Wakilii

KCB Bank (U) Ltd v Pear Impex (U) Ltd & 2 Ors (Civil Appeal No. 18 of 2013)

High Court · [2014] UGCOMMC 85 · 2014 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from registrar's decision granting interim order in Miscellaneous Application No. 490 of 2013
Decision
Status quo maintained pending determination of Civil Suit No. 210 of 2012

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Court held that the registrar judiciously exercised inherent powers under section 98 of the Civil Procedure Act to grant an interim order preventing the sale of suit property, notwithstanding the absence of a pending main application for a temporary injunction. Where property advertised for sale was subject of a pending suit and the sale was imminent, the court's inherent jurisdiction to prevent abuse of process and preserve the ends of justice overrides strict procedural requirements. The appeal was dismissed with no order as to costs.

Outcome

Status quo maintained pending determination of Civil Suit No. 210 of 2012

Facts

The respondents filed Civil Suit No. 210 of 2012 challenging the appellant bank's intended sale by public auction of mortgaged properties. A partial consent was recorded in June 2012 whereby the respondents cleared outstanding interest arrears by selling some securities. When the main suit was still pending hearing, the appellant advertised the suit properties for sale in May 2013, with the sale scheduled for 21 June 2013. The respondents filed Miscellaneous Application No. 490 of 2013 on 18 June 2013 seeking an interim order to prevent the sale. The registrar granted the interim order on 20 June 2013, staying the sale until disposal of the main suit or until the trial judge directs otherwise. The appellant appealed on five grounds, primarily challenging the registrar's jurisdiction to grant an interim order without a pending main application for a temporary injunction.

Issues

  1. Whether the registrar erred in entertaining Miscellaneous Application No. 490 of 2013 for an interim order when there was no pending main application for a temporary injunction.
  2. Whether the registrar erred in failing to make a ruling on the preliminary objection before determining the application on its merits.
  3. Whether the registrar erred in granting an interim order without hearing counsel for the appellant on the merits of the application.
  4. Whether the registrar erred in granting an interim order that lasts until the main suit is disposed of.
  5. Whether it is just and equitable that the appeal be allowed.

Orders

  • Appeal dismissed.
  • No order as to costs.
  • Status quo to be maintained until the main suit is heard and determined.

Rules and key headnotes

Civil Procedure — Interim Orders — Inherent Powers of Court — Exercise in Absence of Main Application
The court's inherent power under section 98 of the Civil Procedure Act to make orders necessary for the ends of justice or to prevent abuse of court process is not displaced by the requirement for a valid main application for a temporary injunction, though each case must be determined according to its own facts and circumstances.
Civil Procedure — Interim Orders — Exceptional Circumstances — Imminent Sale of Suit Property
Where property that is the subject of a pending suit is advertised for sale the following day, the court may invoke its inherent jurisdiction to grant an interim order to preserve the status quo, notwithstanding the absence of a pending main application for a temporary injunction, to prevent the suit from being rendered nugatory.
Civil Procedure — Discretionary Powers — Judicial Exercise — Availability of Alternative Remedy
The availability of an alternative remedy or specific provisions is only one of the factors to be taken into account when a court considers invoking its inherent powers but does not limit or remove the court's jurisdiction, which is a matter of the court's discretion to be exercised judicially.
Civil Procedure — Preliminary Objections — Overruling by Implication
Where a court proceeds to grant substantive relief after hearing arguments on a preliminary objection, the court overrules the preliminary objection by implication through its decision to grant the relief sought.
Civil Procedure — Right to be Heard — Counsel's Duty to Argue in Alternative
Where a preliminary objection is raised but opposing counsel submits on the merits of the application, it is the duty of counsel who raised the objection to argue his client's case in the alternative but without prejudice to the preliminary objection, and failure to do so cannot constitute denial of a fair hearing.

Legislation cited (4)

Cases cited (11)

  • Soroti Municipal Council v Pal Agencies (U) Ltd (Miscellaneous Application No. 181 of 2012)
  • Assumpta Sebunya v Kyomukama James (Miscellaneous Cause No. 55 of 2012)
  • Rose Mary Nalwadda v Uganda Aids Commission (Miscellaneous Cause No. 45 of 2010)
  • Charles H. Twagira v Uganda (Supreme Court Criminal Appeal No. 27 of 2003)
  • Ridge v Baldwin [1964] AC 40
  • Eng. Pascal R. Gakyaro v Civil Aviation Authority (Civil Appeal No. 60 of 2006)
  • Commodity Export International and Another v MKM Trading Company Ltd and Another (Civil Appeal No. 96 of 2005)
  • Hussein Badda v Iganga District Land Board and Others (Miscellaneous Application No. 479 of 2011)
  • Nakito Brothers Ltd v Katumba [1983] HCB 70
  • Hon. Anifa Bangirana Kawooya v Attorney General and Another (Miscellaneous Application No. 46 of 2010)
  • National Union of Clerical, Commercial and Technical Employees v National Insurance Corp. (Supreme Court Civil Appeal No. 17 of 1993)

Full judgment

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

KCB Bank (U) Ltd v Pear Impex (U) Ltd & 2 Ors (Civil Appeal No. 18 of 2013) [2014] UGCommC 85 (25 June 2014)
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.