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M and D Timber Merchants and Transporters Limited v Hwan Sung Limited and Another (Civil Application 152 of 2023)

Court of Appeal · [2023] UGCA 166 · 2023 Application Granted ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application for an interim order to stay execution pending hearing of a substantive application for stay of execution
Decision
Interim order granted staying execution of the monetary aspect of the decree pending disposal of Civil Application No. 133 of 2023

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Holding

The court considered whether to grant an interim order staying execution pending a substantive stay application. Applying the three conditions in Hwan Sung Industries Ltd v Tajdin Hussein, the court found a competent notice of appeal, a pending substantive application (Civil Application No. 133 of 2023), and a serious threat of execution. Although vacant possession had already been obtained by partial execution, the monetary aspects of the decree (mesne profits, general damages and costs totalling over UGX 2.3 billion) remained unexecuted, so the application was not overtaken by events. An interim order was granted staying execution of the monetary aspect of the decree until disposal of the substantive application.

Facts

The applicant company was dissatisfied with the judgment in HCCS No. 409 of 2013, which favoured the respondents. It filed Civil Appeal No. 0559 of 2022 and a substantive stay application (Civil Application No. 133 of 2023). The respondents commenced execution, serving a notice of eviction dated 15 September 2022 and obtaining a warrant for vacant possession, which was effected. The applicant's High Court stay application was dismissed. The decree included orders for UGX 2,000,000,000 as mesne profits, UGX 300,000,000 as general damages and taxed costs of UGX 399,921,420. The respondents had applied to execute for these monetary sums. The applicant sought an interim order to stay execution of the monetary aspect, contending it would suffer substantial loss given heavy investment in the land. The respondents argued the application was overtaken by events because they had obtained full possession and lacked knowledge of attachable assets; the applicant disclosed assets during the proceedings.

Issues

  1. Whether there is a competent notice of appeal filed in court.
  2. Whether there is a substantive application for stay of execution pending before the court.
  3. Whether there is a serious threat of execution, including whether the application was overtaken by events by reason of partial execution.
  4. Whether the court has jurisdiction to grant an interim order staying execution of the monetary aspects of a decree where partial execution for vacant possession has already occurred.

Orders

  • An interim order is granted to stay execution of the monetary aspect of the decree granted to the respondents in HCCS No. 409 of 2013.
  • The order shall remain in force until final hearing and disposal of Application No. 133 of 2023.
  • The costs shall be in the cause.

Key headnotes

Civil Procedure — Interim Order for Stay of Execution — Conditions to be Satisfied
An applicant for an interim order for stay of execution must satisfy the court that there is a competent notice of appeal filed in court, a substantive application for stay of execution pending, and a serious threat of execution.
Civil Procedure — Notice of Appeal — Proof of Lodgement
Where proof of filing an appeal is not furnished but the appeal has been assigned a reference number in court and the opposing party does not rebut its existence, the reference number attests to the lodgement of the notice of appeal, which is the bare minimum required for an interim stay application.
Civil Procedure — Stay of Execution — Application Overtaken by Events — Partial Execution
An application for an interim order to stay execution is not overtaken by events where execution has only been partly effected; the court retains jurisdiction to stay execution of the unexecuted monetary aspects of a decree even after vacant possession has been obtained.
Civil Procedure — Serious Threat of Execution — Burden of Proof
A serious threat of execution is established where execution has already been levied and the decree holder has applied to recover the monetary sums; a bare assertion that there are no attachable assets, unsupported by evidence and contradicted by disclosed assets, does not negate that threat.

Legislation cited (6)

  • Civil Procedure Act s.98
  • Judicature (Court of Appeal Rules) Directions, SI 13-10 r.2(2)
  • Judicature (Court of Appeal Rules) Directions, SI 13-10 r.6(2)(b)
  • Judicature (Court of Appeal Rules) Directions, SI 13-10 r.42
  • Judicature (Court of Appeal Rules) Directions, SI 13-10 r.43
  • Judicature (Court of Appeal Rules) Directions, SI 13-10 r.44

Cases cited (5)

  • Luwalira Noah Deogratius and Another v Lwanga Enock and Another (Civil Application No. 201 of 2021)
  • Kwesiga and 2 Others v Senyonga and 2 Others (Civil Appeal No. 43 of 2021)
  • Kasolo Robins Ellis v Julius Joseph Delahatje Geertruda (Civil Application No. 004 of 2023)
  • Kampala Financial Services Ltd and Another v Hussein Muhamad (Civil Application No. 146 of 2021)
  • Hwan Sung Industries Ltd v Tajdin Hussein and 2 Others (Civil Application No. 19 of 2008)
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.