Hwan Sung Industries Ltd v Tajdin and Others (Civil Application 19 of 2008) [2008] UGSC 30 (19 September 2008)

Full Case Text

## THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT MENGO CIVIL APPLICATION NO. 19 OF 2008

## BETWEEN

## G. M. OKELLO, JSC. CORAM:

## HWANG SUNG INDUSTRIES LTD: *..........*

APPLICANT

$AND$

1. TAJDIN HUSSEIN

2. RAINBOW FOODS LTD.

3. NIZAR HUSSEIN:

.......... .........

RESPONDENTS

(An application arising from Civil Application No. 18 of 2008, which in turn arose from Civil Appeal No. 08/2008)

This is an application under rules $2(2)$ , $42(1)$ and $47(2)$ of the Rules of this Court for an interim order for stay of execution. The application also seeks an order for costs of this application.

The grounds on which the application is based are contained in the Notice of Motion itself. In a nutshell, the ground is to preserve the status quo of the subject matter of dispute pending the disposal of the substantive application for stay of execution now pending in this court as Civil Application No.18 of 2008.

Brie fly, the applicant had successfully sued the respondents in HCCS No' 271 ol 2003. for breach ofcontract. On appeal to the Court ofAppeal, the respondents were successful. 'Ihe applicant who was dissatisfied with the <lecision ol the Court of Appeal, appealed to this court vide Civil Appeal No. Ott ol'2008.

Anxious to reap the fruits of their success in the Court of Appeal, thc respondcnts applied for excctttion ofthe decree ofthe Court ofAppeal. The applicant who got wind olttrat application, applied in this court, vide Civil Application No. 18 of2008, for an order ofstay ofexecution ofthe decree in court ofAppeal Civil Appeal No. 7l of2005, pending the disposal ofappeal No. 08 of 2008. He also tiled the instant application for interim order lor stay.

ln thc mcantime, the Registrar of the Court o1 Appeal, acting on an application by the respondents, issued warant ol attachment and sale of thc applicant's property in execution, rvhen the applicant failed to respond to the "Notice to show cause" issued under 022 r 39 of the Civil Procedure Rules. On receipt of the warrant of attachment and sale in execution, the Court Bailil'lproceeded to attach the plaintilf's property.

At the hcaring, Mr. George Omunyokol appeared for the applicant while Ms. Vcrnra Jivram represented thc respondents.

Presenting the applicant's case, Mr. Omunyokol submitted that the application seeks the court's interim intervention to preserve the status quo pending the disposal of the main application for stay of execution now pending in this court as Civil Application No. 18 of 2008. He acknowledged that attachment of the applicant's property in execution of the decree has already been effected on 15-09-08, but that the execution was not yet complete. Sale of the attached property has not yet been done. Referring to paragraph 7 of the supporting affidavit of Mr. Tenywa, a quality controller of the applicant, learned counsel contended that if the order sought was not granted, the applicant's pending appeal would be rendered nugatory. He suggested that the applicant was willing to deposit some money as security for performance of the decree of the Court of Appeal, pending the disposal of the pending appeal.

Ms. Jivram opposed the application on a number of grounds, firstly that the application has been overtaken by event. Attachment of the applicant's property on 15-09-2008 in execution of the decree has already altered the position. The fact of the attachment is contained in paragraphs $3 - 10$ of the affidavit of James Birungi, Court Bailiff. Learned counsel argued that to grant this application in this circumstance would be to reverse rather than to maintain the status quo.

Secondly, that neither the number nor a copy of the stated pending substantive application for stay of execution has been disclosed or made available. The respondent was left to assume the existence of the said substantive application for stay of execution.

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't'hirdly, citing Editor - in - Chief New Vision, News paper - vs Ntabgtfia, Civil Application No. 63 of 2005, Court of Appeal (un reported)' lcarncd counsel submitted that there is no evidence ol'special circumstance ancl good cause to justify grant of such an application. The burden is on the applicant to show the speciat circumstance and good cause to justify grant'

l;ourthly, that thcrc is also no cvidence of inability of the respondent to rctund the decretal amount, if paid, in the event of the appeal succeeding. 'Ihe burden to show that inability is also on the applicant'

Irilihly. that the application lilr stay oIexecution nceds to be brought without delay. Normally such an application should be made informally as soon as the judgment is delivered. Leamed counsel pointed out that in the instant case, the application was filed nearly two years alter the judgment was dclivcrccl. In her vicw, this application was not brought without delay and that there is no special circurnstance and good cause to justify granting it'

Shc prayed that the applic:ltion be dismissed'

Ilaving hcard both counsel on this matter, it is important to point out that rulc 2(21of the Rulcs of this court preserves the inherent powcr of this court to make any orders to achic\,c thc cnd of justice or to prevent abuse o[ its proccss

In the instant application, the justice of the case requires that the main application for stay of execution, now pending before this court, be heald bcfiore thc execution is eflected otherwise that main application would be rendered nugatory.

Ir rvas argucd by Ms. Jivram that this application has been overtaken by cvcnt since attachment in execution has already been effected on l5-09-08. I lind no dispute about thc attachment having been effected in execution of the decree in question bul I accept Mr. Omunyokol's submission thal the attachmcnt alone did nol complcte the execution. In an execution by attachment and Sale, both components must be completed in order to complete the execution. This was not the case in the instant case'

I\4s. Jivrarr lurther submitted that ttle applicant did not show any special circumstancc and good cause lo justify grant of this application. She cited the Editor - in Chief of the New Vision News paper - vs - Jeremiah Ntabgoba, civil Application No. 63 of 2004, coA (un reported). '[hat case \\,as a sLrbstantive application lor stay of execution and the matter to be considered lor grant of a substantive application for stay arc not necessarily thc samc in considering application for an interim ordcr for slay pcnding rlisposal olthe substantive applicatiorr.

I;or an application for an intcrim or'der of stay, it sulfices to show that a substantive application is pending and that there is a serious threat of exccution belore the hearing ol the pending substar.rtive application. It is not rlcccssary to pre-empt consideration of matters necessary in deciding whcther or not to grant thc srtbstantive application for stay.

)

In the instant application, I am satisfied that there is pending in this court a substantive application for stay of execution of the decree in Civil Appeal No. 71 of 2003, which is the subject of appeal in this court. I am also satisfied that there is a real threat to execute the decree before the disposal of the substantive application. When that is done, the substantive application would be rendered nugatory. The attachment that was effected on 15-09-08, did not complete the execution of that decree, therefore, this application has not been overtaken by event.

In the result, I allow the application and order as follows:

- Sale of the property attached on 15-09-08 as shown in the $(1)$ inventory signed by a representative of the applicant and attached to James Birungi's affidavit must stay pending the disposal of Civil Application No. 18 of 2008 or until 17-11-08, whichever comes first. - If by 17-11-08, the substantive application (No. 18 of 2008) is still $(2)$ pending, this matter must be brought to court for review. - Costs of this application to abide the result of the substantive $(3)$ application.

Dated at Mengo this: ...... day of: ...................................

G. M. OKELLO JUSTICE OF THE SUPREME COURT

$6$

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