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Bwinomukama & Another v Uganda Wildlife Authority (Civil Application No. 13 of 2019)

Court of Appeal · [2020] UGCA 2023 · 2020 Application Partly Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application by notice of motion for an interim order of stay of execution pending disposal of the substantive application for stay of execution
Decision
Conditional interim order granted restraining implementation of the decree and eviction until 30 April 2020, with continued occupation thereafter conditioned on payment of market rent

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Holding

A single Justice held that the applicants satisfied the three conditions for an interim order of stay of execution: a competent notice of appeal, a pending substantive application for stay, and a serious threat of execution. However, grant remains discretionary even where the conditions are met, requiring a balance between the applicants' right to be heard on appeal and the judgment creditor's right to enjoy the fruits of litigation. The applicants failed to particularise irreparable loss, and threatened eviction alone was insufficient. The court granted a conditional interim order restraining cancellation of titles and eviction until 30 April 2020, after which continued occupation required payment of market rent.

Facts

The applicants held leasehold titles to two plots on Tibaitwa Road obtained from the Uganda Land Commission, which had held the land in trust for the respondent's predecessor, the Games Department. The applicants sued the respondent for trespass in the Chief Magistrate's Court, obtained judgment and an eviction order, and took possession. On the respondent's appeal, the High Court declared the applicants' titles null and void, vested the properties in the respondent, and ordered re-registration. The Court of Appeal upheld that judgment in Civil Appeal No. 1 of 2014 on 25 October 2018. The applicants filed a notice of appeal to the Supreme Court, an application for leave to apply for a certificate of importance out of time, and a substantive application for stay of execution. When the Registrar of Titles issued letters requiring delivery of the certificates of title for cancellation within 21 days, the applicants filed this application for an interim order to preserve the status quo pending disposal of the substantive stay application.

Issues

  1. Whether the applicants satisfied the conditions for the grant of an interim order of stay of execution pending disposal of the substantive application for stay of execution.
  2. Whether, having satisfied the conditions, the court should exercise its discretion to grant the interim order on the terms sought.

Orders

  • The Commissioner of Land Registration is restrained from implementing the decision in Civil Appeal No. 1 of 2014 until disposal of Civil Application No. 12 of 2019 or further orders.
  • The applicants and the Commissioner of Land Registration are restrained from effecting any prejudicial transaction on the register until disposal of Civil Application No. 12 of 2019 or further orders.
  • The respondent is restrained from evicting the applicants until 30 April 2020 to allow them to find alternative accommodation.
  • After 30 April 2020, the applicants may continue staying only upon paying open market rent established by the Chief Government Valuer at their cost.
  • Rent shall be paid in installments of three months in advance effective 1 May 2020 until determination of the substantive application.
  • The respondent shall refund all rent received if its title is overturned by a superior court.
  • If the applicants fail to meet the rent terms, the respondent may evict them after 1 May 2020 at the applicants' cost.
  • Costs of this application shall abide the outcome of the substantive application unless otherwise stated.
  • The Registrar is urged to fix hearing dates for Civil Applications No. 12 of 2019 and No. 11 of 2019 at the earliest time.

Key headnotes

Civil Procedure — Interim Order of Stay of Execution — Conditions for Grant
To justify the grant of an interim order of stay of execution an applicant must satisfy three conditions: a competent notice of appeal, a pending substantive application for stay of execution, and a serious threat of execution.
Civil Procedure — Stay of Execution — Judicial Discretion Despite Satisfaction of Conditions
Even where an applicant proves the conditions for an interim order, the grant remains discretionary, and the court must balance the applicant's right to be heard on appeal against the judgment creditor's right to enjoy the fruits of its litigation.
Civil Procedure — Stay of Execution — Proof of Irreparable Loss
A party seeking a stay must show sufficient cause for the successful party to postpone enjoyment of its benefits; mere assertion of substantial or irreparable loss without particulars, and the prospect of eviction alone, are insufficient where loss of physical possession does not by itself prejudice the pursuit of an intended appeal.
Civil Procedure — Conditional Stay — Protection of Adjudicated Owner's Rights
Where a stay is granted to a party in continued possession of property whose title has been adjudicated to belong to another, the court may impose conditions, such as payment of open market rent pending disposal of the appeal, to avoid unduly prejudicing the adjudicated owner's right to rent or mesne profits.

Legislation cited (10)

  • Court of Appeal Rules r.2
  • Court of Appeal Rules r.6(2)
  • Court of Appeal Rules r.42
  • Civil Procedure Act s.98
  • Judicature (Supreme Court) Rules r.2(1)
  • Judicature (Supreme Court) Rules r.2(2)
  • Judicature (Supreme Court) Rules r.3
  • Judicature (Supreme Court) Rules r.39(1)(a)
  • Judicature (Supreme Court) Rules r.72(2)
  • Judicature (Supreme Court) Rules r.72(4)

Cases cited (7)

  • Lawrence Musiitwa Kyazze v Eunice Busingye (Civil Appeal No. 18 of 1990)
  • Hwang Sung Industries Limited v Tajdin Hussein & Others (Civil Application No. 19 of 2008)
  • Theodore Ssekikuubo & Others v Attorney General & Others (Constitutional Application No. 4 of 2014)
  • Yakobo Senkungu & Others v Cerencio Mukasa (Civil Application No. 5 of 2013)
  • Commissioner Customs, Uganda Revenue Authority v Kirenga Fred (Civil Application No. 91 of 2014)
  • Zubeda Mohamed & Another v Laila Kaka Wallia & Another (Civil Reference No. 7 of 2016)
  • Wilson Mukiibi v James Ssemusamba (Civil Application No. 9 of 2003)
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.