Engola v Acire (Civil Suit 370 of 1992) [1993] UGHC 53 (26 August 1993)

Full Case Text

## THE REPUBLIC OF UGANDA.

IN THE HIGH COURT OF UGANDA AT KAMPALA

## CIVIL SUIT NO. £70 OF 1992

ANN MARY ENGOLA ........................................ APPLICANT/JUDGMENT DEBTOR. VERSUS

CHARLES ACIRE ............................. RESPONDENT/DECREE HOLDER. BEFORE:- The Honourable Mr. Justice J. W. N. Tsekooko

## **P** R D E R

The respondent is the decree holder in HCCS No, 370/92. The applicant is the judgment debtor in the same suit. The respondent has put execution proceedings in motion by seeking to have the applicant committed to civil prison under 0.19 Rule 37 of Civil Procedure Rules. The applicant instituted chamber application under 0.19 Rule 26 and 89 seeking to obtain orders for stay of execution.

• asked Mr. Sekabanja, learned counsel for the applicant, to satisfy me that Rule 26 was applicable in these proceedings. He submitted that the rule was applicable and cited the case of Iddi Halfarii Vs. Hamisi Binti Athumani /T9&2/ EA 7&1 as authority for this view, Mr. Matsiko, learned counsel for the respondent submitted that the rule was inapplicable and that the application should be struck out.

Order 19 Rule 26 reads:

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• ''Where a suit is pending in any court against the holder of a decree of such a court in the name of the person against whom the decree was passed, the court may, on such terms as to security or otherwiseas it thinks fit, stay execution of the decree until the pending suit has been decided".

I agree with learned counsel for the applicant that an application of a'Civil nature is regarded as a suit for certain matters. See HCCSNo.'38 of 1989 Kanyara Vs. Ahamed, Salim Vs. Boyd /1971? EA 550 at Page 552 and Section 2 of the Civil Procedure Act.

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But this does not mean that all civil applications or suits within the meaning of 0.19 Rule 26. 1.

In my view requirements for•the application of Rule 26 of Order 19 are:

- (1) There should be a pending suit in court against a holder of a decree. •- . - (2) That pending suit must have been instituted, by the Judgment debtor.

In otherwords there should be what |s sometimes called a cross suit to establish a right. And this is what I understand the case of Halfani to mean. As that case illustrates the matter clearly, I should reproduce the summary of the facts:

The respondent had instituted Civil Suit No. 723 of 1961 agains. the applicant, in a Dar-es-Salaam District Court. He obtained an exparte judgment against the appellant. Respondent sought to execute the decree in Civil Suit No. 723/61. Before executio\*n in May 1962 the appellant filed Civil Suit No, 1^71 of 1962 against the respondent seeking to set aside suit No. 723/61 on grounds that it was obtained by fraud. Thereafter on 18th May, 1962 the appellant filed an application for stay of execution of the decree in Civil Suit No. 723 of 1961 because of the existance of Civil Suit No. 1^71 of 1962. After the Magistrates Court dismissed his application for stay he appealed. When commenting on the applicability of the Indian 0.21 Rule 29 which is similar to our 0.19 Rule 26, Sir Ralph Windham, CJ, of Tanganyika, stated at page 7&3 that "all that the rule requires is that there should be a pending suit, which in the absence of limiting words means any kind of suit, brought by the unsuccessful against the successful party in the earlier suit whose decree is to be executed". Here' this case shows that there should exist two substantive suits.

In my considered view a pending suit for purposes of this suit would not mean a Notice of Motion filed within the same ■Sult seeking to set aside an exparte judgment. On that score the submissions of learned counsel for the applicant would not be valid. **. ••••♦•/3**

further reflection I have decided to hear the application because this court has inherent powers to entertain applications for stay of its Orders even where procedures adopted are faulty if the matter I shall hear the application. to strike out the Chamber Summons. However on At first I was inclined to accept Mr. Matsiko's application is urgent. So

JUDGE 25/8/1993. J. W.

26/8/1993 at 9.00 a.m.

**o**

Sekabanja for applicant.

Matsiko for respondent.

Ssensonga - court interpreter.

Ruling delivered in the presence of the above

/ TSEKOOKO

JUDGE •26/8/1993

Sekabanja: I am ready to proceed.

Matsiko: I would not object to the application provided

JUDGE

TSEKOOKO

26/8/1993.

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the applicant can deposit the decretal amount in court.

Jlekabanja: I request for a short adjournment to consult. Court: Adjourned to 9\*30 a.m

At ^.30 a\m. court reassembles.

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Appearances as before.

Ssensonga court clerk.

Ssekabanja: By consent of both counsel, it is agreed that stay of execution "be granted. And that the applicant do deposits the decretal sum of Shs. 689,OOt/= in court within thirty (30) days from the date hereof. We further suggest that a hearing date be fixed for hearing the Notice of Motion to set aside exparte judgment.

Court: Application is granted as agreed. The applicant is to deposit in court the decretal sum of Shs. 689,000/= within thirty (30) days from the date hereof. The Registrar (Civil) is directed to fix a convenient hearing date for Notice of Motion to set aside the exparte judgment. These orders supercede the orders of the registrar made on *I* 2nd August, 1995\* To days costs shall be in the cause•

J. W.nV T!BE!kOOKO *J* -•■J tl D G E

26/8/1993