Michael Kibirango v Shell (U) Ltd (Civil Application No. 75 of 2001) [2001] UGCA 65 (16 November 2001)

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

### CORAM: HON. JUSTICE L. E. M. MUKASA-KIKONYOGO, DCJ HON. JUSTICE C. M. KATO, JA. HON. JUSTICE A. E. MPAGI. BAHIGBINE, JA.

### CIVIL APPLICATION NO. 75 OF 2OOI

# MICHAEL KIBIRANGO APPLICANT VERSUS

## SHELL (U) LTD. i::::::::::::::::::::::::::::::::::::::::::: RESPONDENT

#### RULING OF THE COURT:

7 I

> This is an application for stay of execution brought by notice of motion under rules l(3), 5(2Xb) and 42(l)(2) of the Rules of this court. It is supported by the affidavit of the applicant Mr. Kibirango dated 411012001. According to the notice of motion and the affidavit, the application is based on only one ground which seeks an order of this court to stay execution pending intended appeal, otherwise the appeal if successful would be rendered nugatory.

> The application arose from the decision of the High Court where the applicant was sued and an ex parte judgment was entered against hirn. He applied for stay of execution which was rejected by the trial court, hence the present application for a similar remedy.

> Counsel for both parties made written submissions. Mr. Semuyaba, for the applicant, contended that ifthe execution is not stayed the applicant will suffer irreparable and substantial loss. It was his

> > I

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submission that in case the house is sold and the applicant wins the intended appeal, he would have nowhere to go.

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On the other hand, Mr. Serwanga Sengendo, for the respondent, submitted that there was nothing to stay as the ruling of the trial judge only gave order as to costs. He further submitted that since the applicant had also applied to have the ex parte judgment set aside, the application for stay of execution should wait until the outcome of that application is known. According to him it was improper to proceed under Rule $5(2)(b)$ of the rules of this court before the matter is finally decided by the trial court and that the present application would serve no useful purpose. He also contended that the notice of appeal was not in respect of the main issue in controversy.

The principles which govern this type of application are well Rule $5(2)(b)$ of the rules of this court, under which this known. application was made gives this court wide discretionary power to grant or not to grant stay of execution. The rule reads:

> $5(2)(b)$ Subject to sub-rule (1), the institution of an appeal shall not operate to suspend any sentence or to stay execution, but the court may in any civil proceedings, where a notice of appeal has been lodged in accordance with rule 75, order a stay of execution, an injunction, or stay of proceedings on such terms as the court may think just."

We agree with Mr. Serwanga's contention that this application was improperly filed under the above rule, because notice of appeal is a prerequisite to the lodging of this kind of application. This fact is conceded to by counsel for the applicant in his submission when he says $\frac{1}{\sqrt{2}}\frac{1}{\sqrt{2}}$

that "the court is empowered to grant the stay of execution once notice of appeal has been filed under Rule 75."

Mr. Serwanga complained that the application concerns the decision of the High Court in Miscellaneous Application No.583 of 2001 which was delivered on $19/9/2001$ . According to him the decision in that application did not warrant stay of any execution as it only rejected another application for stay execution in the same suit. We agree with learned counsel's concern, because looking at the notice of motion one is inclined to think that the application was intended to deal with the decision of the High Court in Miscellaneous Application No.583/2001. Upon examining all the records on the file as a whole and arguments of the counsel from both sides one is persuaded to conclude that this application is in fact intended to stay execution in respect of the judgment of the High Court delivered on 13/2/2001 under High Court Civil Suit No.624/95. The respondent's counsel in his argument stated that this application should only be heard after the application to set aside the ex parte judgment had been completed. In our view, this argument shows that the counsel is aware that the present application in substance concerns the judgment entered on $13/2/2001$ and not the application concluded on $19/9/2001$ . We so hold.

Having held that this notice of motion concerns the ex parte judgment dated $13/2/2001$ , the next issue that we must resolve is whether the application was properly lodged under rule $5(2)(b)$ of the Rules of this Court. This rule stipulates that before the applicant can be permitted to apply for stay of execution he/she must file a notice of appeal as required by Rule 75 of the rules of the court. Mr. Serwanga argued that there is no

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notice of appeal in this case. With due respect to the counsel, we agree. The purported notice of appeal on the file is in respect of the appeal against the decision of the High Court dated $19/9/2001$ . It reads:

#### "NOTICE OF APPEAL

TAKE NOTICE that Michael M. Kibirango being aggrieved and dissatisfied with the decision of the Honourable Justice J. H. Ntabgoba delivered on the 19<sup>th</sup> day of September 2001, at the High Court of Uganda intends to appeal to the Court of Appeal against the whole of the decision. (our emphasis)

The address of service of the intended appellant shall be c/o M/s Semuyaba, Iga and Company Advocates, P. O. Box 12387, Kampala.

It is intended to serve a copy of the notice on M/s Katende Ssempebwa and Company Advocates, Solicitors and Legal consultants, P. O. Box 2344, Kampala

**Signed:**

# COUNSEL FOR THE APPELLANT

**LODGED in the Registry this ...... day of ...................................**

It is this document which the applicant is relying on to show that he lodged a notice of appeal, according to paragraph 2 of his affidavit. This notice of appeal does not relate to the intended appeal in Civil Suit No.624/95 which is the subject of this application. We find that the application is incompetent as it does not conform with the provisions of Rule $5(2)(b)$ .

In the result, the application is dismissed with costs to the respondent.


Dated at Kampala this ... 16. day of November, 2001.

L. E. M. Mukasa-Kikonyogo **DEPUTY CHIEF JUSTICE**

$\overline{K}$ C,M. Kato **JUSTICE OF APPEAL**

saluf an A. E. Mpagi-Bahigeine **JUSTICE OF APPEAL**


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