Mwesigwa v Petrol Uganda (Civil Application 129 of 2019) [2019] UGCA 2104 (28 May 2019)

Full Case Text

## THE REPUBLIC OF UGANDA

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

## CIVIL APPLICATION NO.129 OF 2019

(Artsing from Ctall Appeal No. 97 oJ 2OO9)

# 10 PHENNY MWESIGWA::::::::::::::::::::::::::::::::::::::::::::::::;::::::::::::APPLICANT

### VERSUS

## PETROL UGANDA LIMITED:::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT

Coram : Hon. Mr. Justicc Barishaki Cheborion, JA

15 (Single Justice)

#### RULTNG

20 This is an application for an interim order of stay of execution of thc judgmcnt of the Court of Appeal in Ciull Appeat No. 97 of 2OO9 dated 41412019 against the respondent pending the hearing and determination of the main application or until further orders are given by this court. The application is brought by way of Notice of Motion under Section 98 of the Civil Procedure Act Cap.7l and Rules 2(2), 6(2) (b), 43(1), 44(l) of the Judicature (Court of Appeal Rules) Directions S.[ 13 - 10.

- 5 The respondent sued thc applicant in rrccs JVo. 630 of 2oog and in a Judgment delivered on 22/ | l2OO9 in favor of the respondent; the applicant was ordered to pay special damages of Shs. 536,000,139/= with interest at 21o/t p.a from 25/8l2OOS until payment in full and nominal damages of Shs. 2,000,000/= with interest of Bo/o p.a until payment in full. - Being dissatisfied with the decision, the applicant filed ctuit Appeat No.9z of 2oo9 in this court. The appeal was partly allowed. The Learned Justices held that the appellant had acted on the respondent's release of caveat to believe that all claims had been abandoned by the respondent. They concurred with the trial Judge that Shs. 10,055,765/= was owing to the applicant but disallowed grounds l, 2 and 3 of the Appeal. Being dissatisfied with the saicl jr:dgment, the applicant filed a Notice of Appeal in the Supremc Court and applied for a copy of the proceedings. In the meantime he applied for an irrl-erim stay of execution of the judgment and ordcrs in Clu Appeat No. 9Z o! 2oo9 pending the hearing and determination of the main application for stay of execution. 10 15 20

The Notice of Motion and Supporting Affidavit deponed by phenny Mwesigwa containing the following grounds on which the Application is premised:

- 1. That the Applicant being dissatislied with the Judgment and orders of the Court of Appeal in clutt Appedt No. 9T of 2OO9 intends to appeal the same and has filed a notice of appeal; - 2. The Applicant has applied for a certified record of proceedings which is yet to be availed;

- 3. That the Applicant has also filed a substantive application for a stay of execution against the Respondent vide Misc. Civil Appllcatlon No.728 of 2or9 which is yet to be fixed and heard; - 4. That the Respondent has filed a decree in this court and there is an imminent threat of execution before the Application for stay of execution can be heard by this honorable court; - 5. That the Applicant will suffer irreparable substantial loss which cannot be compensated by damages if execution of the judgment is not stayed; - 6. That the Applicant is willing and ready to provide sufficient security for due performance of the judgment as may ultimately be binding on him by court; - 7. That it is in the interest ofjustice that an interim order is issued against the Respondent to maintain the status - quo pending determination of the main application for stay of execution; and - 8. That if an interim order is not granted, the main application and appeal will be rendered nugatory.

On the other hand, the application was opposed by the respondent through an affidavit in reply dated 301412019 and deponed by Isaac Mariera. The grounds in opposition can be summarized as follows:

- i. That the application for stay of execution before this court is bad in law and an abuse ofcourt process; - 2. That the respondent as the successful party in both HCCS No.633 of 2009 and Civil Appeal No.97 of 2O09 in the High Court and Court of ., Appeal respectively is entitled to the fruits of its Judgment;

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- 5 3. That both Civil Suit No.633 of 2OO9 ancl Civil Appeal No.97 of 20O9 have been determined in favour of the respondent on clear points of law and facts and the Applicant's intended appeal has no chance of success; - 4. That the subject of this suit is a commercial transaction and the respondent has been unfairly deprived of its money since 2004 which according to the Judgment of the High Court currently stands at Ugx. 2,O75,9O7,952/= (rJ ganda Shillings Two Billion Seventy Five Million Nine Hundred Seven Thousand and Nine Hundred Fifty Two only). - 5. That the Respondent is a limited liability company which is a going concern and has the capacity to refund the decretal sum in case the Applicant succeeds on Appeal aftcr execution has been completed since

the Judgment is for payment of money; and

6. That the Applicant's intention is to delay the Respondent's enjoyment of the fruits of Judgment of Court.

At the hearing of the application, Mr. Birungi Cephas and Mr. Mbanza Martin represented the applicant; Mr. Isingoma Esau represented the respondent, the respondent's legal officer Ms. Karokora Elizabeth was present in court but the applicant was absent. 20

Counsel for the applicant submitted that the applicant had fulfilled requirements set out in various decisions for grant of interim stay of ?5 execution

He submitted that the applicant had filed a Notice ol Appeal in the Supreme Court on 8l4l2019 appealing the decision of this court in Civil Appeal No.97 of 2OO9 and the same had been annexed to lhe applicant's supporting affidavit 4l

5 as B. LIc iurther submitted that the applicant had on 5 /4 /2019 '"vritten to the registrar ol this court requesting for the record of proceedings and a copy of the letter was anncxed to the applicant's affidavit in support. of the application as c.

He contended that a substantial application Ctvtl Appllcation No.728 of 2079 for stay of execution had been filed on 25/4/2019 in this court and it was pending hearing and determination. He argued that the aforementioned application was brought without undue delay and it was only reasonable to have an interim order and later have the substantive application for stay heard and determined on merit. He further submitted that the Applicant was ready and willing to provide security of the decretal sum for due performance of the judgment. Counsel relied on Nganga aersus Klmant [196911 Elt 67 (HCK) to support his submission. 10 15

Counsel for the respondent opposed the application on two grounds namely: that this honourable court did not have jurisdiction to hear the interim application for stay of execution because the Court of Appeal determined the appeal and dismissed it. That it was only a panel of 3 justices of this court that can stay their own judgment or decree. He argued that one must show cause why a successful party and in this case on two occasions should not be allowed to enjoy the benellt of its success. He relied on phenngMueslgwa

aersus Petro Uganda Llmlted., CA Mlsc. App. No. lOS oJ 2Ol9; Murtsho Safi. Klronde and Others versus Attortteg General o.nd the Inspectorqte of Gooernment, Constltutlonal Appllcatlon No,O2 of 2O17; Stcnb{c Bank tlganda 25

5 Limited versus Atgaba Agencies, SCC,I JVo.3I o.f 2OO4 to supl;ort his sLlbrnission

Counsel argued that the applicant had not shown any threat of execution of the decree because in his view the extraction of er decrec does not on its own amount to a threat. He contended that for one to provc that cxecution was imminent he has to go further and show interest in executing the decree by filing either an application for att.rchment or garnishee which are the modes of execution stated under the law and relied on Mattheu Ruklkalre versus Incafex Limlted Ctatl Appllcatlon No,7 7 of 2O75 and Florah Ro,man-ungu uersus DFTCU Leaslng Compang Llmlted., SCCA IVo,I I oJ 2OO9 to support his su bmission.

Lastly, the respondent's Counsel argued that in case this honourable court was inclined to grant this application, the applicant's averments in paragraph 11 of the affidavit in support of the application do not show that the properties mentioned therein actually do exist. In his view the applicant should have a-ttached a copy of the search letter indicating that the properties were in the r-ralnes of the applicarrL or photocopies of the land titles. For that reason he submitted that the applicant should deposit in court either a bank guarantee or cash to the tune of Shs. 2,000,000,000/ -- as sccurity. FIc prayed that the application should be dismissed with costs.

25 Before I delve into the merits of this application, it is prudent to dispose of the issue of jurisdiction of this court to hear and determine an application for interim stay of execution pending the determination of the main application for stay of execution raised by Counsel for the respondent.

6lr),r

5 RuIe 41(1) of the Judicature (Supreme Court Rules) Directions Statutory Instrument 13-11 providcs that;

Where an application may be made either to the court or to the Court of Appeal, it shall be made to the Court of Appeal frst

Section 12 ofthe Judicature Act, Cap.13 provides that;

toA single justice of the Court of Appeal maA exercise anA power uested in the Court of Appeal in anA interlocutory cause or matter before the Court of Appeal.

This application is an interlocutory matter the main being the application for stay of execution which is pending determination in this court.

15 The jurisdiction of this court to grant a stay of execution is set out in Rules 2(21 and 6(2) (b) of the Judicature (Court of Appeal Rules) Directions which mandates the Court to grant a stay of execution, an injunction or order a stay of proceedings on such terms as the court may deem fit. Before the Court exercises the discretion, the applicant ought to have lodged a notice of appeal 20 in accordance with Rule 76 of the Rules of this Court. In addition, the Court has wide discretionary powers under Rule 2(2) of the Rules of Court.

I agree with Counsel for the Applicant that the Supreme Court and the Court qf Appeal have concurrent jurisdiction over interim applications for stay of execution pending the determination of the main application lor stay of 25 execution and a single Judge of this court can handle the application.

5 A panel of three Justices of this Court in George Outor aersus Attorneg Generql and Another Constltutlonr:l Appllcatlon .lVo. 38 oJ 20 10 while dealing with an application for an interim order of stay , held that a single Justice of the court had Jurisdiction to handle applications seeking for interim orders of stay .

In light of the foregoing, it is clear that a single justice of the Court of appeal has jurisdiction to hear and determine interlocutory matters including

applications for orders of interim stay of execution.

cxccution as may bc nccessary to mcct thc cnds ofjustice.

In E.8, Nyaka.ana and Sons Llmlted and Beatrlce Kobusinge and 76 Others, Supreme Court Mlsc. App. No,13 oJ2O77; Lady Justice Esther Kisaakye ruled that the Court of Appeal is vested with powers under Rule 2(21 of the Judicature (Court of Appeal Rules) Directions to issue orders staying

- ln that case the supreme court set the following conditions which an applicant seeking for an interim order of stay of execution should meet before - a. A Notice of Appeal has been lodged in accordance with Rule 72 of the Rules of this court; 20

b. A substantive application for stay of execution is pending before court; c. There is a serious threat of execution before the hearing of the substantive application; and

d. The application has been filed without undue delay.

The evidence on record shows that the applicant filed a Notice of Appeal in the Supreme Court on B I 4 I 2Ol9 appealing the decision of this court in Civil

81,'.,,.,

the order can be granted:

5 Appezrl No.97 ol 2009 as rcquired undcr Rulc 76 ot the Rulcs of this Court. The substantive application referenced as Ciuil Appllcation No.728 oJ 2079 for stay of execution was filcd on 2514/2019 in this court and is pending de te rmination.

As to whether there was delay on the applicant's part in bringing this application, the judgment of this court in Ciutl Appeal No. 97 of 2OO9 was delivered on 4l4l2Ol9 and the evidence on record shows that this application was lodged in this court on 25 I 4I 2019.

I find that the application was lodged within a reasonable time from the date when the judgment was delivered.

- As to whether there is a serious and imminent threat of execution before the hearing of the substantive application, Counsel for respondent argued that the extraction of the decree alone does not amount to a threat and that the applicant had not shown any threat whatsoever since they filed the first and second application. 15 - By extracting a decree, the next step for the decree holder is to execute it and until it is set aside, there is nothing in between to stop him from applying for execution. It is therefore a threat to execution. 20

I find that the applicant has satisfied the conditions for grant of an interim order of stay of execution.

Counsel for the applicant submitted that the applicant was ready and willing to provide security for due performance of the decree which may ultimately be binding by way of lodging three copies of land titles namely: Block 76 el,' , 25

5 Masaka, I'}lot 6 16 Kabula; Block 76, Plot 246 Kabr,rlzr; and Block 2 , Plot 624 Iiashari.

This is a positive gesture. The titles to these properties should therefore be deposited in this court as security for due performance of the decree.

In conclusion, the application is allowed and I hereby grant the following Orders: 10

- 1. An interim order of stay of execution of the judgment and orders in civil appeal no. 97 of 2OO9 is granted pending the hearing and determination of civil application No. 128 of 2019 or until lurther orders of this court; - 2. Th,e Applicant shall deposit duplicate copies of land titles of Block 76 Masaka, Plot 616 Kabula; Block 76, Plot 246 Kabr.rla Block 2, Plot 624 Kashari in court as security; 15 - 3. The costs of thc application shall abide the cause.

20DATED at KAMPLAthis 3Ls' r\ [-i , r,'. day ol .20t9

## HON. MR. JUSTICE CHEBORION BARISHAKI, JA