Teopista & Jesus Holdings (U) Limited & Others v Cairo Bank Limited (Civil Application 561 of 2024)

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The single justice dismissed an application to stay execution of a partial decree for UGX 5,038,066,702 obtained by the respondent bank. The respondent's preliminary objection — that there was no valid appeal because the memorandum was served late — was rejected: Rule 6(2)(b) requires only that a notice of appeal be lodged under Rule 76, not that the memorandum be served within seven days. On the merits, although the appeal raised triable issues and was not vexatious, the applicants failed to show irreparable damage; satisfaction of a money decree does not ordinarily render an appeal nugatory where restitution is available and the respondent is not impecunious. The balance of convenience favoured the respondent. Application dismissed with costs.

Outcome

Application for stay of execution dismissed with costs

Facts

The first applicant was advanced a credit facility by the respondent bank. The respondent sued the applicants under summary procedure (Order 36) in the High Court Commercial Division for recovery of about UGX 9,119,312,433. The applicants sought leave to appear and defend; on consolidated applications the trial judge granted partial summary judgment entering a partial decree of UGX 5,038,066,702 against them and granting leave to defend the balance. The applicants filed a notice of appeal and a memorandum of appeal (Civil Appeal No. 781 of 2024), which is pending. Their High Court application for a stay of execution was dismissed. The respondent commenced execution proceedings (Execution Miscellaneous Application No. 257 of 2023) seeking attachment and sale of property comprised in LRV 3271 Folio 6 Plot 3 Block, Martin Road, Kampala — property already mortgaged to the respondent. Faced with the scheduled execution hearing, the applicants applied to the Court of Appeal for a stay of execution pending the appeal.

Issues

1. Whether the application was incompetent because the memorandum of appeal was served on the respondent outside the time prescribed by Rule 88 of the Court of Appeal Rules.
2. Whether the applicants satisfied the conditions for the grant of a stay of execution pending appeal.

Orders

• The application is dismissed.
• Costs in the cause.

Rules and key headnotes

Legislation cited (8)

• Judicature (Court of Appeal Rules) Directions SI 13-10 r.2(2)
• Judicature (Court of Appeal Rules) Directions SI 13-10 r.6(2)(b)
• Judicature (Court of Appeal Rules) Directions SI 13-10 r.43
• Judicature (Court of Appeal Rules) Directions SI 13-10 r.44(1)
• Judicature (Court of Appeal Rules) Directions SI 13-10 r.76
• Judicature (Court of Appeal Rules) Directions SI 13-10 r.88(1)
• Civil Procedure Rules SI 71-1 Order 36 r.3
• Civil Procedure Rules SI 71-1 Order 43 r.4(3)

Cases cited (4)

• Lawrence Musiitwa Kyazze v Eunice Busingye (Civil Application No. 18 of 1990)
• Kyambogo University v Prof. Isaiah Omolo Ndiege (Miscellaneous Civil Application No. 341 of 2013)
• Hon. Theodore Ssekikubo & Others v Attorney General and Another (Constitutional Application No. 6 of 2013)
• Twongyeirwe Peter v Muhumuza Peter (Miscellaneous Application No. 681 of 2021)

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