Uganda National Examination Board v Mparo General Contractors Ltd (Civil Application 23 of 2003) [2003] UGCA 40 (27 June 2003)

### THE REPUBLIC OF UGANDA

## IN THE COURT OT- APPEAI, OF TJGANDA AT KAMPALA

## ORAM: HON. LADY JTISI'ICE L. Ii,M. MUKASA. KIKONYOGO, DC.' HON. MR. JUSTICE A. TWINOMUJUNI, JA HON. LADY JTlSTICE C. N. B. KITUMBA, JA 1/

## CIVIL APPLICATION NO.23 OF 2003-06-I2

## GANDA NATIONAL EXAN{lN;\TION BOARI) APPLICANT

# VEITST]S

# PARO GENERAL CON-TRAC-I'OIIS LTD RESPONDENT

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# ULING OF THE COURT

is is an application by Notice of Motion for orders that: -

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- 1). The Execution of the Award of Arch. P. Kamya dated 30tr' May 2000 and filed in the High Court BE STAYED until the final disposal of the appeal to the Court of Appeal against the decision of the High Court in Arbitration Cause No.30 of 2000. - 02 ). An interim order of Stay of execution exparte be made pending the interparties hearing of the application. - <sup>3</sup> ). Costs of this application be provided for."

The application is supported by an affidavit sworn by the applicant's General Secretary, Mr. M. B. Bukenya, on 20'h March 2003. There is also an ffidavit in reply sworn on 5'r' May 2003 by the Managing Director of the spondent, Mr. T. K. Mafigiri. Frorn the contents of the two affidavits, the ackground to this application can be assembled and surnmarised as ollows:-

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n May 2000, an arbitrator called P. Kamya made an award in fbvour of the espondent for shs. 160,085,3701: against the applicant. The applicant hallenged the decision of the arbitrator in the High Court on the grounds t he was guilty of misconduct. The challenge was dismissed by the court n 2nd October 2002. On that day the applicant filed a Notice of Appeal in e High Court. He then filcd in that court Miscellaneous Application o.614 of 2002 for stay of execution pending the determination of the ppeal. The application was heard and deterrnined on the 28'h November 002. The application for stay of execution was granted on condition that e applicant deposits in court shs.160,085,370/=, the arbitral award, within 1 days from the date of the ruling. This period expired on the 19th cember 2002 and the applicant had not yet deposited the money or a eque of that amount as dilected by the court. When the applicant tempted to deposit the cheque a few days later, the court rejected it on the ounds that the order of the trial judge had not been complied with. )

e applicant then filed in the High Court an application seeking to enlarge e time within which to deposit the said cheque. That apptication was on 'h March 2003 rejected and disnrissed by the court. The applicant then ed this application. Apart flom what we are able to gather trom the two

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affidavits, we are unable to tell what the arbitration proceedings were about or why the various applications of the applicant were dismissed by the High Court because the applicant did not file any documents relating to those matters.

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en the application calne up tbr hearing Mr. Masembe\-Kanyerezi, eamed counsel for the applicant, applied for leave to amend his Notice of otion to rei'lect that the application was being brought, among other rovisions, under Rule 5(2Xb) ol' Court of Appeal Rules. Mr. Paul yaruhanga, learned counsel fbr the respondent, opposed the application to end and in the process. raised fbur prelirninary objections to the validity f the application to stay execution. In brief the prelirninary objections ere: -

) All applications for stay of execution can only be filed in this court under Rule 5(2)(b) of the Rules of this Coun. Anything filed under any other provisions, as in this case, is a nullity which cannot be cured by amendment. Therefore, there is at the moment no valid application for stay of execution. A nullity cannot be amended as counsel is seeking. Allowing such an application would be tantamount to allowing the applicant to file a fresh application at this late hour.

)This application is an abuse ofcourt process because it was made before the High Court and was granted. Rule 4l(l) of the Rules of this Coun does not allow such an application to be duplicated in this court. The applicant failed to fulfil the conditions prescribed by the granting court. That is no excuse fbr duplicating the application in this court.

- c) In order for this court to entertain the application, there had to be a valid appeal before this couft. An appeal is a creature of Statute. The Arbitration Act (Cap 55) did not provide for an appeal to this court and the applicant had no right of appeal. This application was therefore misconceived and invalid. - d) ln J. W. R. Kazoora vs. Rukuba Supreme Court Civil Annlication No.4 of 1991. the court held that an application for stay of execution is incompetent if it lacks a copy of the judgment appealed against. Since no such a copy was filed with this application, it should be dismissed as incompetent.

oth counsel were given f,ull opportunity to argue these fbur preliminary bjections. We think, howcver, that this application can be disposed of in e process of considering the secor.rd prelirninary objection raised by Mr. yaruhanga. He argued that the application before this coufi was made and anted by the High Court olUgancla on 28'r'November 2002. lt would be n abuse of Court process for the applicant to seek to make the same pplication before this court.

0 reply, Mr. Masembe-Kanyerezi argued that when the High Court refused extend time within which to deposit the cheque as it had ordered, it had in ffect rejected the whole application for stay of execution. In those ircumstances, there was no alternative but to file a fresh application in this urt as is provided for unde r Rule 4l of the Rules of this Court. I t

ule 4l(1) of the Cout of Appeal Rules (1996) provides: -

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"Whenever an application may be made, either in the Court (of Appeal) or the High Court, it shall be made **first in the High Court."** [Emphasis ours]

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A similar provision was considered by the Supreme Court of Uganda in the $\mathsf{S}$ case of Lawrence Musiitwa Kyazze vs. Ekuise Busingye Civil **Application No.18 of 1990.** Their Lordships of the Supreme Court held: -

> "The Supreme Court would prefer the High Court to deal with the application for Stay on its merits first of before the application is made to the Supreme Court. However, if the High Court refuses to accept jurisdiction or refuses jurisdiction for manifestly wrong reasons, or there is great delay, the Supreme Court may intervene and accept jurisdiction in the interest of justice."

> The Supreme Court may in special and probably rare cases entertain an application for Stay before the High Court has refused Stay, in interest of justice to the parties. The court can so act only after it has been **appraised of all the facts.**" [Emphasis ours]

From the affidavits of both parties in the instant application, it is common ground that the High Court entertained and granted an order to stay execution in this case on 28<sup>th</sup> November 2002. That order has never been revoked or altered by the court. The application for stay of execution was

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never refused to justify this court entertaining yet another application under Rule $41(1)$ of the Rules of this Court.

The applicant made another application under the same rule to enlarge time to deposit the decretal amount in court. The application was refused. We are $\mathsf{S}$ not persuaded that in rejecting that application, the High Court, in effect, reversed its earlier order granting stay of execution. The applicant could have filed another application in this court to enlarge the time in which to deposit the cheque. The applicant did not. This instant application is not about enlargement of time. It is about stay of execution which was granted $10$ by the High Court. It cannot be duplicated in this Court under Rule $41(1)$ of the Rules of this Court. The application is therefore incompetent and must be struck off as a nullity. The respondent is awarded the costs of these proceedings in this court.

$27$ <sup>th</sup> June 2003. Dated at Kampala this.

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DEPUTY CHIEF JUSTICE.

Hon. Justice L. E. M. Mukasa-Kikonyogo

Hon. Justice A. T winomujuni JUSTICE OF APPEAL.

Hon. Justice C. N. B. Kitumba **JUSTICE OF APPEAL.**

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