Asobasi v Olweny (Miscellaneous Application No. 625 of 2022) [2023] UGCA 41 (8 February 2023)

Full Case Text

## 5 THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

# Miscellaneous Application No.625 of 2022

# (Arising from Civil Appeal No.68 of 2O2Of

# ASOBASI DANIEL OKUMU: : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : :APPLICANT

#### VERSUS

OLWENY WILLY::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT CORAM: HON. MR. JUSTICE CHEBORION BARISHAKI, JA

#### (SINGLE JUSTICEI

#### RULING

The applicant brought this application by Notice of Motion under the provisions of O.52 R. 1 and 3 of the CPR and section 98 of the Civil Procedure Act seeking for orders that; an intcrim order doth issue against the respondent restraining the taxation of the appealcd decision in Taxation Appeal No. 118/2017 by the High Court and execution of thc orders pending disposal of Court of Appeal Civil Appeal No.68 of 2O2O and costs of the application be provided for. 15 20

The application is supported by an affidavit in support sworn by Asobasi Daniel Okumu, the applicant and opposcd by the respondent through an affidavit in reply sworn by Olweny Willy, thc respondent. The applicant also

filed an affidavit in rejoinder sworn by Asobasi Daniel Okumu. 25

## 5 Background

The background to the application as can be discerncd from the pleadings is that the respondent conducted a judicial review application vide High Court Miscellaneous Cause No. O43/2O16 against the Attorney Gcneral on behalf of the applicant. The High Court passed a ruling in favour of the applicant awarding 300 million, the respondent filed his Advocatc-Client Bill of Costs having demanded for payment of legal fees from the applicant but in vain.

The Registrar ordered the Taxation of the said Advocatc-Client Bill of costs and the applicant being dissatisfied with the decision of the Registrar appealed to the High Court vide High Court Taxation Appeal No.1 14 of 2018.

Wolayo, J conhrmed the decision of the Registrar and ordercd the taxation of the Advocate-Client Bill of Costs. Thc applicant filcd an appcal in this Court challenging the decision of Wolayo, J vide Civil Appeal No.68 of 2O20. That on 30s October, 2O2O, lhe Registrar of this Court hxed thc appcal for scheduling which was not attended by the Respondent but rather wcnt ahead to execute the appealed decision. 20 15

# Grounds of the appllcation

The grounds in support of the application are contained in the notice of motion and the affidavit in support briefly stating that thc rcspondent conducted High Court Misccllaneous Cause No.43/2016 against the Attorney General on behalf of the applicant without formal instructions. Ruling was given in favour of the applicant awarding him 300 Million as gcncral damages and costs. Further that the applicant requested the respondent to file his bill of costs before the High Court for taxation and present it for payment but he

2lPage

- 5 declined. The High Court issued a certificate of order against government to pay the Applicant's costs but instead the respondent used the applicant's case file to file the advocatc-client bill of costs against him. The respondent used the applicant's case file to lile the Advocate-Client bill of costs against the applicant. - The applicant further contended that he unsucce ssfully challenged the decision by the respondent hling the Advocate-Client Bill of Costs but not Client Bill of Costs before the High Court. He thcn filcd Civil Appeal No.68 of 2O2O before this Honourable Court which was fixcd for scheduling on 30h October, 2O2O. Thlat instead of waiting for this Court to fix the appeal, the respondent has commenced execution in Taxation Appcal No. 118 of 2017. 10 15

# Grounds in oppositlon

The application was opposed by the respondent who dcponed that the applicant dissatislied with the decision of the Registrar appealcd to Wolayo, J but was unsuccessful. Conscquenfly, the applicant appealcd to this Court and the said appeal is still pcnding. Furthcr that therc is literally no appcal since the said appeal was filed without complying with the lcgal requirements of obtaining leave before lodgement of the same and therc is no Notice of Appeal. Further that the applicant's application demonstrates no sufficient cause as to why an interim ordcr should issue.

The respondent contended that the affidavit in support of Miscelianeous Cause No. O43 of2016 was drawn and fi1ed by the respondent and represented the applicant in the said Miscellaneous Cause No.043 of 2016 to its final disposal without the appellant objecting to the respondent's instructions to 3lPage 25

5 him in the said matter. Further that the affidavit in support of the application does not demonstrate that the applicant's appeal raiscs any serious issues which merit consideration by this Court. That thc instant application is incompetent as it raises from Civil Appeal No.68 of 2020 instead of rising from a substantive application.

#### Representation 10

At the hearing of the application, the applicant's counscl was absent whereas the applicant was in Court. The respondent was rcprcscnted by Mr. Natumanya Willy. The respondent was prescnt.

# Applicant's submissions

Counsel for the applicant submitted that the applicant had fulfrlled the conditions for grant an interim order as laid down by the Supreme Court in Huan Sung Industrles Ltd. V TaJdln llusseln and 2 Ors, SCCA No.79 ot 2OO8 to wit: imminent threat of execution, there is a likclihood of success of the appeal, the application is made without unreasonablc delay, the security for cost has been paid by the applicant for duc performance and that there wili be a substantial loss that may result from the intcndcd execution if it is not stayed. 20 15

He submitted that thcre was a threat to carry on cxccution against the applicant as demonstrated by the conduct ofthe respondcnt when he declined

to attend summons served on him by the Registrar Court of Appeal but instead chose to commence execution proceedings. Counsel added that there was a high likelihood of success because the respondcnt advocate filed an 25

5 Advocate-Client Bill of Costs referenced as No. 1 14 of 2O18 without legal basis as he had no instructions to conduct Miscellaneous Cause No.043/2O16 on behalf of the applicant.

Counsel further submitted that the respondent was claiming for a legal fee of 100 Million under his advocate-client bill of costs which was unreasonable and it is a pursuit of fraudulent actions by the respondcnt. in counsel's view, it was just and fair that this application be granted pcnding thc disposal of Civil Appeal No.68 of 2O2O. He added that thc applicant had deposited 200,000/: as security for costs for due performancc. Counsel contended that there would be a substantial loss accessioned to thc applicant if the interim order is not grante d pending the determination of thc main appeal and prayed that the application be granted.

## Respondent'e submissions

In response, counsel for the respondent submitted that thcrc was no pending appeal and the afhdavit in support of the application was silent on the same. He added that the appeal was filed without leave of Court and there was no Notice of Appeal. He added that the applicant had not filed a substantive application and in counsel's vicw, the instant application is incompetent as it arises from Civil Appeal No.68 of 202O instcad of arising from a substantive application. He relied on Hutan Sung Industrles V TaJdin. Elusseln & 2Ors

#### SCCA .l\Io. I9 of 2OOa. 25

Counsel further submitted that there was no avermcnt that a substantive application had been filed or that there is a serious threat of execution of a decree before hearing of the substantive application. Hc added that in the 5lPage

5 absence of that averment, the application for intcrim order of cxecution cannot stand because it was a fatal omission that could not be cured. He prayed that the application be dismissed with costs.

## Court's analysis

The jurisdiction of this Court to grant a stay of exccution is set out in Rule 6(2) (b) and Rule 2(21 of the Rules of this Court which mandates the Court to grant a stay ofexecution, an injunction or order a stay of proceedings on such terms as the Court may decm ht. Before the Court cxcrcises the discretion, thc applicant ought to havc lodged a notice of appcal in accordance with Rule 76 of the Rules of this Court. In addition, the Court has wide discretionary powers under Rule 2 (21 of thc Rules of Court. 10 15

Okello JSC in the case of Huan Sung Industrles Ltd V TaJdln Husslen and 2 others SCll4A lVo. 19 of 2OO8 cited with approval in Frornc{s Drake Lubega V The Attorneg General & 2 others Suprerne Court Mlsc. Appllcatlon No.13 of 2015 held that for an application for an interim order of stay, it sufhces to show that a substantivc application is pending and that there is a serious threat of execution bcforc thc hcaring of the pending substantive application. It is not necessary to prc-cmpt consideration of matters necessary in deciding whether or not to grant the substantive application for stay. 20

The Supreme Court had earlier in Dr. Ahmed llluhammed Klsuule V Greenland Bank (In ltquldatlon) Supreme Court Clvll Appllcatlon No. 7 of 2O1O stated that for an application in this Court for a stay of execution to succeed the applicant must first show subject to othcr facts in a given case, 5lPage 25

5 that he/ she has lodged a notice of appeal in accordance with Rule 72 of Rules of this Court.

Further, Lady Justice Dr. Esther Kisaalgre in E. B Ngakaana crnd Sons Llmlted V Beatrlce Kobuslnge and 76 Ors, Suprente Court Mlscellaneous Appllcatlon No.13 oJ 2017 statcd that before Court exercises its discretion, it must be satisfied that;

- a) A Notice of Appeal has been lodged in accordancc with Ruie 72 of the Rules of this Court; - b) A substantive application for stay of execution is pending before Court; - c) There is a serious thrcat of execution beforc thc hearing of the substantive application; and - 15

d) The application has been Iiled without undue dclay.

From the evidence on record, the applicant neither avcrrcd that he had filed a Notice of Appeal nor did he avail this Court with a copy of the same. I note that the applicant availed this Court with a copy of a lcttcr addressed to the Registrar of the High Court stating his intentions to appcal against Taxation

Appeal No.114 of 2018, Olwenyi Willy V Asobasi Danicl Okumu dated 20th May,2O2O. This does not amount to a Notice of Appeal lodgcd in accordance with the rules of this Court. 20

Secondly, a substantive application for stay of execution must be pending

before Court. The evidence on record shows that the applicant has not filed a substantive application. I further note that that applicant did not mention anS,vrhere in his pleadings that he had filed a substantivc application. Thc 25

head note of the instant application indicates that this application arises from $\mathsf{S}$ Civil Appeal No.68 of 2022.

Regarding whether there is a serious threat of execution before hearing the substantive application, counsel for the applicant submitted that there was a threat to carry on execution against the applicant as demonstrated by the conduct of the respondent when he declined to attend summons served on him by the Registrar Court of Appeal but instead chose to commence execution proceedings.

I have already noted that the applicant did not file a substantive application, secondly he merely averred that the respondent had commenced execution proceedings without availing this Court with any evidence of the same. I

15 therefore do not see any serious threat of execution.

Lastly that the application has been filed without undue delay. I cannot tell whether this application has been filed without undue delay because the applicant did not avail this Court with a copy of the High Court judgment in

Taxation Appeal No.114 of 2018. 20

In the result, I decline to grant the interim order sought by the applicant.

The application is dismissed and the applicant shall pay the costs of this application.

I so order

$\mathcal{S}^{\perp}$ $\ldots 2023$ Dated at Kampala this... .day of .. 25 JUSTICE OF APPEAL