THE REPUBLIC OF UGANDA
IN THE COURT OF APPEAL OF UGANDA
MISCELLANEOUS APPLICATION NO. 91 OF 2014
[Arising from Miscellaneous Application No. 90 of 2014]
The Commissioner Customs,
Uganda Revenue Authority::::::::::::::::::::::::::::::::::::::::::::::: Applicant
Kirenga Fred ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: Respondent
Before: Hon. Mr. Justice Remmy Kasule, JA, sitting as a single Justice.
The applicant brought this application before me as a single Justice seeking for an Interim Order to stay execution of the orders of the High Court sitting at Nakawa (Masalu-Musene, J) made in Miscellaneous Cause No 15 of 2013, until the final disposal of Miscellaneous Application No. 90 of 2014, the main application to stay execution of the said orders.
The application is being made pursuant to Section 12 of the Judicature Act, Cap. 13 and Rules 2, 6(2) and 43 of the Judicature (Court of Appeal) Directions: SI 13-10.
The application is supported by the affidavits of one Haluna, Mbeeta and Angella Nairuba both advocates with the applicant’s
Department of Legal Services and Board Affairs. The respondent filed an affidavit in reply opposing the applicantion.
The grounds of the application are that the applicant had filed a notice of appeal intending to appeal against the High Court decision in Miscellaneous Application No. 15 of 2013 and for this purpose he had lodged in this Court a substantive Miscellaneous Application No. 90 of 2014 to stay execution, and as such an interim order to stay execution should be issued pending disposal of the substantive application. The substantive application had been made without delay, it had merit and a likelihood of success and the respondent had made express demands and taken steps to enforce the High Court orders sought to be stayed. The Interim Order was therefore necessary to be issued so as not to render the substantive application for a stay and the intended appeal a nugatory. The applicant was ready and willing to furnish security for costs as Court may determine.
At the hearing, Counsel Habib Arike appeared for the applicant while Counsel Kavuma Terence was for the respondent.
The background to this application is that the respondent, a businessman, was on 05.08.09 criminally charged and prosecuted of contravening certain provisions of the East African Community Customs Management Act in Nakawa Chief Magistrate’s Court in Criminal Case No. 884 of 2009. The Court acquitted him of the charges and ordered the applicant to release to him 160 drums of Ethanol that the applicant had seized from the respondent.
The applicant did not comply with the said Chief Magistrate’s Court Order. Instead both applicant and respondent got involved into other Court proceedings, both Civil and Criminal, that have no direct bearing to this application.
Ultimately in an endeavour to secure the 160 drums of ethanol from the applicant the respondent lodged and prosecuted against the applicant in the High Court at Nakawa, Miscellaneous Cause No. 15 of 2013 praying for a declaration that the applicant’s refusal to comply with the Chief Magistrate’s Court’s order to release the 160 drums of ethanol contravene the respondent’s right to property, an order that the applicant releases to the respondent the said drums and an order that he pays to the respondent both general and exemplary damages.
The learned High Court Judge, Masalu-Musene, J, allowed the application and issued the prayed for orders. As the applicant had sold the ethanol drums, he was ordered to pay to the respondent shs. 230,983,291=, being their value, then shs. 80,000,000= general and shs. 150,000,000= exemplary damages, with interest at Court rate on the damages.
The applicant being aggrieved by the said High Court decision lodged a Notice of Appeal intending to appeal to this Court. He then lodged this Application for interim stay and another Miscellaneous Application No. 90 of 2014 as the substantive application to stay execution.
An interim order is an order to maintain the state of affairs of a situation relating to the subject matter of the litigation during the time that comes between the time of filing the application for an interim order and the time as to when the substantive application is disposed of, subject to any other directions of the Court.
It follows therefore that there must be specific reasons and/or circumstances that necessity an application for an interim order. An application for an interim order ought not to be lodged as a matter of Course, wherever and whenever an applicant lodges a substantive application for stay of execution or for some other prayer.
In Civil Application No. 19 of 2008: Hwang Sung Industries Ltd vs Tajdin Hussein and 2 others (SC), Okello, JSC held that: “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 preempt consideration of matters necessary in deciding whether or not to grant the substantive application for stay".
Suffice to add that the burden lies upon the applicant to prove to Court on a balance of probabilities the requisite conditions that must be satisfied before an interim order is granted.
In WILSON MIKIIBI VS JAMES SSEMUSAMBWA, CIVIL APPLICATION No. 9 of 2003 (SC), Mulenga, JSC, held with regard to an application for an interim order that:
“A party seeking a stay of execution must satisfy the Court that there is sufficient cause why the party with judgment should postpone the enjoyment of its benefits. It is not sufficient for the judgment-debtor to say that he is vulnerable, because the successful party may take out execution proceedings. It must be shown that if execution proceeds there may be some irreparable loss caused
............................... The Interim Order ought to be made only in
compelling circumstances, to prevent defeat of justice, and strictly pending ascertained hearing of a substantive application by the full Court”.
It follows therefore that an application for an interim order should not be entertained and allowed by Court as a matter of course, which appears to be the trend in Courts of Law now days. The applicant, in order to succeed, must prove compelling reasons as to why he/she is pursuing an interim and not only a substantive application. In case of execution, the applicant must show to Court the existence of an imminent act of execution between the time of lodgment of the interim application and disposal of the substantive application before securing an order of interim stay.
While it is true that a single Justice in the exercise of the Court’s inherent powers, has jurisdiction to hear and grant an interim order, it must be appreciated that, given the clear language of Rule 53 (2) (b) of the Judicature (Court of Appeal) Rules which requires such an application to be determined by a full Bench of three Justices of the Court, the exercise of the inherent jurisdiction by a single Justice to grant an interim order of stay of execution, injunction or stay proceedings must only be under compelling circumstances to prevent the defeat of Justice: See: Wilson Mukiibi vs James Semusambwa (supra) and HORIZON COACHES LTD VS FRANCIS MUTABAZI & OTHERS : CIVIL APPLICATION NO. 21/2001 (SC).
In this application, it is stated on behalf of the applicant in the supporting affidavit to the application, that the orders of the Court that are the subject of the intended appeal are executable against the applicant and that the respondent has made express demands/steps to enforce the said orders. Further, that if interim stay is not granted to the applicant then the applicant shall suffer irreparable loss of revenue which cannot be atoned for in damages by the respondent.
This Court has perused annexures A5 and A6 provided by the applicant as evidence of the steps the respondent has taken to execute the Court orders against the applicant. Annexure A5 dated 10.02.2014 is a letter from Counsel for the respondent to the applicant’s Commissioner, Legal Services and Board Affairs beseeching the said Commissioner to advise the applicant to implement the decision of the Court as soon as possible. The letter forwards, as an attachment to it, a copy of the judgment of the Court for the applicant’s further action. There is no threat of execution in the letter.
Annexure A6 is a bill of costs by the respondent against the applicant which was filed in Court on 24.02.2014. The bill is un taxed.
In the supplementary affidavit of Angella Nairuba employed as advocate of the applicant, it is stated therein (paragraph 7) that the applicant had been compelled to file the application for interim stay because there was an imminent threat of execution of the orders of the trial Court. There is no explanation in the said affidavit as to what constituted the “imminent threat of execution”.
I have therefore come to the conclusion that the applicant has not established before me the evidence of circumstances of an imminent threatened execution to move me to intervene by invoking the inherent powers of the Court to grant an interim order of stay. It appears to me that the application for interim stay was filed and is being prosecuted as a matter of routine which has become a trend these days, an unacceptable one to Courts of law, that wherever an application for substantive stay of execution is filed in Court, it must be preceded by an application for an order of interim stay, regardless of whether or not there is an imminent threat of execution.
Further, the subject matter of the intended appeal, is easily ascertainable in monetary terms and it has not been shown that the respondent cannot meet the monetary cost of any possible loss. Therefore the issue of irreparable damage being suffered by the applicant at this stage of interim stay does not arise.
In conclusion the applicant has failed to make out a case to be granted an interim order of stay. Accordingly the application for an interim stay of execution is dismissed with costs to the respondent.
Dated this 29th day of January 2015
Hon. Mr. Justice Remmy K. Kasule
Justice of Appeal