Bisangwa Kasimba and Another v Daimond Trust Bank (Miscellaneous Application 88 of 2020) [2020] UGCA 2147 (5 November 2020)

## THE REPUBLIC OF UGANDA

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

## MISC. APPLICATION NO. 88 OF 2O2O

(Aising from Miscellaneous Application No. 18 of 2020)

### 1. BISANGWA KASIMBA JOSEPHAT

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# 2. BISONS CONSULT INTERNATIONAL LTD :::::::: APPLICANTS VERSUS

DIAMOND TRUST BANK RESPONDENTS

## <sup>10</sup> BEFORE: HON. JUSTICE STEPHEN MUSOTA, JA

# (Sitting as a single Jud.ge)

#### RULING OF COURT

The applicant herein applied and was granted an interim order to restrain the respondent from attaching, selling andlor disposing of a 1s number of land properties owned by the applicants.

O The interim order granted by Hon. Justice Remmy Kasule, Ag. JA was to last for a period of three (3) calendar months from the date of delivery which was 5th March 2O2O. The said 3 months have expired.

The applicant has now filed this application under section 11 of the zo Judicature Act, Rules 43 and 44 of the Judicature (Court of Appeal Rules) Direction seeking for orders that;

- 1. An order doth issue extending the interim order issued by this Honorable court (Hon. Justice Remmy Kasule, Ag. JA sitting as a single Justice of Appeal) on the Sth March 2O2O restraining the respondent from selling and/or transferring the properties comprised in LRV 3774 Folio 13 Block 273 plot no. <sup>2923</sup> Kyadondo Land at Katunso; Kibiga Block 6 plot LRV 473 at Katwe; LRV 6894 Fol. 5 plot 112 Nakiwogo Road, Entebbe Busiro Block 351 plot 312 land at Budo and LRV 4509 fol. 21 Block 256 plt 5 Kyadondo at Mulungu to any other third parties, until the hearing and disposal of the Application for injunction pending before this Court vide Miscellaneous Civil Application No. 415 of 2Ol9 or Main Civil Appeal No. 347 of 2019. - 2. Costs of this application be in the cause.

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The grounds upon which the application is premised as set out in the notice of motion and the affidavit in support are that; 15

The applicants were granted a relief of an interim order preserving the properties comprised in LRV 3774 Folio 13 Block 273 Kyadondo land in Katuuso, Kibuga Block 6 Plot 473 at Katwe, LRV 4509 Fotio 21 Block 256 Plot 5 land at Mulungu, prohibiting any transfer of the said land to any third party until the main application is heard and determined.

The applicants prayed in Miscellaneous Application No. 18 of 2O2O that there was eminent threat of execution and they adduced evidence of the Sunday Monitor Newspaper of January 19,2O2O in which the respondent instructed Ms. Trust General Auctioneers and

Court Bailiffs to advertise for sale by public auction, the applicants land. Had it not been for the interim order, the sale would have taken place by now.

## Representation

5 At the hearing of the application, Mr. Patrick Mugisha appeared for the applicant while Mr. Steven Zimwla appeared for the respondent. The parties both filed written arguments.

# Applicant's arguments

a 10 15 Counsel argued that the applicant was earlier granted an interim order of stay of execution pending the determination of the main application which to date, has not been fixed due to the COVID 19 Lockdown which affected court business. The applicant's efforts to have the main application fixed did not yield results due to the Chief Justice's Administrative circular which limited court's normal business.

The applicant prayed that this application be allowed ending the determination of the main application for stay of execution.

### Respondentts arguments

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In reply, counsel opposed the application and submitted that this court cannot extend an interim order which already expired having been issued on Sth March 2O2O. In addition, the debt which is due to the applicants was long admitted and a payment proposal made which was nor followed.

# Applicant's rejoinder

The applicants counsel argued that whereas the interim order earlier granted by this court was expiring on 5th June 2O2O, the appticant filed this application for extension of the interim order on 27th May 2020 before it expired. Counsel relied on Rule 2(2) of the Judlcature

Court of Appeal Rules and prayed that this court invokes its inherent powers to extend the interim order pending hearing of the main application for stay of execution. 5

Counsel submitted that it is premature for the respondent to argue that the debt of 1,100,000,000/= was admitted by the applicants G without going into the merit of the appeal. In addition, the applicants already paid 500,000,000/= to the respondents without prejudice to their claims.

# Consideration of the application

I have carefully considered the submissions of both counsel and the pleadings on record.

The respondent filed an affidavit in reply and stated that the debt the respondent seeks to recover was admitted by the applicants and gave O <sup>a</sup>payment plan to run for (6) to (8) months which period expired. In addition, that the interim order the applicant seeks to extend already 20 expired and as such, there is nothing to extend.

The applicant filed a supplementary affidavit and stated that the applicant deposited an amount to 500,000,00O7= (five hundred million shillings) on 1Sth June 2O2O with the understanding that the alleged debt was still subject of litigation.

However, on 28th September 2O2O, the respondent's advocates instructed auctioneers to advertise four properties in Munyonyo, Katuuso-Buziga, Nsambya and Wakiso.

As submitted by the appellant's counsel, this application was filed on s 27th May 2O2O shortly before the interim order granted by Hon. Justice Remmy Kasule, Ag JA expired. The substantive application for stay of execution has not been cause-listed for hearing and yet the interim order expired. This court takes judicial notice of the fact that the COVID19 pandemic affected the court business in Uganda O, as a whole.

Rule 2(2) calls upon this Court to exercise its inherent power to do justice or to prevent abuse of due process, notwithstanding anlthing contained in the Rules. It states thus:-

(2) Nothing in these Rules shall be taken to limit or otherwise affect the inherent power of the court, or the High Court, to make such orders as maq be necessary for attaining the ends of justice or to preuent abuse of the process of ang such court, and that power shall extend to setting aside judgments which haue been proued null and uoid afier theg haue been passed, and shall be exercised to preuent abuse ofthe process of ang court caused bg delag.

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The Supreme Court in Attorney General and another Vs Afric Cooperatlve Society Misc. Application No. 6 of 2OL2 pointed out the relevance of Rule 2(21 of the Supreme Court Rules which is <sup>25</sup> similar to Rule 2(2) of the rules of this court. It was held that;

This Rule derives from Section 98 of the Civil Procedure Act which *saves the inherent powers of Court. It states thus:-*

"Nothing in this Act shall be deemed to limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court."

The above provisions are reinforced by Article 126 of the *Constitution, which states as follows*

$126(1)$ "Judicial power is derived from the people and shall be exercised by the courts established under this

Constitution in the name of the people and in conformity with law and with the values, norms and aspirations of the people."

126(2)"In adjudicating cases of both a civil and criminal nature, the courts shall, subject to law, apply the

#### following principles -

(e) substantive justice shall be administered without undue regard to technicalities."

This application for extension of the interim order was filed before the 20 interim order expired. The substantive application has also not been cause-listed due to the tight court schedule and the COVID19 pandemic which affected the court business. It would therefore not serve the interest of justice to deny this application. I will not address

$\mathbf{L}$

$\mathsf{S}$


myself to the issue raised by the respondent's counsel that the $\bullet$ applicant admitted the debt of $1,100,000,000/$ = because it would require me going into the merits of the appeal. It seems to me that the applicants admit indebtedness to the respondent however, the issue in contention is the amount awed. $\mathsf{S}$

Since both the main application for stay of execution and the substantive appeal are pending determination by this court, this application is therefore granted and I make the following orders:

- 1. An order extending the interim order granted by this court is hereby granted until the substantive application is fixed for hearing. - 2. The registrar of this court is hereby directed to fix the substantive application vide Civil Application No. 415 of 2019 and Civil Appeal No. 347 of 2019 in the February 2021 Civil session. - 3. Costs will abide the main cause.

Dated this day of $\mathcal{N}$ 2020

The Juni Tur

**Stephen Musota**

**JUSTICE OF APPEAL**