[2024] UGCommC 85

## THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT KAMPALA (COMMERCIAL DIVISION)

# **MISCELLANEOUS APPLICATION NO. 0170 OF 2024** (ARISING FROM MISCELLANEOUS APPEAL NO. 0018 OF 2023) (ARISING FROM MISCELLANEOUS APPLICATION NO. 0690 OF 2023) ALL ARISING FROM CIVIL SUIT NO. 0393 OF 2023

:::::::::::::::::::::::::::::::::::::: **NADIA MANJI** (SUING THROUGH HER LAWFUL ATTORNEY PAUL AKOL)

#### **VERSUS**

1. I&M BANK UGANDA LTD 2. FONTANA AUTO PARTS (U) LTD :::::::::::::::::::::::::::::::::::

(Before: Hon. Justice Patricia Mutesi)

#### **RULING**

### **Background**

This application is brought under Section 33 of the Judicature Act Cap 13, Section 98 of the Civil Procedure Act Cap 71 and Order 51 rule 6 and Order 52 rules 1 and 3 of the Civil Procedure Rules S. I. 71-1 seeking orders that:

- 1. The time for depositing USD 865,235.21 being 30% of USD 2,884,117.35 which is the outstanding amount on the loans set out in the 2 notices of default dated 22^nd May 2023 and 23^rd May 2023 be extended. - 2. The orders to deposit the 30% of the outstanding loan amount of USD 2,884,117.35 within 45 days from the date of the ruling of this Court in Misc. Appeal No. 0018 of 2023 be varied and the applicant be directed to deposit the same in 10 monthly instalments from the date of determining this application. - 3. The advertisement of the notice of sale by public auction published in the Daily Monitor newspaper of 18^th January 2024 be withdrawn pending the determination of the main suit. - 4. The costs of this application be provided for.

Briefly, the grounds of this application are that:

- 1. The applicant is the plaintiff in Civil Suit No. 0393 of 2023 (hereinafter "the main suit") in which she seeks nullification of loans processed by the 2^nd respondent from the 1^st respondent. - 2. The applicant filed Misc. Application No. 0690 of 2023 for a temporary injunction against the 1^st respondent. This application was determined in her favour on 21^st July 2023. - 3. The 1^st respondent was dissatisfied with the issuance of the injunction and filed Misc. Appeal No. 0018 of 2023 contesting it. - 4. After the Court heard Misc. Appeal No. 0018 of 2023, it told the parties that the ruling would be delivered on notice. The applicant's lawyers kept on telling her that the ruling had not been delivered. - 5. On 20^th January 2023, the applicant learnt that the 1^st respondent had advertised the suit properties for sale and that the ruling in the appeal had been delivered with an order directing her to deposit 30% of the outstanding loan amount as a condition for the temporary injunction. - 6. The applicant will find it difficult to deposit the said 30% at once in the current economy recovering from COVID-19 effects. - 7. Since this dispute involves immoveable property, the impending sale will greatly prejudice the applicant. - 8. The applicant has acted without unnecessary delay in this application. - 9. It is just and equitable that this application is allowed.

The application is supported by affidavits sworn by the applicant and her lawful Attorney. In her affidavit, the applicant stated on 12^th December 2022, she was served with a notice of default for loan facilities taken by the 2^nd respondent from the 1^st respondent. She discovered that her signatures to the facility letters had been forged and she filed the main suit contesting the facilities. She also filed a temporary injunction application which was allowed. The 1^st respondent was unhappy with that decision and appealed it.

The applicant also stated that the Court heard the appeal and directed that the ruling would be delivered on notice. She followed up with her former lawyers many times but they told her that the ruling had not yet been delivered. She was shocked to learn on 20^th January 2024 that the 1^st respondent had advertised the suit properties for sale on 18^th January 2024. She also learnt that the ruling in Misc. Appeal No. 0018 of 2023 had already been delivered requiring her to deposit 30% of the outstanding loan balance within 45 days thereafter as a condition for the temporary injunction. Although these days have since lapsed, she is willing and able to make the deposit in 10 monthly instalments.

In his affidavit, the applicant's lawful Attorney told the Court that the applicant appointed him to prosecute the main suit and other related matters because she lives outside Uganda. The applicant filed Misc. Application No. 0690 of 2023 and obtained an injunction restraining the 1st respondent from enforcing the security under the contested loans until the disposal of the main suit. The 1^st respondent contested that decision vide Misc. Appeal No. 0018 of 2023. After hearing that appeal, the Court told the parties that it would deliver the ruling on notice. He kept inquiring about the ruling from the applicant's former lawyers who always assured him that the ruling had not been delivered.

The applicant's lawful Attorney stated that on 18th January 2024, the loan security was advertised for sale. He later learnt that the ruling in the appeal had been delivered on 30th November 2023 and that it had required the applicant to deposit 30% of the outstanding loan amount within 45 days thereafter. He confirmed that although these days have already lapsed, the applicant is still willing to make the deposit. He also filed a supplementary affidavit forwarding a letter from the applicant's former lawyers explaining why they were unable to advise the applicant to comply with the Court's orders in time.

The 1^st respondent opposed the application through 2 affidavits in reply. The 1^st affidavit was sworn by Charles Kiirya, the 1st respondent's Head of Credit. He confirmed that temporary injunction was initially issued, the 1^st respondent was aggrieved since the applicant had not been ordered to pay 30% of the loan balance. The 1^st respondent appealed the decision. In deciding the appeal, the Court conditioned the temporary injunction on prior deposit of 30% of the loan balance within 45 days from its date. That period lapsed on 15^th January 2024 when the deposit had not been made.

The 2^nd affidavit in reply was sworn by Timothy Akampurira, an advocate of the High Court employed by the 1^st respondent's lawyers. He clarified that the applicant's former lawyers were linked to Misc. Appeal No. 0018 of 2023 on ECCMIS and that, because of this, he believes that they received all the ECCMIS notifications on the case. Mr. Akampurira also stated that the applicant was supposed to file an appeal if she was aggrieved with the ruling in Misc. Appeal No. 0018 of 2023. The 2^nd respondent did not file an affidavit in reply.

#### **Issues arising**

- 1. Whether this application is competent. - 2. Whether the time prescribed by court in ML 0018 of 2023 for depositing - 30% of the outstanding loan balance, should be extended. 3. Whether the orders in Misc. Appeal No. 0018 of 2023 should be varied. - 4. What reliefs are available to the parties.

## **Representation and hearing**

At the hearing, the applicant was represented by Mr. Akineeza Augustine of M/S MNA Advocates while the 1^st respondent was represented by Mr. Frederick Mpanga and Mr. Emmanuel Wasswa of M/S AF Mpanga Advocates. Mr. John Paul Kyeyune appeared for the $2^{nd}$ respondent. I have considered the materials on record, the submissions of the parties and the laws and authorities cited.

## Determination of the issues

# Issue 1: Whether this application is competent.

Counsel for the 1^st respondent attacked the competence of the application. They argued that this application is improper because it is asking the Court to sit in appeal and reopen its decision in Misc. Appeal No. 0018 of 2023. Counsel cited Mulla's "The Code of Civil Procedure", 16th Edition, revised by Solil Paul and Anupam Srivastava, at page 1391, where the learned author opined that courts are only empowered to extend time for complying with their orders where such orders are not final. Counsel argued that this application is incompetent because it seeks the variation of the final orders in Misc. Appeal No. 0018 of 2023.

In reply, counsel for the applicant emphasised Section 96 of the Civil Procedure Act which generally empowers courts to extend time for good cause. He submitted that there is good cause for the extension of time for compliance with the orders in Misc. Appeal No. 0018 of 2023 since the applicant was a victim of his former lawyers' mistake of not following up the delivery of the ruling with the Court. Counsel maintained that this application is competent and that the Court has the power to grant the orders sought.

While it is true that courts have wide discretion to grant any and all reliefs which may be necessary to ensure that the ends of justice are not defeated, that discretion must be exercised in accordance with the law. Judicial discretion does not provide a license to a judge to merely act as he or she chooses. It is now a settled position of the law that judicial discretion must always be balanced with judicial accountability and, thus, exercised judiciously. (See Attorney General v Gladys Nakibuule Kisekka, SC Constitutional Appeal No. 02 of 2016.)

In civil proceedings, the post-judgment remedies for an aggrieved party are wellknown. These are appeal, review and revision. There are well-defined rules governing each of these courses of action. A court's power to revisit and vary its own final decisions is strictly governed and guarded in view of the need to ensure the finality of litigation which is one of the cornerstones of our civil litigation system. A court of law cannot simply revisit and vary its decisions as it wishes. That power must be used sparingly within the prescribed procedures and for the prescribed reasons since it affects the merits of the court's decision.

Having fully considered the application, I agree with the 1^st respondent. The application does not conform to any of the known forms of post-judgment reliefs and courses of action for a party aggrieved by a court decision. I note that the application is asking the Court to not only extend the time it prescribed in Misc. Appeal No. 0018 of 2023 for depositing 30% of the outstanding loan balance as a bullet payment, but it is also asking the Court to reconsider its decision to order that that sum ought to be made as a bullet payment. The applicant claims that the Court's decision in Misc. Appeal No. 0018 of 2023 is unfair to her due to her economic circumstances and that the Court should now alter its position and allow her to make the deposit through 10 monthly instalments.

The Court is convinced that the orders sought in this application are dead on arrival because it is no longer seized with the matter concerning the terms, if any, on which the temporary injunction must be contingent. After the Court delivered its ruling in Misc. Appeal No. 0018 of 2023, any grievance which the applicant had with the ruling could only have been presented to this Court through a review application or to the Court of Appeal through an appeal.

In any case, it is trite law that a conditional court order has a limited lifespan until the satisfaction of the condition precedent. If the condition is not satisfied before the specified time, the relief does not vest. The failure to perform the condition precedent extinguishes the relief and discharges the order. (See the case of Nakato Margaret v Housing Finance Bank Ltd, Misc. Application No. 1800 of 2021.) Relating this to the instant case, it is evident that the temporary injunction issued by this Court in Misc. Appeal No. 0018 of 2023 did not vest because the condition precedent to it was not satisfied.

The applicant's failure to comply with the condition precedent extinguished and discharged the temporary injunction. When this application was filed, the temporary injunction no longer existed. The Court cannot, in law, extend time for the performance of a condition precedent to a temporary injunction when both the injunction and that condition no longer exist. Similarly, the Court cannot, in law, vary the terms of a condition precedent to a temporary injunction when both the injunction and that condition have been extinguished and discharged. From the date of the filing of this application, there was already nothing to vary or extend and the application suffered a still birth.

For above two reasons, the Court finds that this application is not competent. On the basis of that finding, it is not necessary to delve into the merits of the remaining issues as framed above. Consequently, I make the following orders:

- This application is hereby struck off the Court record. $\mathbf{L}$ - Costs of this application are awarded to the 1^st respondent. ii.

**Patricia Mutesi** JUDGE $(16/02/2024)$