Kasirye Byaruhanga & Co Advocates v Mugerwa Mugalasi (Civil Application No. 104/08) [2008] UGCA 30 (6 November 2008)

Full Case Text

## THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

## CORAM:

## HON. JUSTICE A. TWINOMUJUNI, JA. HON. JUSTICE C. K. BYAMUGISHA, JA. HON. JUSTICE S. B. K. KAVUMA, JA.

# **CIVIL APPLICATION NO.104/08**

# IN THE MATTER OF AN INTENDED APPEAL

## **BETWEEN**

### KASIRYE BYARUHANGA & CO ADVOCATES::::::::::::::::: 15 :APPLICANT

### $AND$

MUGERWA PIUS MUGALASI:::::::::::::::::::: :::::::::::RESPONDENT

$20$

$35$

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Appeal from orders of the High Court of Uganda at Kampala (Anup Sing Choudry J.) dated 15th day of September 2008 in Miscellaneous Application No.444/08(Arising from HCCS No.224/2008 in Commercial Division.

#### $25$ RULING OF THE COURT

The applicant is a firm of Advocates and the fifth defendant in HCCS No.

224/08 that was filed by the respondent seeking a number of reliefs against the

defendants jointly and severally. $30$

> The application was brought by way of Notice of Motion under Rules $6(2)(b)$ and 43 of The Judicature (Court of Appeal Rules) Directions (S. I. No.13-10) seeking two orders from this court:

1. Proceedings in HCCS No.224 of 2008 now pending in the

Commercial Division of the High Court be stayed.

**Costs of and incidental to the application abide the results of the appeal.**

pplication was supported by two affidavits sworn by Mr Andrew Kasirye, the Managing Partner ofthe applicant firm and it is based on the following grounds:

- 1. The learned trial judge has adopted a novel procedure that is not provided for in any Division ofthe High Court, thereby prejudicing the applicant firm in its defence. - 2. The learned trial judge has, by his strange procedure, already prejudged the case against the defendants, including the applicant thereby leading to a miscarriage ofjustice. - 3. The applicant has filed a Notice ofAppeal against the learned judge's orders and served the respondent. - 4. It is in the interest ofjustice that the proceedings in the said suit be stayed pending the disposal ofthe applicant s appeal.

The respondent opposed the application for stay of proceedings and he deponed an affidavit to that effect.

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*20* The background to the matter now before us as can be gathered from the proceedings filed in this Court seem to be the following: ~

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gust 2008 the respondent filed a suit in the High Court against the nts seeking an order ofspecific performance of a contract ofsale ofland among other reliefs.

According to the record available to us, the fifth defendant/ applicant filed a *5* written statement of defence in which it denied all the allegations against it. After filing the suit, the respondent filed Miscellaneous Application No.444/08 by Chamber Summons seeking a temporary injunction against all the defendants i to restrain them from transferring property comprised in Block 12 Plots 206, 207, 208 and 209 into the names of any other person until the disposal ofthe *10* main suit.

On 15 September 2008, the application came up for hearing before Anup Singh Choudry J. The parties seem to have addressed some matters that were not part ofthe application but at the end ofit all the learnedjudge made the *15* following orders:

> **1. That the defendants be restrained from dealing with the property known as Block 12 Plots 206, 208 and 209 Nakivubo Kampala, directly or indirectly through their agents, servants or otherwise until the main suit is heard.**

> > *3*

*20* **2. The copy of this order be served on the 2nd purchaser Ephraim Ntanganda.**

- **P ties to serve and file the documents which they intend to rely on by way of proper bundles by 30th September 2008 by 4. 00 p.m.** - **4. Both parties to serve and file witness statements by 7,h October 2008.** - **defendant to produce receipts showing monies received, had and paid out in respect of the sale and purchase ofthe property to both the purchasers. Receipts include vouchers, bank statements, instruction, cash receipts, cheques studs, transfer, bank acknowledgement and confirmation.** - **6. The original receipt book containing receipt No.3496 to be filed in court. The plaintiff may inspect the same in court.** - **7. The electronic file relating to the sale to both the purchaser by the 5th defendant be served and filed in court.** - **8. Both sides to file skeleton arguments by 30<h September 2008.** - **9. Both sides include all defendants.**

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*15* **10. Hearing to be fixed on 7th November 2008 at 9. 00 a.m.**

The applicant was dissatisfied by some ofthe above orders and has preferred an appeal against them- thus the instant application for stay ofthe proceedings.

*20* When the application came before us, Mr Tibaijuka, learned counsel for the applicant, submitted on the scope ofthe application ofthis nature and he cited a number of authorities. The first authority he cited is the decision ofthe Supreme

in the case *National Housing Construction Corporation v Kampala District LandBoard &another-CivilApplication No.2/2001* where Rule ( )( ) ofthe Supreme Court Rules which is the equivalent to our rule 6(2)(b) was considered. The court held that the only limitation placed on the court's exercise of discretion to grant stay of execution, an injunction or stay of proceedings, is that there should be a notice of appeal filed under rule 71 ofthe rules. It was further held that the court at this stage is not concerned with the merits ofthe intended appeal. ■. '

Another authority cited was the case of*Harnam Singh &others v Mistri[1971]*

- *EA 122* where the court held that the consideration to apply for stay of proceedings are not necessarily the same as those which apply to an interlocutory injunction. It was further held that there are inherent powers to stay proceedings where the ends ofjustice so require. - Learned counsel further submitted that no mediation was conducted by the learned trial judge contrary to the mandatory provisions ofrule 2 ofthe *MediationfPilot Project Rules)Practice Direction, 2003(Lega! Notice No. 7/2003).* Other areas of concern that the learned counsel pointed out were: (1) no scheduling conference was held contrary to the mandatory provisions of *Order 12* ofthe Civil Procedure Rules. He relied on the case of *Tororo Cement Co Ltd* v *FroRina International LtdSCCA No. 2/2001* for the proposition.

- ( ) Parties were ordered to file witness statements contrary to *Order 18 rules 4* and 5 which require evidence to be taken orally in open court. - (3) Parties were ordered to file skeleton arguments which are not 5 provided for by the rules. - (4) On 15 September 2008 the proceedings did not follow the provisions ofthe Civil Procedure Rules whereby one party 1 presents his/her case and the opposite'party replies. He claimed that there was no orderly hearing.

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He prayed the application be allowed.and the proceedings be stayed.

Mr Musisi, learned counsel for the respondent, opposed the application for lack ofmerit. He stated the principles oflaw which were laid down by this court in 75 two decisions- *DFCULtd* v *Begmohamed Ltd- CivilApplication No. 65/05* and *Commodities Export International & another* v *Mkm Trading Co Ltd & another -CivilApplication No.96/05.* The principles are:

- 1. The stay of proceedings should be such that is not intended to delay justice. - *2D 2.* The discretionary powers ofthe trial court should not be interfered with unless it is shown that the powers were wrongly exercised.

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- y should be absolutely necessary otherwise it will cause a backlog of cases. - Learned counsel further submitted that the application is not *bonafide* and he *5* pointed out that there are many instances where attempts have been made to delay the disposal ofthe case. The instances in question include two unsuccessful applications that were made by the applicant to have the case transferred from the Commercial Division to the Land Division. He defended the orders that the learned trial judge made and claimed that they - *10* were not fatal and were meant to expedite proceedings in the Commercial Division.

The issue for determination in this application is whether this court should grant a stay of proceedings in the Commercial Division ofthe High Court until *15* the appellant's appeal is heard and disposed of.

The provisions *olrule 6(2) (b)* provides as follows:

*"2 Subject to sub-rule (1) the institution ofan appeal shall not operate to suspend any sentence or stay execution, but the court may-*

*20 (b) In any civilproceedings, where a notice ofappeal has been lodged in accordance with rule 76 ofthese Rules, order a stay ofexecution, an injunction or stay ofproceedings on such terms as the court may thinkjus."*

The Supreme Court while interpreting a similar rule ofis own rules in the case *nal Housing Construction Corporation v Kampala DistrictLand Board &another* (supra) held that the only limitation placed on the court's 5 exercise of discretion under the rule is that the party applying for stay of execution, injunction or stay of proceedings should have filed a notice appeal. This decision is binding on us.

The appellant has filed a notice of appeal in accordance with our rules. In applications ofthis nature, the court is not supposed to determine the merits *10* or demerits ofthe appeal.

The applicant has raised in the notice ofmotion and the accompanying affidavits matters which we think need consideration by an appellate court. Although the orders and.directions that the learned judge issued to the parties are interlocutory in nature, the applicant is complaining that the said orders are *15* not provided for in the Civil Procedure Rules and have caused a.miscarriage of

justice.

In the circumstances we are satisfied that the applicant has made out a case on which this court can exercise its discretion and grant an order staying the in HCCS No.244/2008 until the final determination ofthe appeal or *20* further orders ofthis court.

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The costs ofthe application will abide the outcome ofthe appeal

Inomujuni Justice of Appeal $\mathbf{S}$ C. K. Byamugish Justice of Appeal S. B. K. Kavuma Justice of Appeal $10$ Thaijune for applicant $6|008$ $Mr$ pur Musisi 5.m for Rehauset $\overline{\mathbf{0}}$ Wameha Llenn. $\n *Pr*\n$ $\mathbf{C}$ Resumden Present $\overline{\mathbf{0}}$ $\overline{\mathbf{b}}$ $\n *cit vec* 2 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1$ Put 7 $sin$ les n 9 O $\mathbf{I}$