Wakilii

DFCU Bank Ltd v Dr.Ann Persis Nakate Lussejjere (Civil Application No.29 of 2003)

Court of Appeal · [2003] UGCA 10 · 2003 Application Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Fresh application to the Court of Appeal for stay of execution pending appeal, after a similar application was refused by the High Court
Decision
Application for stay of execution dismissed; Bank ordered to release the title, with restriction on alienation of the property pending the appeal

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Treatment recorded in citing cases followed in 2 · applied in 1 Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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Holding

The Court dismissed the bank's application for stay of execution pending appeal. It held that the likelihood of success of the appeal is not a proper consideration; the governing test focuses on substantial loss, absence of unreasonable delay and security for costs. While the application was timely, the applicant failed to prove it would suffer substantial loss, since its claim was for Shs.35 million against a respondent with landed property far in excess of that sum, and the bank's surrender of mortgage title was merely loss of security. Applications in the Court of Appeal are governed by rule 5(2)(b) and rule 104, not Order 39 r.4(3) of the Civil Procedure Rules.

Facts

The respondent mortgaged her property to Gold Trust Bank Ltd, under which a third party (A.V. Enterprises) was to obtain a loan of Shs.80 million. After depositing her title, the respondent did not establish whether money was disbursed to A.V. Enterprises. DFCU Bank later acquired Gold Trust Bank and sought to sell the property to realise the security, advertising it for sale. The respondent filed High Court Civil Suit No. 242 of 2002 seeking release of her title, contending the applicant had no evidence money was advanced. The applicant denied this and counterclaimed for Shs.35 million allegedly still owing. The trial judge found there was no debt of Shs.35 million, ordered the mortgage discharged and the title released, each party to bear its own costs. The applicant filed a notice of appeal and an unsuccessful High Court application for stay of execution, then applied to the Court of Appeal for stay pending appeal.

Issues

  1. Whether the applicant satisfied the conditions for stay of execution pending appeal under the relevant rules.
  2. Whether the likelihood of success of the appeal is a proper consideration in an application for stay of execution.
  3. Whether the applicant would suffer substantial loss if the stay was refused.
  4. Whether the requirement to deposit security for costs applies in the Court of Appeal.

Orders

  • Application for stay of execution dismissed.
  • The Bank ordered to release the title of the suit property to the respondent.
  • Pending disposal of the appeal, the respondent ordered not to sell or alienate the suit property and the land comprised in LRV 2979 at Lubowa Zone, Seguku Parish.

Key headnotes

Civil Procedure — Stay of Execution — Application to Court of Appeal as Fresh Application
An application to the Court of Appeal for stay of execution after a similar application has been refused by the lower court is not in the nature of an appeal from that refusal; the jurisdiction of the Court of Appeal is concurrent with the lower court and the application is a fresh one.
Civil Procedure — Stay of Execution — Irrelevance of Likelihood of Success of Appeal
The likelihood of success of the appeal is not a proper consideration on an application for stay of execution; once the conditions for stay are fulfilled, the order ought to be granted regardless of whether the appeal will fail or succeed.
Civil Procedure — Stay of Execution — Substantial Loss
An applicant for stay of execution must establish that substantial loss may result unless the stay is granted; loss of a mortgagee's security through surrender of title is not substantial where the money claim is modest relative to the respondent's assets and the applicant's resources.
Civil Procedure — Stay of Execution — Security for Costs in the Court of Appeal
Applications for stay of execution in the Court of Appeal are governed by rule 5(2)(b) and rule 104 of the Court of Appeal Rules, not Order 39 r.4(3) of the Civil Procedure Rules; the mandatory obligation to pay a fixed sum as security for costs of the appeal under rule 104 applies regardless of whether the trial court awarded costs.
Civil Procedure — Stay of Execution — Paramount Duty to Prevent Nugatory Appeal
The paramount duty of a court hearing an application for stay of execution pending appeal is to ensure that the appeal, if successful, is not rendered nugatory.

Legislation cited (7)

  • Court of Appeal Rules r.1(3)
  • Court of Appeal Rules r.5(2)(b)
  • Court of Appeal Rules r.42
  • Court of Appeal Rules r.43
  • Court of Appeal Rules r.75
  • Court of Appeal Rules r.104
  • Civil Procedure Rules O.39 r.4(3)

Cases cited (5)

  • Kampala Bottles Ltd v Uganda Bottles Ltd (Civil Appeal No. 25 of 1995)
  • Wilson v Church (1879) 12 Ch D 454
  • Nganga v Kimani [1959] EA 69
  • Iddi Heltani v Hamisi Binti Alhumani (1962) EA 761
  • Joseph v Jebeile (1963) 1 GLR 387
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.