Wakilii

Makerere University & Anor v Ndagire & 22 Ors (Miscellaneous Application 1030 of 2023)

High Court · [2024] UGHCCD 87 · 2024 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for stay of execution of High Court judgment pending appeal to Court of Appeal
Decision
Application conditionally granted with security requirement

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court granted a conditional stay of execution of a High Court judgment pending appeal to the Court of Appeal. The applicants satisfied all six requirements under Order 43 rule 4 of the Civil Procedure Rules: a pending appeal with likelihood of success, imminent threat of execution that would render the appeal nugatory, potential substantial loss, absence of unreasonable delay, and willingness to provide security. The court ordered the applicants to deposit UGX 500,000,000 (25% of the decretal sum) as security within 60 days, failing which the stay order would lapse.

Outcome

Application conditionally granted with security requirement

Facts

Makerere University and its Council were unsuccessful defendants in HCCS No. 542 of 2017, a suit brought by 23 staff members (Secretaries) seeking enforcement of a University Council resolution to appoint them to new positions with salary arrears and general damages. The trial court ruled in favour of the staff members. The University filed a notice of appeal on 13 September 2022 and subsequently lodged Civil Appeal No. 551 of 2023 in the Court of Appeal. On 6 October 2023, the respondents applied for execution of the decree seeking recovery of UGX 2,168,258,812 by way of attachment and sale of University property. The University then filed this application for stay of execution on 18 October 2023, twelve days after the execution application was filed.

Issues

  1. Whether the application raises sufficient grounds for stay of execution of the judgment and decree in HCCS No. 542 of 2017?

Orders

  • Stay of execution of the judgment and decree in HCCS No. 542 of 2017 granted pending hearing and determination of Court of Appeal Civil Appeal No. 551 of 2023.
  • Applicants to deposit UGX 500,000,000 into the security account of the Court as security for due performance of the decree within 60 days from the date of this order.
  • In case of default on the security deposit condition, the order for stay of execution shall lapse.
  • Costs of this application to abide the outcome of the appeal.

Rules and key headnotes

Civil Procedure — Stay of Execution — Requirements under Order 43 Rule 4 CPR
For an order of stay of execution to be granted, the applicant must satisfy six requirements: (i) a pending appeal; (ii) the appeal is not frivolous and has a likelihood of success; (iii) there is a serious and imminent threat of execution and refusal to stay would inflict greater hardship than it would avoid; (iv) the appeal will be rendered nugatory if the order is not granted; (v) the application was made without unreasonable delay; and (vi) the applicant is prepared to give security for due performance of the decree.
Civil Procedure — Stay of Execution — Commencement of Appeal by Notice of Appeal
Where a party has lodged a notice of appeal in accordance with the law and has applied for a certified record of the trial court, and the record has not yet been provided, such a party is deemed to have filed an appeal to the Court of Appeal and has a right to apply for stay of execution of the judgment or decree of the High Court. The absence of a memorandum of appeal by the time a party seeks an order of stay of execution cannot be used against the applicant.
Civil Procedure — Stay of Execution — Assessment of Likelihood of Success on Appeal
It is not open to a trial court to assess whether an appeal to the Court of Appeal shall succeed on the merits. The requirement that the appeal has a likelihood of success can only be invoked in very plain cases, for instance where a party has no right of appeal or where the appeal is filed in the wrong forum. Otherwise, the court will not assess the merits of an appeal lying before a higher court.
Civil Procedure — Stay of Execution — Substantial Loss — Qualitative Concept
Substantial loss for purposes of determining whether or not to grant an order of stay of execution need not be determined by a mathematical formula and does not represent any particular amount or size. It is a qualitative concept referring to any loss, great or small, that is of real worth or value, as distinguished from a loss without value or a loss that is merely nominal. Determination as to whether a certain loss is substantial or not is qualitative and is to be determined by the context of each case.
Civil Procedure — Stay of Execution — Unreasonable Delay — Reckoning of Time
Owing to the legal requirement that a judgment debtor must be faced with an imminent threat in order to be entitled to an order of stay of execution, the reckoning of time for unreasonable delay begins when an actual threat of execution arises, such as when the judgment creditor applies for execution. An applicant need not file an application for stay of execution earlier than when faced with an imminent threat of execution.
Civil Procedure — Stay of Execution — Security for Due Performance — Public Entities
Government agencies and public universities are not exempted from furnishing security for due performance of a decree in stay of execution applications. In a case involving a money decree, the court will exercise its discretion to balance the equities between the parties and ensure that no undue hardship is caused to a decree holder due to stay of execution. The percentage of the decretal sum to be deposited as security is dependent on the circumstances of each case.

Legislation cited (8)

  • Civil Procedure Act s.98
  • Civil Procedure Rules O.22 r.23
  • Civil Procedure Rules O.22 r.26
  • Civil Procedure Rules O.22 r.89
  • Civil Procedure Rules O.43 r.4
  • Judicature (Court of Appeal Rules) r.76(1)
  • Judicature (Court of Appeal Rules) r.83(1)
  • Judicature (Court of Appeal Rules) r.83(2)

Cases cited (7)

  • Kyambogo University v Prof. Isaiah Omolo Ndiege (Court of Appeal Civil Appeal No. 341 of 2013)
  • Formula Feeds Ltd & Others v KCB Bank Ltd (High Court Miscellaneous Application No. 1647 of 2022)
  • Tropical commodities Suppliers Ltd & 2 Others v International Credit Bank Ltd (in liquidation) (High Court Miscellaneous Application No. 379 of 2003)
  • Augustine Kasozi v Arvind Patel (High Court Miscellaneous Application No. 503 of 2021)
  • Trans track Ltd v Damco Logistics (High Court Miscellaneous Application No. 608 of 2012)
  • Kabiito Karamagi & Another v Yanjian (U) Company Limited & Anor (High Court Miscellaneous Application No. 1274 of 2023)
  • Uganda Post Ltd v Magezi (High Court Miscellaneous Application No. 88 of 2012)

Full judgment

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

Makerere University & Anor v Ndagire & 22 Ors (Miscellaneous Application 1030 of 2023) [2024] UGHCCD 87 (17 May 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.