Ismail Kimuli Vs. R.I.Jain (Misc. Appl. No 575Of 2010)

This application was filed by Mr. Ismail Kimuli under O.43r 4(i) (3) and (5) of the Civil Procedure Rules (CPR). He is seeking for orders that execution of decree in civil suit No. 968 of 2010 and the order in Misc. Application No. 1081 of 2010 be stayed pending the determination of High Court Civil Appeal No. 23 of 2010 and that cost of the application be provided for.

The application is supported by the affidavit of Ms.Tusingwire Caroline, an Advocate practicing with the firm of M/s Muwema & Mugerwa Advocates & Solicitors counsels for the applicant. The brief ground stated in the notice of motion are that:-
i)      

Substantial loss will result to the applicant/appellant unless the order is made.
ii)      The application for stay of execution has been made without unreasonable delay.
iii)     The applicant is willing to give security for the due performance of the decree and order as may be ultimately binding upon him.

The ground stated in paragraphs 4-10 of the affidavit of Ms. Tusingwire Caroline which also partly constitutes the brief back ground to this application are that:-
(4)     

On the 11^th October 2010 the applicant/appellant’s application to inter alia set aside judgment and decree in Civil Suit No. 968 of 2010 was dismissed with costs in the Chief Magistrate’s Court at Mengo.
(5)      The applicant/appellant was granted leave by the Chief Magistrate, at the Chief Magistrates’ Court at Mengo to appeal against the said dismissal to the High Court of Uganda.
(6)      The applicant/appellant has duly filled a Memorandum and Notice of Appeal against the above mentioned decision.
(7)      Substantial loss will result to the applicant/appellant unless execution of decree in the said Civil Suit and in Misc. Application No.1081 of 2010 is stayed pending the hearing and determination of the appeal in question as the applicants appeal to the High Court will be rendered nugatory thus depriving him of the right to defend Civil Suit No.968 of 2010 on its merits and occasioning him substantial loss as he will be required to pay to the respondents monies not actually due and owing to the respondent.
(8)      The instant application for stay of execution pending appeal has been made without unreasonable delay as copies of the Memorandum and Notice of Appeal filed in this court on 12^th October, 2010 and attached hereto as annexture”A” and “B” respectively will refers.
(9)      The applicant will give security for the due performance of the decree and the order of the Chief Magistrates Court as may ultimately be binding upon him.
(10)     It is just and equitable that execution be stayed pending the hearing of the appeal in question.

A supplementary affidavit in support of the application was sworn by Mr. Ismail Kimuli, the applicant. The averments in that affidavit are more or less the same as that of Ms. Tusingwire Caroline save for the content of paragraph 8. In that paragraph the applicant states as follows:
“That I have been advised by my lawyers M/s Muwema & Mugerwa Advocates whose advise I verily believe to be true that the facts of my case constituted good cause for setting aside the said judgment and decree namely;
a)      

The amount lent to me by the respondent was Ushs.20, 000,000/= [Uganda Shillings Twenty Million only] and not Ushs. 26,450,000/= [Twenty Six million Four Hundred and Fifty Thousand only] as set out under the plaint.
b)       The respondent’s claim is extortionate, unconscionable and unlawful as the respondent has compounded interest on the amount lent in defiance of the provisions of the Money Lender’s Act which expressly prohibits charging of compound interest by reason of default in the payment of the sums due under the contract.
c)       The respondent’s pleading does not show any evidence that he is a licensed money lender as claimed under paragraph 1 of the plaint as no certificate of registration as a money lender nor a valid money lender’s license is attached to the said pleadings.
d)       The interest of 15% per month charged by the respondent under the loan agreement is extortionate as it is way beyond the statutory rate of 24% per annum set out under the Money Lender’s Act.

The affidavit in reply was sworn Mr. Rajnish Jain the respondent’s son.

Upon lodging the appeal in this Court, the applicant filed this application for stay of execution of the decree of the lower court and subsequently filed another application for interim stay of execution which was heard ex parte by the Deputy Registrar of this Court and granted pending the hearing of this application inter parties.

When this application for stay came before me for determination on the 15/11/2010, Mr. Kandeebe Ntambirweki for the respondent raised a preliminary objection. He contended in his objection that the execution that is sought to be stayed has already been completed by arrest and detention of the applicant in civil prison in accordance with the order of the Chief Magistrate. He prayed that this application be stayed because it serves no purpose as there is no execution to stay.

Mr. Kandeebe also faulted the Deputy Registrar for entertaining application for an interim order of stay and granting the same because in his opinion the Registrar lacks jurisdiction to do so.

He contended that O43 r 4(4) under which the order was granted is not exercisable by the Registrar but by a High Court judge. He however promised to file a formal appeal against the Interim Order of the Registrar in accordance with O.50 r 8 of the CPR.

Mr. Siraj Ali counsel for the applicant in response submitted that this application is properly before court because execution has not been completed as alleged by counsel for the respondent. He argued that execution by arrest and detention is not completed upon the judgment debtor being arrested and detained. That it would only be so, after the judgment debtor has served the six months period.

He contended that it could not have been the intention of the Rules Committee to give no interim remedy to a judgment debtor who is in the process of appealing but unfortunately gets arrested and committed to civil prison before he obtains a stay of execution. He observed that if that was the case then the law would be very unfair to litigants because such appeals would be rendered nugatory.

He prayed that the preliminary objection be overruled and the application for stay of execution be heard because it is properly before court.

In a rejoinder, counsel for the respondent reiterated his earlier position but also raised a new issue to do with the exercise of power to stay execution under O 43 r4. He referred to O.43 r7 and argued that the power stay execution pending appeal to the High Court under O. 43 r. 4 cannot be exercised if the appeal is against the decree. He contended that those powers of stay can only be exercised if the appeal is against execution as provided under O43 r7 of CPR.

He submitted that in the instant case, the appeal No. 23 of 2010 from which application No. 576 of 2010 arose as well as this application is not from an order made in execution of the decree but from the decree itself. He pointed out that none of the grounds of appeal talks about execution.

He concluded by reiterating his earlier prayer and in the alternative prayed court to exercise its wide power under section 35 (I believe he meant S. 33) of the Judicature Act to set aside the Interim Order of the Registrar in Misc. Application No. 576.

The Preliminary Objection raised by Counsel for the respondent raises the issue of whether arrest and detention of a judgment debtor completes the execution process thus not necessitating any stay of execution.

My brief answer to this issue is no and I will give reasons later in my ruling in the main application for stay of execution. In reserving the reasons for my ruling, I am fortified by the case of Major General D.Tinyefuza vs. Attorney General Constitutional Appeal No 1 of 1997.

In the result I overrule the objection and order that the application proceeds for hearing.

……………………..
Hellen Obura
Judge
9/12/2010.

Ruling delivered in open court in the presence of:
1.      

Mr. Siraj Ali for applicant
2.       Mr. Kandeebe for respondent
3.       Mr. Frank Bukenya- Court Clerk

9/12/2010.