Beeline Travel Care (U) Limited and Another v Finance Trust Bank Limited (Civil Application 67 of 2023)

Court of Appeal · [2023] UGCA 197 · 2023 Application Granted ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Application before a single Justice of the Court of Appeal for stay of execution pending the hearing and determination of a civil appeal

Decision

Application allowed; stay of execution granted pending determination of Civil Appeal No. 62 of 2023

The full judgment

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Holding

On an application for stay of execution pending a civil appeal, the single Justice applied the Ssekikubo conditions and held that the applicants had established a prima facie arguable appeal (it need only be non-frivolous, supported by a memorandum of appeal raising points of law and fact), that they would suffer irreparable damage incapable of monetary quantification because the suit property is a residential home whose loss through eviction and sale could not be undone, that the balance of convenience favoured them as they remained in occupation while the respondent adduced no evidence of its alleged prejudice, and that there was no undue delay. The application was allowed and a stay granted pending determination of Civil Appeal No. 62 of 2023.

Facts

The respondent bank instituted Originating Summons No. 18 of 2018 against the applicants in the High Court, Commercial Division, and judgment was entered in its favour on 17 November 2020, with the bill of costs taxed and allowed on 8 December 2021. The dispute arose from the sale of mortgaged property occupied by the second applicant and his family; the applicants contend the property was sold while an interim order restraining its disposal was in force and that the sale balance was never accounted for. Dissatisfied, the applicants filed a Notice of Appeal and later a memorandum of appeal in Civil Appeal No. 62 of 2023. The respondent commenced execution, obtaining a warrant of arrest and a warrant of vacant possession. An earlier High Court application for stay (MA No. 296 of 2023) was dismissed, prompting this application. The applicants said execution would render their appeal nugatory and leave them homeless; the respondent said the property had already been sold to a third party who had sued it in Civil Suit No. 312 of 2019.

Issues

Whether the applicants' appeal has a prima facie case with a likelihood of success.
Whether the applicants will suffer irreparable damage or the appeal will be rendered nugatory if a stay of execution is not granted.
Where the balance of convenience lies.
Whether the application was instituted without undue delay.

Orders

An order for stay of execution of the judgment and orders in Originating Summons No. 18 of 2018 (Finance Trust Bank v Beeline Travels Care (U) Limited and Alinda John) is granted pending the hearing and final determination of Civil Appeal No. 62 of 2023.
The costs of this application shall abide the outcome of the appeal.

Key headnotes

Civil Procedure — Stay of Execution Pending Appeal — Conditions for Grant

A court will grant a stay of execution pending appeal only where the applicant establishes a prima facie case or likelihood of success on appeal, that irreparable damage will be suffered or the appeal rendered nugatory if a stay is refused, and (where those are not met) that the balance of convenience favours the applicant, together with proof that the application was instituted without undue delay.

Civil Procedure — Stay of Execution — Prima Facie Case — Arguable Appeal

At the stay stage the applicant need not demonstrate that the appeal will succeed; it is sufficient that the appeal is arguable and not frivolous or vexatious, and the court must not make definitive findings of fact or law that would pre-empt the determination of the main appeal.

Civil Procedure — Stay of Execution — Irreparable Damage — Residential Property

Where the property subject to execution is a residential home occupied by the applicant and his family, the loss occasioned by eviction and sale cannot be quantified in monetary terms and constitutes irreparable damage justifying a stay of execution.

Civil Procedure — Stay of Execution — Balance of Convenience

The balance of convenience favours the party who stands to suffer the greater prejudice; where the applicant remains in occupation of the suit property and the respondent adduces no evidence to substantiate its claimed prejudice, the balance lies in favour of the applicant.

Legislation cited (8)

Judicature Act Cap 13 s.12(1)
Court of Appeal Rules r.5(2)(b)
Court of Appeal Rules r.43(1)
Court of Appeal Rules r.43(2)
Court of Appeal Rules r.44(1)
Court of Appeal Rules r.2(2)
Court of Appeal Rules r.76
Civil Procedure Rules O.43

Cases cited (9)

Hon. Theodore Ssekikubo and Others v The Attorney General and Another (Constitutional Application No. 6 of 2013)
Gashumba Maniraguha v Sam Nkundige (Civil Application No. 24 of 2015)
Yago Yusuf and Others v Scruda Nabunga and Others (Civil Application No. 89 of 2023)
Hadkinson v Hadkinson [1952] All ER 567
Wallersteiner v Moir [1974] 3 All ER 217 (CA)
Stanley Kang'ethe Kinyanjui v Tony Ketter and 5 Others (2013) eKLR
Hamuna Sentongo Versus I & M Bank Ltd Formerly Orient Bank UG Ltd
Sulaiman Muwonge v Attorney General (Constitutional Application No. 7 of 2012)
Lydia Katohiguta v Eunice Atuhaire (Miscellaneous Application No. 594 of 2022)

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