Mpinga and Others v Sensarire and Others (Civil Application No. 35 of 1999)

Court of Appeal · [1999] UGCA 82 · 1999 Application Granted ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Application by notice of motion for stay of execution/demolition pending appeal, amended at hearing to seek an injunction

Decision

Injunction and stay of execution granted pending disposal of the appeal

The full judgment

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Holding

The Court of Appeal allowed the application and granted an injunction restraining the respondents from further developing the suit property, plus a stay of execution pending appeal. The court accepted an informal oral amendment of the notice of motion (from stay to injunction) because the change was forced on the applicants by the 5th respondent's malicious demolition of the disputed building. It held the application competent under rule 5(2)(a), since rule 75 does not govern service of the notice of appeal (that being rule 77's domain). Applying Wilson v Church, the court held it must prevent the appeal from being rendered nugatory and would not allow the respondent to benefit from his illegal act.

Facts

The applicants filed HCCS No. 432 of 1989 against the respondents over mailo property at Mengo/Ndeba Estate, Kampala, which included a commercial building. The suit was decided in favour of the respondents: the court declared the 5th defendant the bona fide purchaser, found the applicants had no leasehold interest, and ordered the 5th defendant to pay shs. 4,000,000 compensation to the applicants as customary owners of the commercial building. The applicants lodged a notice of appeal and applied for a stay of execution/demolition to prevent the 5th respondent demolishing the building. Between 24th and 31st August 1999, before the application could be heard, the 5th respondent demolished the building, claiming to be developing his land under an approved plan. At the hearing, applicants' counsel sought to amend the application to seek an injunction against further interference with the property, the demolition having rendered the stay-of-demolition prayer redundant.

Issues

Whether an informal oral application to amend the notice of motion (from stay of execution to injunction) could be entertained where circumstances were forced on the applicants by the respondent's conduct.
Whether the application was incompetent for want of a competent appeal due to late service of the notice of appeal.
Whether the applicants had made out a case to justify the court exercising its discretion to grant a stay of execution or injunction pending appeal.

Orders

Application allowed.
Order of injunction granted stopping the respondents from further developments of the suit property.
Stay of execution granted generally until disposal of the appeal.
Costs of the application awarded to the applicants.

Key headnotes

Court of Appeal — Inherent Powers — Amendment of Application by Informal Oral Motion

Under rule 1(3) of the Rules of the Court of Appeal, the court may accept an informal oral application to amend a notice of motion where the need to amend was forced on the applicant by the opposing party's conduct, since such amendment attains the ends of justice and prevents abuse of process without altering the nature of the original motion.

Court of Appeal — Competence of Application — Service of Notice of Appeal under Rules 75 and 77

An application for stay or injunction under rule 5(2) of the Rules of the Court of Appeal is not rendered incompetent by late service of the notice of appeal, because rule 75 (referenced in rule 5(2)) does not deal with service on parties; service is governed by rule 77, so the proceedings remain competent under rule 5(2)(a).

Stay of Execution and Injunction Pending Appeal — Preventing the Appeal from Being Rendered Nugatory

Where a court of first instance is exercising appellate or original jurisdiction, the appellate court has a duty in ordinary cases to make such orders staying proceedings as will prevent the appeal, if successful, from being rendered nugatory; this discretion under rule 5(2)(b) is wide and not restricted by Order 39 rule 4 of the Civil Procedure Rules.

Injunction Pending Appeal — Party Not Permitted to Benefit from Own Illegal Act

A litigant who unlawfully destroys the subject matter of a dispute to defeat the ends of justice will not be permitted to benefit from that illegal act by proceeding to develop land that remains the subject of an appeal; an injunction will issue to preserve the status quo.

Legislation cited (6)

Rules of the Court of Appeal r.1(3)
Rules of the Court of Appeal r.5(2)(b)
Rules of the Court of Appeal r.5(2)(a)
Rules of the Court of Appeal r.75
Rules of the Court of Appeal r.77
Civil Procedure Rules O.39 r.4

Cases cited (3)

Tumaini Mhajjilla Kwajus -vs- Busirivu S.C.C. Appl No.18/1990 (unreported)
Wilson -vs- Church (No. 2) (1879) 12 CHLR 455
Somalia Democratic Republic -vs- Anoop Sunderfal Trego No.11 of 1988

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.