Wakilii

Babuge Trading Co. Limited v Shaka & Another (Miscellaneous Application 8 of 2024)

High Court · [2024] UGHC 1066 · 2024 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for stay of execution of High Court decree pending appeal to Court of Appeal
Decision
Application for stay of execution dismissed

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Application for stay of execution of High Court decree pending appeal dismissed. Court found that while applicant proved a pending appeal and filed without undue delay, it failed to demonstrate that the appeal had a likelihood of success and was not frivolous, that the appeal would be rendered nugatory without a stay, or that substantial loss would result. The security offered was deemed adequate, but the applicant did not satisfy the conditions precedent to grant of stay of execution under Order 43 Rule 4(3) of the Civil Procedure Rules.

Outcome

Application for stay of execution dismissed

Facts

The applicant, Babuge Trading Co. Ltd, filed Civil Suit HCT-01-CV-LD-011-2016 against the respondents, which was dismissed with costs to the 1st respondent and an order directing cancellation of the applicant's certificate of title for land comprised in FRV HQT 250 Folio 2, Plot 117-119 Kilembe Road, Kasese Municipality. The applicant filed an appeal to the Court of Appeal (Civil Appeal No. 255 of 2024). Following receipt of the notice of appeal, the 1st respondent filed three taxation applications, for which a consent was reached for a combined sum of UGX 56,925,600. The 1st respondent then filed three execution applications seeking attachment and sale of the applicant's properties before the hearing of the appeal. The applicant sought stay of execution of the decree and stay of recovery of taxed costs pending the appeal, offering land comprised in LRV 3272 Folio 18, Plot 5 Bukonjo Block 34 (purchase price UGX 80,000,000, 32.1 hectares) as security. The 1st respondent did not substantially oppose the application but contested the sufficiency of the security offered. This was the third litigation over the same subject matter, following prior unsuccessful proceedings.

Issues

  1. Whether the applicant satisfied the conditions for grant of a stay of execution.
  2. What remedies are available to the parties.

Orders

  • Application dismissed.
  • Costs in the cause.

Rules and key headnotes

Civil Procedure — Stay of Execution — Conditions Precedent for Grant
An applicant seeking stay of execution pending appeal must satisfy the conditions in Order 43 Rule 4(3) of the Civil Procedure Rules: proof of risk of substantial loss without the stay; application made without unreasonable delay; and security given for due performance of the decree or order. Additional conditions include a serious or imminent threat of execution, that the appeal is not frivolous and has a likelihood of success, and that refusal to grant the stay would inflict more hardship than it would avoid.
Civil Procedure — Stay of Execution — Likelihood of Success of Appeal — Standard of Assessment
To establish that an appeal has a likelihood of success and is not frivolous, the court must be satisfied that the prospects of the appeal succeeding are not remote but that there is a realistic chance of success. More is required than a mere possibility of success. There must be a sound, rational basis, founded on the facts and law, justifying the conclusion that the appellate court will differ from the trial court. The appeal will be considered frivolous if prima facie the grounds are without any reasonable basis in law or equity. Additional evidence of frivolity includes the applicant's history of prior unsuccessful litigation over the same subject matter.
Civil Procedure — Stay of Execution — Likelihood of Success — Burden of Proof on Applicant
Where an applicant files an incomplete memorandum of appeal and the court cannot reasonably infer whether the appellate court would arrive at a conclusion different from that of the trial court, the applicant fails to prove that the appeal has a likelihood of success and is not frivolous. Without a full draft or copy of the memorandum of appeal, the court cannot evaluate the prospects of success or determine whether the grounds raised are merely a delaying tactic.
Civil Procedure — Stay of Execution — Whether Appeal will be Rendered Nugatory
Whether an appeal will be rendered nugatory without a stay of execution depends on whether what is sought to be stayed is irreversible if allowed to happen, whether it can be adequately compensated in damages, and whether it is in the public interest to grant a stay. Where the risk of disposal of property to a third party can be mitigated by lodging a caveat or through damages, the applicant does not adequately prove that the appeal will be rendered nugatory.
Civil Procedure — Stay of Execution — Substantial Loss — Standard of Proof
To establish that substantial loss will result if stay of execution is not granted, the applicant must demonstrate factors beyond the ordinary loss to which every judgment debtor is subjected when they lose a case. The applicant must show that execution will create a state of affairs that will irreparably affect or negate the very essential core of the applicant as the successful party in the appeal.
Civil Procedure — Stay of Execution — Security for Costs — Sufficiency and Burden of Proof
Once security for costs is put forward by an applicant for stay of execution, it is for the respondent to prove to the court that it is inadequate in terms of value. Where the applicant annexes a copy of the certificate of title and states on oath the purchase price of the property offered as security, the respondent cannot dismiss the assertion without presenting evidence. Arguing that there is no valuation report is not an adequate basis to claim that the security is insufficient; at best it calls into question the actual value, but the one who alleges insufficiency must lead evidence of that fact.

Legislation cited (6)

Cases cited (13)

  • Francis M. Micah v Nuwa Walakira (1992-93) HCB 88
  • National Enterprise Corporation v Mukisa Foods (Court of Appeal Civil Appeal No. 7 of 1998)
  • Lawrence Musiitwa Kyazze v Eunice Businge (Supreme Court Civil Appeal No. 18 of 1990)
  • Hon Theodore Sekikubo & Others v AG & Others (Constitutional Application No. 3 of 2014)
  • Kyambogo University v Prof. Isaiah Omolo Ndiege (Court of Appeal Civil Appeal No. 34 of 2013)
  • Baguma Paul t/a Panache Associates v Eng. Karuma Kagyina (High Court Miscellaneous Application No. 460 of 2020)
  • Former Employees of G4S Security Services v G4S Security Services Ltd (Supreme Court Civil Appeal No. 18 of 2010)
  • Tropical Commodities Supplies Ltd and 2 Others v International Credit Bank Ltd (In Liquidation) [2004] 2 EA 331
  • Imperial Royale Hotel Ltd & 2 Others v Ochan Daniel (High Court Miscellaneous Application No. 111 of 2012)
  • Kyambogo University v Prof. Isaiah Omolo Ndiege (Court of Appeal Miscellaneous Civil Application No. 341 of 2013)
  • Junaco (T) Ltd & 2 Others v DFCU Bank Ltd (High Court Miscellaneous Application (Commercial Division) No. 0027 of 2023)
  • Shaka Augustine v Mr. Bigasaki (Civil Suit No. 021 of 2010)
  • Babuge Trading Co. Ltd MC No. 12 of 2016

Full judgment

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Babuge Trading Co. Limited v Shaka & Another (Miscellaneous Application 8 of 2024) [2024] UGHC 1066 (28 October 2024)
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.