NIC General Insurance Company Limited v Kazerwa Brasius (Civil Application 1055 of 2023) [2024] UGCA 35 (13 February 2024)

Full Case Text

#### THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA HOLDEN AT KAMPALA CML APPTICATION No. ro55 of zozl

### (ARISING FROM CMLAPPEAL No. 13 of zoz3)

#### 5 NIC GENERAT INSURANCE

COMPANIY LTD::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPLICANT

#### VERSUS

KAZERWA BRASIUS:::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT

## 10 RULING OF CATHERINE BAMUGEMEREIRE, IA SITTING AS A SINGLE IUSTICE

#### Introduction

The applicant brought this application by way of notice of motion under section 33 of the fudicature Act, section 98 of the Civil

- 15 Procedure Act and rules z(z), 42, 43 and 44 of the fudicature (Court of Appeal Rules) Directions, SI r3-ro, seeking orders that: - r. The execution of the decree arising from the judgment in High Court Civil Suit No. 4o6 of 2ot7 at Commercial Division be stayed pending the determination of the appeal in this court. - z. The costs ofthe application be provided for. 20

#### Briefbackground

The respondent filed High Court Civil Suit No.4o6 of zor7, which was decided in his favour and judgment was entered on the r3th day of August zozr. The applicant being dissatisfied with the decision of the

High Court filed a Notice of Appeal dated z3'd August, zozr. The 25

applicant subsequently filed an application seeking stay ofexecution in the High Court vide Misc. Application No. 9r7 of zozz but the same was dismissed. The Applicant filed an appeal in this Honourable Court vide Civil Appeal No. r3 of zozl on t2'h January zoz3. The applicant 5 also filed both an interim and the substantive stay of execution in this

honourable court pending the disposal ofthe appeal.

#### Representation

10 At the hearing of the application, Mr. Alex Kabayo represented the applicant while Mr. Brian Kabayiza represented the respondent. Both counsel opted to proceed by way of written submissions, which have been adopted by court to make this ruling.

#### The Parties' Submissions

- 15 Counsel for the applicant submitted on the discretion of this court to grant an order of stay of execution where a notice of appeal has been filed. He cited Hon. Theodore Ssekikubo & Others v the Attorney General & Another CA No o6 of zor3 on the principles for the grant of an order of stay of execution. - 20 Regarding the first principle of validity of the notice of appeal, Alex Kabayo submitted that paragraph 6 of the Affidavit in supPort states that the Notice of Appeal was filed on z6thAugust zozr within the time prescribed by the rules. Further, that the appeal was instituted vide a Memorandum of Appeal filed on rzth January zoz3 having received the - 25 complete copy of the certified record of proceedings on zt't November

2022. He submitted that the notice of appeal was filed in time and the appeal is thus valid.

Regarding the condition that the appeal has a likelihood of success, counsel submitted that this court is enjoined to peruse the record particularly the judgment of the High Court as well as the Memorandum of Appeal and determine whether they reveal that the intended appeal raises questions that merit the consideration of the Court of Appeal. Counsel argued that the deponent has proved that the applicant has arguable grounds of appeal and that the intended appeal against the whole decision of the Trial Court has a very high likelihood of success.

On the condition whether the applicant would suffer irreparable damage or that the appeal will be rendered nugatory if a stay is not granted, counsel argued that for the applicant to prove a likelihood of suffering irreparable damage in a case of money decree, they must show that restitution will not be possible in the event that the appeal succeeds.

It was counsel's contention that the amount sought to be recovered is colossal and if execution is not stayed, the payment of the said amounts, that is; RWF 53,85o,785 (Fifty Three Million Eight Hundred Fifty Thousand Seven Hundred Eighty Five Rwandan Francs), UGX 7,56o,ooo (Seven Million Five Hundred Sixty Thousand Shillings) being the assessed special damages, UGX 5o,ooo,ooo (Fifty Million 20 Z5

Uganda Shillings) as general damages and a further UGX 26,t96,477 in taxed costs, shall adversely affect the operations of the applicant company. A refusal to grant the stay would inflict more hardship than it would avoid.

Regarding the principle of balance of convenience, counsel cited Kiyimba Kaggwa v Haiji Abdul Nasser Katende (1985) HCB for the proposition that the balance of convenience lies more on the one who will suffer more if the respondent is not restrained in the activities complained of in the suit. Counsel reiterated his earlier submission on the colossal sums of money sought to be recovered and averred that if execution is not granted to the applicant, it would inflict more hardship than it would avoid.

- 15 On the principle of the application being brought without undue delay, counsel referred to paragraph rr of the affidavit in reioinder, where it was stated for the applicant that the instant application was commenced on zTth September zoz3 following the respondent's application for execution served upon the applicant's lawyers on 12th - 20 September zoz3 and a notice to show cause why execution should not issue, issued on llth September zoz3. Counsel further submitted that prior to that, there was no threat of execution to warrant stay of execution proceedings.

Counsel implored this court to grant the application in the terms 25 sought in the motion.

Brian Kabayiza appearing for the respondent, in reply, submitted that as to the appeal having a likelihood of success, there is no competent appeal on record. Counsel contended that although the record of appeal was ready by r6th September zozr, the applicant only managed to file the appeal on rzth January 2023, over a year and half after the record of appeal were certified. He submitted that an appellant is required to file an appeal within 3o days flom the date the record is ready. Counsel referred to rule 8f (z) of the Rules of this court, which only excludes the time for the preparation of the record of proceedings in computing the time fiame within which to file an appeal. Counsel submitted that this condition has not been satisfied.

Regarding the condition of irreparable damage, counsel submitted that the decree in the contested judgment is a monetary award whose pa).rnent cannot in a way render the substantive application and appeal nugatory. It was counsel's argument that the applicant is an insurance company that deals in billions of shillings and francs. A decretal sum together with costs of 287,35o,359/= is therefore miniscule. Counsel added that in the likely event that the applicant's appeal succeeds, the applicant would ably have a remedy of restitution. He referenced Nagar Palika Bureau v Bhabhlubhai Virabhai (zoo5) 4 SCCI where the Indian Supreme Court held that ordinarily, execution of a monetary decree is not stayed in as much as satisfaction of the appeal being allowed, the remedy of restitution is always available to the successful party. 15 20 25

Counsel submitted that this ground has not been proved.

Regarding the condition of unreasonable delay, counsel submitted that the applicant's record of proceedings was ready by r6th September 2o2l 5 but the applicant commenced an appeal over a year and a half since

the record was ready. He submitted that the applicant's application for stay of execution in the High Court vide Misc. Application No. 9r7 of 2022 was dismissed in zozz, and the applicant chose to file the substantive application for stay in this court over a year which makes 10 the applicant guilty of dilatory conduct. Counsel cited Remigio Obwana v Registered Trustees of Tororo Diocese CA Civil

Reference No. 69 of zozo where it was held that; "A party thot is dissatisfied with the decision of any court is required to take fhe essentiol steps within the prescribed time to

- 15 file an appeal against the decision, under the relevant applicable laws. A losing party who only springs in action when the success.;ft.r1 party sets in mofion the process of realizing the fruits of his or her judgment, cannot be allowed to use the court to frustrate or delay the execution process. There must be finality in - 20 litigation."

Counsel submitted that the applicant in this case was guilty of dilatory conduct.

25 Counsel for the respondent added another condition of securiry for due performance of the decree. He submitted that the requirement for payrnent of security for costs is to ensure that a losing party does not intentionally delay execution while hiding under unnecessary applications. Counsel submitted that if this court is inclined to grant the application, the applicant should be ordered to obtain an irrevocable bank guarantee of UGX 287,35o,359 in favour of the respondent, which the respondent shall be entitled to liquidate if his appeal is successful. Counsel urged this court to find that the applicant failed to prove the requirements for grant of a stay of execution thus the application should be dismissed with costs.

#### Determination of the application

This court has considered the application, the response thereto and the submissions on record. The issue for determination is whether the applicant should be granted an order of stay of execution pending appeal.

The jurisdiction of this Court to grant a stay of execution is set out in rule 6(z) (b) of the Rules of this court which provides that; "Subject to sub-rule (l) of this rule, 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 76 ofthese Rules, order a stay of execution, an iniunction or stay of proceedings as the court considers just.

ln Dr. Ahmmed Muhammed Kisuule v Greenland Bank (in liquidation) S. C. C. A No. 7 of zozo, the Supreme Court found that: - "For an application in this court for stay of execution to succeed the applicant must first show subject to other facts in a given

s cose that he/she has lodged a notice of appeal... the other facts which lodgment of the notice of appeal is subiect vary from case to case but include the fact that the aoolicant wiII suffer irreparable loss if a stay is not granted, that the appellants appeal has a high likelihood of success." (Emphasis is mine).

Further, in Kyambogo University v Prof. Isaiah Omolo Ndiege CACA No. V4t. of zor3, this court listed the conditions for grant of stay of execution to include:

"There is o serious or eminent threat of execution of the decree or 15 order and if the applicotfon is not granted, the appeal would be rendered nugatory, thot refusal to grant the stay would inllict more hardship than it would avoid. That the application was made without unredson able delay."

20 Courts normally decide applications of stay of execution on factual basis and the decisions vary from case to case. I will however summarize the principles that have been commonly followed by courts as highlighted in the authorities above, in the grant of stay of execution.

- r. The applicant must show that he/she lodged a notice of appeal. - z. That the appeal has a high likelihood of success. - 3. That substantial loss may result to the applicant unless the stay is granted. - 4. That the application has been brought without unreasonable delay.

I shall follow the above criteria to determine this application since 10 both parties argued the same in their submissions.

Regarding the question whether the applicant has lodged a notice of appeal; a stay ofexecution is grounded on the pendency ofan appeal. In this application I note that the High Court delivered its judgment

- 15 on r3th August zozr. The applicant lodged a notice of appeal on z3'd August 2o2l as per annexure "C" of the applicant's affidavit in support. A memorandum of appeal was lodged in this court on r2th January zoz3 as per annexure "F." Counsel for the respondent however argued that the appeal is incompetent because the appeal was filed over a year and 20 half after the prescribed time within which to lodge the appeal. - At this stage, I am constrained to discuss the competency of the appeal basing on the time frames within which the documents were lodged. A party has the duty to prove that there is a valid appeal before the court. As discussed earlier, there seems to be a notice of appeal but the 2s memorandum of appeal was filed out of time. I further find that there

is no existent application for leave to file out of time. I therefore find that the first condition has not been satisfied.

Having found that the applicants have not met the more pertinent conditions for the grant of an order of stay of execution, inclined not to allow the application. The application is therefore dismissed with costs.

CATHERINE BAMUGEMEREIRE 15IUSTICE OF APPEAL 13^P0- ao>-{