address the preliminary point of law raised by the Respondent with regard to this court's jurisdiction to entertain this application. The Respondent contends that this application is incompetently before this court as the sarne ought to have been filed in the High Court in the first place as is required under Rule 42l7-l of the Judicature (Court of Appeal Rules) Directions SI 13- 10.

For the Applicant, counsel submitted that two applications were earlier filed in the High Court vide Miscellaneous Applications Nos. 1583 of 2ol22 and 1584 of 2or22 for interim and substantive stay of execution respectively. The applications were filed pending the determination of the application for setting aside the ex parte judgment. On determination of Miscellaneous Application No. 1586 of 2022, the learned trial Judge found that the applications for

interim and substantive stay of execution had been overtaken by events. The learned trial Judge dismissed the application to set aside the ex parte judgment and the Applicant, being dissatisfied with the decision of the triat Judge filed an appeal in this court vide Civil Appeal No. 99 of 2024 and also filed this application for stay of execution pending the determination of the appeal.

# Rule 42(1) of the Judicature (Court of Appeal Rules) Directions SI 13-1O provides;

"42. Order of heaing applications.

(1) Wheneuer an application maA be made either in the court or in the High Court, it shall be made first in the High Court."

From the above, it is clear that unless exceptional circumstances exist, an application for stay of execution should be filed in the High Court first. In the instant case, the Applicant filed this application in this court without first filing it in the High Court. High Court Miscellaneous Application No. 1583 of 2022 and 1584 of 2022 for interim and substantive stay of execution were filed pending the determination of the application to set aside the ex parte proceedings and judgment. After the dismissal of Miscellaneous Application No. 1586 of 2022, the Applicant filed an appeal in this court vide Civil Appeal No. 99 of 2024 from which the instant application arises.

I have carefully perused the Applicant's affidavit in support of the application and the affidavit in rejoinder and found that the Applicant has not given this court any evidence of existence of exceptional

circumstances as to why the application for stay of execution was not first filed in the High Court.

This court has previously held in the case of P. K Sengendo Vs Busulwa & Male Abdul l2014l 1 HCB LO7 as follows;

"An appltcatlon for stag of executlon pendlng appeal to this court must first be filed tn the Htgh Court. It is onlg when thc Htgh Court refuses to grant the stag or where tt doubts its Jurtsdlctlon or where the dlsposcl of such an appltcatlon tn thc Htgh Court would entitle substantlal delag that a.n applicatlon utould be brought flrst tn thts cotttt."

The applicant's application for stay of execution pending the determination of the appeal was never filed in the High Court in the first place. Having failed to demonstrate any rare or special circumstances for not filing this application in the High Court first, the Applicant has failed to show sufficient cause to justify grant of an order of stay of execution in this case.

I, therefore, allow the preliminary objection by counsel for the Respondent and hereby dismiss Civil Application No. I77 of 2024 \ rith no order as to costs.

I so order.

Dated this €'l day of O,Q:S.,\* L OSCAR KIHII(A 2024 JUSTICE O y;PqAL aaaaaaaaaa aaaaa a a