Scaffold Engineering & Construction Limited v Diamond Trust Bank Limited (Civil Application 1016 of 2023)

The full judgment

Read the complete, verbatim text of this judgment.

Holding

The applicant sought a protective order restraining the respondent from dealing with mortgaged properties pending Civil Appeal No. 858 of 2023. The respondent objected that the appeal—a second appeal against the High Court's refusal to overturn a Registrar's denial of a temporary injunction—was barred by section 76(2) of the Civil Procedure Act. The court held that the right of appeal is a creature of statute and that section 76(2) prohibits any further appeal from an order passed in appeal. Civil Appeal No. 858 of 2023 was therefore a nullity, and nothing valid could arise from it. The preliminary objection was upheld and the application dismissed as incompetent, with costs to the respondent.

Facts

The applicant company and Miracle Motors Limited, both controlled by Dinesh Kumar as majority shareholder and director, held accounts in the respondent bank. The applicant acquired overdraft facilities of USD 300,000 and UGX 400,000,000 secured by its registered properties on Bukoto Drive and Plantation Road. On recovery, the respondent consolidated the accounts and loans of the applicant and Miracle Motors Limited, demanding about UGX 5,667,909,998 and moving to foreclose the suit properties. The applicant filed High Court Civil Suit No. 35 of 2023 seeking a permanent injunction, and applications for a temporary injunction and interim order, which the Registrar declined. The applicant's challenge to the Registrar's decision (Miscellaneous Application No. 12 of 2023) was dismissed by the High Court judge. The applicant then filed Civil Appeal No. 858 of 2023, out of which the present application for a protective order arose.

Issues

1. Whether the application is competent where Civil Appeal No. 858 of 2023, from which it arises, is alleged to be a nullity barred by section 76(2) of the Civil Procedure Act.
2. Whether a second appeal lies from an order passed in appeal under section 76(2) of the Civil Procedure Act.

Orders

• The preliminary objection by counsel for the respondent is upheld.
• Miscellaneous Application No. 1016 of 2023 is dismissed for being incompetent as it is premised on an invalid appeal.
• Costs of the application shall be paid to the respondent.

Key headnotes

Legislation cited (7)

• Judicature Act s.11
• Civil Procedure Act s.98
• Civil Procedure Act s.76(1)
• Civil Procedure Act s.76(1)(h)
• Civil Procedure Act s.76(2)
• Civil Procedure Rules Order 44 rule 1
• Judicature (Court of Appeal Rules) Directions S.I. 13-10 Rule 2(2)

Cases cited (4)

• Uganda Revenue Authority v Siraje Kajura (Civil Appeal No. 9 of 2015)
• The Registered Trustees of Kampala Institute v Departed Asians Property Custodian Board (Civil Appeal No. 21 of 1993)
• Attorney General v Shah [1971] EA 50
• Baku Raphael Obudra & Another v Attorney General (Civil Appeal No. 1 of 2005)