Dr.Ahmed Muhammed Kisuule v Greenland Bank (in liquidation) (Civil Application 7 of 2010)
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Holding
The Supreme Court dismissed an application for stay of execution pending appeal. An applicant must show, beyond lodging a notice of appeal under rule 72, substantial or irreparable loss, no unreasonable delay, security for due performance, and a likelihood of success. Here the applicant's pending appeal had no likelihood of success because the appeal against the High Court's dismissal of his review application had reached the Court of Appeal without the leave mandatorily required by Order 44 rule 2 CPR; a dismissal of a review falls under that rule, not Order 44 rule 1. The applicant also failed to depose to any irreparable loss. Having shown no sufficient cause, the application was dismissed with costs.
Facts
In November 1995 the applicant and another obtained a UGX 30 million loan from the respondent bank at 25% interest, secured on the applicant's Makerere Kikoni properties. After repayment difficulties the applicant alone undertook to repay under a new agreement. On default, the respondent sold the secured properties and sued for the outstanding balance. The High Court gave judgment for the respondent in 2005. The applicant's application to review that judgment was dismissed with costs in 2008. His appeal to the Court of Appeal (Civil Appeal No. 13 of 2009) was dismissed, and he then filed Civil Appeal No. 11 of 2010 in the Supreme Court. Pending that appeal, he applied to stay execution of the Court of Appeal decree, asserting his appeal would otherwise be rendered nugatory. The respondent opposed, contending the appeal lacked any likelihood of success because the underlying appeal had been brought without the leave required to appeal against the dismissal of a review application.
Issues
- Whether the applicant satisfied the conditions for a stay of execution pending the disposal of his appeal in the Supreme Court.
- Whether the applicant's pending appeal had a likelihood of success, given that the underlying appeal to the Court of Appeal was brought without the leave required under Order 44 rule 2 of the Civil Procedure Rules.
- Whether the applicant established that he would suffer irreparable loss if a stay of execution was not granted.
Orders
- Application for stay of execution dismissed.
- Costs of the application awarded to the respondent.
Key headnotes
Legislation cited (18)
- Rules of the Supreme Court r.6(2)(b)
- Rules of the Supreme Court r.41(1)
- Rules of the Supreme Court r.43
- Rules of the Supreme Court r.45
- Rules of the Supreme Court r.47
- Rules of the Supreme Court r.72
- Rules of the Supreme Court r.101(3)
- Civil Procedure Rules Order 44 r.1
- Civil Procedure Rules Order 44 r.2
- Civil Procedure Rules Order 44 r.4
- Civil Procedure Rules Order XLVI r.3(1)
- Civil Procedure Rules Order XLVI r.3(2)
- Civil Procedure Rules Order 26 r.1
- Civil Procedure Act s.26
- Civil Procedure Act s.27
- Civil Procedure Act s.76
- Constitution art.126(2)(e)
- Constitution art.133(1)
Cases cited (2)
- Idah Iterura v Joyce Maguta (Civil Application No. 2 of 2006)
- Lawrence Musiitwa Kyazze v Eunice Busingye (Civil Application No. 18 of 1990)