Wakilii

Breakers & Partners Uganda Ltd & Anor v Attorney General (Civil Appeal No. 14 of 2010)

Court of Appeal · [2016] UGCA 12 · 2016 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Civil appeal from a High Court (Commercial Court) decision upholding a preliminary objection and dismissing a suit
Decision
Appeal allowed; dismissed suit reinstated and remitted to the High Court to be heard before another Judge.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal held that the trial Judge erred in dismissing the appellants' suit against the Attorney General to recover a judgment debt merely because a related appeal contesting that debt was pending. An appeal does not operate as an automatic stay of execution, and the parties to the pending appeal differed from those in the dismissed suit. The trial Judge had no jurisdiction to determine whether substitution should occur in a matter before the Court of Appeal; that is for the appeal bench in Civil Appeal No. 33 of 2005. The appeal was allowed and the suit reinstated on the High Court docket for hearing before another Judge.

Outcome

Appeal allowed; dismissed suit reinstated and remitted to the High Court to be heard before another Judge.

Facts

The appellants sued the Non-Performing Assets Recovery Trust (NPART) and Surjeet Singh before the Non Performing Assets Tribunal for unlawful seizure and sale of property at Plot 26 Station Road, Lira. In 2005 the Tribunal ordered NPART to pay the appellants UGX 273,000,000 plus taxed costs of UGX 18,336,000. NPART and Surjeet Singh appealed (Civil Appeal No. 33 of 2005). Before payment, NPART expired around 10 October 2007. The appellants then filed Civil Suit No. 125 of 2008 in the Commercial Court against the Attorney General to recover the judgment debt and costs, contending that on NPART's expiry Government assumed its assets and liabilities. The Attorney General raised a preliminary objection that the suit was incompetent because Civil Appeal No. 33 of 2005 remained pending. The High Court upheld the objection and dismissed the suit, prompting this appeal.

Issues

  1. Whether the trial Judge was right in dismissing Civil Suit No. 125 of 2008 on the basis that Civil Appeal No. 33 of 2005 was still pending.
  2. Whether Civil Appeal No. 33 of 2005 survived the expiry of the NPART.
  3. Whether the appropriate remedy was substitution of NPART with the Attorney General under Order 24 of the Civil Procedure Rules in the pending appeal.

Orders

  • Civil Suit No. 125 of 2008 reinstated on the High Court docket.
  • The matter to proceed before another Judge.
  • The parties advised to consider consolidation of the suits or substitution of NPART with the Attorney General.

Rules and key headnotes

Civil Procedure — Stay of Execution — Appeal Not an Automatic Stay
The mere existence of a pending appeal does not operate as an automatic stay of execution, and absent an order for stay a related suit to enforce the judgment debt cannot be dismissed solely on the ground that an appeal is pending.
Civil Procedure — Dismissal of Suit — Improper Dismissal Where Distinct Parties and Issues
A suit should not be dismissed because of a pending appeal where the parties and issues differ; the proper course is to hear the parties and determine the live question, such as the liability of the defendant for the judgment debt.
Civil Procedure — Jurisdiction — Substitution of Parties in a Matter Pending Before Another Court
A trial court has no jurisdiction to decide whether parties should be substituted under Order 24 of the Civil Procedure Rules in a matter that is pending before the appellate court; that determination is for the bench seized of the appeal.

Legislation cited (1)

Full judgment

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Breakers & Partners Uganda Ltd & Anor Vs Attorney General (Civil Appeal No. 14 of 2010) [2016] UGCA 12 (15 January 2016)
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.