Wakilii

Habib Oil Limited and 3 Others v Commercial Bank of Africa (U) Limited (Miscellaneous Application 646 of 2021)

High Court · [2021] UGCOMMC 175 · 2021 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for stay of execution of consent decree pending appeal from order dismissing application to set aside consent judgment
Decision
Application for stay of execution dismissed; interim stay order set aside; execution may proceed

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court dismissed the application for stay of execution. The applicants had no automatic right of appeal against the order dismissing their application to set aside a consent judgment and had never sought leave to appeal. The application was filed over two and a half years after the order sought to be appealed, constituting unreasonable delay. The application was res judicata, as the applicants had previously obtained a conditional stay order which they failed to satisfy. The respondent bank was not shown to be impecunious, making restitution available if the appeal succeeded.

Outcome

Application for stay of execution dismissed; interim stay order set aside; execution may proceed

Facts

The respondent bank sued the applicants for recovery of US$934,346.05. On 26 May 2017, the parties executed a consent judgment binding the applicants to pay US$936,922 with interest at 10% per annum in monthly instalments until November 2017. The consent judgment was sealed on 8 June 2017. The applicants filed an application on 26 September 2017 to set aside the consent judgment, which was dismissed on 15 October 2018. The applicants filed a notice of appeal on 19 October 2018 and obtained a conditional stay order on 18 February 2019, requiring them to deposit US$275,480 within sixty days. The applicants failed to satisfy this condition. When the respondent renewed enforcement efforts, the applicants obtained an interim stay on 20 May 2021 and filed the current application for stay of execution pending appeal.

Issues

  1. Whether the applicants are entitled to a stay of execution of the consent decree pending appeal.
  2. Whether the applicants have a valid right of appeal against the order dismissing their application to set aside the consent judgment.
  3. Whether the application for stay of execution was made without unreasonable delay.
  4. Whether the application is res judicata.

Orders

  • Application dismissed.
  • Interim order of stay set aside.
  • Costs of the application awarded to the respondent.
  • Costs of the application for interim order of stay awarded to the respondent.

Rules and key headnotes

Civil Procedure — Appeals — Right of Appeal — Leave to Appeal Required
A right of appeal is a creature of statute and must be expressly given by statute. Under Order 44 rule 2 of the Civil Procedure Rules, an appeal does not lie as of right from orders made under Order 46 rule 4 (review of judgments) where the application for review is rejected. A party wishing to appeal such an order must first obtain leave to appeal from the court making the order or the appellate court.
Civil Procedure — Stay of Execution — Conditions for Grant — Valid Appeal Required
An application for stay of execution pending appeal cannot succeed where there is no valid appeal. Where the order sought to be appealed is not appealable as of right and the applicant has never sought leave to appeal, the existence of a valid process of appeal is cast in serious doubt and the application for stay must fail.
Civil Procedure — Stay of Execution — Unreasonable Delay
Applications for stay of execution must be made within a reasonable time. Where an application for stay is filed over two and a half years after the order sought to be stayed, and the applicant offers no explanation for the delay and there is no evidence of waiver by the respondent, the delay is unreasonable and constitutes a ground for refusing the stay.
Civil Procedure — Stay of Execution — Money Decrees — Substantial Loss
Satisfaction of a money decree does not ordinarily pose the danger of rendering a pending appeal nugatory where the respondent is not impecunious, as the remedy of restitution is available to the applicant in the event the appeal is allowed. Substantial loss does not mean the ordinary loss to which every judgment debtor is necessarily subjected when deprived of property in consequence of losing a case.
Civil Procedure — Res Judicata — Successive Applications for Same Relief
Where an applicant has previously obtained a conditional order of stay of execution which they failed to satisfy, a subsequent application for stay of execution on substantially the same grounds between the same parties is res judicata. The applicant is bringing before the court in another way and in the form of a new application matters already adjudicated upon in earlier proceedings.
Civil Procedure — Stay of Execution — Dilatory Conduct — Abuse of Process
Where an applicant has contributed substantially to delay in disposition of an appeal by tardiness in obtaining certified copies of the record and has filed a successive application for stay after failing to satisfy conditions of an earlier stay order, such conduct amounts to abuse of process. The culture of delay and complacency during litigation must not be encouraged.

Legislation cited (7)

Cases cited (12)

  • Lawrence Musiitwa Kyazze v Eunice Businge (Supreme Court Civil Application No. 18 of 1990)
  • Kyambogo University v Prof. Isaiah Omolo Ndiege (Court of Appeal Miscellaneous Civil Application No. 341 of 2013)
  • Hamam Singh Bhogal T/a Hamam Singh & Co. v. Jadva Karsan (1953) 20 EACA 17
  • Baku Raphael v Attorney General (Supreme Court Civil Appeal No. 1 of 2005)
  • Attorney General v. Shah (No. 4) [1971] EA 50
  • Thomas Borthwick & Sons (Pacific Holdings) Ltd and Others v. Trade Practices Commission, (1988) 18 FCR 424
  • Tropical Commodities Supplies Ltd and Others v. International Credit Bank Ltd (in Liquidation) [2004] 2 EA 331
  • Alice Wambui Nganga v. John Ngure Kahoro and another, ELC Case No. 482 of 2017 (at Thika); [2021] eKLR
  • DFCU Bank Ltd v Dr. Ann Persis Nakate Lussejere (Court of Appeal Civil Appeal No. 29 of 2003)
  • Erinford Propertied Ltd. v. Cheshire County Council [1974] 412 All ER 448
  • DSV Silo v. The Owners of Sennar [1985] 2 All ER 104
  • Greenhalgh v. Mallard [1947] 2 ALL ER 255

Full judgment

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

Habib Oil Limited and 3 Others v Commercial Bank of Africa (U) Limited (Miscellaneous Application 646 of 2021) [2021] UGCommC 175 (23 August 2021)
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.