THE REPUBLIC OF UGANDA
IN THE SUPREME COURT OF UGANDA
AT MENGO
CIVIL APPLICATION NO. 19 OF 2008
BETWEEN
CORAM: G. M. OKELLO, JSC.
HWANG SUNG INDUSTRIES LTD: :::::::::: APPLICANT
AND
1. TAJDIN HUSSEIN
2. RAINBOW FOODS LTD.
3. NIZAR HUSSEIN: :::::::::: RESPONDENTS
(An application arising from Civil Application No. 18 of 2008, which in
turn arose from Civil Appeal No. 08/2008)
This is an application under rules 2(2), 42(1) and 47(2) of the Rules of this Court
for an interim order for stay of execution. The application also seeks an order for
costs of this application.
The grounds on which the application is based are contained in the Notice of
Motion itself. In a nutshell, the ground is to preserve the status quo of the subject
matter of dispute pending the disposal of the substantive application for stay of
execution now pending in this court as Civil Application No.18 of 2008.
Briefly, the applicant had successfully sued the respondents in HCCS No. 271 of
2003, for breach of contract. On appeal to the Court of Appeal, the respondents
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were successful. The applicant who was dissatisfied with the decision of the Court
of Appeal, appealed to this court vide Civil Appeal No. 08 of 2008.
Anxious to reap the fruits of their success in the Court of Appeal, the respondents
applied for execution of the decree of the Court of Appeal. The applicant who got
wind of that application, applied in this court, vide Civil Application No. 18 of
2008, for an order of stay of execution of the decree in court of Appeal Civil
Appeal No. 71 of 2005, pending the disposal of appeal No. 08 of 2008. He also
filed the instant application for interim order for stay.
In the meantime, the Registrar of the Court of Appeal, acting on an application by
the respondents, issued warrant of attachment and sale of the applicant’s property
in execution, when the applicant failed to respond to the “Notice to show cause”
issued under 022 r 39 of the Civil Procedure Rules. On receipt of the warrant of
attachment and sale in execution, the Court Bailiff proceeded to attach the
plaintiff’s property.
At the hearing, Mr. George Omunyokol appeared for the applicant while Ms.
Verma Jivram represented the respondents.
Presenting the applicant’s case, Mr. Omunyokol submitted that the application
seeks the court’s interim intervention to preserve the status quo pending the
disposal of the main application for stay of execution now pending in this court as
Civil Application No. 18 of 2008. He acknowledged that attachment of the
applicant’s property in execution of the decree has already been effected on 15-09-
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08, but that the execution was not yet complete. Sale of the attached property has
not yet been done. Referring to paragraph 7 of the supporting affidavit of Mr.
Tenywa, a quality controller of the applicant, learned counsel contended that if the
order sought was not granted, the applicant’s pending appeal would be rendered
nugatory. He suggested that the applicant was willing to deposit some money as
security for performance of the decree of the Court of Appeal, pending the disposal
of the pending appeal.
Ms. Jivram opposed the application on a number of grounds, firstly that the
application has been overtaken by event. Attachment of the applicant’s property on
15-09-2008 in execution of the decree has already altered the position. The fact of
the attachment is contained in paragraphs 3 - 10 of the affidavit of James Birungi,
Court Bailiff. Learned counsel argued that to grant this application in this
circumstance would be to reverse rather than to maintain the status quo.
Secondly, that neither the number nor a copy of the stated pending substantive
application for stay of execution has been disclosed or made available. The
respondent was left to assume the existence of the said substantive application for
stay of execution.
Thirdly, citing Editor - in - Chief New Vision, News paper - vs - Ntabgoba,
Civil Application No. 63 of 2005, Court of Appeal (un reported), learned counsel
submitted that there is no evidence of special circumstance and good cause to
justify grant of such an application. The burden is on the applicant to show the
special circumstance and good cause to justify grant.
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Fourthly, that there is also no evidence of inability of the respondent to refund the
decretal amount, if paid, in the event of the appeal succeeding. The burden to
show that inability is also on the applicant.
Fifthly, that the application for stay of execution needs to be brought without delay.
Normally such an application should be made informally as soon as the judgment
is delivered. Learned counsel pointed out that in the instant case, the application
was filed nearly two years after the judgment was delivered. In her view, this
application was not brought without delay and that there is no special circumstance
and good cause to justify granting it.
She prayed that the application be dismissed.
Having heard both counsel on this matter, it is important to point out that rule 2(2)
of the Rules of this court preserves the inherent power of this court to make any
orders to achieve the end of justice or to prevent abuse of its process.
In the instant application, the justice of the case requires that the main application
for stay of execution, now pending before this court, be heard before the execution
is effected otherwise that main application would be rendered nugatory.
It was argued by Ms. Jivram that this application has been overtaken by event since
attachment in execution has already been effected on 15-09-08. I find no dispute
about the attachment having been effected in execution of the decree in question
but I accept Mr. Omunyokol’s submission that the attachment alone did not
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complete the execution. In an execution by attachment and Sale, both components
must be completed in order to complete the execution. This was not the case in the
instant case.
Ms. Jivram further submitted that the applicant did not show any special
circumstance and good cause to justify grant of this application. She cited the
Editor - in Chief of the New Vision News paper - vs - Jeremiah Ntabgoba,
Civil Application No. 63 of 2004, COA (un reported). That case was a substantive
application for stay of execution and the matter to be considered for grant of a
substantive application for stay are not necessarily the same in considering
application for an interim order for stay pending disposal of the substantive
application.
For an application for an interim order of stay, it suffices to show that a substantive
application is pending and that there is a serious threat of execution before the
hearing of the pending substantive application. It is not necessary to pre-empt
consideration of matters necessary in deciding whether or not to grant the
substantive application for stay.
In the instant application, I am satisfied that there is pending in this court a
substantive application for stay of execution of the decree in Civil Appeal No. 71
of 2003, which is the subject of appeal in this court. I am also satisfied that there is
a real threat to execute the decree before the disposal of the substantive
application. When that is done, the substantive application would be rendered
nugatory. The attachment that was effected on 15-09-08, did not complete the
execution of that decree, therefore, this application has not been overtaken by
event.
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In the result, I allow the application and order as follows:
(1) Sale of the property attached on 15-09-08 as shown in the inventory
signed by a representative of the applicant and attached to James
Birungi’s affidavit must stay pending the disposal of Civil Application
No. 18 of 2008 or until 17-11- 08, whichever comes first.
(2) If by 17-11-08, the substantive application (No. 18 of 2008) is still
pending, this matter must be brought to court for review.
(3) Costs of this application to abide the result of the substantive
application.
Dated at Mengo this: 19th day of September, 2008.
G. M. OKELLO
JUSTICE OF THE SUPREME COURT
