Lubuuka v Nsobya (Misc Application No. 358 of 2016)

The full judgment

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Holding

The Court granted an interim order staying execution of the exparte decrees in Civil Suit No. 95 of 2011 pending determination of the substantive application for stay of execution. Applying Hwang Sung Industries Ltd v Tajdin Hussein, the Court held that for an interim stay it suffices to show that a substantive application is pending and that there is a serious threat of execution before its hearing. A pending substantive application existed, and the applicant's arrest and payment of Shs 5 million demonstrated a real and imminent threat of execution. The respondent's failure to file an affidavit in reply left the applicant's averments uncontroverted and taken as accepted.

Facts

The respondent instituted Civil Suit No. 95 of 2011 in the High Court at Nakawa and obtained an exparte judgment and decree. The applicant filed Misc. Application No. 611 of 2015 to set aside the exparte judgment and decree, which was dismissed. Dissatisfied, the applicant lodged a notice of appeal in the Court of Appeal. The respondent obtained a warrant of arrest in execution of the decree, and the applicant was arrested and had to pay Shs 5 million to be released. The applicant filed Misc. Application No. 357 of 2016 for stay of execution pending appeal, which had not been fixed for hearing. He then brought the present application for an interim order staying execution pending determination of that substantive application, contending there was an imminent threat of execution and that execution would render the appeal nugatory. The respondent did not file an affidavit in reply and appeared in person, stating there was no reason for the application.

Issues

1. Whether the applicant satisfied the conditions for the grant of an interim order of stay of execution pending determination of the substantive application for stay of execution.

Orders

• An interim order is granted staying execution of the exparte decrees in Civil Suit No. 95 of 2011 until the final hearing and determination of the substantive application for stay of execution pending in this Court.
• The costs of this application to abide the outcome of the substantive application pending before this Court.

Key headnotes

Legislation cited (5)

• Judicature (Court of Appeal Rules) Directions S.I. 13-10 r.2(2)
• Judicature (Court of Appeal Rules) Directions S.I. 13-10 r.6(2)(b)
• Judicature (Court of Appeal Rules) Directions S.I. 13-10 r.42(2)
• Judicature (Court of Appeal Rules) Directions S.I. 13-10 r.43
• Judicature (Court of Appeal Rules) Directions S.I. 13-10 r.53

Cases cited (2)

• Hwang Sung Industries Ltd v Tajdin Hussein and 2 Others (Civil Application No. 19 of 2008)
• Gandesha and Another v G. J. Lutaaya (Civil Appeal No. 14 of 1989)