Wakilii

Luweero Samuel and Another v Housing Finance Bank Ltd and Another (Miscellaneous Application No. 681 of 2022)

Court of Appeal · [2023] UGCA 42 · 2023 Application Granted ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application before a single Justice for an interim order of stay of execution pending determination of a substantive application for stay
Decision
Interim stay of execution granted pending disposal of the substantive application; preliminary objections overruled

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Holding

A single Justice of the Court of Appeal overruled both preliminary objections and granted an interim stay of execution. The court held the application was not res judicata: although the High Court (Commercial Division) had set aside a consent order for stay, the Court of Appeal had concurrent and competent jurisdiction to entertain the fresh application. The court further held that an advocate may swear an affidavit on non-contentious factual matters without offending Regulation 9 of the Advocates (Professional Conduct) Regulations. The applicants satisfied the three conditions for interim stay: a competent notice of appeal, a pending substantive application, and a serious threat of execution.

Facts

The applicants jointly borrowed UGX 140,000,000 from the 1st respondent bank under a mortgage deed dated 11 April 2003 to purchase leasehold property at Plot 17 Mpanga Close, Bugolobi, repayable at 14% interest over 15 years. The applicants defaulted, and the property was advertised and sold by auctioneers to the 2nd respondent for UGX 270,000,000, who became registered proprietor. Litigation ensued over the sale and possession. The applicants had earlier obtained a consent order for stay of execution in the Commercial Division (Misc. Application No. 549 of 2014), but that consent order was set aside (Misc. Application No. 583 of 2021) for failure to file an appeal in time. The applicants filed Civil Appeal No. 359 of 2022 and applications for stay, including this interim application. The respondents had served a Notice to Show Cause why execution should not issue, and execution by eviction was imminent.

Issues

  1. Whether the application for interim stay of execution was barred by res judicata under section 7 of the Civil Procedure Act.
  2. Whether the affidavit in support sworn by the applicants' advocate was incompetent as offending Regulation 9 of the Advocates (Professional Conduct) Regulations.
  3. Whether the applicants satisfied the conditions for the grant of an interim order of stay of execution.

Orders

  • An interim order is issued staying execution of the Judgment and Decree in Civil Suit No. 697 of 2007 pending disposal of Miscellaneous Application No. 680 of 2022.
  • The Registrar is directed to fix Miscellaneous Application No. 680 of 2022 for hearing in the next convenient session of Court.
  • The costs of this application shall abide the outcome of the substantive application for stay of execution.

Key headnotes

Civil Procedure — Res Judicata — Concurrent Jurisdiction of High Court and Court of Appeal
An application for stay of execution that was earlier filed and set aside in the High Court does not render a fresh application to the Court of Appeal res judicata under section 7 of the Civil Procedure Act, because the Court of Appeal has concurrent and competent jurisdiction to entertain such applications.
Civil Procedure — Affidavits — Advocate as Deponent under Regulation 9
An advocate is not prohibited from swearing an affidavit in a matter in which the advocate is engaged, provided the affidavit deposes to non-contentious facts within the advocate's knowledge that would not require the deponent to be called as a witness; such an affidavit does not offend Regulation 9 of the Advocates (Professional Conduct) Regulations.
Civil Procedure — Interim Stay of Execution — Conditions for Grant
To obtain an interim order of stay of execution pending appeal an applicant must establish three conditions: a competent notice of appeal, a pending substantive application for stay, and a serious or imminent threat of execution that would render the appeal nugatory.

Legislation cited (6)

  • Civil Procedure Act s.7
  • Judicature (Court of Appeal Rules) rule 2(2)
  • Judicature (Court of Appeal Rules) rule 6(2)(b)
  • Judicature (Court of Appeal Rules) rule 42
  • Judicature (Court of Appeal Rules) rule 43
  • Advocates (Professional Conduct) Regulations reg.9

Cases cited (7)

  • Zubeda Mohamed and Anor v Lalla Walla and Anor (Civil Reference No. 7 of 2016)
  • Gashumba Maniraguha v Sam Nkundiye (Civil Application No. 24 of 2015)
  • Ssekikubo and Others v Attorney General and Others (Constitutional Application No. 5 of 2014)
  • Aids Health Foundation v Kizito (Civil Application No. 147 of 2014)
  • Mbarara Municipal Council v Jetha Brothers Ltd (Miscellaneous Application No. 70 of 2021)
  • Laurence Musitwa Kyazze v Eunice (Civil Appeal No. 18 of 1990)
  • Huan Sung Industries Ltd v Tajdin Hussien and 2 Others (SCMA No. 19 of 2008)
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.