THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
(EXECUTION AND BAILIFFS DIVISION)
MISCELLANEOUS APPLICATION NO. 1846 OF 2017
(ARISING OUT OF MISC. APPLICATION NO. 1845 OF 2017)
(ARISING OUT OF CIVIL SUIT NO. 860 OF 2016)
(ARISING OUT OF EMA NO. 748 OF 2017)
LWANGA YASIN --------------------------------------- APPLICANT
SEM NANDULYA -------------------------------------- RESPONDENT
BEFORE LADY JUSTICE FLAVIA SENOGA ANGLIN
This application was made under 0.52 rr 1 and 3 C.P.R and S.98 CPA. It seeks orders of this court:-
- Releasing the Applicant from Civil Prison and issuing an interim order staying execution of the judgment and decree in Civil Suit 860/2016 until the final disposal of MA 1845/17 for stay of execution.
Costs of the application were also applied for.
The grounds of the application are that:-
- The Respondent initially filed civil suit 336/2015 at the High Court Nakawa and upon grant of leave to defend, filed a written statement of defence.
- The suit was subsequently transferred to the Commercial Court but neither the Applicant nor their Advocates were served with proceedings in the suit.
- The Respondent misled court and judgment against the Applicant was erroneously entered for the Respondent on the basis of an application in a different matter where the Applicant is Defendant.
- The Applicant is not indebted to the Respondent as claimed or at all as the claim of the Respondent emanates from a land sale transaction where the Respondent sold the Applicant non-existent land and obtained Shs. 80,000,000/- as payment.
- The suit brought by the Respondent against the Applicant lacks basis and the Applicant filed a defence.
- The Applicant has a good and tenable defence to the whole of the Respondent’s claim and has filed MA 1845/2017 for stay of execution of the decree and also MA 811/2017 for setting aside the judgment/decree, before the Commercial Court.
- The Respondent misled court and obtained a warrant for the arrest of the Applicant on the basis of an order for substituted service, yet the address of Applicant’s Counsel was well known to them.
- The Applicant was on 13.07.17 arrested and committed to civil prison in execution of the decree obtained by the Respondent to recover Shs. 77,143,500/- as principal, interest and costs of the suit.
- It is only just and equitable that the Applicant be released and execution stayed pending the disposal of the application for stay of execution MA 1845/17.
The application is supported by the affidavit of the Applicant and of Kenneth Kajeke his former lawyer.
There is an affidavit in reply by Kavuma Isa, Advocate, together with a supplementary affidavit in reply.
The application was called for hearing on 02.08.17. Counsel for the Applicant went through the grounds of the application and the supporting affidavits emphasizing that MA 811/17 has been filed seeking to set aside the default judgment against the Applicant and that it’s therefore just and equitable that the application be granted pending the disposal of the application before this court and in the Commercial Court.
Many other issues regarding service and filing of defence in the suit out of which this application arises were delved into. Deceit and misrepresentation are alleged to have marred the whole process, plus that the Respondent sold non-existing land to the Applicant and actually obtained part payment of the purchase price.
The alleged contradiction in the affidavits in reply were also referred to and it is asserted that the exparte proceedings resulting into the default judgment were entirely due to the mistake of then Counsel for the Applicant and ought not to be visited on the Applicant. Cases were cited in support of these arguments.
Stating that sufficient reason had been established by the Applicant as required under 0.22 r 23 C.P.R and that the Applicant ought to be given a chance to be heard on merit, Counsel prayed that the application be allowed and Applicant released from Civil Prison.
In reply, Counsel for the Respondent relied upon the affidavit in reply and the supplementary affidavit.
He then raised objection that there was nothing to stay as execution was completed by arrest and committal of the Applicant in civil prison. That there is a return on the record to that effect.
Alternatively that, the application does not satisfy the requirements of 0.23 rr 1 and 3 C.P.R for stay of execution to be granted. The requirements include sufficient cause and furnishing of security for due performance. The case of Somali Democratic Republic vs. Anoop Sunderld Trean C.A 11/88 was cited in support.
Counsel argued that the application had not established sufficient cause for stay, and all grounds set out therein are false.
Further that, it is not sufficient to just state that an appeal or application had been filed without satisfying court that the same had chances of success.
The case of DFCU Bank Ltd vs. Ann Persis Nakate Lusejjere MA 781/2003 was relied upon.
Also that affidavits in support are full of falsehoods and that of Counsel does not indicate that it is deponed on behalf of the Applicant. There is no indication of fresh instructions.
Other grounds regarding the defence in the trial court were also referred to together with the annextures thereto.
As to the alleged non existence of the land, it was contended that Applicant admitted the debt before committal and that he occupies the land he claims does not exist.
And since both supporting affidavits are false, and Applicant was served through substituted service, the application should be dismissed with costs.
In rejoinder and reply to the preliminary objections, Counsel for the Applicant stated there was nothing on record to show execution was complete and in any case the sums claimed have not been paid yet and therefore execution cannot be complete.
That application before Commercial Court has high chances of success- The case of Mulowooza and Brothers Ltd vs. N Shah & Co. Ltd SC CA 20/10 was cited in support.
Court was urged to exercise its discretion to grant the stay and release Applicant from civil prison.
I wish to note from the outset that this application delved into issues that ought to have been preserved for the application to set aside judgment, pending before the Commercial Court. Issues of service, and mistake of Counsel to mention but a few. I will therefore not bother to determine those issues otherwise I will be preempting the application in Commercial Court but proceed to determine whether this is a proper application for stay of execution and for release of the Applicant from civil prison.
This appears to have been the purpose of this application.
The principles upon which court can grant stay of execution have been enumerated in many cases.
- The applicant showing that he/she has an appeal or application pending before another court.
- The application for stay was made without undue delay.
- Security for due performance is to be furnished.
- Balance of convenience, among other things.
- Refer to the case of Malinga Noah and 2 Others vs. Akol Henry CA MA 203/05.
However, I am mindful of the fact that “the individual circumstances and merit of each case determine whether the case falls within the scope and parameters of any laid down principles” – East African Development Bank vs. Blueline Enterprises Ltd  2EA 51 (CAT).
I also remind myself that “while court has the discretion to grant stay of execution, this power has to be exercised judiciously and where it appears equitable to do so, with a view to temporarily preserving the status quo”.
What I have gathered from the confused application of the Applicant is that he seeks release from civil prison to enable him prosecute the application MA 811/17 pending before the Commercial Court for setting aside default judgment and that it will be rendered nugatory if stay is not granted.
That he alleges fraud to have been committed by the Respondent during the transaction and therefore wishes to be given the opportunity to prosecute that application while out of prison.
The existence of the application in the Commercial Court does not appear to be disputed and indeed as seen from the arguments of both Counsel, it raises issues that can only be properly determined if the parties are heard.
And since the Applicant also alleges fraud, which is disputed by the Respondent. It’s only just that he be given a chance to try and prove it. Courts have held that “where fraud is alleged, the party doing so ought to be given a chance to prove it”.
The execution cannot be said to be complete as alleged by Counsel for the Respondent since the amounts of money claimed by the Respondent have not yet been paid by the Applicant.
As to whether the application to set aside exparte judgment will be successful can only be appropriately determined by the court before which it is pending and which has the background to the whole matter.
The allegations that affidavits in support are full of falsehood cannot be sustainable. Counsel for the Respondent ought to have cross examined the two deponents on the same. And the fact that Kajeke once represented the Applicant and swears to the facts that took place when he was Counsel for the Applicant and therefore within his knowledge, I believe gives him locus to swear the same. The facts are within his knowledge.
If he does not state that he swears the affidavit on behalf of the Applicant, the omission cannot be said to be fatal as to cause the affidavit to be struck out. Even if it were, the affidavit of the Applicant would remain and the issues can only be properly determined in the Commercial Court as already indicated in this ruling.
There is no law forbidding a party to be represented by more than one Advocate even if they are from different Firms.
However, since the Respondent also raises issues regarding the existence of the land and more and that the Applicant is in occupation, the balance of convenience demands that the release and stay of execution be conditional.
The Applicant will be released from civil prison upon deposit of half the decretal sum in court as security for due performance of the decree, that is Shs. 38,571,750/-.
The money to be deposited within two weeks from the date of this ruling.
Further execution will also be stayed on that condition to give the Applicant a chance to prosecute the application to set aside the default judgment.
Costs will abide the outcome of the application before Commercial Court.
I wish to observe that the hearing of this application renders the main application before this court redundant.
FLAVIA SENOGA ANGLIN