Barclays Bank of Uganda Limited v Mubiru (Civil Application 9 of 1997) [1997] UGSC 23 (8 April 1997)

### THE REPUBLIC OF UGANDA

# IN THE SUPREME COURT OF UGANDA AT MENGO

(CORAM: ODER, J. S. C., TSEKOOKO, J. S. C. AND KAROKORA, J. S. C.)

## CIVIL APPLICATION NO. 9/97

#### BETWEEN

| BARCLAYS BANK OF UGANDA ITD. | | | | $\cdot$ $\cdot$ | $n$ o $n$ | $\cdot$ $\cdot$ $\cdot$ | APPLICANT | |------------------------------|--|---------------------|---------------------|-----------------|-----------|-------------------------|------------| | | | | | A N D | | | | | GODFREY MUBIRU | | $\bullet$ $\bullet$ | $\bullet$ $\bullet$ | $\cdots$ | $\cdots$ | $\cdot$ $\cdot$ | RESPONDENT |

(An applicantion for stay of execution of Decree of High Court at Kampala (Okalebo, Ag. J.) dated 19th May 1992

#### I N

#### CIVIL SUIT NO. $1004$ OF $1990$ )

#### RULING OF THE COURT:

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The applicant Barclays Bank of Uganda Ltd, has instituted a Notice of Motion under Rules 5(2)(b) and 41 and 42 of the Rules of Court seeking for stay of execution of the decree of the High Court pending disposal of an intended appeal. The motion is supported by an affidavit sworn on 18th March 1997 by Charles Okurut, Personnel Manager of the applicant Bank. The respondent Godfrey Mubiru swore an affidavit on 21st March 1997 in reply to that of Charles Okurut. To each affidavit are annexed certain documents.

The Notice of Motion contains the following seven grounds -

- The applicant filed a Notice of Appeal $"1.$ against the whole of the judgment of the Hon. Acting Justice H. E. Okalebo on the 2nd June 1992. - The Appeal has not yet been filed as 2. the terms of the decree were only finally settled by Mr. Justice G. Tinyinondi on the 16th January 1997.


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$3.$ If the decree is executed the intended appeal will be rendered nugatory because if the appeal were to succeed the Applicant/ Appellant would have great difficulty in recovering the money paid to the Respondent/ Defendant and thereby substantial loss may result.

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- 4. The application has been brought at the earliest opportunity after quantification of the Decretal sum and accordingly without unreasonable delay. - The A: licant/Appellant is willing $5.$ to deposit the Decretal sum in Court as security for the respondent in the event that the Appeal is not successful. - 6. The intended appeal has a very good prospect of success as the<br>learned trial judge erred in law in awarding the respondent as damages for wrongful dismissal all expected earning, allowances and salary until retirement being a period of nine years. - That execution on a decree improperly 7. extracted was issued on the 29th October 1996 and the applicant applied to stay the same and additionally to stay execution of the Decree subsequently to be extracted pending the final disposal of the Appeal. The learned Mr. Justice Tinyinondi in his ruling of the 7th November 1996 stayed the execution on the improper decree but made no Order as to execution of the subsequent decree which in accordance with S $7(5)$ of the Civil Procedure Act amounted to a refusal of that part of the application by the High Court".

The affidavit of Charles Okurut contains substantially the above grounds set out in the Notice of Notion.

This matter has an interesting background. The respondent sued the applicant seeking to recover damages for wrongful dismissal. The Suit

11.

was heard by Okalebo, Ag. J.. He gave judgment on 9th May 1992 in favour of the respondent awarding him special damages for wrongful dismissal. The award was salary and allowances for the period 31st May 1990. $\frac{1}{2}$ 3150A<sub>-1</sub> The Latter being the date when the respondent would have retired. Unfortune Okelebo, Ag., J., did not quantify the awards. So the prties were valid to agree on the format of the decree.

After the intervention of the Principal Judge, an application for review of the judgment was made before Tininyinondi, J. Tinyinondi, J. directed for the quantification to be done before a Deputy Registrar. This was eventually done by Ms H. Wolayo, the Deputy Registrary on 25th November 1993. On 31st December 1993 the Registrar issued erecution to recover shillings 61,765,172/=. Because no proper decree had been extracted, Katutsi, J. heard an application and set aside the execution process on 4th February 1994. He directed for a proper decree to be settled. This was eventually settled by Tininyondi, J., on 16th 1997 in terms apparently substantially deferent from the previous draft decreas. On 29th January 1997 the applicant filed an application for stay in the Court of Appeal. On technical grounds, the application had to be transferred to this Court.

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Mr Masembe-Kanyerezi for the applicant argued grounds 1, 2 and 3 together and grounds 5, 4, 6 and $\dot{\gamma}$ together.

Arguing grounds 1, 2 and 3, Mr Masembe-Kanyerezi elted L. Musitwa Kvaz: E. Busingye (Supreme Court Civil Application No. 18 of 1990) $\mathbf{V}\mathbf{G}$ (unreported) and Kampala Bottlers vs Uganda Bottlers (Supreme Court Civil Application No 25/1995 (unreported) to support the proposition that pending the determination of an appeal, stay ought to be granted

if $\ldots$ /4

under Rule 5(2)(b) is that a Notice of Appeal has been filed, which the applicant (Barclays Bank of Uganda 1.d) has done. We are however, aware that it is sometimes necessary to require the applicant for stay to provide security. In fact the applicant has already provided such security in the sum of shillings $50m/- .55,8D2,961-$

In view of these findings it is unnecessary to consider the rest of the grounds and submissions thereon.

We note that the applicant is a Commercial Bank. We can take judicial notice of the fact that the applicant Bank has been here for a long time. There is no evidence before us suggesting that the applicant is engaged in a fravolous appeal or that it will not perform the decree if it looses the appeal. Having considered the facts before us, the affidavits of both the applicant and the respondent, we are satisfied that this is a proper case to order stay of execution. We so order. In the circumstances we think that the sum of shillings $5602-981$ . deposited in Court is sufficient security for the performance of the decree.

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Costs of this application shall abide the determination of the appeal. $o_1$ Delivered at Mengo this ... day of April $107.$

$H. O. A.$ Oder

Justice of the Supreme Court.

Tsekooko,

Justice of the Supreme Court.

Karokora. Justice of the Supreme Court.