Sekiboobo v Obonyo (Miscellaneous Application 84 of 1992) [1992] UGHC 62 (8 September 1992)

Full Case Text

The Hon. on. Justice Egonda-Neandie

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THE KEPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA MISC. APPL. NO. 34 UF 92 (ARISING OUT OF CIVIL SUIT NO. 79 OF 92) APPLICANT/ P. SEKIBGOBO $. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .$ **JUDGEMENT** DEBTOR. VERSUS CLAKE OBONYO **2:2:2:2:2:2:2:2:2:2:2:2:2:2:2:2:2:2:2:**

BEFORE: The Honourable Mrs. Justice M. Kireju. $R$ U L I N $G$ .

This is an application brought by the applicant/decree judgement Debtor Polycarp Sekiboobo, under Rule 4 of the Court Vaction Rules and Or. 48 of Civil Procedure Rules. The application was presented by Mr. Katongole of N/S Katongole & Co. Advocates and Mr. Bekya of Kadaga & Co. Advocates represented the Respondent.

The applicant seeks leave of court to have his application under Or. 9 r. 20 heard during court vacation. The grounds as stated in the Notice of Motion are that on the hearing day of the application under Or. 33 r.11 the applicant's advocate Edward Elue was suddenly and unexpoonedly taken ill and consquently the application was dismissed for want of prosecution. The second ground is that the ellicont has filed an application to set aside the order dismissing the said application and if the said application is not heard urgently, the applicant's property will be sold off by the Respondent's agents. The application is supported by the affidavit of Polycarp Sekiboobo dated 19/0/92. Couns-1 for the applicant prayed that leave be grapeed, and the application be heard during Court Vacation.

Mr. Benkya, counsel for the respondent of osed the application on the ground that the court ill five an

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order which it will not be able to enforce. He submitted that the application under r.4 of Court Vacation hul-.s is about urgency to prevent events happening- Thit t • , property which is supposed to be in danger of being sold has already been sold as per the return of Oden -i zanders Court-Bailiffrs letter to the Registrar d ted 7/7/9^. CoUnor 3. cuhmirted that the urgency was no longer there and if the r.rjlic-.nt tnin.-s their property was wrongly sold uney should '.•« Ing action for damages.

Counsel further submitted that the ac- lie. nt so ks an order to set aside the dismissal of another ~ . plic. tion which is not an application to stay execution hnd that by the with time the applicant get through .. die 3rd application the Court Vacation will be over. Counsel sur:.;itted that the application under Or. 9 r. 20 to set asid fv dismissal of the other application has also been dismiss d ny Justice Byamugisha, that there was therefore no application as claimed by the applicant. Counsel also id that the affidavit "us giving wrong information for example th of the auctioneer cited there i^ not correct.

th»t the granting of the application .vill r..?ve no useful purpose especially when the Vacation, is ondi he prayed for the dismissal of the application witn costs.

Counsel submitted

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Mr. Katongole in reply submitted that there war a letter of the Registrar on the Court record dated 2/j/9d addressed to bailiff Job H. Odoy telling him not to soil d>.- property attached until he receives ether orders from court. Registrar went on to say tn^t the def^x'd nt.'./ p\_ lj.c..-.nts

application was fixed for nearing by court oi 3/8/92, that the bailiff should comply with the decision of tie court after that hearing. Counsel submitted that thv v.p\:lic/ nt assumed that the bailiff complied with the- order from court which acted as stay of execution. And according to counsel the application under Or. 8 r. 20 has not been dismissed.

In order to understand this application, it is necessary to give a brief background to it. On 14/7/92 or... c-.pplic--.tion under Or. 33 r. 11 of C. P.k was fixed for he.ring where•the applicant (same as in this application) sought ord rs of court to set aside the decree dated 8/4/92, ar.? suy of -execution. When the application came up for hearing, the ..pplicaixt was not represented and the application was dismissed for lack of prosecution on 14/7/92.

The applicant made another application so that he is heard during court vacation on the an application to set :~ aside the dismissal of 14/4/92. The application s fixed for hearing on 3/8/92 and the same was dismissed for .lack of prosecution. The applicant made another cpplic tiun to set aside the order of court dated 3/8/92. At th., hearing the presiding judge ruled that the applicant cannot be heard on an application to reinstate his application dismiss d on 3/d/92 without obtaining leave of court. The pplic. ti. n was struck out as being improperly before court.

from the auove background the apjlic I have on the file is the present application where applicant's seeks an order of this court to be allcw.c to be hu rd in court vacation in respect of his applic .tie; under Or .9 ■r.2O. The application made under Or. 9 rr. 20 has never been heard as it .was filed on 13/7/92 namely curing court vacation. The applications which have been dia.jif;std or

struck out are those trying tc- luve it hoard . urmg cour vacation. I have therefore found tnat tiurv ir an application under Or. 9 \*r. 20 to set aside an ordur uisi-iissiag the applicant application made under Or. *33* r. 11.

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This leads me to the next ground that if th. application under Or 9 r\* 20 is not heard the applicant1x?r-... urty will be sold off by the respondent's agent. But o.s i. Vu.iS<l for the respondent pointed out th;- pruperti s h vc Ir^ady been sold as per the bailiff's return ill, u on C/7/92. The ground on which the applicant had bas .6. \.i.; application has been overtaken by events, there is tb.er f« v;c urgency to have this application heard in court vacati-..n. But before I take leave of this applij tion I would like to say that if the applicant's application had succv-^d-d it would not have mattered whether there is only on. week 1ft to end of court vacation or even one day the test is to show thv-t the matter is urgent if it is net concluded dui-inj c-urt vacation it can be .continued thereafter.

In the result this application is disuis . d -s it does not meet the requirments under Huie of court vacation Huies. Costs will be in the cause •

M. k J U D G 8/9/92

8/9/92 Mr. Katongole£or the appliC3nt Mr. Byenkya for the respondent Mr. Oburu Court Clerk. - Puling duiiv ,r«"d.

M. KI Hi;JU *Y J U L) G iS.* 8/9/92