Wakilii

DFCU Bank Limited v Wills International Engineers & Contractors Ltd and Another (Civil Application No. 531 of 2022)

Court of Appeal · [2023] UGCA 386 · 2023 Consent Order — Interim Stay Granted ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application for an interim order of stay of execution pending determination of the substantive application
Decision
Interim order staying execution granted by consent, conditional upon the applicant depositing a bank guarantee of UGX 170,000,000, pending determination of the substantive application

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Holding

The court declined to permit ex parte proceedings, finding merit in the respondents' submission that their counsel had only recently received instructions and had not been properly served. Rather than protracting litigation, the court facilitated a consent arrangement whereby the applicant would provide a bank guarantee of UGX 170,000,000 as security for due performance of the decree. An interim order staying execution of the decree in Civil Appeal No. 260 of 2017 was issued by consent, to remain in force until determination of the substantive application, with timelines fixed for filing and service.

Facts

The applicant, DFCU Bank Limited, sought an interim order staying execution of a decree in Civil Appeal No. 260 of 2017 pending determination of a substantive application for stay (Civil Application No. 530 of 2022). At the hearing, the applicant's counsel sought leave to proceed ex parte, asserting that the respondents had been served without response, and offered a bank guarantee initially mentioned at shs. 20,000,000. Counsel for the respondents opposed, stating his firm had not been served and that he and co-counsel had only received instructions the previous day. After perusing the affidavit of service and a notice of instructions filed that day, the court found merit in the respondents' objection and would have declined ex parte proceedings. To avoid protracted litigation, the court proposed and the parties agreed to a bank guarantee arrangement. By consent, an interim stay was entered conditioned on the applicant providing a guarantee of shs. 170,000,000 within ten days.

Issues

  1. Whether ex parte proceedings should be allowed where the respondents' counsel claimed not to have been served.
  2. Whether an interim order of stay of execution should issue pending determination of the substantive application.

Orders

  • An interim order to stay execution of the Decree in Civil Appeal No. 260 of 2017 is issued and shall remain in force until determination of the substantive application in Civil Application No. 530 of 2022.
  • The applicant shall take out a bank guarantee in the sum of shs. 170,000,000/= as security for due performance of the decree.
  • The guarantee shall be ready and deposited in Court within 10 days of this Ruling, failing which the interim order shall be automatically vacated and execution may ensue.
  • No order for costs is made with respect to the interim order.
  • The Registrar is directed to fix the substantive application within the next 10 days.
  • Service of Miscellaneous Application No. 531 of 2022 be effected within 2 days.
  • The respondents to file affidavit in reply by 3 May 2023.
  • A rejoinder, if any, by 5 May 2023.

Key headnotes

Civil Procedure — Service of Process — Refusal of Ex Parte Proceedings Where Service Disputed
Where counsel for a respondent demonstrates that their firm was not served and that instructions were only recently received, the court will decline to permit ex parte proceedings and instead afford the respondent time to respond.
Civil Procedure — Interim Stay of Execution — Bank Guarantee as Security for Due Performance
An interim order staying execution may be granted by consent on condition that the applicant furnishes a bank guarantee as security for due performance of the decree, with automatic vacation of the order if the guarantee is not deposited within the time fixed.
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.