Justice Dr. Ginamia Melody Ngwatu of the Commercial Division of the High Court has lifted the stay of the execution of orders of the Court allowing car dealing company Toyota Uganda Limited which changed to CFAO to recover Shs100.8m from city businessman Edgar Kassami.
The decision was based on the affidavit sworn by Anita Akishure, the car dealer company’s Finance Director who told court that on 7th February, 2018, the company secured a judgment against Kassami in which he was ordered to pay USD 28,000 with interest of 2% per annum and Shs2m with interest of 6% per annum and costs.
The company taxed its bill of costs which was allowed at 14,127,980/= but Kassami challenged the decision of the Court and secured a stay of execution orders which have now run for seven years.
However, he did not follow up his appeal at the Court of Appeal which frustrated the car dealer company depriving them of enjoying the fruits of their successful litigation.
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In his defence, Kassami told court that after securing the stay of execution orders, he also made a security payment of Shs26m to court as a guarantee for performance of the decree in the application for stay of execution.
He submited that despite filing various applications for the record of proceedings, he is yet to receive a response to date from court insisting that the written requests have been accompanied by physical follow-ups and phone calls, all of which have not received even one affirmative response from the court despite his clear persistence and diligence.
In her ruling, the judge stated that provisions vest in her court powers to make orders as may be necessary for the ends of justice to be met or to prevent abuse of its processes.
“These powers are exercised judiciously with great caution, depending on the circumstances of each case and for sufficient cause,” she stated.
She added noted that her observation revealed that for the previous six years, there was unexplained inactivity citing 7th February 2020 letter which indicate that the proceedings were pending certification, which certification is ordinarily done after the required court fees are paid, and a certificate of correctness issued upon which the litigant would be notified in writing to pick their certified proceedings from court.
However, the respondent did not attach proof of payment for the certified proceedings, which would have shifted the burden to the Registrar to write to him requiring them to pick the certified proceedings.
“In the circumstances, the conduct of the respondent demonstrates a lack of tenacity in prosecuting the intended appeal. The respondent appears to have treated the order of stay as an end in itself rather than a temporary relief, undermining the purpose for which it was granted,” the judge stated
“The sole attempt by the respondent, after an almost six-year time lapse, to write to the Registrar after the institution of this application further undermines the credibility of the respondent’s claim of diligence. In the premises, the continued subsistence of the stay of execution serves only to unjustly deny the applicant of the fruits of their judgment, in the absence of a pending appeal,” the judge further stated
She lifted the stay of execution orders and further directed Kassami to pay costs of the application.
