Busia Produce Dealers Multi- Purpose Cooperatives Society v Stanbic Bank (U) Limited (Civil Miscellaneous Application No. 185 of 2021)

Observed later treatment

No later-treatment classification is recorded for this judgment.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

Holding

The Court declined to recuse the presiding Justice, finding the prior High Court temporary injunction ruling was a different matter from the present interim injunction. It held the application was properly before the Court of Appeal under rule 6(2)(b), since after disposal of the High Court suit there was no pending suit in which a temporary injunction could be sought, so rule 42(1) did not require prior filing in the High Court. However, because the Record of Appeal was filed out of time and validation was still pending, there was currently no valid appeal. As an interim injunction cannot stand without a valid appeal, the application was dismissed with costs. Reg.13 was left for the substantive application.

Outcome

Application for interim injunction dismissed with costs; status quo direction lapses on delivery of ruling

Facts

The applicant filed Civil Suit No. 452 of 2012 against the respondent bank concerning a lending transaction in which land at Namaubi, Busia was pledged as security. The suit was dismissed by the Commercial Division of the High Court on 13 December 2019. The applicant lodged a Notice of Appeal, but filed the Record of Appeal on 12 June 2020, outside the mandatory 60-day period that had expired on 17 April 2020, attributing the delay to the COVID-19 lockdown. An application to extend time and validate the late filing was pending and unheard. The respondent issued a default notice under the Mortgage Act and advertised the suit property for sale. The applicant filed a substantive application for a temporary injunction (No. 184 of 2021) and this application (No. 185 of 2021) for an interim injunction pending its determination. The respondent raised preliminary objections on jurisdiction, validity of the appeal, and reg.13 of the Mortgage Regulations, and sought the presiding Justice's recusal.

Issues

1. Whether the presiding Justice should recuse herself from hearing the application on the ground that she had presided over a temporary injunction application in the related High Court suit.
2. Whether the application for an interim injunction was properly before the Court of Appeal or ought first to have been made to the High Court under rule 42(1).
3. Whether an interim order of injunction can be granted where the underlying appeal was filed out of time and is not yet validated.
4. Whether reg.13 of the Mortgage Regulations barred the grant of injunctive relief stopping a mortgage sale.

Orders

• Application for recusal of the presiding Justice declined.
• First preliminary point of law disallowed; the application is properly before the Court.
• Application for interim order of injunction dismissed with costs.
• Direction to maintain the status quo lapses upon delivery of the ruling.

Rules and key headnotes

Legislation cited (14)

• Civil Procedure Act s.98
• Judicature Act s.33
• Judicature (Court of Appeal Rules) Directions S.I 13-10 r.6(2)(b)
• Judicature (Court of Appeal Rules) Directions S.I 13-10 r.42(1)
• Judicature (Court of Appeal Rules) Directions S.I 13-10 r.42(2)
• Judicature (Court of Appeal Rules) Directions S.I 13-10 r.43
• Judicature (Court of Appeal Rules) Directions S.I 13-10 r.44
• Civil Procedure Rules O.41 r.1
• Mortgage Regulations S.I No. 2 of 2012 reg.13
• Constitution of Uganda Article 28
• Constitution (Recusal of Judicial Officers) (Practice) Directions, 2019 para.5
• Constitution (Recusal of Judicial Officers) (Practice) Directions, 2019 para.6
• Constitution (Recusal of Judicial Officers) (Practice) Directions, 2019 para.7
• Constitution (Recusal of Judicial Officers) (Practice) Directions, 2019 para.8

Cases cited (8)

• Zubeda Mohamed and Another v Laila Wallia and Another (Civil Application No. 7 of 2016)
• Hwang Sung Industries Ltd v Tajdin Hussein and 2 Others (Supreme Court Civil Application No. 19 of 2008)
• Patrick Kaumba Witshire v Ismail Dabule (Supreme Court Civil Application No. 2 of 2018)
• Mutegeki John v Mutabazi Joseph and Others (High Court Miscellaneous Application No. 109 of 2016)
• Augustine Makumbi v Hosanna Evangelistic Mission and Others (Court of Appeal Civil Application No. 295 of 2017)
• P.K Sengendo v Busulwa Lawrence and Another (Court of Appeal Civil Application No. 207 of 2014)
• Ganafa Peter Kisawuzi v DFC Bank Ltd (Civil Application No. 64 of 2016)
• Attorney General v Anyang' Nyong'o and Others [2007] 1 EA 12

The original judgment as reported. Read the original PDF before relying on any passage.