THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
MISCELLANEOUS APPLICATION NO. 379 OF 2003
(Arising out of HCCS No. 132 of 1998)
1. TROPICAL COMMODITIES SUPPLIERS LTD ………………APPLICANTS
2. COUNTRY AGENCIES LTD APPLICANTS
3. ATEKER EJALU
INTERNATIONAL CREDIT BANK LTD………………………… RESPONDENT
BEFORE: THE HONOURABLE MR. JUSTICE JAMES OGOOLA
1. The Applicants seek a court order to stay execution of this Court’s judgment pending the Applicants’ appeal to the Court of Appeal. The background to this application is quite convoluted. A consent judgment was entered against the Applicants for Shs.200m/-. The Applicants proceeded to pay a part of that decretal amount- to the tune of Shs.72m/-. Thereafter, the Applicants appear to have totally changed their mind one hundred and eighty degrees around. They applied to Court for a review of that consent judgment, on the grounds that their lawyer had no instructions to enter a consent judgment. On 21/05/03, this Court refused to review the consent judgment, whereupon the Applicants filed an appeal to the Court of Appeal against the decision of this Court not to review the consent judgment. It is in these circumstances that the Applicants now come to this Court seeking a stay of execution against the consent judgment. On 22/07/03, the Registrar of this Court granted an interim stay of execution pending the conclusion of this application.
2. It is noteworthy that the application was brought under the former section 101 (now section 98, Cap. 71) of the Civil Procedure Act. This is noteworthy in as much as the Applicants saw it fit not to apply under 0.39, rule 4(3) of the Civil Procedure Rules. Instead, the Applicants resorted to the inherent powers of this Court under section 98 of Cap. 71. Counsel for the Respondent submitted that 0.39 is the applicable law on the point; and that that Order establishes three basic criteria for applications of this kind. In support of his submission, learned counsel cited the case of Kampala Bottlers Ltd v Uganda Bottlers Ltd, S. Ct. Civil Application No. 25 of 1995. In that application, the Supreme Court held that:
“The matter [of stay of execution] is dearly governed by 0.39 r 4(3) of the Civil Procedure Code (sic).”
Similarly, the Court of Appeal delivered an identical decision in DFCU Bank Ltd v. Dr. Ann Persis Nakate Lusejjere, Civil Application No. 29 of 2003 affirming the applicability of 0.39, r. 4(3) to applications for stay of execution.
3. While the above must be the law — coming as it did from the highest courts in the land — the matter is not entirely without difficulty. In particular, as the heading to that Order clearly indicates, 0.39 applies only to “Appeals to the High Court.” Indeed, rule 1 (1) of that Order states as much. It says:
“Every appeal to the High Court shall be preferred in the form of a memorandum signed by the appellant or his advocate and presented to the court or to such officer as it shall appoint in that behalf”[emphasis added].
4. Similarly, rules 2,4,5,8,9,10,12,16,18,19,20,21,22,23,24,26,27,28,29,30
and 31 of Order 39 make it absolutely clear that the appeals contemplated in that Order are only appeals to the High Court from lower courts; and not appeals from the High Court itself to the higher courts. After all, the higher courts have their own rules. The question therefore remains as to whether the rules in 0.39 are appropriate for
appeals (such as the appeal lodged in the instant matter) from the High Court to the Court of Appeal
5. The answer to the above question would on the face of it appear to have been firmly adjudicated and settled once and for all by the Supreme Court itself in Lawrence Musiitwa Kyazze v Eunice Busingye, S. Ct. Civil Application No. 18 of 1990. In that application, the Court first dealt with a careful analysis of the different
provisions of the Civil Procedure Act which provide for appeals from or
to the High Court — namely:
• Section 68, which provides for appeals from original decrees and orders of the High Court to the [then] Supreme Court (now Court of Appeal);
• Section 74, which provides for appeals from appellate decrees of the High Court to the [then] Supreme Court;
• Section 77, which provides for appeals from orders given under original jurisdiction in a number of stated instances as of right, and subject to the Civil Procedure Rules.
• Order 40 of the Civil Procedure Rules, whose combined effect with sections 68 and 77 above is to provide for appeals as of right from certain orders, and appeals with leave in the case of other orders.
6. After setting forth the above lucid analysis, their Lordships of the
Supreme Court then stated quite categorically that:
“There is no provision in any of the legislation for a stay of execution, and when one looks at Order XXXIX one finds with some surprise that those rules only govern appeals the High Court and not from the High Court. This is made more poignant because there are the usual Rules concerning a stay of execution relating to appeals the High Court,”
7. Accordingly, the omission of a specific Rule in this behalf is a glaring lacuna in the law. It was seen as a problem by the Supreme Court itself. In this regard, their Lordships vented their frustration thus:
• “Why was provision not made for a stay of execution in
appeals from the High Court? The main reason seems to have been the statutory power of granting a stay of execution given to the Supreme Court in Rule 5(2)(b) of the Court of Appeal Rules, In that case, why make provision for the High Court to hear applications first in Rule 41?”
Had the legislation wished to make provision for a stay of execution in the High Court that could have been done as UJJAGAR SINGH v RUNDA COFFEE ESTATES LTD (1966) EA 263 will illustrate, such provision having been made in Kenya. For some reason similar provision was not made in Uganda. It is also significant that power to grant a stay of execution is given to the High Court in cases of appeals to the High Court [but not from the High Court].”
8. The one firm conclusion to be drawn from the above is that 0.39 does not apply to appeals from the High Court to the higher courts, but only to appeals from the lower courts to the High Court. The Supreme Court has recognized this anomaly in the statutory law of the land. It is to be emphasised, however, that the anomaly or lacuna exists only in one respect (i.e. in the statutory rules of procedure only). Otherwise, as so ably stated by WAMBUZI P. (as he then was) in Mugenyi & Company Advocates v National Insurance Corporation, S.Ct. Civil Application No 13/84:
“It is well established that the High Court has inherent jurisdiction to stay any of its orders, see Joanita Kaqgwa v Olive Amelia KawaIya-Kaggwa administration Cause No. 21 of 1972 (1972) L/LR 129; tar Ujagar v Runda Coffee Estates Ltd 1966 EA 263.”
9. To fill the statutory lacuna then, the Supreme Court in