Dr. Apollo Kagwa v Kitubuka-Musoke and Another (Civil Application No. 85/99) [2000] UGCA 57 (30 March 2000)

## THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

HON. MR. JUSTICE J. P. BERKO, JA. **CORAM:** HON. MR. JUSTICE S. G. ENGWAU, JA. HON. MR. JUSTICE A. TWINOMUJUNI, JA.

## **CIVIL APPLICATION NO. 85/99**

DR. APPOLLO KAGWA...................................

## **VERSUS**

### 1. WILLIAM KIBUUKA-MUSOKE).................................... 2. S. MUWEMBA $\mathbf{I}$

# **RULING OF THE COURT:**

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This is an application by the judgment-debtor under sub-rule 3 of rule 1, paragraph (b) of sub-rule 5; rules 42, 43, 49 and 52 of the Court of Appeal Rules Directions, 1996 for an order to stay execution of the judgment of this court in Civil Appeal No. 46 of 1997 pending an appeal to the Supreme Court.

The grounds of the application are that:-

- there is a pending appeal to the Supreme Court; $(i)$ - the appeal has a high likelihood of success as this court relied $(ii)$ on typographical error to vary and/or reverse the decision of the lower court and - the applicant is willing to pay security for the performance of the $(iii)$ decree.

The application is supported by an affidavit deponed to by James Rwabazaire Matsiko who represented the applicant in the High Court and in The relevant part of the affidavit read: this court.

$6.$ That the judgment and decretal sum is inordinately excessive and does not reflect the true incidence of facts.

- $\mathbf{7}.$ That the appeal has a high likelihood of success as the justices of the Court of Appeal relied on a typographical error to arrive at their decision. - the applicant/respondent would suffer great and 8. **That** substantial loss if the orders sought hereinbefore are not granted.

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#### $9.$ That the applicant/respondent is willing to pay security for the due performance of the decree;

#### **10.** That the application was made without unreasonable delay.

The application has been resisted on the grounds:

- that there is no ground for granting the relief as the $(i)$ applicant is guilty of latches and inordinate delay. - $(ii)$ that the judgment and decretal sum are not in any way excessive: - that the appeal has no real likelihood of success; and $(iii)$ - that there is no loss incapable of monetary recompense $(iv)$ to be occasioned to the applicant if the execution is not stayed. - This was a case in which the applicant had sued the respondents in the $20$ High Court claiming general and special damages for the respondents' failure to restore or repair water pipes of the applicant that were destroyed by the respondent when they were constructing sewerage septic tank in their backyard. The claim was in respect of expenses incurred in repairing the water pipes and for getting alternative source of water until the repairs were completed.

Judgment was entered in favour of the applicant. He was awarded Shs. 4.5 million as general damages and shs. 1.5 million special damages plus costs of the suit.

The respondents successfully appealed to this court. The special damages was reduced to 205,000/=. The award of Shs. 4.5 millions was set aside. The respondents were awarded $\frac{3}{4}$ of the costs of the appeal and in the court below.

The applicant is aggrieved by the decision of this court and intends to appeal to the Supreme Court and has filed Notice of Appeal to that effect. He now wants the whole judgment to be stayed pending his appeal to the Supreme Court.

It is the paramount duty of a court to which an application for stay of execution pending appeal is made to see that the appeal, if successful, is not nugatory: See *Wilson v Church – (1870)* 12 Ch D. 454 page 458 – 459.

The court can only grant a stay of execution if it is satisfied that there is good cause for doing so and that there are special circumstances to justify such a cause. The main ground of the application is the likelihood of success of the appeal. In the supplementary affidavit in support of the application it had been deponed that there were clerical, arithmetical and/or typographical

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errors on the face of the record of proceedings and that this court relied on those errors to arrive at its decision.

It must be pointed out that a record of appeal is prepared and certified to be correct by the appellant. The appellant is required by rule 87 (2) to serve respondent with copies of the memorandum of appeal and the record of appeal. If the respondent thought that the record of appeal was defective or insufficient for his case, he was entitled to lodge a supplementary record of appeal under rule 89. That was not done in this case.

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The hearing of the appeal therefore proceeded on the understanding that record of the proceedings reflected what took place at the trial court. If, in the opinion of the applicant, the record that was put before the court was defective or insufficient, this court cannot be blamed for that. That is not an error contemplated by S. 102 of the Civil Procedure Act or rule 35 of the Rules Those provisions, which are generally referred to as "Slip" of this court. **Rules"**, are intended to correct clerical or arithmetical mistakes in judgments of the court and not clerical, arithmetical and typographical errors on the face of a record of appeal.

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That being the main ground on which the judgment is being challenged. then it seems to us that the appeal has no likelihood of success.

It has been argued that the applicant would suffer substantial loss if the application is refused. The decrital sum set out in the warrant of attachment is Shs. $1,371,500/$ =. This cannot, by any stretch of imagination, be said to be a large sum of money which the respondents cannot refund in the event of the appeal succeeding.

Again the injustice which the applicant was likely to suffer if execution was levied, though referred to in the affidavit of the applicant's counsel, was not shown. The sale by public auction of the applicant's properties that have been attached, however, would cause the applicant a great embarrassment, but that in itself was not a good cause to warrant a stay of execution and deprive the respondents of the benefit of the litigation: see **Kampala City** Council v National Pharmacy Ltd. (1979) HCB. 215.

As regards the delay in bringing the application, we wish to state that this court has discretion to order a stay of execution where a Notice of Appeal is lodged in accordance with rule 75 of this court. It is only fair that an 40 intended appellant who has filed a notice of appeal should be able to apply for a stay of execution to this court and not to have to wait until he has lodged his appeal to do so. Owing to the delay in obtaining the proceedings of this court that have been mentioned in the Affidavit in rejoinder of Mr. James Rwabazaire Matsiko of the 9/12/99 it may be months before he could lodge his appeal. In the meantime, the execution of the decision of the court would cause him irreparable loss. That is the reason why this court is empowered by rule 5 $(2)$ (b) to entertain an application for stay of execution as soon as notice of appeal had been filed. There was no need for the applicant to have waited for the record of the proceedings of this court before filing the $50$

application. The fault lay with his legal advisors in respect of which the applicant should not be penalised.

In the result we are not satisfied that the applicant has shown good cause to persuade us to exercise our discretion on his behalf. The application is accordingly refused with costs to the respondents.

Dated this 30<sup>th</sup> day of Morch 2000.

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$\overline{\boldsymbol{\lambda}}$

J. P. Berko Justice of Appeal.

Squan S. G. Engwau

**Justice of Appeal.**

A. Twinomyjuni Justice of Appeal.

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