Otim & 3 Others v Uganda Revenue Authority (Civil Appeal 4 of 2018) [2019] UGSC 89 (1 March 2019)

Full Case Text

# THE REPUBLIC OF UGANDA

## IN THE SUPREME COURT OF UGANDA

## AT KAMPALA

(CORAM: KATUREEBE C. J; MWONDHA; TIBATEMWA; BUTEERA; JJ. S. C NSHIMYE; AG. JSC])

#### CIVIL APPEAL NO. 04 OF 2018

# 1. OTIM TALIB

- 2. BOSCO OGWANG - 3. GABRIEL OKUMU

4. JANE BIRUNGI & 1397 ORS :::::::::::::::::::::::::::::::::::

#### VERSUS

# UGANDA REVENUE AUTHORITY :::::::::::::::::::::::::::::: RESPONDENT

(An appeal arising from the Ruling of the Court of Appeal at Kampala in Civil Application No. 242 of 2017 {Hon. Justice Alfonse Owiny Dollo, DCJ; Hon. Justice Elizabeth Musoke, JA; and Hon. Justice Hellen Obura, JA;} dated 12th December, 2017)

## JUDGMENT OF KATUREEBE, CJ

This is an appeal from the ruling and orders of the Court of Appeal in Civil Application No. 242 of 2017 that was filed in the Court of Appeal by the respondent for stay of execution of the ruling and orders of Hon. Lady Justice Flavia Senoga Anglin in High Court Civil Application No. 94 of 2017 delivered on the 8th of August 2017.

Briefly, the background to this matter is that the appellants, vide Miscellaneous Application No. 157 of 2016, sued the respondent and the Attorney General for, among others, an order compelling the present respondent to reimburse a sum of UGX 268,399,450/= which had been illegally deducted from the appellants' terminal benefits in form of Pay As You Earn (PAYE). The said suit was determined by Hon. Justice Nyanzi Yassin in favor of the appellants and the respondents (the present respondent and the Attorney General) were ordered to pay to the appellants a sum of UGX 266,608,985/= with an interest of 24% p.a. and the costs to the suit.

The appellants commenced execution proceedings and a garnishee order was issued attaching the respondent's KCB Bank Account No. 2201102635. The Bank honored the Order and transferred UGX Garnishee 1,034,442,861/= to the account held by M/s Sekabanja & Co. Advocates, the appellants' former lawyers, in KCB Bank. The appellants claim that without their knowledge and consent, their former lawyers executed a consent with the respondent with the effect of reversing the said execution. Consequently, the appellants' said lawyers returned the said sum of UGX $1,034,442,861/$ to the Garnishee Bank which in turn remitted the said money to the respondent's bank account.

Aggrieved with the above state of affairs, the appellants filed High Court Miscellaneous Application No. 94 of 2017 seeking to annul the consent. The application was determined by Hon. Justice Flavia Senoga Anglin who declared the impugned consent null and void, and ordered the respondent to refund the sum of UGX 1,034,442,861/= that had been improperly returned to them within two weeks from the date of the ruling.

Dissatisfied with the decision, the respondent filed a Notice of Appeal in the Court of Appeal, applied to the Court of Appeal for an interim order and for a substantive order for stay of execution. The interim application was heard

$\overline{2}$

and granted exparte by a single Judge and the substantive application was later heard and granted by the full Court.

The appellants being dissatisfied with the ruling and orders of the Court of Appeal thus filed this appeal on the following grounds:

- 1. The Honourable Justices erred in law when they ignored and/ or failed to rule on the competence of the applicant's Notice of Appeal and /or the intended appeal. - 2. The Honourable Justices erred in law when they allowed an application for stay of execution founded on an incompetent Notice of Appeal. - 3. The Honourable Justices erred in law and fact when they granted a stay of execution after finding that they could not determine the likelihood of success of the applicant's intended appeal. - 4. The Honourable Justices erred in law and fact when they granted a stay of execution in disregard of the irregularities that had been brought to the Court's attention. - 5. The Honourable Justices erred in law and fact when they granted a stay of execution pending a non-existent appeal in Misc. Application No. 94 of 2017. - 6. The Honourable Justices erred in law when they stayed the orders of the trial Judge in disregard of the well-established principles governing applications for stay of execution. - 7. The Honourable Justices erred in law and fact when they ordered the applicant/ respondent to deposit security in form of a bank guarantee to the tune of UGX $1,034,442,861$ which was insufficient in the circumstances. - 8. The Honourable Justices erred in law and fact when they failed to properly evaluate the evidence on record thus came to a wrong conclusion.

Counsel for both parties filed written submissions. In their submissions, both Counsel opted to address grounds 1 and 2 jointly and ground 4 alone. Counsel for the appellants handled grounds 3, 5, 6 and 8 together. Counsel for the respondent adopted a different approach for grounds 3, 5, 6 and 8. Ground 7 was abandoned by implication since no submissions were made in respect to it.

On grounds 1 and 2, Counsel for the appellants in his submissions argued that there was no competent notice of appeal and/or memorandum of appeal against the ruling of Justice Senoga Anglin yet the respondent continued to enjoy an order of temporary stay of execution at the detriment of the appellants.

Counsel for the appellants relied on Section 10 of the Judicature Act and Rule 6(2) (b) of the Judicature (Court of Appeal Rules) Directions to submit that there are two important elements that must be fulfilled before an application for stay or for injunction may be entertained, namely, existence of a valid or competent notice of appeal and confirmation that the notice of appeal has been lodged in accordance with Rule 76 of the Judicature (Court of Appeal Rules) Directions. Counsel further cited Section 76 of the Civil Procedure Act (CPA) Cap 71, Order 44 Rules 1 (2), (3) and (4) of the Civil Procedure Rules (CPR) SI 71-1 and Section 98 of the CPA to support his submission that for one to appeal against an order passed by a Judge in exercise of her discretion under Section 98 of the CPA, one must first seek leave of the Court. Counsel also relied on the case of Lukwago Erias Lord Mayor KCCA vs The Attorney General & Another, Civil Application No. 06 of 2014 for the submission that the right of appeal is a creature of statute.

The appellants' Counsel emphasized that the appellants' complaint was not whether a notice of appeal had been filed but rather the validity of the notice of appeal upon which the application for stay of execution was grounded. Counsel argued that in absence of a valid or competent notice of appeal, there was no appeal against the High Court Order in Civil Application No. 94 of 2017. As such, the other considerations for grant of a stay of execution became irrelevant.

Counsel concluded that in those circumstances, the Court of Appeal had no jurisdiction to determine and grant the application. He prayed that the decision and orders of the Court of Appeal be set aside and the 1st and 2nd grounds of appeal be answered in the affirmative.

On **ground 4**, the appellants' complaint was that the Honourable Justices of the Court of Appeal considered and granted Misc. Application No. 242 of 2017 in utter disregard of several irregularities and illegalities which had been brought to the court's attention. Counsel for the appellants submitted that the applicant (current respondent) had not demonstrated any special circumstances that warranted the Court of Appeal to hear and grant the application before the same had been filed and considered in the High Court. Counsel further submitted that the applicant/respondent had not approached the Court of Appeal with clean hands.

Counsel cited Rule 42(1) of the Court of Appeal Rules to support his submission that applications for stay of execution have to be filed first in the High Court and only be filed in the Court of Appeal where exceptional circumstances exist. The respondent herein had not demonstrated or pleaded any exceptional circumstances and, as such, the application was incompetent. Counsel for the appellants prayed to this Honorable Court to find that the Court of Appeal was in error to hear the application before a

$\overline{5}$

similar application was made to the High Court and in the absence of special circumstances.

On grounds 3, 5, 6 & 8, Counsel for the appellants submitted that the honorable Justices of Appeal erred when they failed to properly evaluate the evidence on record which made them come to a wrong conclusion specifically in relation to the application of the principles governing stay of execution and the circumstances leading to the application that was under consideration before that court. Counsel faulted the Justices of the Court of Appeal for granting the order of stay of execution after finding that they could not determine the likelihood of success of the applicant/respondent's intended appeal. Counsel submitted that the Justices of Appeal having clearly set out, as one of the requirements for stay, that the applicant had to establish that its intended appeal had a likelihood of success or a prima facie case of its right of appeal, the Justices ought to have drawn an adverse inference against the applicant/respondent for failure to attach the ruling and/or a draft Memorandum of Appeal which would have aided the Court in determining that ground of the application.

Counsel for the appellant further submitted that the learned Justices of Appeal did not properly evaluate evidence in respect to the specific order that the applicant/respondent sought to stay. Counsel submitted that looking at the applicant's pleadings in the said application as against the record of proceedings from the Court of Appeal, there was a glaring inconsistency as to what order of the High Court was being sought to be stayed. While the pleadings indicated that the applicant/respondent sought to have the Order in M. A No. 94 of 2017 stayed (the Order of Anglin J), the proceedings indicate that the order sought to be stayed was the Order in M. A No. 157 of 2016 (the Order of Nyanzi J); yet in the Court Ruling, the

Justices held the position that the appeal arose from the decision Flavia Senoga Anglin J.

Counsel however submitted that whatever the case, none of the above mentioned court orders could be lawfully stayed by the Court of Appeal. The Order by Justice Nyanzi had already been executed and the execution had only been upset through an illegal process and the Order by Justice Anglin simply corrected an illegality in exercise of inherent powers of court. Counsel cited the case of **Uganda Broadcasting Corporation v Simba (K)** Ltd and 2 others Civil Application No.12 of 2014 in which it was held that courts of law will not enforce an illegal contract or allow themselves to be made an instrument of enforcing obligations arising out of an illegal contract or transaction.

In conclusion, Counsel for the appellants prayed that the appeal be allowed and the reliefs sought in the Memorandum of Appeal be granted.

In reply, Counsel for the respondent in their submissions adopted the same order as Counsel for the appellants in handling the grounds of appeal except for grounds 3, 5, 6 and 8. On grounds 1 and 2, Counsel for the respondent submitted that the application before the Court of Appeal was for stay of execution, pending the respondent's appeal to that Court. He averred that, however, Counsel for the appellants sought to use that occasion and forum, erroneously, to argue the appeal and its competence, which was premature since the appeal was not due or cause listed for hearing.

Counsel for the respondent relied on Rule 82 of the Judicature (Court of Appeal Rules) Directions to submit that if the appellants had a right to contest the respondent's right of appeal against the decision of Anglin J,

$\overline{7}$

such a right could only be exercised in accordance with the laid down procedure; which they did not follow. Counsel submitted that the appellants ought to have lodged a formal motion under rule 43 of the Court of Appeal Rules and not just casually and informally move Court as they attempted to do.

Learned Counsel maintained that contrary to the submissions of the appellants' Counsel, the respondent had a right of appeal against the decision of Justice Anglin. He submitted that the case was premised on and decided not only under the provisions of S. 98 of the Civil Procedure Act, but equally under S. 33 of the Judicature Act. Counsel submitted that discretionary orders are appealable and a person aggrieved has to show that the Court exercised its discretion injudiciously. He relied on the case of Banco Arabe Espanol v Bank of Uganda, SCCA No. 8 of 1998 for that submission.

Counsel further submitted that both appeals against the decisions of Anglin J and Nyanzi J had high chances of success in that the taxability of terminal benefits had been upheld by the Supreme Court in the case of URA vs Siraje Hassan Kajura SCCA No. 09 of 2015. He submitted that had the Court of Appeal not stayed execution in the instant case, huge amounts of money would have been taken from the revenue collection account and been paid to the numerous appellants who were scattered all over the country who would have failed to refund the same.

On ground 4, Counsel further submitted that this ground as framed offended rule 82 of the Judicature (Supreme Court Rules) Directions for being too general and failing to specify the alleged irregularities. Counsel prayed that this ground be struck out with costs.

In the alternative, but without prejudice, Counsel argued that before the Court of Appeal, the appellants never raised the issue of the respondent's application having to be first filed in the High Court. As such, the respondent was denied the opportunity to explain why they chose that course of action which they could only do by way of affidavit evidence. Counsel further denied the allegation that the respondent had approached the Court of Appeal with unclean hands and submitted that the Court was properly moved under the rules of the Court.

On grounds 3, 5, 6 and 8, Counsel for the respondent submitted that the Court of Appeal was alive to its powers to grant stay of execution pursuant to rule 6 (b) of the Court of Appeal Rules. The Court appreciated the need for an applicant to have lodged a Notice of Appeal in accordance with rule 76. The Court then laid down, considered and applied the principles as established by several judicial precedents. Counsel submitted that the Court of Appeal had noted the fact that the applicant/respondent had lodged a notice of appeal and requested for the record of proceedings. The learned Justices were aware that, at the time, there was no memorandum of appeal and that it was not a condition precedent for grant of a stay of execution under the rules of the Court. The Court, having perused the ruling of Anglin J and listened to the arguments of counsel, was therefore in position to and indeed rightly found that the intended appeal raised questions meriting judicial consideration. Counsel for the respondent relied on the case of **Hon.** Theodore Ssekikubo & Others Vs. The AG & Others SC Const. Application No. 06 of 2013.

On the allegation that the Court of Appeal failed to evaluate evidence, the respondent's Counsel submitted that there was available material which the court properly considered and upon which it based to grant a stay of execution. There was sufficient evidence before the Court that the appellants were bent on executing the decree of Nyanzi J as ordered by Anglin J. Counsel concluded that this appeal was a disingenuous way for the appellants to stretch their hands into the Consolidated Fund and pull out their terminal benefits which were properly taxed. Counsel prayed to Court to dismiss the appeal with costs.

## COURT'S ANALYSIS AND FINDINGS

I have carefully considered the written submissions by both Counsel as well as the oral clarifications. I will consider the grounds in the manner they were argued by both Counsel.

## Grounds 1 and 2

These two grounds hinged on competence of the notice of appeal upon which the present respondent based himself to file the application for stay of execution in the Court of Appeal. Resolution of this issue requires an examination of Rule 76 and Rule 6 (2) (b) of the Judicature (Court of Appeal Rules) Directions.

The parts of Rule 76 that are relevant to this matter are sub-rules 1 and 4 thereof, which provide as follows:

(1) Any person who desires to appeal to the court shall give notice in writing, which shall be lodged in duplicate with the registrar of the High Court.

$(2)$ ......

$(3)$ ......

(4) When an appeal lies only with leave or on a certificate that a point of law of general public importance is involved,

it shall not be necessary to obtain the leave or certificate before lodging the notice of appeal.

In the same vein, Rule 6 (2) (b) of the Court of Appeal Rules provides:

Subject to sub-rule (1) of this rule, the institution of an appeal shall not operate to suspend any sentence or to stay execution, but the court may—

$(a)$ ....

(b) in any civil proceedings, where a notice of appeal has been lodged in accordance with rule 76 of these Rules, order a stay of execution, an injunction, or a stay of proceedings on such terms as the court may think just.

Before the Court of Appeal, the appellants' argument was that the notice of appeal, though filed in time, was incompetent and could not form basis of a valid appeal. The reason relied upon was that the notice of appeal had been filed without leave and yet the then applicant (now respondent) had no automatic right to appeal against the ruling and order of Justice Flavia Senoga Anglin.

A reading of Rule 76 (4) of the Court of Appeal Rules however indicates that when an appeal lies only with leave, it shall not be necessary to obtain the leave before lodging the notice of appeal. This means that the notice of appeal may be filed and leave sought later. It also means that the competence of the notice of appeal is not dependent on whether leave to appeal has been sought and/or granted or not. Clearly, the law permits a party to file a notice of appeal and then seek the necessary leave later. Rule 6 (2) (b) thereof further bolsters this position by providing that where a

notice of appeal has been lodged in accordance with rule 76 of the Rules, the court may order a stay of execution.

In light of the above position, there was no error on the part of the learned Justices of the Court of Appeal to rely on the notice of appeal that was filed by the respondent to entertain the application for stay of execution. The absence of an application for or grant of leave to appeal could not make the notice of appeal incompetent or invalid. In my view, the question as to whether or not the respondent had a right of appeal or needed leave before appealing is supposed to be determined by the Court of Appeal when the appeal comes up before the Court. But as seen from the foregoing provisions, such a question does not affect the validity of the notice of appeal and the application for stay of execution.

In the circumstances I find no merit in grounds 1 and 2 of the appeal and they accordingly fail.

## Ground 4

The argument by the appellants was that it was irregular for the Court of Appeal to have entertained the application for stay of execution when the same had not been filed and considered first in the High Court. It was the submission of Counsel for the appellants that the applicant (current respondent) had not demonstrated any special circumstances that warranted the Court of Appeal to hear and grant the application before the same had been filed and considered in the High Court as is required by the law. As such, Counsel argued, the application was irregularly and/or illegally brought before the Court of Appeal.

In response, Counsel for the respondent submitted that ground 4 as framed offended rule 82 of the Judicature (Supreme Court Rules) Directions for

being too general and failing to specify the alleged irregularities. Counsel submitted that, contrary to the law, Counsel for the appellants attempted to apply the alleged irregularities in his written submissions. Counsel prayed that this ground be struck out with costs.

Rule 82 (1) of the Supreme Court Rules provides:

A memorandum of appeal shall set forth concisely and under distinct heads without argument or narrative, the grounds of objection to the decision appealed against, specifying the points which are alleged to have been wrongly decided, and the nature of the order which it is proposed to ask the court to make.

The 4th ground of appeal was to the effect that the Justices of the Court of Appeal erred in law and fact when they granted a stay of execution in disregard of the irregularities that had been brought to the Court's attention. As submitted by Counsel for the respondent, the ground of appeal did not specify the alleged irregularities. Indeed when Counsel for the appellant made his submissions, the matters he introduced as irregularities were those that were never raised before the Court of Appeal. If Counsel for the respondent had specified in the memorandum of appeal the irregularities which were allegedly ignored by the Court of Appeal, he would not have been tempted to raise matters that were not raised before the Court of Appeal.

I am in agreement with learned Counsel for the respondent that ground 4 as framed did not comply with the provisions of rule 82 (1) of the Supreme Court Rules for failure to specify points that were alleged to have been wrongly decided by the Court of Appeal.

Be that as it may, I believe I should consider the merits of the points raised by Counsel for the appellants.

In regard to the appellant's submission that the application for stay ought to have been first filed in the High Court, Counsel for the respondent argued that the appellants never raised this issue before the Court of Appeal. Counsel argued that, as such, the respondent was denied the opportunity to explain why they chose that course of action which they could only do by way of affidavit evidence.

From the record, it is clear that the appellants never raised this issue before the Court of Appeal. The Court of Appeal's decision cannot therefore be faulted over a matter that was not before the Court. The applicant/ respondent did not have opportunity to explain why they did not make their application first in the High Court. The Court of Appeal did not also have opportunity to consider that point before they allowed the application. This was not one of the matters that were placed before and considered by the Court of Appeal. It therefore cannot be raised in this appeal and cannot be a basis to challenge the decision of the Court of Appeal.

The other matter raised by Counsel for the appellant under this ground of appeal was that the applicant/respondent had not approached the Court of Appeal with clean hands. Counsel for the appellants pointed out that after the decision of Anglin J on 8th August 2017, the Garnishee absolute was renewed on 15th August 2017. The respondent moved the Court which stayed its implementation until 21st August 2017. But to the appellants' surprise, on the same day, 15th August 2017, and without disclosing the fact that the High Court had stayed its orders until 21st August 2017, the respondent filed the application for stay of execution in the Court of Appeal. Counsel for the appellants submitted that the respondent's conduct was

grossly irregular and an utter abuse of the court process and the respondent did not approach the court with clean hands.

In response, Counsel for the respondent denied the allegation of approaching the court without clean hands and stated that the Court was properly moved under the rules of the Court and all available material was placed before the Court.

Though it is true that the implementation of the Garnishee Absolute had been stayed until 21st August 2017, it is clear that after 21st August 2017, the expected step was the execution of that order which was addressed to the bank that was holding the money. It should be noted that this was an order passed by the Judge (Anglin J.) in execution of an earlier order of the High Court. If the then applicant (now respondent) was not satisfied, their option was to lodge an appeal which process they commenced by way of filing a notice of appeal. After filing the notice of appeal, the respondent had the right to apply for a stay of execution either in the court which passed the order or in the Court of Appeal. This Court has not been availed with material as to why the application was directly filed in the Court of Appeal as this matter was not traversed by the Court of Appeal. The statements to that effect that appear in the submissions of Counsel before this Court are simply statements from the bar since they were not supported with evidence and were not subject to the Court's consideration in the Court of Appeal. I find no reason to believe the allegation that the respondent approached the Court of Appeal with unclean hands. The 4th ground of appeal therefore fails.

## Grounds 3, 5, 6 and 8

Under this cluster of grounds, I will begin with grounds 3 and 6. The complaint in ground 3 was that the Justices of Appeal erred when they

granted a stay of execution after finding that they could not determine the likelihood of success of the applicant's intended appeal. The complaint in ground 6 was that the Justices of Appeal erred when they granted a stay of execution in disregard of the well-established principles governing applications for stay of execution.

The principles governing applications for stay of execution before the Court of Appeal and this Court are well established. These are that:

- a) The applicant must establish that his appeal has a likelihood of success or a prima facie case of his right of appeal; - b) The applicant will suffer irreparable damage or that the appeal will be rendered nugatory if a stay is not granted; - c) If 1 & 2 have not been established, Court must consider where the balance of convenience lies; and - d) The applicant must also establish that the application was instituted without delay.

(See Hon. Theodore Ssekikubo & Others versus The Attorney General & Others, SC Constitutional Application No. 06 of 2013)

In their decision, the Court of Appeal Justices found that a notice of appeal and a request for the record of proceedings before the High Court had been filed. The Court noted that they had not had the opportunity to look at the memorandum of appeal which would have been of assistance to them in determining the likelihood of success of the appeal. The Court went on to hold that from the arguments of Counsel and the perusal of the ruling of the High Court (of Anglin J.), there was an important question whether the applicant's collection accounts were attachable or not. The Court therefore found that the intended appeal raised questions that merited consideration by the Court.

As submitted by Counsel for the respondent, it is not a precondition under rule 6 (2) (b) of the Court of Appeal Rules that there has to be a memorandum of appeal before the Court could consider and grant a stay of execution. The requirement under the first principle for grant of a stay of execution is establishment that the appeal has a likelihood of success or a prima facie case of his right of appeal. In my view the Court of Appeal was in position and did find that the applicant had established a prima facie case of their right of appeal. That is why, in my view, the Court found that the intended appeal merited consideration by the Court. The Court properly considered this ground of the application and came to a correct decision.

The Court further considered that the applicant's intended appeal was likely to be rendered nugatory if the execution was not stayed. Since the Court was not in doubt in respect of the first two principles, there was no need to apply the third principle. It was also obvious that the application had been promptly brought before the Court of Appeal.

In the circumstances, I find it difficult to agree with learned Counsel for the appellants that the Court of Appeal failed to apply or misapplied the clearly laid down principles governing stay of execution. In my view, the Court properly considered the principles and came to a correct decision. Grounds 3 and 6 of the appeal therefore fail. $\frac{1}{2}$

The complaint in ground 5 was that the Justices of Appeal erred when they granted a stay of execution pending a non-existent appeal in Misc. Application No. 94 of 2017. The argument by the appellants was that the applicant/respondent had no automatic right of appeal against the decision of Justice Anglin because it was a decision passed by the Judge in exercise of the court's inherent power and discretion and against which no right of appeal is specifically provided for under the law. Counsel for the appellants

argued that as such, the respondent could not have filed a valid appeal without first seeking leave of the Court.

This matter, however, has already been settled when considering grounds 1 and 2. As shown above, rule 76 of the Court of Appeal Rules indicates that a person who desires to lodge an appeal in the Court of Appeal shall lodge a notice of appeal with the Registrar of the High Court. It is further provided that where the party requires leave to file the appeal, it is not necessary to obtain the leave before lodging the notice of appeal. This means that the party may file a notice of appeal, apply for the record of proceedings, even apply for a stay of execution (as per Rule 6 (2) (b) of the Court of Appeal Rules) and then seek the necessary leave to appeal thereafter. That is permissible under the rules. It is therefore not true that the order of stay of execution was granted pending a non-existent appeal. I therefore find no merit in the $5$ th ground of appeal.

The appellant's complaint in the 8th ground of appeal was that the Justices of Appeal erred when they failed to properly evaluate the evidence on record and thus came to a wrong conclusion. The argument by Counsel for the appellants was that looking at the applicant's pleadings in the said application as against the record of proceedings from the Court of Appeal, there was a glaring inconsistency as to what order of the High Court was being sought to be stayed. Counsel argued that while the pleadings indicated that the applicant/respondent sought to have the Order in M. A. No. 94 of 2017 (the Order of Anglin J), stayed, the proceedings indicated that the order sought to be stayed was the Order in M. A No. 157 of 2016 (the Order of Nyanzi J); Appellant's counsel proceeded Ruling, the Justices held the position that the appeal on the basis of which the stay of execution was sought arose from the decision of Flavia Senoga Anglin J. In response, the respondent's Counsel submitted that there was available material which the court properly considered and upon which it based to grant a stay of execution. Counsel submitted that there was sufficient evidence before the Court that the appellants were bent on executing the decree of Nyanzi J as ordered by Anglin J which required an intervention by the Court of Appeal.

According to the record, the Order of Justice Nyanzi Yasin in Misc. Application No. 157 of 2016 was fully executed when the Garnishee Order Absolute was honoured in favour of the appellants. The former Counsel of the appellants however off set this position when he entered into a consent with the respondent dated 22nd December 2016 with the effect of setting aside the Garnishee Order Absolute. The appellants vide Misc. Application No. 94 of 2017 challenged the consent as null and void. The application was heard and granted by Justice Senoga Anglin who set aside the Consent and ordered the money subject of the Garnishee Absolute to be paid back to the appellants. The respondent filed a notice of appeal indicating that they were aggrieved by the Order in M. A No. 94 of 2017 and intended to appeal against the said Order to the Court of Appeal. The respondent also filed an application for stay of execution, which was granted by the Court of Appeal, leading to this appeal.

I find that during the proceedings in the Court of Appeal, the Court was not consistent as to which Order was sought to be stayed. But the pleadings and the Court ruling clearly indicated that the Order sought to be, and which was actually, stayed was the one arising from M. A No. 94 of 2017. The inconsistency in the proceedings does not therefore affect the decision of the Court of Appeal since it was not carried into the court decision.

It is my view that much as the Court of Appeal was inconsistent during the proceedings as to which Order was sought to be stayed, that inconsistency was not carried into the court decision. The ruling of the Court of Appeal indicates that during the evaluation of evidence, the Court of Appeal was alive as to which Order was sought to be stayed. This is clearly shown at page 8 paragraph 4 of the Court's Ruling (found at page 139 of the record of appeal before this Court).

The other aspect raised by Counsel for the appellants was that whatever the case, none of the above mentioned court orders could lawfully be stayed by the Court of Appeal. Counsel submitted that the Order by Justice Nyanzi had already been executed and the execution had only been upset through an illegal process; and the Order by Justice Anglin simply corrected an illegality in exercise of inherent powers of court.

The question whether or not the Judge in M. A No. 94 of 2017 rightly set aside the consent that was executed between the respondent and former Counsel for the appellants was not before the Court of Appeal in M. A No. 242 of 2017 (the application for stay of execution). That question would be the subject of inquiry in the intended appeal if it is filed. It could not have been placed before the Court of Appeal and decided upon during an application for stay of execution. It therefore cannot form part of this appeal.

Since, by the above submission, Counsel for the appellants admited that the Order by Justice Nyanzi had been executed and the appellants were in possession of a decision that the said execution had been offset illegally, the aggrieved person cannot be denied an option to appeal. The questions as to whether the appeal is properly before the Court and whether it has merit are supposed to be raised when the appeal comes up before the Court of Appeal and not at the time of consideration of an application for stay of execution.

Once the considerations for a stay of execution are in place, the party seeking it and the court granting the same are in order.

In my finding therefore, I have found no failure on the part of the Court of Appeal in properly evaluating the evidence that was before them in the application in issue. The 8th ground of appeal also bears no merit and it fails.

In all, therefore, all the grounds of appeal have failed. The appeal is accordingly dismissed with costs. The matter shall go back to the Court of Appeal to handle the pending appeal (Civil Appeal No. 27 of 2017) and the intended appeal in respect of which a notice of appeal was filed and the order of stay of execution was granted.

It is so ordered

Dated at Kampala this ...

day March $M$

Bart M. Katureebe **CHIEF JUSTICE**

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

(Coram: Katureebe, CJ; Mwondha; Tibatemwa-Ekirikubinza; Buteera; Nshimye; JJ. S. C)

#### CIVIL APPEAL NO. 04 OF 2018

#### **BETWEEN**

**OTIM TALIBU**

**BOSCO OGWANG**

<table>

GABRIEL OKUMU APPELLANT

JANE BIRUNGI AND 1397 OTHERS

#### AND

UGANDA REVENUE AUTHORITY....................................

[Appeal from the Ruling of the Court of Appeal at Kampala before Owiny Dollo DCJ, Musoke, Obura JJA in Civil Application No. 242 of 2017 dated 12th December, 2017

### **JUDGMENT OF MWONDHA, JSC**

I have had the benefit of reading in draft the judgment of the Learned Hon, Justice Katureebe CJ. I agree with the decision and orders therein.

1St day of March, 2019 Dated at Kampala this ......

JUSTICE OF THE SUPREME COURT

# THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA **AT KAMPALA**

# (CORAM: KATUREEBE CJ, MWONDHA, TIBATEMWA, BUTEERA, JJSC NSHIMYE AG. JSC,)

### CIVIL APPEAL NO.04 OF 2018

#### BETWEEN

**APPELLANTS**

- 1. OTIM TALIB - 2. BOSCO OGWANG - 3. GABRIE OKUMU - 4. JANE BIRUNGI & 1397ORS

AND

**UGANDA REVENUE AUTHORITY::::::: RESPONDENT**

[Appeal from the Ruling of the Court of Appeal at Kampala before (Hon Justices Owiny Dollo DCJ, Musoke, Obura JJA) in Civil Application No. 242 of 2017, dated 12th December 2017]

### JUDGMENT OF A. S. NSHIMYE, A. G JSC.

I have had the benefit of reading in draft the judgment of my brother The Hon Justice Bart Katureebe, CJ.

I agree with his reasoning with regard to all the grounds of appeal that they lacked merit and the appeal ought to fail with costs to the respondent. I also agree with the other orders, he has proposed.

151 March Dated at Kampala, this .... 2019. day of

NSH A. G. JUSTICE OF SUPREME COURT

#### THE REPUBLIC OF UGANDA

### IN THE SUPREME COURT OF UGANDA AT KAMPALA

### (CORAM: KATUREEBE CJ, MWONDHA, TIBATEMWA, BUTEERA, JJSC, NSHIMYE AG. JSC)

#### **CIVIL APPEAL NO.04 OF 2018**

#### **BETWEEN**

#### 1. OTIM TALIB **.....................................** 2. BOSCO OGWANG 3. GABRIE OKUMU 4. JANE BIRUNGI & 1397 ORS -

#### AND

#### UGANDA REVENUE AUTHORITY ::::::::::::::::::::::::::::::::::::

[Appeal from the Ruling of the Court of Appeal at Kampala before (Hon. Justices Owiny Dollo DCJ, Musoke, Obura JJA) in Civil Application No.242 of 2017, dated 12th December 20177

#### **JUDGMENT OF R. BUTEERA, JSC.**

I have had the benefit of reading in draft the Judgment of my brother the Hon. Justice Bart Katureebe, CJ.

I agree with his reasoning and the decision on all the grounds of appeal. I agree that the appeal should be dismissed for lack of merit with costs being awarded to the respondent. I also agree with the orders proposed.

of March Dated at this day........ .......................................

Hon. Justice Richard Buteera JUSTICE OF THE SUPREME COURT

#### THE REPUBLIC OF UGANDA

### IN THE SUPREME COURT OF UGANDA AT KAMPALA

### CIVIL APPEAL NO.04 OF 2018

(CORAM: KATUREEBE, CJ; MWONDHA; TIBATEMWA-EKIRIKUBINZA; BUTEERA; **NSHIMYE, JJSC.)**

$5$

#### BETWEEN

1. OTIM TALIB 2. BOSCO OGWANG 15 3. GABRIEL OKUMU **::::::::::::::::::: APPELLANTS** 4. JANE BIRUNGI & 1397 ORS

#### AND

#### **UGANDA REVENUE AUTHORITY :::::::::::::::::::::: RESPONDENT** 20

[Appeal from the Ruling of the Court of Appeal at Kampala before (Hon. Justices: Owiny Dollo DCJ, Musoke, Obura, JJA) in Civil Application No. 242 of 2017, dated 12th December, 2017.]

#### JUDGMENT OF PROF. TIBATEMWA-EKIRIKUBINZA. JSC.

I have had the opportunity to read in advance the judgment 25 prepared by my learned brother Hon. Justice Bart Katureebe, CJ and I agree with his analysis and conclusion as well as the Orders he has proposed.

Dated at Kampala this ......... day of Mavel

- talenve

PROF. LILLIAN TIBATEMWA-EKIRIKUBINZA JUSTICE OF THE SUPREME COURT