Junaco (T) Limited and 2 Others v DFCU Bank Limited (Civil Application 145 of 2023)

Court of Appeal · [2023] UGCA 158 · 2023 Application Dismissed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Application before a single justice of the Court of Appeal for a stay of execution of a partial High Court judgment pending appeal

Decision

Application for stay of execution dismissed; interim order vacated

The full judgment

Read the complete, verbatim text of this judgment.

Cited — treatment unverified cited in 7 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions — always read the source judgment before relying on it.

Holding

A single justice of the Court of Appeal dismissed an application for stay of execution of a partial High Court judgment for over UGX 5.4 billion. The court held that the applicants failed to establish a prima facie case or likelihood of success on appeal because they did not attach a draft memorandum of appeal or the impugned decision, and counsel's submissions are not evidence. The subject matter was pecuniary and measurable, so no irreparable damage was shown; the alleged losses concerned third parties not party to the suit. With no document showing the grounds of appeal, the balance of convenience favoured the respondent bank holding a judgment.

Facts

The respondent bank filed a summary suit (HCCS 930 of 2022) to recover UGX 12,817,499,272 from the applicants, arising from three credit facilities advanced to the first applicant. The applicants sought leave to appear and defend, disputing the amounts claimed. On 25 November 2022, the trial judge entered partial judgment for the respondent in the sum of UGX 5,478,421,071. The applicants filed a notice of appeal and requested a record of proceedings. Meanwhile, the respondent commenced execution proceedings seeking to garnishee the first applicant's funds held with National Water and Sewerage Corporation. The applicants' application for stay of execution in the High Court was dismissed on 29 March 2023. The applicants then sought a stay before the Court of Appeal, asserting high chances of success, substantial loss, and risk of the appeal being rendered nugatory. They did not attach a draft memorandum of appeal or the impugned judgment to their affidavit.

Issues

Whether the applicants established a prima facie case of their right of appeal or a likelihood of success on appeal.
Whether the applicants would suffer irreparable damage or the appeal would be rendered nugatory if a stay of execution were not granted.
Whether the balance of convenience favoured granting the stay of execution.

Orders

The application is dismissed.
The administrative interim order entered by consent of both parties on the 26th of April 2023 in Misc. Application No. 144 of 2023 is hereby vacated.
The costs of this application shall abide the outcome of the appeal.

Key headnotes

Civil Procedure — Stay of Execution — Conditions Precedent

Before a court exercises its discretion under Rule 6(2)(b) of the Court of Appeal Rules to grant a stay of execution, the applicant must establish a prima facie case or likelihood of success on appeal, that irreparable damage will be suffered or the appeal rendered nugatory, and, failing those, that the balance of convenience lies in the applicant's favour.

Civil Procedure — Stay of Execution — Proof of Prima Facie Case on Appeal

To establish a prima facie case on appeal in an application for stay of execution, an applicant must place before the court more than a mere statement that the appeal has a likelihood of success; the applicant should attach the impugned decision and a draft memorandum of appeal to the supporting affidavit.

Evidence — Burden of Proof — Counsel's Submissions Are Not Evidence

Under section 103 of the Evidence Act the burden lies on the applicant to prove the facts it asserts; submissions of counsel are not evidence and the court cannot rely on submissions alone, nor will it conduct a fishing expedition for evidence such as a memorandum of appeal filed elsewhere on the electronic system.

Civil Procedure — Stay of Execution — Irreparable Damage Where Subject Matter Is Pecuniary

Where the subject matter sought to be preserved is purely pecuniary and has a measurable value, an applicant cannot establish irreparable damage unless it proves there would be no chance of recovery from the judgment creditor; losses alleged to be suffered by third parties not party to the suit cannot ground irreparable damage to the applicant.

Civil Procedure — Stay of Execution — Balance of Convenience Favours Judgment Holder

In the absence of any document on record indicating the grounds of the intended appeal, the balance of convenience favours the respondent who holds a judgment in its hands.

Legislation cited (6)

Judicature (Court of Appeal Rules) Directions Rule 2(2)
Judicature (Court of Appeal Rules) Directions Rule 6(2)(b)
Judicature (Court of Appeal Rules) Directions Rule 44(1)
Judicature (Court of Appeal Rules) Directions Rule 53(2)(b)
Judicature (Court of Appeal Rules) Directions Rule 76
Evidence Act s.103

Cases cited (9)

Uganda Revenue Authority v National Social Security Fund (Civil Application No. 43 of 2023)
Gashumba Maniraguha v Sam Nkudiye (Civil Application No. 24 of 2015)
Dr. Ahmed Muhammed Kisuule Vs Greenland Bank (In Liquidation)
Wilson Mukibi v James Ssemwamba (Civil Application No. 9 of 2003)
Shumuk Properties Ltd v Guaranty Trust Bank (U) Ltd (Civil Application No. 220 of 2018)
Lawrence Musitwa Kyazze v Eunice Busingye (Civil Appeal No. 18 of 1990)
Hon. Theodore Ssekikubo & Others v Attorney General & Others (Constitutional Application No. 6 of 2013)
Osman Kasim v Century Bottling Company Ltd (Civil Appeal No. 34 of 2019)
Sulaiman Muwonge v Attorney General (Constitutional Application No. 7 of 2012)

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.