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Kare Distribution Limited and Another v NCBA Bank Uganda Limited (Civil Application 100 of 2023)

Court of Appeal · [2023] UGCA 160 · 2023 Application Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application for a temporary injunction before a single Justice of the Court of Appeal, pending determination of Civil Appeal No. 93 of 2023.
Decision
Application for temporary injunction dismissed as incompetent

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Holding

The single Justice upheld the respondent's preliminary objection and dismissed the application for a temporary injunction. The order against which the applicants appealed was one striking out their lower court application — a negative order incapable of execution. Following Ssemwanga Charles v Nazziwa Aisha, the court held that a negative order can only be set aside if the appeal succeeds, but cannot be stayed or injuncted. Since there was no order capable of execution, the application was incompetent. Having disposed of the matter on this preliminary point, the court found it unnecessary to consider the remaining objections or the merits, and dismissed the application with costs.

Facts

The first applicant obtained three loan facilities and an overdraft from the then Commercial Bank of Africa Uganda Limited, totalling about UGX 6,230,000,000, secured by land at Makerere and several motor vehicles. The bank's assets and liabilities were later transferred to NCBA Bank Uganda Limited. The applicants defaulted, leading to High Court Civil Suit No. 637 of 2018, in which a consent judgment acknowledging the debt was entered. Subsequent applications by the applicants, including Miscellaneous Application No. 1670 of 2022 seeking declarations that the loans were fully paid and release of securities, were struck out by Justice Mubiru on 15 February 2023 on the bank's application. The applicants filed Civil Appeal No. 93 of 2023 against that striking out and brought this application for a temporary injunction restraining the bank from dealing with the suit properties pending the appeal.

Issues

  1. Whether there were positive orders arising from the ruling striking out Miscellaneous Application No. 1670 of 2022 capable of being injuncted.
  2. Whether the application for a temporary injunction was competent where the order sought to be stayed was a negative order.

Orders

  • Preliminary point of law raised by the Respondent upheld.
  • Application dismissed with costs to the Respondent.

Key headnotes

Civil Procedure — Temporary Injunction — Negative Order Incapable of Stay or Injunction
A negative order, such as an order striking out or dismissing an application, is incapable of execution and cannot be stayed or injuncted; it can only be set aside if and when the appeal against it succeeds.
Civil Procedure — Temporary Injunction — Competence — Existence of Executable Order
An application for a temporary injunction or stay is incompetent where the order sought to be restrained is not one capable of execution within the meaning of section 34 of the Civil Procedure Act.
Civil Procedure — Preliminary Objections — Disposal Without Considering Merits
Where a preliminary point of law disposes of the entire application, the court need not consider the remaining preliminary objections or the merits of the application.

Legislation cited (6)

  • Judicature (Court of Appeal Rules) Directions SI 13-10 Rule 2(2)
  • Judicature (Court of Appeal Rules) Directions SI 13-10 Rule 6(2)(b)
  • Judicature (Court of Appeal Rules) Directions SI 13-10 Rule 43(1)
  • Judicature (Court of Appeal Rules) Directions SI 13-10 Rule 42(1)
  • Mortgage Regulations 2012 Regulation 13(1)
  • Civil Procedure Act s.34

Cases cited (7)

  • Grace Bamurangye and 5 Others v Dr Kasirivu Atwoki and 5 Others (Civil Application No. 214 of 2008)
  • Godfrey Sekitoleko & 4 others vs Seezi Peter Mutabazi & 2 others
  • City Council of Kampala v Donozio Musisi Sekyaya (Civil Appeal No. 3 of 2000)
  • Ssemwanga Charles v Nazziwa Aisha and 2 Others (Civil Application No. 20 of 2022)
  • Faustino Ntambara v Jack Kityo Segawole (Miscellaneous Application No. 150 of 2021)
  • Ganafa Peter Kisawuzu v DFCU Bank Ltd (Civil Application No. 64 of 2016)
  • Male Mabirizi Kiwanuka v Attorney General (Civil Appeal No. 40 of 2022)
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.