Emaku Joseph & Anor v Emulu Ojamuge (Miscellaneous Application 140 of 2023) [2024] UGHC 71 (24 January 2024)

Full Case Text

The Republic of Uganda

In The High Court of Uganda at Soroti

Misc. Application No. 140 of 2023

(Arising from Civil Suit No. 28 of 2018)

| | 1. Emaku Joseph | | |--|---------------------|--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------| | | 10 2. Opejo Stephen | <table> Image: State of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of t</table> | | | | |

Versus

<table>

Emulu Ojamuge ::::::::::::::::::::::::::::::::::::

# Before: Hon. Justice Dr Henry Peter Adonyo

## Ruling

#### 1. Background. 15

$\mathsf{S}$

The Respondent filed Civil Suit No. 28 of 2018 against the first, and second Applicants and the Departed Asians Property Custodian Board jointly and severally for trespass to property comprised in LRV 142 Folio 14, plot no. 18 Gweri Road, Soroti City in which the Applicants were unsuccessful.

The Respondent then filed Taxation Hearing Notice and Bill of Costs and is stated to 20 have threatened the Applicants with imminent execution of the judgment hence this application.

The Applicants brought this application under Section 33 of the Judicature Act, Cap 13, Section 98 of the Civil Procedure Act, Cap 71, and Order 43 Rule 4 (1), (2), and (3) of the Civil Procedure Rules SI 71-1, for Orders that stay of execution be issued

restraining the Respondent and his agents from executing the Orders arising from $\mathsf{S}$ Civil Suit No. 28 of 2018 until the hearing and disposal of the Applicants' Appeal against the judgment of this Hon. Court.

Section 98 of the Civil Procedure Act, Cap 71 gives the High Court inherent powers to take decisions which are pertinent to the ends of justice, and an order for stay of execution is such one. See: Singh V Runda Coffee Estates Ltd (1966) EA.

This Honourable Court is also empowered under Section 33 of the Judicature Act, Cap 13 to grant absolutely or on such terms and conditions all remedies to the parties to a cause or matter in respect of any legal or equitable claim properly brought before it.

### Order 43 Rule 2 of the Civil Procedure Rules SI 71-1 states that 15

where an application is made for stay of execution of an appealable decree before the expiration of the time allowed for appealing from the decree, the court which passed the decree may on sufficient cause being shown order the execution to be stayed.

The grounds for stay of execution are found in Order 43 Rule 3 of the Civil Procedure Rules SI $71-1$ which states that;

No order for stay of execution shall be made under sub rule (1) or (2) of this rule unless the court making it is satisfied-

- (a) That substantial loss may result to the party applying for stay of execution unless the order is made; - (b) That the application has been made without unreasonably delay; and $25$

### Order 43 Rule 2 of the Civil Procedure Rules SI 71-1 states that 15

The grounds for stay of execution are found in Order 43 Rule 3 of the Civil Procedure Rules SI 71-1 which states that;

No order for stay of execution shall be made under sub rule (1) or (2) of this rule unless the court making it is satisfied-

(a) That substantial loss may result to the party applying for stay of execution unless the order is made:

(b) That the application has been made without unreasonably delay; and

(c) That security has been given by the applicant for the due performance of the decree or order as may ultimately be binding upon him or her.

These grounds were espoused in the case of Lawrence Musiitwa Kyazze V Eunice Busingye, Supreme Court Civil Application No. 18 of 1990 but more pronounced in the Supreme Court decision in the case of Hon Theodore Ssekikubo and Others V The Attorney General and Others Constitutional Application No. 03 of 2014 and they

include;

- a) The applicant must show that he lodged a notice of appeal. - b) That substantial loss may result to the applicant unless stay of execution is granted. - c) That the application has been made without unreasonable delay. - d) That the applicant has given security for due performance of the decree or order as may ultimately be binding upon him. - 2. Resolution: - a. Whether the applicants have filed and lodged an appeal. - The first Applicant in paragraph 6 of the affidavit in support states that the record 20 of appeal comprising of the Memorandum of Appeal was filed in the Court of Appeal Vide Civil Appeal No. 409 of 2022 on 17th October, 2022. It was served on the Respondent's counsel on 7th November, 2022.

This fact is not in dispute and thus there is proof that there is an appeal pending ion the relevant appellate court waiting determination.

b. The substantial loss may result to the Applicants unless stay of execution is granted.

$\mathsf{S}$

Substantial loss was defined in the case of *Tropical Commodities Suppliers Ltd V* 5 International Credit Bank. Misc. Application No. 279 of 2003, to mean;

> ".... not to represent any particular amount or size. It cannot be quantified by any mathematical formula rather it is a qualitative concept. It refers to any loss, greater or small that is of real worth or value as distinguished from a loss without value or a loss that is merely normal".

The position of the law is that once an appeal is pending and there is a serious threat of execution before the hearing of the appeal, the court can intervene to serve the purpose of substance justice as was held in Hwang Sung Industries Ltd V Tadjaudin Hussein & Others SSCA No. 79 of 2008.

- The first Applicant in paragraph 7 of the affidavit in support of this application states 15 that they were served with the Taxation Hearing Notices fixing taxation of the Respondent's Bill of Costs. That a party is served with a taxation hearing notice is not in itself evidence of an imminent threat of execution but is merely a pointer to the process which may lead to such. - In the case of DFCU Bank Ltd V Dr. Ann Persis Nakate Lussejere, Civil Appeal No. 29 of 20 2003, it was emphasized that the court to which an application for stay of execution pending an appeal ought to ensure that the appeal, if successful is not rendered nugatory.

While I am alive to the above duty of this Honourable court, I am also required to ensure that a successful party does not use the allure of an appeal to deny a 25 successful part the fruit of its judgment.

Accordingly, the two interests must be balanced to ensure that not only is a proposed appeal not rendered nugatory but the procedure of a pending appeal is not engineered to deny a successful party its rights.

$\mathsf{S}$

By this application, it has not been demonstrated to me that the Applicants will suffer substantial loss if the order for stay of execution is not granted by this Honourable court though the fact remains that the Applicants have filed an appeal in the Court of Appeal. The worry of the applicants is merely the fact that they have been served with a taxation hearing notices which is fixing taxation of the Respondent's Bill of Costs.

The serving of a party with a taxation hearing notices and the fixing of such taxation is one of the long processes required before execution can ensure as after even the 15 taxation of a bill of costs the taxing master is required to issue a notice the malefactor requiring such party to show why execution should not ensue.

That being the case, I am not satisfied that the mere issuing of a notice to a party and the fixing of a taxation hearing date is sufficient as proof requiring an order for stay of execution as there is yet nothing to execute which would render any pending appeal nugatory. This ground fails.

# c. The application was made without unreasonably delay.

The Applicants assert that this application for stay of execution of the judgment was filed without delay citing the fact that when the judgment in HCCS No. 28 of 2018 was delivered by this Honourable Court on the 1st day of June, 2022 by Hon. Justice 25 Dr. Henry Peter Adonyo, the applicants filed a Memorandum of Appeal in the Court of Appeal on 17th October, 2022.

On 6th September, 2023, a copy of the Taxation Hearing Notice and the Bill of Costs $\mathsf{S}$ was received from the Respondent's counsel with this application was filed on $28^{\mbox{\scriptsize th}}$ September, 2023. This shows that it was filed without unreasonable delay.

By filing this application on 23rd September, 2023, when the judgment in HCCS No. 28 of 2018 was delivered on the 1st day of June, 2022 with the applicants filing their

- a memorandum of appeal in the Court of Appeal on 17th October, 2022 and this 10 application being filed on 7th September, 2023 after a copy of the Taxation Hearing Notice and a proposed Bill of Costs was received by them on 6th September, 2023, I find that this application which was filed nearly one year and three months after the judgment of this court to have unreasonably been delayed as it is clear to me that the applicants merely awakened to make this application upon being served with 15 Taxation Hearing Notice and the Bill of Costs. That being the case, I find this application is brought merely to stifle a clear judicial process which, as at this stage does not, call for an application of this nature as there is no impending execution. Accordingly, this ground fails as it has not been proved. - d. Security for due performance of the decree or order as may ultimately be 20 binding upon him.

The law on payment of security for due performance has been interpreted liberally in a number of cases and courts have granted stay of execution subject to payment of security for costs.

In the case of **Kawanga V Namyalo Another Miscellaneous Application No. 12 of 2017**, 25 Justice Dr. Flavian Zeija granted stay of execution without payment of security for due performance of the decree. The honourable judge was persuaded by the decision in Amuanaum Sam V Opolot David MA No. 3 of 2014 where court held that

the status of the applicant should be put into consideration in order to decide $\mathsf{S}$ whether security for due performance of the decree should be paid or not she granted the stay of execution.

As the Applicants have failed to satisfy me as to why this application should be granted, I would find that it is not necessary to explore and determine this ground which falls flat on its chest as the circumstances presented now by the applicants does not warrant its scrutiny and determination and as such I will not consider it.

## 3. Conclusion and Orders:

Arising from my findings above, it is my conclusion that this application is a red herring as it is premature and is thus unwarranted at this stage as what has been brought to the attention of the applicants is merely a Taxation Hearing Notice and a 15 proposed Bill of Costs which is not a threat of execution but an exercise of the respondent's right after receiving a judgment.

Accordingly, this application fails as it is dismissed with costs to the respondent.

I so order.

Hon. Justice Dr Henry Peter Adonyo

Judge

24th January, 2024