Topista & Jesus Holdings (U) Limited and Others v Exim Bank Uganda Limited (Civil Application No. 583 of 2021) [2025] UGCA 199 (20 June 2025)

Full Case Text

# THE REPUBLIC OF UGANDA

### IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

**CIVIL APPLICATION NO. 0583 OF 2024**

(*Arising from Civil Appeal No. 0218 of 2024*)

(Arising from High Court Civil Suit No. 0948 of 2022)

(Arising from Consolidated Miscellaneous Applications Nos. 1603 & 1604 of 2022)

- 1. TEOPISTA & JESUS HOLDINGS (U) LIMITED - 2. NABBALE TEOPISTA - 3. MARIA NTEGANYI....................................

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**VERSUS**

EXIM BANK UGANDA LIMITED....................................

## RULING OF CHRISTOPHER GASHIRABAKE, JA (SINGLE JUSTICE)

#### **Introduction** 20

This application was brought under Rules $2(2)$ , $6(2)(b)$ , $42(1)$ , 43 and $44(1)$ of $[1]$ the Judicature (Court of Appeal Rules) Directions SI 13-10, for Orders that;

> a) An order of Stay of execution of partial decree issued by Hon. Justice Stephen Mubiru, Judge of the High Court, in Miscellaneous Applications Nos. 1603 and 1604 of 2022, both arising from HCCS No. 948 of 2022, between the parties pending the hearing of Civil Appeal No. 0218 of 2024 pending before this Honourable Court.

- *b) Costs of this application will be provided for.* - $[2]$ The application is premised on the grounds that: 30 - a) The applicants are aggrieved by the partial decree arising from the ruling and orders in Consolidated Miscellaneous Application Nos.

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1603 and 1604 of 2022, which were delivered by Hon. Justice Stephen Mubiru, Judge of the High Court, both arising from HCCS No. 948 of 2022.

- b) The Respondent filed in the High Court of Uganda, Commercial Division, Civil Suit No. 0948 of 2022 by Summary Procedure under Order 36 Rule 3 of the Civil Procedure Rules. - c) The applicants filed in the High Court of Uganda, Commercial Division, Miscellaneous Applications Number 1603 and 1604 of 2022, respectively, arising from HCCS No. 0948 of 2022, for leave to appear and defend HCCS No. 0948 of 2022 between the parties. The two applications were consolidated by the trial court, heard and determined by the lower Court and a ruling was delivered on the $17th$ day of February 2023. - d) The trial Judge, Hon. Lady Justice Harriet Grace Magala, entered partial Judgment/ decree in the following orders that: - $i$ *Judgment is entered against the applicants/defendants for the* payment of Ugx. 10,651,737,494/= (Uganda Shillings Ten Billion, Six Hundred Fifty –One Million, Seven Hundred *Thirty* –*Seven Thousand Four Hundred Ninety* –*Four Only)* - Leave is granted to the Defendants to defend the remaining ii. claim. - e) The applicants filed a Notice of Appeal in the lower Court and the same was lodged in the Court of Appeal of Uganda and a Memorandum of Appeal has since been filed in the Court of Appeal as Civil Appeal No. 0218 of 2024 and the same is pending before this Honourable Court. - $\int$ That HCCS No. 0948 of 2022 between the parties is still pending hearing in the lower Court, in accordance with the orders of the lower *Court stated in ground 4 above.*

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- g) Civil Appeal No. 0218 of 2024 arising from the partial summary decree in HCCS No. 948 of 2022 is pending in the Court of Appeal of Uganda. - *h) The applicant filed in the lower Court, HCCS No. 0948 of 2022, their* joint Written Statement of Defence with Counterclaim. - *i) The applicants lodged in the High Court of Uganda Miscellaneous Application No. 0502 of 2023, seeking orders for a stay of execution* of the orders of the said trial Judge arising from the consolidated Miscellaneous Applications Nos. 1603 of 1604 of 2022 and *Miscellaneous Application No.* 0625 of 2023 for an interim Stay of execution. - *j) The above-stated applications No.* 502 *and* 625 *of* 2023 *have never* been heard and determined by the High Court despite the efforts to fix them for hearing by the Applicants / Appellants' lawyers. - k) Due to failure of the lower Court to determine Miscellaneous Applications No. 502 and 625 of 2023 for stay of execution and *interim stay respectively, the applicants have been left with no option* but only to file this application to stay execution of the partial decree in HCCS No. 948 of 2022, pending the hearing of the Civil Appeal *No. 0218 of 2024 which is pending in this Court.* - *l) The respondents secured a warrant of attachment and sale of property* described as Kibuga Block 244 Plot 541 land at Kisugu under Execution Miscellaneous Application No. 138 of 2023. The advertisement was placed in the Daily Monitor and the property is due for sale by public auction on the $9th$ of October 2024 - m) The applicants were also served with Miscellaneous Application No. 1933 of 2024 for objector proceedings filed by Grace Matovu against the applicants and the respondent and the same was heard on the $7th$ day of October 2024. - n) The Applicants were informed by their advocates who attended Court that the applicants in Miscellaneous Applications No 1933 of 2024 - 3 | Page

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have sought leave of Court to compromise with the respondent despite the existence of an order for stay of execution of the decree in HCCS *No 24 of 2013 under Miscellaneous Application No. 2105 of 2015 and* Miscellaneous Application No. 3125 of 2025 pending the determination of Court of Appeal Civil Appeal No. 236 of 2015; Teopista Nabbale (3rd respondent in MA 1933 of 2024) and Grace Matovu (the applicant in MA 1933 OF 2024) which is pending judgment.

- o) The sale of property described as Kibuga Block 244 Plot 541 land at Kisugu by public auction, while Miscellaneous Applications No. 502 and 625 of 2023 have neither been decided nor fixed for hearing, is *an imminent threat to the applicants' property.* - *p) Civil Appeal No. 0218 of 2024 lodged by the applicants in the Court* of Appeal of Uganda has high chances of success. - *q) The applicants' appeal shall be rendered nugatory if this application* is not granted in the terms set forth therein, since the execution of *Miscellaneous Application No. 138 of 2023 by attachment and sale of* Kibuga Block 244 Plot 541 land at Kisugu is about to be completed. - *r) This application has been filed in this Honourable Court without* undue delay and after frustration by the lower Court, which has neither been heard nor scheduled for hearing despite the applicants' lawyers' effort to fix the same. - s) The respondent shall not be prejudiced in any way when this *application is granted to the applicants with costs.* - *t) The applicants have provided security for the due performance of the* partial decree by pledging the property described as Kibuga Block 244 Plot 541 land at Kisugu. - u) It is just, fair, equitable and in the interest of justice that this *Honourable Court be pleased to grant this application in the orders* being sought therein favour of the applicant, with costs.

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- The respondent opposed this application through the affidavit of Mr. John $[3]$ $\overline{5}$ Nambale. It was averred that the respondent would raise a preliminary Objection to the effect that there was no valid appeal before this court because the Notice of Appeal and Memorandum of Appeal were filed out of time. He averred further that the application is without merit and that the appeal has no likelihood of success. 10 - $[4]$ In rejoinder, it was averred that the application is properly before this Court, having fulfilled all the requirements for the grant of an application for stay of execution.

## **Representation**

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$\mathcal{N}_{\mathcal{A}}$

$[5]$ Ms. Lydia Tamale, holding brief for Augustine Akineza, represented the 15 applicants. Nabbale Teopista was in court. The respondent was represented by Mr. Eliya Mikka. There was no representative of the respondent in Court. The parties filed submissions

## **Brief facts.**

The applicants were sued for recovery of UGX 10,494,455,577/= arising from $[6]$ 20 a credit facility advanced to the 1st Applicant under summary procedure provided for under Order 36 of the Civil Procedure Rules. The Applicants filed Consolidated Miscellaneous Applications No.1603 & 1604 of 2022 for Unconditional leave to appear and defend Civil Suit No.948 of 2022. The consolidated Applications were partially granted and a partial summary 25 decree in HCCS No.948 of 2022 for payment of UGX 10,651,737,494/ $=$ . The Respondent followed by filing Execution Miscellaneous Application No. 138 of 2023 for attachment and sale of land described as Kibuga Block 244 Plot 541 land at Kisugu, Kampala. The Applicants filed HMCA Nos. 0502 and 625

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- ol- 2023 for thc stay ofcxecution and interim stay ofexecution, respectively, which have not bccn dctcrmined to datc. - l7l The Applicant also filed Civil Appeal No.2l8 of 2024, which is pending. Since the application for stay at the High Court has not been heard to date, the Applicants filed Civil Application No.0583 of 2024 for stay of execution due to the eminent threat ofexecution as evidenced by the scheduled sale by public auction o[ property dcscribed as Kibuga Block 244 Plot 541 I at Kisugu, Kampala on the 9th day of October 2024.

## Submissions b1'Oounscl l'or thc Applicant

- t8] Counsel rightly citcd the law for the grant of Stay of execution as provided lbr under Rutc 6(2) ol'the Judicature (Coun of Appeal Rules) Directions, and Lawrence Musiitwa Kyazze v Eunice Busingyc, S. C, Civil Application No l8 of 1990, whcre it was held that an application of this nature must be made after Notice olAppeal has been Illcd and thc applicant should be prcpared to meet the conditions including; - fumishing proof of the fact that substantial loss may rcsult to thc Applicant unless thc stay of execution is granted; that the application has been made without unrcasonable delay; and the Applicant has given security lor due pertbrmance of the decree or order as may ultimately bc binding upon him. Counsel submitted that the above was expounded in Kyambogo University V Prof. Isaiah Omolo Ndiege, C. A. Misc. Civil application No 341 of 2013. 15 20 25 - t9l On whether thc applicants have filed the Notice of appeal, counscl submitted that it is not in disputc that the applicants lodged and served on the Respondent

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- 5 a Notice of Appeal dated the 17 the 23'd day of March 2023. February 2023, cndorsed by the Court on - [0] It was submitted for the applicdnt that the application was filed within a and interim stay ofexecution, re\$pectively. The instant application was filed ol'the decree was sought and a warrant of of Kibuga Block244 Plot 541 land at Kisugu ; advertised for sale while HCMA Nos. 502 lesolved by the IIigh Court Commercial only a few days after execution execution by attachment una.ut. was granted and thc property \*al reasonable time. Counsel submitt decree sought to be exccuted was The applicants filed HCMA Nos ed further that it was not in dispute that the rendered on the lTtr'day ofFebruary 2023. 502 and 625 of 2023 lor stay ofexecution and 625 of 2023 remained un Division. - [l is not frivolous and vexatious. Counsel [11] It was submitted that the appea submitted that execution of the (ecree need not bc staycd pending an appeal unless thc appellant shows good ause. It was argued fbr the applicant that in this application, thc applicant h s filcd a Memorandum of Appeal, which spells out the grounds of appea . FIe further submittcd that the grounds of appeal show that the appeal has aL likelihood of succcss. - [ll bc rcgarded nugatory if the application is at this dcpends on whether what is sought to peal will be regardcd as nugatory. Counscl agcnts have embarkcd on a sale by public 12] As regards whether the appeal w not granted, counsel submitted th execution is not granted, the ap1 submitted that the Respondent's TlPage be stayed if allowed to happen witt bc reversiblc , or il' it is not rcvcrsible. whether damages will reasonabl compensate the party aggrieved, or it is in the public interest to grant a stay. Counsel submittcd that this is a casc where the court should exercisc its disc ion under Rule 2(2) because if the stay of

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- 5 auction of propefty described as Kibuga Block 244 Plot 541 land at Kisugu. Such disposal of thc 2nd Applicant's personal property cannot be compcnsated by any rnonetary value, cspecially on pcrsonal attachmcnt to the samc. - [ 3] On imminent threat, counscl submitted that the Respondent has already taken steps towards execution, as evidenced by the grant of warrant of attachment and sale of property described as Kibuga Block244 plot 541 land at Kisugu and thc subsequent advertisement in the daily newspaper for a public auction under E,xecution Miscellaneous Application No. 138 of 2023. The Applicants face the real and imminent thrcat of thcir property being sold. Given the advanced stage of the execution proceedings, it is imperative that this Flonourable Court intervenes to stay cxecution. 10 15 - [ 4] On substantial loss, counsel submitted that the applicants stand to suffer the loss ol their propefty and irreparable harm to their business if the execution procccds. As such, it is essential that a stay be granted to prevent such losses. - [ 5] On Security for due performance ol the decree, counsel contended that in granting an order of stay of exccution pending an appeal, the Court has to balance the need to uphold the respondent's right to be protected from the risk that thc appellant may not be ablc to satisfy the decree, with the appellant's right to access the courts. The Applicants have furnished security before this Llonourable Court, Kibuga Block 244 Plot 541 land at Kisugu, whose certilrcate of title is in thc custody ofthe Respondent. 20 25 - tl6] On balancc of probability, counsel submitted that the Respondent will not suf'lcr undue prejudicc by waiting forthe determination olthe appeal. As such,

8lPage - it is just and eq the Applicants. uitable that the stay be granted to prevent undue hardship to - [7] Counsel prayed that this applicat on should be granted.

## Submissions bv Counsel for tho Resrlondcnt

# Preliminary objection I ]

- 10 15 [ 8] Counsel raised a preliminary objpction on the grounds that there is no valid appeal before this Court as the I Appeal were filed out ol time. C were served on the Respondent c no basis in law and cannot be sur f.lotice of Appeal and the Memorandum ol lorn."l submitted that the same documents lut oi time. and as such, this application has Stained. Counscl argued that thc application contravenes Rule 6(2)(b), whicti requires that a Notice of appeal has to be lodged in accordance with Rule 76(2) of'thc Court of Appeal Rules, which requires the Noticc of Appcal be filed within 14 days lrom thc date of judgment. The dccrcc lrom whic this appcal emanates was issued on thc I 7th day of February 2023 and the No ice of appcal was filed on ECCMIS on 23rd March 2023 beyond thc 14-day ime limit. 20 - tl9] Counsel further argucd that the lv and contravenes Rule 83(l) and ( the memorandum ofappeal and r days from the date ofthe record c by the Registrar of the High Cou [emorandum of Appeal was filcd out of time [) or,n. Courr of Appeal Rules that requires f..o.d ol'upp"al to be filed within sixty (60) ff p.o.""ding, arc delivered to the Appcllant rt. Rule 88(l) olthe Court of Appcal Ilules requires the Appellant to serve the memorandum of appeal and record of appeal within seven days after lo dging thcm in thc registry. - [20] Counsel submitted that the ref AppellanV Applicant on 29th t 9lP.rge :ord ol proccedings was dclivcred to the arch 2023 and the memorandum of appeal

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ought to have been lodged on 29th May 2023. The Memorandum of appeal was, however, lllcd out oltime on 2l st June 2023 and uploaded on ECCMIS almost a year latcr on 6th February 2024. 'l'he memorandum of appeal and rccord ofappeal were scrved on the Respondent on 9th Aprll2024, more than two months out oltime. Counsel argued that based on the above, therc is no valid appeal bclorc this Court and this application therefore has no basis in law and ought to bc dismissed with costs. 10 5

### Prcliminary Obicction 2

- l2ll Counsel submitted that there is a pending application for a stay of exccution in the High Court (l ligh Court Misc. Application No.0502 of 2023) filed by the Applicants, which application ought to havc been disposed of before this application could be filcd and/ or entertained. Counsel cited Rule 42, stating that the application ought to have been filcd in the High Court first. Counsel citcd Lawrcnce Musiitwa Kyazze Vs Eunice Busingye, S. C. Civil Application No. I8 of 1990, where the Suprcme Court set out exceptional circumstances whcn thc applicant can scek thc intervention of the court at first instance. This court stated that if the I Iigh Court refuses to accept jurisdiction or refuses jurisdiction lor manifestly wrong reasons, or there is a great delay, this Court may intcrvcnc and accept jurisdiction in the interest of' justice. Counsel argued that the applicant has not demonstrated any exceptional circumstances for this court to entertain this application. - 1,221 Counsel submittcd that applications at thc I ligh Court were fixed by the High Court for hearing on lSth Septernber 2024 on which date the Applicant's lawyers did not proceed with the applications but instead withdrew interim stay of execution (Misc. Application No.625 of 2023) and requested that the underlying matter be relerred to mediation.

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## 'I'hc mcrits of thc application

- [23] Counsel submitted that the condi sct out in Musiitwa Lawrcncc Kyambogo University vs Prof. ons for the grant of a stay of execution were Kyazze vs Eunice Busingyc(supra) and saiah Omolo Ndicgc (supra). - 10 [24) On whether the appeal is frivolofs or vexatious, counsel submitted that the grounds intended to be raised in ]he aRReal are without basis in law and have no factual basis. Counsel prayed that this application should be dismissed on that basis. - 15 125) On whether the appeal will bc ,.f,a"r.a nugatory, counsel submitted that the applicants do not give any evidenfe to show thatthe appeal would be rendered nugatory if execution proceedsf Counsel argued that it is a well-settled principle ofthe law that personal fttachment cannot be considered as a ground for "irreparable damage" for prope(y that has been mortgaged to a financial lnstltutlon. - 126l 20 It was submitted for th" ,.rpon]"nt that there is nothing in the Applicant's application or affidavit in Suppoft thereof to demonstrate that the Applicants stand to suffer any substantial l[ss beyond what every judgment debtor is necessarily subjected to, and tllat cannot be atoned for by an award of damages. - lz7) 25 Counsel prayed that in the unli[<ely event that the Court grants a stay of execution, the Applicants be reduired to pay 100% ofthe decretal sum as security lor due perlormance of dhe decree.

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#### **Consideration of the Court.** $\mathsf{S}$

The jurisdiction of this Court to grant a stay of execution is provided in Rule $[28]$ $6(2)(b)$ of the Rules of this Court, which provides that;

### "Rule 6, Suspension of sentence and stay of execution

2) Subject to subrule (1) of this rule, the institution of an appeal shall not operate to suspend any sentence or to stay execution, but the court may—

(b)In any civil proceedings, where $a$ notice of appeal has been lodged in accordance with rule 76 of these Rules, order a stay of execution, an injunction, or a stay of proceedings on such terms as the court may think just.

#### 15 **Rule 76 Notice of appeal in civil appeals**

(1) Any person who desires to appeal to the court shall give notice in writing, which shall be lodged in duplicate with the registrar of the High Court

. *(2) Every notice under subrule (1) of this rule shall, subject to rules* 83 and 95 of these Rules, be lodged within fourteen days after the date of the decision against which it is desired to appeal.

(3) Every notice of appeal shall state whether it is intended to appeal against the whole or part only of the decision; and where it is intended to appeal against a part only of the decision, it shall specify the part complained of, state the address for service of the appellant and state the names and addresses of all persons intended to be *served with copies of the notice.*

$(4)$ When an appeal lies only with leave or on a certificate that a point of law of general public importance is involved, it shall not be necessary to obtain the leave or certificate before lodging the notice of appeal.

(5) A notice of appeal shall be substantially in Form $D$ in the First Schedule to these Rules and shall be signed by or on behalf of the appellant."

- [29] According to Rule $6(2)$ of the Rules of this Court, as long as the applicant has 10 filed the Notice of appeal in accordance with Rule 76 of the Rules of this Court, the Court can exercise its discretion to grant a stay of execution. Rule 76 is to the effect that whenever a party wants to appeal against any decision, the party should give notice in writing to the Registrar High Court within 14 days after the date of the decision. The Notice has to state whether the 15 appellant intends to appeal against the whole or part of the decision. The appellant is also required to state the address of service for the purpose of the appeal and the names and addresses of all persons intended to be served with the notice of the appeal. Where the appeal lies only with the leave of the court or certificate, it shall not be necessary for the party to be granted the leave or $20$ certificate before filing a Notice of appeal. - It was the contention of the respondent that the application was filed after the $[30]$ 14 days had elapsed. According to the record, the judgment was delivered on the 17th February 2023, the Notice of appeal was lodged in the registry on the 23rd March 2023, yet it ought to have been lodged by 14th March 2023. This is days after the 14 days had expired. I find that the applicant was at fault. Rule $76(2)$ is stated in mandatory terms. - I, however, do not agree with the submission of counsel for the respondent $[31]$ regarding the memorandum of appeal being filed and served out of time because it is not a requirement under Rule $6(2)$ of the Rules of this Court. The

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- 5 requirement is restricted to Rulc 76. As long as an applicant adheres to the provisions of Rule 76, thcn this Court can exercise its discretion to grant the application. - [32] On thc second preliminary objection, the main contention is that there is still a pending application for a stay ofexecution that has not been determined by the High Court. Counsel lor the respondent submitted that applications at the Fligh Court were fixed by the High Court for hearing on l8th September 2024 on which date the Applicant's lawyers did not proceed with the applications but instead withdrew interim stay of exeJution (Misc. Application No.625 of 2023) and requested that the underlylng matter be referred to mediation. The applicant chose not to proceed with the application for stay and was only re active when they were served with the Notice to show cause why the cxccution should not be eflccted. - [33] It is my opinion that thc applicants did not exhaust all the opportunitics accorded to them at the I Iigh Court. When the matter came up for hearing, the applicants resorted to mcdiation and did not pursue the application for stay. '['he applicants did not adduce any evidence to demonstrate that they tried to pursue that application and they were frustrated. 1-he Supreme Court in Lubcga & Another vs Ssinabulya & 2 others, Civil Application 10 of 2024, in handling such an application, dismissed the application lor stay on the grounds that there was still a pcnding application in the Court of Appeal. For those reasons, I uphold this preliminary objection - [34] I laving sustained the preliminary objections, I find no reason for considering the merits of this application. - [35] I would find that this application has no merit. It is hereby dismissed.

## **Decision**

The application is accordingly dismissed, with costs in the cause.

I so order.

Dated, signed and delivered at Kampala this .................................... 2025.

chi $\sqrt{2}$ **.....................................**

**C. GASHIRABAKE**

**JUSTICE OF APPEAL**

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