Court name
Commercial Court of Uganda
Judgment date
10 August 2008

URA v M/s Muwema & Mugerwa Advocates & Solicitors (Miscellaneous Application-2008/394) [2008] UGCommC 71 (10 August 2008);

Cite this case
[2008] UGCommC 71


THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA
AT KAMPALA

[COMMERCIAL DIVISION]
MISCELL
ANEOUS APPLICATION NO.394 OF 2008
[Arising Out of Civil Appeal No.393 of 2008]
[Arising Our of
Miscellaneous Cause No.376 0f 2008]
 

UGANDA REVENUE AUTHORITY……………………………..APPLICANT


VERSUS

M/S MUWEMA & MUGERWA ADVOCATES&
SOLICITORS……………………………………………………..RESPONDENTS

BEFORE: THE HON. LADY JUSTICE M.S ARACH-AMOKO

Ruling
This is an application for stay of execution of the order of the Registrar of this Court in Misc. Cause No. 376 of 2008, pending the determination of Civil Appeal No. 393 f 2008.

The learned Registrar gave the said order on the 28th July 2008, directing the Applicant, (URA), to immediately pay to the Respondents ( a law firm), the sum of shs 1,389,888,465/= as their fees for successfully prosecuting Misc. Cause No. 376/08.

The Applicant was dissatisfied with the said order and filed Civil Appeal No 393 of 2008 which has been fixed for hearing on the 19th September 2008.
The Applicant now brought this application to stay execution of the learned Registrar’s Order under sections 98 and 62(5) of the CPA, Order 22 r 23, Order 43 r(4) and Order 52 rules 1 and 3 of the CPR.

The grounds are not out in the affidavits of Edward Kitonsa, a legal officer of the Applicant dated 30th July and 5th August 2008 respectively.
Briefly, they are that:
1)       The applicant has filed an appeal seeking inter alia to set aside the said order.
2)       The execution of the said order will result into paying out substantial amounts of public funds to the Respondent and will render the intended appeal nugatory.
3)      

The Government of Uganda on whose behalf the applicant is executing the licence fees refund stands to suffer irreparable loss if the orders of the High Court in Misc Cause No 376/08 and the order Misc in Misc Appl No. 397/08 are executed before the conclusion of the appeal (from he supplementary affidavit)
4)       It would flout the applicant’s verification procedures if the order is obeyed.
5)       It is in the interest of Justice that an order be issued staying execution of the decree until the appeal is disposed of.

In reply, the Respondents filed the affidavit of Mr. Herbert Kiggundu- Mugerwa, one of its partners, dated 6th August 2008. Mr. Mugerwa stated that the decision of the learned Registrar was a good one both in law and in fact and he acted in proper exercise of his discretion which cannot be faulted.
That subsequently, the Respondents applied for and obtained a Garnishee Order Nisi which is due to be made absolute against the Applicant’s bank account for the payment of the said sum. That the appeal in question has no merit whatsoever and is bound to fail because the Applicant has already verified and admitted the sum of shs 8,686,802,905 against which the said payment was ordered.

Further, no irreparable loss or prejudice shall be suffered by the Applicant by paying the Respondent’s fees out of the refund which are private monies due to the claimants represented by the Respondents. The said payment has also no bearing on the tax administration in Uganda since the amounts in issue are not tax revenue over which the Applicant has a statutory mandate nor are they funds belonging to the Uganda Government. On the contrary, this application is inequitable and brought in bad faith since it tends to allow the Applicant to unjustly and unfairly deny remuneration to the Respondents for a service rendered for the public interest and benefit. It should therefore be dismissed with costs.

In order for an applicant to succeed in an application of this nature, Order 43 rule (4) of the CPR requires the applicant to satisfy Court that:
a)      
substantial loss may result to the applicant unless the order is made.
b)       the applicant has been made without unreasonable delay.
c)       security has been given by the applicant for the due performance of the decree or order as may be ultimately be binding on the applicant.

The grant of an order of stay of execution pending appeal is a discretionary exercise by the Court of its inherent jurisdiction (see: Mugenyi & Co. Advocates-Vs-National Insurance Corporation [1992-1993] HCB 82-CA). The principle of law to be followed in applications for stay is whether substantial loss would arise from the granting of the same and whether the dictates of justice demand so. (see: Imelda Nandaula-vs-Uganda Bank Ltd HCCA No 47/92, Byamugisha J. (as she then was), unreported; Somali Democratic Republic -Vs- Annop Sundarala Treon HCCA No 11/1988(unreported), KCC-Vs-National Pharmacy Ltd (1979) HCB 215 and Nganga -vs-Kimani (1959) E.A 69.

I had the opportunity of carefully perusing the affidavits and considering the submissions by learned counsel for both sides, which I found very useful in reaching my decision in this matter. I am satisfied on the basis of the evidence before me and the authorities above that the circumstances of the matter before Court justify the grant of the order sought. This is because the Court finds that the pending appeal is not entirely frivolous. Section 3(3) of the Finance Act which abolished the licence provides that:
“In any case where a licence fees under S. 16 TRSA 1998 had been paid for a period beyond the 30th day of June 2007, the owner of the motor vehicle………….. in respect of which it was paid shall , on applying to the Uganda Revenue Authority be entitled to a refund of the prescribed fee calculated at the rate of one twelfth, one eighth or one quarter of the annual fee applicable for each complete month during which but for the exemption of the licence fee would have remained valid”

The order of the learned Registrar is to the effect that:
“The Applicants (now Respondents) agreed remuneration with their clients be charged and wholly paid out of the pre-paid and now abolished road licence fees refunds in possession of the Respondents (now applicants,)”

Paragraph 1 of the agreement between the Respondents and their clients on which their contention for a lump sum payment is based on its part states:

“1. That Advocates shall be entitled to costs of the suit and an additional fees equivalent to 16% of the total proceeds of the clients claims or whatever total sum of any refund that may be awarded or finally agreed”

From all the evidence on record and submission from counsel, it appears to me that both sides seem to agree that the total sum payable to the clients is yet to be agreed. The verification exercise is on going on the basis of applications by claimants individually. The Applicants do not deny the claim but insist that the monies be paid in a staggered manner as the claims are verified. The Respondents insist on a lump some payment. The issue is really the mode of payment.

In the circumstances, it appears to me that the learned Registrars decision may require a second opinion by the High Court vide the pending appeal. This is so because the monies demanded are colossal and will most likely be paid from public funds. A little waiting will in my view therefore do no injustice to the Respondents while the appeal is determined either way. Besides the appeal is solely based on the mode of payment of the said sum. If the order of the learned Registrar is not stayed and the decree Nisi is made absolute, the bank will be obliged by law to pass on the said sum to the Respondents and the appeal will be rendered nugatory. The main purpose of an application for a stay of execution pending appeal is to preserve the subject matter in dispute so that the right of the appellant who is exercising his undoubted right of appeal are safeguarded and the appeal if successful is not rendered nugatory (see: CA No. 93 of 1989 Consolidated Marine -Vs- Nampijja & Anor (Nairobi) reported in Digest On Civil Case Law & Procedure by G.V Odunga page 732).

In the circumstances, the justice of the case therefore demands that the application be granted and it is so granted as prayed with the following orders:
1)      

The execution of the charging order granted by the learned Registrar of this Court in MA 376 of 2008 is hereby stayed pending determination of Civil Appeal No 393/08.
2)       The Applicant shall deposit in Court 10% of the fees awarded to the Respondents that is 10% of shs 1,389,888,465 as security, within 10 days of this order.
3)       Costs shall be in the cause.

I so order

…………………………
M.S Arach-amoko
Judge
11/8/2008.

Ruling delivered in draft in the presence of:
1)      

Moses Kazibwe for Applicant
2)       Mulema Mukasa for Respondents
3)       Okuni Charles, Court Clerk.

……………………………..
M.S Arach-Amoko
Judge
11/8/2008