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Akright Projects Ltd V El-Archs Partnership HCT-00-CC-MA-0084-2007 UGCommC 32 [2007] UGCommC 62 (18 April 2007)

Last Updated: 12 July 2007

Akright Projects Ltd V El-Archs Partnership HCT-00-CC-MA-0084-2007 UGCommC 32 (18 April 2007)

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA HOLDEN AT KAMPALA

COMMERCIAL COURT DIVISION

HCT-00-CC-MA-0084-2007

(Arising from HCT-00-CC-CS-0524-2001)

Akright Projects Ltd Applicant

Versus

El-Archs Partnership Respondent


18 April 2007


BEFORE: THE HONOURABLE MR. JUSTICE FMS EGONDA-NTENDE

RULING

1. The applicant was the unsuccessful party in this court. It appealed to the Court of Appeal. Pending the hearing of that appeal it seeks an order for stay of execution. This application has been made both under Order 22 Rule 26 and Order 48 (presumably 51) Rules 1, 2 & 3 of the Civil Procedure Rules and Section 98 of the Civil Procedure Act. This application is based upon six grounds set out in the notice of motion, and supported by an affidavit sworn by the managing director of the applicant.
2. The respondent opposes this application and has sworn an affidavit in opposition.
3. At the hearing of the application Mr. Tusasirwe, learned counsel for the applicant submitted that, following the decision of the Court of Appeal in Tatu Naiga and Co. Emporium v Verjee Brothers (U) Ltd Miscellaneous Application No. 46 of 2000 (unreported),

‘the main criterion for staying execution should be whether the judgment debtor should suffer substantial loss if the decree was executed notwithstanding that the decree might be subsequently set aside. Where a right of appeal exists, the court, as a general rule, ought to exercise its best discretion in a way so as to prevent the appeal, if successful, is not rendered nugatory’.

4. Mr. Tusasirwe submitted that the applicant would suffer substantial loss if the order for stay of execution was not granted as it would be compelled to part with the decretal amount at this stage and the appeal would be rendered nugatory.
5. Mr. Rutiba, learned counsel for the respondent opposed the application. Firstly he submitted that it had been made under the wrong rules as Order 22 Rule 26 of the Civil Procedure Rules was inapplicable. Secondly that the applicant had not, on the pleadings and supporting affidavit, established any ground upon which this application may be considered and granted. He prayed that the application should be dismissed with costs.
6. The notice of motion set out the following as the grounds upon which this application is based.

‘1. That when Judgment in HCCS NO.524 of 2001 was delivered by the Honourable the Principal Judge on 22^nd December 2003, the applicant/defendant promptly filed a notice of appeal against the said judgment, and a request for typed proceedings and to date, the typed proceedings have never been given to the applicant to enable it pursue the appeal. 2. That in the meantime, on 31^st January 2007, the honourable the Principal Judge delivered an order in the same matter and indicated that the order is to be regarded as part and parcel of the earlier judgement aforesaid. 3. The applicant has, together with this application, filed a Notice of Appeal against the said Order of 31^st January 2007 and, a request for typed proceedings. 4. That the applicant/defendant has filed also filed herewith an application for leave to appeal the order. 5. That in the meantime, the plaintiff has in record time, already extracted a decree and had it sealed, filed two bills of costs claiming over 130,000,000.00 in costs and is clearly set to execute the Decree swiftly. 6. The application for leave and the intended appeal has high chances of success and it would be unjust to allow execution to proceed before the application and appeal are heard and determined.’

7. I’m not sure at what point learned counsel for the applicant, Mr. Tusasirwe, perused the decisions that he cited to this court but it is apparent it was long after he had filed his pleadings and evidence in support therof. Had he done so, prior to drawing prior to drawing and filing the applicants’ papers it ought to have been clear that this application could not be maintained under Order 22 rule 26 of the Civil Procedure Rules, as those provisions were restricted to appeals to the High Court. Secondly the arguments of learned counsel, however erudite and apposite on the law in relation to stay of execution have no relation to the grounds that are set forth in the applicant’s notice of motion and supporting affidavit. As pointed out by Mr. Rutiba, the grounds in the pleadings were a narration of a story, the story of the intended appeal, rather than a statement of grounds for a stay of execution of a decree pending appeal.
8. The affidavit in support is no different from the notice of motion. All it basically contains is the story of this litigation, rather than the factual basis adduced in support of grounds upon which the application for stay of execution can be considered. Ground 6 of the application, which is perhaps closest to a possible ground for an application of this nature, claims that it would be unjust to allow execution to proceed before the appeal is heard and determined. The nearest piece of evidence to supporting this ‘ground’ is the blanket claim in paragraph 22 of the affidavit

‘that if execution is allowed to proceed before the application for leave to appeal and the appeal itself are heard and determined, the said application and appeal will be rendered nugatory and the applicant will suffer enormous loss in hundreds of millions of shillings and its property, assets and business will be greatly undermined.’

9. This substantial loss to the property, assets and business of the applicant is not explained in anyway. It just remains a bare assertion. It is not whatsoever suggested that the respondent would be unable to pay the applicant should the applicant succeed against the respondent on appeal, and the decree is set aside. Neither is it shown that if the applicant/judgment debtor were to pay the decretal amount now, it would suffer either substantial loss or irreparable harm. It is expected, I suppose, that the court must infer this to be the case, in spite of the fact that no basis for the same is laid.
10. It is not shown on the application or evidence before me that if execution were not stayed the appeal would be rendered nugatory in anyway. What the affidavit of applicant does in this regard is merely to repeat the ‘mantra’ in paragraph 22 that this appeal would rendered nugatory without taking so much as even an iota to explain how the appeal would in the circumstances of this case be rendered nugatory.
11. I agree with Mr. Rutiba that the applicant has not set out at all the necessary grounds upon which this court should consider an application for a stay of execution. Where the applicant comes nearest to doing so, he does not do so adequately. This application must fail as it is without merit. It is dismissed with costs.
12. Before I take leave of this matter, I am compelled to draw the attention of counsel to the words of Lord Templeman at Page 488 in Ashmore v Corporation of Lyod’s, [1992] 2 All E R 486 which are equally pertinent to the present situation.

‘The parties and particularly their legal advisers in any litigation are under a duty to co-operate with the court by chronological, brief and consistent pleadings which define the issues and leave the judge to draw his own conclusions about the merits when he hears the case. It is the duty of counsel to assist the judge by simplification and concentration and not to advance a multitude of ingenious arguments in the hope that out of ten bad points the judge will be capable of fashioning a winner.’