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Binwomukama and Another v Uganda Wildlife Authority (Civil Application 13 of 2019)

Court of Appeal · [2020] UGCA 2153 · 2020 Application Partly Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application for an interim order of stay of execution pending disposal of a substantive application for stay of execution
Decision
Conditional interim order of stay of execution granted on terms, including restraint on title cancellation and a deferred obligation to pay open market rent

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Holding

The single judge held that an applicant for an interim order of stay of execution must satisfy three conditions: a competent notice of appeal, a pending substantive application, and a serious threat of execution. The applicants satisfied all three, but the grant remained discretionary. The court found their bare claim of irreparable loss inadequate, since loss of physical possession does not by itself prejudice the pursuit of an appeal, and the adjudicated owner had been kept out of its rights for over seven years. The court granted a conditional interim order restraining cancellation of titles and eviction until 30 April 2020, after which the applicants must pay open market rent to remain in possession.

Facts

The applicants held leasehold titles to two plots on Tibaitwa Road obtained from the Uganda Land Commission, which had held the legal title in trust for the respondent's predecessor, the Games Department. The applicants sued the respondent for trespass in the Chief Magistrate's Court of Fort Portal, obtained judgment and an eviction order, and took possession after evicting the respondent's employees. On appeal, the High Court in 2013 declared the applicants' titles null and void as acquired contrary to natural justice, vested the properties in the respondent and ordered cancellation of the titles. The Court of Appeal upheld that decision in October 2018. The applicants filed a notice of appeal to the Supreme Court, an application for a certificate of importance out of time (Civil Application No. 11 of 2019) and a substantive application for stay (Civil Application No. 12 of 2019). When the Registrar of Titles issued letters requiring delivery of the titles for cancellation within 21 days, the applicants sought this interim order of stay pending disposal of the substantive 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.
  2. Whether the court should exercise its discretion to grant the interim order where the applicants alleged only that they faced eviction.

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 transaction on the register prejudicing the respondent's rights until disposal of Civil Application No. 12 of 2019 or further orders.
  • The respondent is restrained from evicting the applicants for the period ending 30.04.2020, during which the applicants may find alternative accommodation and voluntarily vacate.
  • After 30.04.2020 the applicants may continue staying only upon paying the respondent open market rent established by the Chief Government Valuer at the applicants' cost.
  • Open market rent shall be paid in instalments of three months in advance, effective from 01.05.2020, until determination of Civil Application No. 12 of 2019 or further orders.
  • 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 and take possession at the applicants' cost after 01.05.2020.
  • The cost of this application shall abide the outcome of the substantive application unless otherwise stated.
  • The interim order shall stay in force until disposal of the substantive application or further orders.
  • The Registrar is urged to fix hearing dates of Civil Application No. 12 of 2019 and Civil Application No. 11 of 2019 at the earliest possible time.

Key headnotes

Civil Procedure — Interim Order of Stay of Execution — Preconditions
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, and a serious threat of execution.
Civil Procedure — Stay of Execution — Discretion of the Court
Even where the conditions for an interim order are satisfied, the grant remains discretionary, and the court must balance the applicant's right to be heard against the judgment creditor's right to enjoy the fruits of successful litigation.
Civil Procedure — Stay of Execution — Irreparable Loss — Loss of Possession
A party seeking a stay must show that execution may cause irreparable loss; loss of physical possession of premises does not by itself prejudice the pursuit of a right of appeal and is therefore insufficient, absent further particulars, to warrant a stay.
Civil Procedure — Single Justice — Power to Issue Interim Orders Pending Full Bench Decision
Where the decision sought to be stayed was made by a full bench, only a full bench can stay it; pending disposal of the substantive application a single justice may issue interim orders as may be necessary for attaining the ends of justice under rule 2(2) of the Judicature (Supreme Court) Rules.

Legislation cited (9)

  • Court of Appeal Rules r.2
  • Court of Appeal Rules r.6(2)
  • Court of Appeal Rules r.42
  • Judicature (Supreme Court) Rules S.I. 13-11 r.2(1)
  • Judicature (Supreme Court) Rules S.I. 13-11 r.2(2)
  • Judicature (Supreme Court) Rules S.I. 13-11 r.3
  • Judicature (Supreme Court) Rules S.I. 13-11 r.39(1)(a)
  • Judicature (Supreme Court) Rules S.I. 13-11 r.72(2)
  • Judicature (Supreme Court) Rules S.I. 13-11 r.72(4)

Cases cited (7)

  • Lawrence Musiitwa Kyazze v Eunice Businge (Civil Appeal No. 18 of 1990)
  • Hwang Sung Industries Limited v Taidin Hussein and Others (Civil Application No. 19 of 2008)
  • Theodore Ssekikuubo and Others v Attorney General and Others (Constitutional Application No. 4 of 2014)
  • Yakobo Senkungu and Others v Cerenci Mukasa (Civil Application No. 5 of 2013)
  • Commissioner Customs, Uganda Revenue Authority v Kirenga Fred (Civil Application No. 91 of 2014)
  • Zubeda Mohamed and Another v Laila Kaka Wallia and Another (Civil Reference No. 7 of 2016)
  • Wilson Mukiibi v James Ssemusamba (Civil Application No. 8 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.