Wakilii

Master Grain Milling Limited v Cargo Movers Limited (Miscellaneous Application 830 of 2022)

High Court · [2023] UGCOMMC 284 · 2023 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for stay of execution of decree pending appeal to Court of Appeal
Decision
Application for stay of execution dismissed

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court dismissed an application for stay of execution pending appeal. The court held that the applicant failed to prove substantial loss, as the garnishee order attached only money which could be repaid if the appeal succeeded, and the applicant's fears of other execution methods were speculative. Although the application was filed without unreasonable delay, the applicant failed to deposit security for due performance of the decree as required by Order 43 Rule 4(3)(c) of the Civil Procedure Rules. The preliminary objection to the competence of the respondent's counsel's affidavit was overruled.

Outcome

Application for stay of execution dismissed

Facts

Master Grain Milling Limited applied for stay of execution of a decree in Civil Suit No. 501 of 2017 pending determination of its appeal to the Court of Appeal (Civil Appeal No. 290 of 2021). The applicant contended that the respondent, Cargo Movers Limited, had commenced execution by way of garnishee proceedings and threatened other modes of execution that would cause substantial and irreparable loss to the applicant's grain milling operations. The garnishee nisi was served on 20 May 2022 and made absolute on 18 June 2022. The applicant filed the application on 30 June 2022. The respondent opposed the application, arguing that the appeal was filed outside the statutory period, there was no valid threat of execution, part of the debt arose from a consent judgment from which there was no right of appeal, and the applicant had not deposited security for due performance of the decree.

Issues

  1. Whether the affidavit in reply sworn by the Respondent's counsel was competent.
  2. Whether substantial loss would result to the Applicant unless the order for stay of execution was made.
  3. Whether the application was made without unreasonable delay.
  4. Whether security had been given by the Applicant for due performance of the decree.

Orders

  • Application dismissed.
  • Costs awarded to the Respondent.

Rules and key headnotes

Civil Procedure — Stay of Execution — Competence of Affidavit Sworn by Counsel
Regulation 9 of the Advocates (Professional Conduct) Regulations does not prohibit an advocate from giving evidence by way of affidavit on formal or non-contentious matters of fact that came to the advocate's knowledge by virtue of representing the client, even in a contentious application.
Civil Procedure — Stay of Execution — Substantial Loss
Substantial loss for purposes of stay of execution does not mean ordinary loss or the decretal sum which must be settled by the losing party, but something more of real worth or value as distinguished from loss that is merely nominal. The applicant must go beyond vague and general assertions and demonstrate substantial loss in light of the particular facts of the case.
Civil Procedure — Stay of Execution — Speculative Loss
A court cannot grant stay of execution based on speculative fears of future execution methods without eminent threat. Where execution has been limited to a garnishee order attaching money that can be repaid if the appeal succeeds, and the applicant's fears of other execution methods are merely speculative, the applicant has not proved substantial loss.
Civil Procedure — Stay of Execution — Security for Due Performance
Order 43 Rule 4(3)(c) of the Civil Procedure Rules requires that security for due performance of the decree must have been given before an order for stay of execution can be granted. An expression of willingness to deposit security without actual deposit does not satisfy this requirement.

Legislation cited (5)

Cases cited (4)

  • Walusimbi Mustafo v Musenze Lukia (Miscellaneous Application No. 232 of 2018)
  • Andrew Kisowuzi v Dan Oundo Malingu (Miscellaneous Application No. 467 of 2013)
  • Tropical Commodities Suppliers Ltd and others v International Credit Bank Ltd (In Liquidation) (2004) 2 EA 331
  • Margaret Kato v Nuulu Nalwoga (Supreme Court Miscellaneous Application No. 11 of 2011)

Full judgment

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

Master Grain Milling Limited v Cargo Movers Limited (Miscellaneous Application 830 of 2022) [2023] UGCommC 284 (13 April 2023)
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.