Sekajja v Falidah (Miscellaneous Application 32 of 1994) [1994] UGHC 62 (9 March 1994)

Full Case Text

## THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT KAMPALA

## MISC. APPLICATION NO. J2 OF 1994

HAJI SEKAJJA .................................................. APPLICANT. VERSUS FALIDAH SAAD ;?■\*-. . . RESPONDENT.

ORDER

BEFORE:- The Honourable Mr. Justice J. W. N. Tsekooko

The applicant has instituted two notices of motion. The first was instituted under So8o of the Civil Procedure Ast by which the applicant seeks leave of this court to appeal out of time against "the order of attachment issued by the Registrar on 11th January, 1994".

There is an affidavit sworn on 22nd February, 1994 accompanying the Notice of Motion. The respondent has sworn affidavit in reply thereto.

The second notice of motion was instituted under S,35 (presumably of the Civil Procedure Act) and 0.19 Rules 23 and 26 of the Civil Procedure Rules seeking for "stay of execution issued by the Registrar dated the 11th day of January, 1994 until appeal against the said order is determined".

This stay Notice of Motion, too, has affidavit attached to it\* Respondent has again sworn affidavit in reply to this.

These applications, ha?'? a bit of background which it is not out of place to set out briefly.

The applicant was the defendant in High Court Civil Suit No. 1014 of 198? wherein the respondent was the plaintiff. The suit concerned dispute about property which suit was tried and decided in favour of the respondent on 28th February, 1992 by Kalanda J, as he then was. General damages in the sum of She. 2M./= was

awarded to the plaintiff. Interest was awarded at **court** rates on that amount. The actual figure.of the rate of interest was not fixed-by the learned.judge\* The applicant; appealed to Supreme Court (Civil. Appeal No. JO of 1992). The appeal appears to have ended in favour of the respondent. I have.not been availed the Supreme Court Appeal proceedings but it Geena **clear** the -appeal there went against the applicant here.

To be noted in connection with the present application are the following matters. First on 26th March, 1992, the Deputy Registrar of the High Court allowed She. 914,630/= as the taxed costs of the plaintiff now the respondent.

According to Certificate of Taxation signed on 29th November, 1993? the Registrar of the Supreme Court had on 1Jth June, 1993 taxed the Respondent's bill of costs and allowed it at Shst 2,452,630/=. Thereafter by letter reference JFK/12J/87 dated 18th June, 1993, Messrs Kityo and Company Advocates fox- appellant/applicant wrote to the Supreme Court Registrar intimating that the applicant was not satisfied with the bill of costs and wanted to refer the bill of costs to a judge under Rule 109 of the (Supreme Court Rules) 1972c

Subsequently M/S Owinj-Dollo, Tibaijuka & Co, Advocates for the respondent on 7th January, 1994 filed in High Court an application for execution, dated 27th December, 1993o In that application, in addition to General damages of Shs. 2M/=, the costs in the High Court of Shs. 9l4,6jO/= and in the Supreme Court of Shs. 2,452,600/=, the advocates included a further sum of Shs. 2,760,000/= claimed as interest and this is one of the bones of contention in ••cua\* The application for execution does not indicate the method

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or the figure of the rate of interest employed in calculating the interest© The basis of the applications is warrant of attachment issued on 11th January, 1994 by the High Court Deputy Registrar© That is presumed to be the date when the application for execution was approved©

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On 2nd February, 1994, Messrs Kityo & Co© Advocates, on behalf of the applicant, filed a Notice of Motion under SS.35 and 101 of the Civil Procedure Act applying to have the order for execution set aside. This appears to have been a form of appeal. which was struck out on 21st February, 1994 by Lugayizi, Aga J. when he upheld the views of counsel for the respondent to the effect that tho appeal was incompentent as 51 snould have been instituted under 0\*46 Rule 80 Hence the px-esent first Notice of Motion (seeking leave to appeal out of time)©

There is some confusion between the contents of the first Notice of Motion and para 7 of the accompanying affirmation by the applicant,namely., whether the application is for leave to appeal out of time or, as appears from the affirmation? the application seeks leave as a prerequisite to appeal against the order of the Deputy Registrar ordering execution to issue© Tills was criticised by Mr. Tibaijuka? learned counsel fur the respondent because an appeal against the Registrar's order of attachment does not need leave of this court (See Oc-46 Rule 8 of Civil Procedure Rules) whereas leave to .appeal out of time does (See S.80 Civil Procedure Act).

The second application was also instituted by Notice\* of Motion under Section .>5 of Civil Procedure Act and 0.19 Rules 23 and 26 of Civi" Procedure Rules seeking for stay of execution issued by the registrar\* I shall make observation about the procedure adopted here laters

In spite of my advise that the matters were too techinical for him to prosecute, the applicant insisted that the hearing proceeds as his lawyer who had not turned up had let him down. The applicant appeared to be desparate hence his plea that he wants court's assistance.

I shall first deal with the first application first. The Notice of Motion contains whree grounds which state (verbatim) as follows:-

- "1. The applicant made an application to this court on the 2rd February, 1994, in set aside the order of the Registrar, but the application was struck out on the 21st February, 19.4 because it was irregularly filed. - . ?. The applicant has already wawn up the grounds of appeal; a copy of whir. is attached to this Notice of Motion. - 3. The applicant is being cheated by the respondent who prevalled over the Registrar to sign a warrant. of attachment which noluded interest of Shs. $2.760,000$ - which interest was not authorised in the decree",

Partinent paraga phe of accompanying afficarit read (verbatim) as follows:

- That on the 2 a February, 1994, 1 appl: d to $116n$ this court t set aside the order (of taxation by the Regis ray) but my application was struck out on the 2 st February, 1994. - $7$ . That I request the court to allow me to appeal against the order of attachment issued by the Registram on ith January, 1994".

Mr. Thaijuka, Reaned counsel for the respondent criticised the confusio in the presentation of this application, namely, where it seeks extension of time to appeal or whether is sents leave to appeal against the

$000000/5$

Registrar's order# I agree that there is confusion# But in the circumstances of this matter I will treat thia application as an application seeking leave to appeal out of time# This is clear from the Notice of Motion which quotes S#80 of the Civil Procedure Act even though the same notice was impricise in that it did not specifically say the application is under the proviso to section 80 (1) of that Act# In the opening paragraph of the Notice of Motion it- was stated:-

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"#•••••••••«. Counsel for the applicant will move the court to grant him leave to appeal out of time against the order of attachment #••«•••#•• "

The applicant in his atatomants before me appeared toabandon his challenge to the other figures in the decree and indeed the whole application for leave to appeal out of time# In effect he asked court to-reduce the total of 8,127,230/= to Shs# 5,000,00C/= so that in addition to Shs# 2,000,000/= which he has already paid, he be allowed time to pay a further Shs\* 3,000,009/= after he has sold his two pieces of land\* Thus he is maintaining his position that interest appearing in order of attachment has no basis# As the applicant is not a lawyer, I shall cssume that he has adopted the grounds in his application and that his request of reduction of money is an additional ground#

When opposing the two applications, Mr# Tibaijuka really repeated the averments in the affidavits of the respondent#

**With regard** *Zo-* **the firot application# Earned. ccuns-ej**submitted that court has to be satisfied that there is sufficient cause for extension of time. That both the Notice of Motion and accompanying affidavit don't give valid reasons why the appeal was not lodged within time. ................... /6

That discretion can be exercised upon good reasons. That in presenting the two applications, the applicant has not come to court with clean.hands. That (in effect) the applicant first attempted to frustrate execution proceedings and when.he found it hard going he then instituted the application which was struck out by my. brother Lugayizi,. Ag. J., following which the present appli\* cations were instituted.

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From the court record, the order of the Deputy Registrar was issued on 11th January, 199\*+. By S.80 (1) (b) of Civil Procedure Act it is there provided:-

- 'Except as otherwise specifically provided in any other lav/ every appeal shall be entered - - (b) within seven days of the date of the order of a registrar, as the case may be, appealed against".

Thus applicant should heve appealed before or by 18th January, 1994. And according'to. 0.46 ,Rule 8 of Civil Procedure Rules it is provided

"Any person aggrieved^by any order of a registrar may « appeal therefrom to the High Court. Such appeal shall be by Notice of Motion".

The Deputy Registrar had granted application for execution by virtue of Rule 4 of the same order 46.

Therefore I accept Mr. Tibaijuka's argument that the applicant has normal right of appeal (without leave) against the Registrar's order issuing execution. In my view the original Notice of Motion was a veiled appeal • although as.-righly held by the learned judge, the Notice of Motion was instituted under a wrong law (i.e. SS and 101), on the facts of that application. I say so **an** because £ appeal by 0.46 Rule 8 is initiated by Notice of Motion. Besides, by virtue of S.80 (1) (b) even if the application had been instituted under proper.

/7 law - 0.46 Rule 8, it would have been out of time since it was filed on 2nd February, 1 99^ nearly 16 days outside the time prescribed by S.80 (1) (b) of the Act.

Mr. Tibaijuka has submitted and this is also the contention of the respondent in her affidavit that there are no valid reasons why the appeal was not lodged within time.

The grounds contained in Notice of Motion reproduced earlier give three reasons. Briefly stated these are:

- (i) Application insituted on 2nd February, 199^ and struck out on 21st February, 199^\* - (ii) Drawn up grounds of appeal. - (iii) Interest of Shs. 2,760,900/= which applicant challenges in effect gs being illegal.

Perhaps I should here quote the proviso to S.80 (1) which gives this court discretion to extend period within which to file appeals-. It reads

ITProvided that- the appellate court may for good cause admit an appeal though the period of limitation preserved hy this Section has elapsed11-\*.

In my opinion the fiust. ground could have constituted a good cause for me to grant leave to appeal out of time. Hov/ever as I have pointed out already, the original purported appeal even- if it had been instituted under proper law., it was instituted out of time so it was liable to being struck out as being incompetent.

The second ground, namely, drawing up grounds of appeal, is no good cause at all.

The third ground which attacks the amount awarded a» interest has a basis. As I have stated earlier, in his judgment the learned judge (Kalanda J>) did not state the figure at which the. court rate of interest was to o..o..../8

be calculated. In the plaint signed on 8th September, 19§7, interest claimed was named as 12% and the plaint did not say whether that was per annum or per months it prayed that: (d) ''Interest at 12% from date of filing this suit".

On the other hand in his judgment the learned judge awarded general damages of Shs. 2M/= "With interest at court rates from the date of judgment till payment". Counsel for the plaintiff doesn't appear to have at all addressed the trial court on rate of interest or interest itself.

Further by 1st June, 1992 when first application was made, interest on 2M/= was shown as 30,°00/= and on Shs. 914,630/= (costs) as Shs. 13,779/=\*

But the contested application for execution which was signed on 27th December, 1993 by respondent's counsel **•hows** interest as Shs. 2,7^0,000/=. I have been unable to understand how that sum was arrived at. In that regard, however reprehensible the conduct of the applicant may have been prior to instituting the present application, in my view his opposition to the amount of interest has a prima facie case. It is possible Hr. Tibaijutu **saw this point that** is why he submitted that even if issue of interest is ignored, applicant should pay the rest of the decretal amount. I think that there is a good cause shown particularly since the applicant has been persistent in his opposition starting with the first Notice of Motion which was struck out on 21st February, 1994. Considering the amount involved I think that even the delay of 16 days before he instituted the proceedings which aborted is not too long a period of delay that should bar the applicant from being allowed to appeal out of time. I think it is just that I allow the applicant to appeal against the interest awarded by the Deputy Registrar. ...../9

I now turn to the application for stay of execution# The application as earlier pointed out was instituted under S.35 of Civil Procedure Act and 0.19 Rules 23 and 26 of the Civil Procedure Rules.

I agree with Mr.'Tibaijuka that Rule 23 is inapplicable as this is not a transferred decree. See my ruling in HCCS No\* 34 of 199\$ (Design Group Vs. Bank of Uganda) and J. Kagwa V^. O. A. K. Kagwa /1972/ 1 ULR-12-9.

Learned counsel for respondent also contended that Rule 26 is inapplicable. That the applicant's claim that he has made a reference to the Supreme Court about costs in that court is no ground because no record has been filed in the Supreme Court. Therefore there- de no pending matter for reference in the Supreme Court and that in any case, such pending matter would not operate as stay. He then cited the case of Mugenyi & Co. Vs. National Insurance Corporation (Supreme Court Civil Appeal No. 13 of 1994) to support the view that application for leave to appeal is mere'ly an intended appeal and so rule 26 is inapplicable^ Actually the reference to the Supreme Court is not .a ground in this application for stay. There are two grounds the first is' based on the existence of Misc. App. No. 32/94 which seeks leave to appeal out of time and which I first dealt with in this ruling. The second ground states that ''the order of attachment is invalid as and ought not to have been isjsu^ed". Neither does affidavit refer to the reference to the Supreme Court.

If the application for leave is regarded as a suit, then Rule 26 would be applicable. Under S.2 of Civil procedure Rules a ''suit" means all Civil Proceedings commenced in any manner prescribed. A perusal of one case dealing with Q.21 "Rule *Z?* of Indian Cijril Procedure Rules as applied in Tanzania - the case of Halform Vs. Athaman .../10

/19627 EA 761 and High Court Miscellaneous Application No. 38 of 89 Kanyara Vs. Ahmed show that this application for leave to appeal could be treated as a suito In that case Rule 26 may apply.

However there is one apsect of the application which Mr. Tibaijuka did not touch on.

By 0.19 Rule 89 (1) "Applications under ••\*••••••• Sub-rule (1) of rula 23, rule 26 of this order ; shall be by Summons in Chambers" ' \*\*

Thus even if S.35 tfas quoted which is just prescriptive of what to do and where, the method of instituting the appliw cation for stay is wholly wrong as it was brought to court by motion instead of by Summons. It ought therefore to be struck out.

But in cases of a prima fgcie case of likely injuafrice, I will exercise inherent powers.'of the court to stay execution of its own orders. I shall do so on conditions. ,. The results of the above discussions\*are as follows:- ..

1. '- The application for leave to appeal out of . time is granted in part namely that the applicant is hereby granted'- leave to appeal against the • registrar's order of 11«th January, 1994 a's regards aj^proval of Shs. 2,760,000/= as interest. As his application succeeds to the extent of nearly one third, I award him (applicant)one third of the costs of this application to be taxed after disposal of the intended appeal.

2. The appeal must be made within seven (7) days from to day.

3. Execution is hereby stayed with regard only to recovery of the said Shs. 2,7&®i®0C/= till disposal of the intended appeal provided that if by 14th day of March, 199^j the applicant shall hot have filed the appeal this order *of* stay shall lapse and shall be of no effect.

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- I award to the respondent three quarters of $4.$ costs in respect of the application for stay of execution to be taxed after disposal of the appeal. - The applicant who in effect applied for delayed $5.$ payment must pay the balance of the decretal amount (i.e; less interest of $2,760,000/$ = and Shs. $2M/$ = already paid) within thirty (30) days from date hereof. And if any attachment had been effected by court brokers, he will pay the taxed costs of the court brokers. Obviously if applicant doesn't appeal, he has to pay the interest within the same period of 30 days.

J. W. N. TSEKOOKO JUDGE $9/3/1994.$

$9/3/1994$ at 9.13 a.m. Applicant present. Tibaijuka for respondent. Respondent present. Ssenscnga: Court clerk. Ruling delivered.

J. W. N. TSEKOOKO

J U D G E $9/3/1994.$