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Akright Projects Limited & Another v H & L Exporters (U) Limited (Civil Application 1288 of 2023)

Court of Appeal · [2024] UGCA 46 · 2024 Application Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application for stay of execution pending appeal
Decision
Application for stay of execution dismissed; costs to abide the outcome of the intended appeal

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Holding

The Court of Appeal (single Justice) dismissed an application for stay of execution of a consent decree pending appeal. It upheld the preliminary objection that the applicants required, but never obtained, leave to appeal against the dismissal of their review application, which was partly decided on a point of law; this rendered the intended appeal incompetent and greatly discounted its likelihood of success. The objection to the 2nd applicant's locus to swear the affidavit failed, as a party may depose despite having appointed an attorney. On the merits, the debt being an ascertainable monetary sum recoverable by restitution from a respondent not shown to be indigent, no irreparable loss arose and the balance of convenience favoured the judgment creditor.

Facts

The parties had a dispute over the balance of a debt arising from the sale of land. They settled it by a consent judgment entered on 14 July 2014 in High Court Civil Suit No. 630 of 2012, under which the applicants were to pay USD 38,544 plus costs of UGX 7,000,000. The applicants failed to honour the consent; land titles offered to defray execution were found to be road reserves, and bad cheques were issued. The applicants' application to review and set aside the consent judgment (HCMA No. 2047 of 2023) was dismissed, partly on a point of law that fraud could not be proved on affidavit evidence alone. The applicants lodged a notice of appeal (Civil Appeal No. 1405 of 2023) without obtaining leave to appeal, and applied for a stay of execution after the respondent commenced execution and issued a notice to show cause.

Issues

  1. Whether the applicants' failure to seek the mandatory leave of court before appealing against the High Court's dismissal of their application for review was fatal.
  2. Whether the 2nd applicant had locus standi to swear the affidavit in support of the application.
  3. Whether the application met the threshold for the grant of a substantive order for stay of execution.

Orders

  • The application is dismissed.
  • The costs of the application shall abide the outcome of the appeal.

Key headnotes

Civil Procedure — Stay of Execution — Conditions for grant
An applicant for a stay of execution pending appeal must establish that the appeal has a likelihood of success or a prima facie right to appeal, that irreparable damage will be suffered or the appeal rendered nugatory if a stay is refused, and, where those are not established, where the balance of convenience lies, and that the application was made without undue delay.
Civil Procedure — Appeals — Leave to appeal — Order 44 Rules 1 and 2 CPR
Where an application for review is partly dismissed on a point of law under Order 6 Rule 29 CPR, an intended appellant must obtain leave to appeal before lodging the appeal; failure to seek that mandatory leave renders the appeal incompetent and greatly discounts its likelihood of success.
Civil Procedure — Affidavits — Capacity to depose
There is no legal prohibition against a party who has previously appointed an attorney from personally deposing to an affidavit in a matter to which he is a party; the person most conversant with the facts of a case is best suited to swear an affidavit concerning it.
Civil Procedure — Stay of Execution — Substantial and irreparable loss
Substantial loss is not the ordinary loss to which every judgment debtor is subjected on losing a case; where the claim is an ascertainable monetary debt recoverable by restitution and the successful party is not shown to be indigent, no irreparable damage arises to justify a stay.

Legislation cited (12)

  • Judicature (Court of Appeal Rules) Directions r.2(2)
  • Judicature (Court of Appeal Rules) Directions r.6(2)(b)
  • Judicature (Court of Appeal Rules) Directions r.42(4)
  • Judicature (Court of Appeal Rules) Directions r.44
  • Judicature (Court of Appeal Rules) Directions r.50
  • Civil Procedure Act s.76
  • Civil Procedure Act s.98
  • Civil Procedure Rules Order 44 Rule 1
  • Civil Procedure Rules Order 44 Rule 2
  • Civil Procedure Rules Order 44 Rule 3
  • Civil Procedure Rules Order 46 Rules 1, 2 and 8
  • Civil Procedure Rules Order 6 Rule 29

Cases cited (10)

  • Theodore Ssekikubo and Others v Attorney General and Another (Constitutional Application No. 6 of 2013)
  • Gashumba Maniraguha v Sam Nkudiye (Civil Application No. 24 of 2015)
  • Lawrence Musiitwa Kyazze v Eunice Busingye (Supreme Court Civil Application No. 18 of 1990)
  • Dr. Ahmed Muhammed Kisuule v Greenland Bank (In Liquidation) (Supreme Court Civil Application No. 7 of 2010)
  • Ngaji Textiles Ltd v AB Popat and 2 Others (Supreme Court Civil Appeal No. 5 of 2008)
  • Fredrick Zaabwe v Orient Bank (U) Ltd and 5 Others (Supreme Court Civil Appeal No. 4 of 2006)
  • Crane Bank Limited (In Receivership) v Sudhir Ruparelia and Another (Supreme Court Civil Appeal No. 32 of 2020)
  • Tropical Commodities Supplies Ltd and Others v International Credit Bank Ltd (In Liquidation) [2004] 2 EA 331
  • The Annot Lyle (1886) 11 PD 114
  • Alice Wambui Nganga v John Ngure Kahoro and Another (ELC Case No. 482 of 2017) [2021] EKLR
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.