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Catherine Cliff v Ssempebwa (Miscellaneous Application 168 of 2016)

Court of Appeal · [2016] UGCA 106 · 2016 Application Granted ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application before a single Justice of the Court of Appeal for an interim order of injunction to stay re-entry, pending disposal of a substantive application and civil appeal.
Decision
Interim order granted staying implementation of the re-entry ruling and restraining the respondent from interfering with the applicant's possession pending disposal of the substantive application and appeal.

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Holding

A single Justice of the Court of Appeal held that hearing the application during Court vacation without a certificate of urgency did not nullify the proceedings, the relevant rule being directory not mandatory. The court found the applicant could appeal as of right against a decision on temporary injunctions, so the appeal was not frivolous. Since a substantive application and civil appeal had been lodged challenging the High Court ruling that re-entry was a completed legal act, the ends of justice required preserving the subject matter. The court stayed implementation of that ruling, restrained the respondent from interfering with the applicant's possession, and ordered the application and appeal be heard together.

Facts

The respondent is the registered proprietor of the mailo interest in Kyadondo Block 261 Plot 59 at Lukuli, on which the United States Government had set up the recreational "American Club-Makindye" under a lease from the respondent's predecessor-in-title. In 2013 the respondent consented to transfer of the leasehold interest to the applicant, who was registered as leasehold proprietor on 10 June 2014, and continued to operate recreational activities, engaging Makindye Country Club Limited to manage the business. The respondent alleged the applicant breached the lease by sub-letting and operating commercial hotel services, and took steps to re-enter. The applicant filed HCCS No. 38 of 2015 challenging the re-entry and sought interim and temporary injunctions. On 23 May 2016 the High Court (Luswata, J) disallowed Miscellaneous Application No. 143 of 2015, holding that the re-entry had already been achieved. The applicant appealed and sought this interim order.

Issues

  1. Whether hearing the application during Court vacation, without a certificate of urgency, nullified the proceedings.
  2. Whether the absence of leave to appeal meant the applicant had no valid appeal and thus no prima facie case for an interim order.
  3. Whether an interim order should be granted to stay re-entry and preserve the applicant's possession pending disposal of the substantive application and appeal.

Orders

  • Application allowed.
  • Implementation of the High Court ruling that re-entry was a completed legal act is stayed.
  • Pending disposal of Miscellaneous Application No. 167 of 2016 and/or Civil Appeal No. 185 of 2016, the applicant is to remain in possession, occupation and use of the suit property in compliance with the lease terms.
  • The respondent is restrained from interfering with the applicant's possession, occupation and use of the property until disposal of the said application and/or appeal.
  • Both the substantive application and the appeal to be fixed for hearing at the same time.
  • Costs of the application to abide the outcome of Miscellaneous Application No. 167 of 2016 and/or Civil Appeal No. 185 of 2016.

Key headnotes

Court Procedure — Hearing During Vacation — Certificate of Urgency
The rule prohibiting conduct of business during Court vacation absent a certificate of urgency is directory and not mandatory, so non-compliance does not render the proceedings a nullity; the court may also entertain urgent matters during vacation under its inherent powers.
Interim Orders — Conditions for Grant — Pending Substantive Application or Appeal
An interim order may be granted where the applicant shows that a substantive application or appeal is pending and there is a serious threat of execution before its determination, without pre-empting consideration of the matters relevant to the substantive application.
Right of Appeal — Decisions on Temporary Injunctions — Leave to Appeal
An applicant may appeal as of right to the Court of Appeal against a decision on temporary injunctions and related interlocutory orders, and the absence of leave to appeal does not by itself defeat a prima facie case for an interim order.
Interlocutory Injunctions — Preserving Subject Matter — Balance of Risk of Injustice
Where the grant or refusal of an interlocutory injunction would have the practical effect of ending the pending suit, the court should act on the broad principle of avoiding injustice and balancing the risk of injustice to either party, and may grant an interim order to preserve the subject matter of the suit.

Legislation cited (3)

  • Rules of the Court of Appeal r.21(2)
  • Rules of the Court of Appeal r.48
  • Civil Procedure Rules O.44 r.1

Cases cited (5)

  • Hwang Sung Industries Ltd v Tajdin Hussein (Civil Application No. 19 of 2008)
  • Cayne v Global Natural Resources Plc [1984] 1 All ER 225
  • National Enterprise Corporation v Mukisa Foods (Miscellaneous Application No. 7 of 1998)
  • Commissioner Customs, URA v Kayumba Emile Ogane (Civil Application No. 62 of 2014)
  • Hope Bahimbisomwe v Julius Rwabinubi (Civil Application (Reference) No. 4 of 2009)
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.