DFCU Bank Limited v Wills International Engineers & Contractors Ltd and Another (Civil Application No. 531 of 2022) [2023] UGCA 386 (25 April 2023)

Full Case Text

# 5 THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA CIVIL APPLICATION NO. 531 OF 2022

(Arising out of Civil Application No. 530 of 2022) (Arising out of Civil Appeal No. 260 of 2017)

DFCU BANK LIMITED ::::::::::::::::::::::::::::::::::::::::::::::::: APPLICANT

#### VERSUS

### 1. WILLS INTERNATIONAL ENGINEERS & CONTRACTORS LTD 15

2. GEORGE WILLIAM KIYEGA::::::::::::::::::::::::::::::::::::::: RESPONDENTS

#### RULING

## BEFORE HONOURABLE LADY IUSTICE EVA K. LUSWATA

At the commencement of these proceedings, Counsel Zimula submitted that since service upon the respondent had been effected with no response, then Court should allow exparte proceedings. He in addition conceded that his client was prepared to issue a guarantee for due performance. He mentioned a figure of shs. 20,000,000/= (twenty million shillings only). Counsel Balondemu did not agree. Among other reasons, he stated that his firm had not been served as stated in the affidavit of service, and that him and Counsel Ntende had in fact only received instructions yesterday 24tn April 2023. 25 30

After perusing the affidavit of service and other documents placed before me, fin particular a notice of instructions filed in this Court on 25th April 2023),I found merit in Counsel Balondemu's submissions. For that reason, I would have declined

5 the prayer for exparte proceedings and given the respondents time to file a response.

However, in the spirit of time and avoidance of protracted litigation the Court suggested to both Counsel to consider the offer of a bank guarantee to protect the applicant's interests.

Both Counsel and the respondent had deliberations and an agreement was achieved. I have obtained the consent of three Counsel to enter the following orders:

- 1) An interim order to stay of execution of the Decree in Civil Appeal No. 260 of 20L7 of this Court is issued and shall remain in force until determination of the substantive application in Civil Application No. 530 of 2022. - 2) The applicant shall in the interim take out a bank guarantee in the sum of shs. 170,000,000/= [One hundred seventy million shillings only) as security for due performance of the decree. - 3) The guarantee shall be readyand deposited in Courtwithin 10 (ten) days of this Ruling failing which, the interim order shall be automatically vacated and execution may ensue. - 4) No order for costs is made with respect to my order.

Since the parties have saved Courts time, and in order to avoid the possibility of this interim order continuing in perpetuity, the Registrar of this Court is directed to fix the substantive application within the next 1.0 (ten days).

In view of the settlement above, the respondents need not file a response to this application. Instead I make an order that filing of Miscellaneous Application No. 531 of 2022 and all outstanding evidence, be made as follows: 30

- 1) Service of Miscellaneous Application No. 531 of 2022 be effected within 2 (two) days hereof. - 2) The respondents files therein affidavit in reply by 3rd May 2023. - 3) A rejoinder if any by $8^{th}$ May 2023.

I so order. $10$

**Dated** at **Kampala** this **25th** day of **April** 2023.

HON. EVA KAUSWATA JUSTICE OF APPEAL

$15$

$\mathsf{S}$

$20$