Adumo & Another v Basiima & 2 Others (Civil Application 27 of 2023) [2024] UGSC 10 (13 March 2024)

Full Case Text

#### THE REPUBLIC OF UGANDA

#### IN THE SUPREME COURT OF UGANDA

[CORAM: CHIBITA ; J. S. C.]

### CIVIL APPLICATION NO. 27 OF 2023

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(Being an application for stay of execution of the decree in Civil Appeal No. 16 of 2021)

#### RULING OF MIKE J. CHIBITA, JSC

This Ruling relates to a Notice of Motion that was filed in this Court by the applicants for stay of execution. The application was brought under Section 33 of the Judicature Act, Article 28 and 126 of the 1995 Constitution as well as Rules $6(2)(b)$ and $42(1)$ of the Supreme Court Rules. The orders sought are that:

1. The execution of the Decree vide Civil Appeal No. 16 of 2021; Basiima Kabonesa v The Attorney General & Anor be stayed,

$\mathbf{1}$

until the hearing and final determination of the Applicants' application for review vide **Civil Application No. 0028 of 2023.**

2. Costs of the application be provided for.

The grounds of the application are set out in the Notice of Motion and expounded in the supporting affidavit sworn by Solome Adumo but in brief are that:

- a) The 1st Respondent illegally lodged civil appeal No.16 of 2021 against the $2^{nd}$ and $3^{rd}$ Respondent purporting to represent 1568 claimants including the applicants, whereas not. - b) The applicants have since filed an application for Review vide Civil Application No. 28 of 2023 - c) The application for review has a high chance of success since at the time for passing Judgment in Civil Appeal No. 16 of 2021, the $1st$ Respondent had no locus standi to lodge the said appeal. - d) The Respondents will not suffer any substantial loss if the execution of the decree is stayed - e) The applicants will suffer substantial loss if the execution of the decree is not stayed since they are the rightful legal representatives of the claimants as well as beneficiaries of the Court award. - f) The $1^{st}$ Respondent is crafty and is likely to run away with the claimant's money/Court award.

- g) The $2^{nd}$ Respondent has since advised that the Court award should be paid either directly to the claimants or to their legally appointed representatives. - h) Despite this knowledge the $1^{st}$ respondent proceeded to file an application in the High Court for Mandamus vide HCMC No. 247 of 2022 seeking to have the payments arising from Civil Appeal No.16 of 2021 paid directly to him. - i) The applicants are the rightful legal representatives of the claimants and are duty bound to protect the Court award from being misappropriated by the $1^{st}$ Respondent. - i) The application for review will be rendered nugatory if this application is not granted. - k) This application has been filed without undue delay. - 1) It is in the interest of justice that this application is granted.

The 1st respondent on the other hand opposed the application in an affidavit in reply sworn on 20th December, 2023 by Mr. Basiima Kabonesa.

## **Background:**

This matter emanates from the decision of this Court in Civil Appeal No. 16 of 2021 in which the appeal was successfully heard and determined in favour of the $1^{st}$ respondent who represented 1568 former workers of the Coffee Marketing Board, seeking terminal benefits following their retrenchment. The applicants however filed an application for review vide Civil Application No. 28 of 2023 on the basis that they were the rightful legal representatives of the claimants

and that the $1st$ respondent had no locus to file the said appeal. Furthermore, he was likely to misappropriate the claimant's money hence this application to stay the execution of this Court's Decree in Civil Appeal No. 16 of 2021.

## **Representation**

The applicants were represented by Mr. Peter Kimanje and Mr. Moses Wandera while the $1st$ respondent was represented by Ms. Patience Akampurira holding brief for Mr. Raymond Mwebesa. The 2nd and 3rd respondents were represented by Mr. Ojambo Bichachi.

# **Consideration of Court**

I have perused the application together with the affidavit in support, affidavit in reply and affidavit in rejoinder.

It is settled that the jurisdiction of this Court to hear such applications is exercised pursuant to **Rule** $6(2)(b)$ of the Rules of this Court. However, *Rule* **50** of the Rules of this Court provides in so far as is relevant to the application before me that:-

"50. (1) Every application, other than an application included in subrule $(2)$ of this rule, shall be heard by a single Judge of the Court: Except that the application may be adjourned by the Judge for determination by the Court.

This rule shall not apply to the following— $(2)$

(a) an application for leave to appeal; or.......

(b) an application for a stay of execution;"

Much as this matter was scheduled for hearing before me on 20th December, 2023, in light of the above Rule, I do not consider that I, as a single Judge, have the jurisdiction to hear and determine the same.

In my view, it appears that there might have been a procedural oversight or miscommunication in the scheduling. I therefore direct the Registrar of this Court to reschedule this application for determination before the full bench.

Lastly, I also wish to note that during the hearing of this application, Counsel for the applicants tried to slip in an interim stay of execution for which I have jurisdiction. However, that application was made orally contrary to Rule 42(1) and 42(2) of the Rules of this Court which requires all applications to the court, to be by motion stating the grounds.

I note that counsel sighted cases such as **Alcon International v The** New Vision Printing & Publishing Co. Ltd SCCA No. 4 of 2010 and Hwan Sung Industries v Tagdin & 2 Ors SCCA No. 19 of 2008 where this Court exercised its discretion under rule 2(2) and granted an interim stay. However, all those cases were brought formally by motion and were all properly before court.

I therefore declined to grant the oral application for an interim order as the same was not properly before this Court.

In the result, I order that this substantive application No. 27 of 2023 be cause listed immediately for hearing and determination before the full panel.

Dated at Kampala this ....................................

Un Pulitz

**MIKE J. CHIBITA** JUSTICE OF THE SUPREME COURT

Delivered as directed Bothel 13/3/024