Serere District Local Government v Omiat (Civil Application 292 of 2024)

Court of Appeal · [2024] UGCA 314 · 2024 Application Dismissed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Application for stay of execution of a High Court judgment pending the hearing of a Court of Appeal civil appeal

Decision

Application for stay of execution dismissed with costs; a conservatory order issued restraining the respondent from dealing with the suit land pending the appeal

The full judgment

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Holding

On an application to stay execution of a High Court judgment pending appeal, the court reaffirmed that an applicant must show an arguable appeal, irreparable loss or that the appeal would otherwise be rendered nugatory, and, in doubt, that the balance of convenience favours a stay. The court found the appeal arguable but held that the applicant failed to establish irreparable harm, having shown no evidence of actual use of, or quantifiable loss from, the suit land, and noting that an eviction order is not self-executing. The stay application was accordingly dismissed with costs, but a conservatory order issued restraining the respondent from dealing with the suit land pending the appeal.

Facts

The applicant, Serere District Local Government, was dissatisfied with a High Court judgment in Civil Suit No. 010 of 2016, in which it was decreed a trespasser and permanently restrained from continuing on 150 acres of customary land, with an eviction order issued against it. The applicant lodged a notice of appeal and a substantive appeal (Civil Appeal No. 475 of 2022). An earlier application for stay of execution at the High Court in Soroti had been dismissed. The applicant claimed it would lose land in its possession and a veterinary house/offices constructed on the suit land, and that government activities would be disrupted. The respondent countered that the veterinary buildings were derelict, bushy and unused for over twenty years, that the applicant continued to use the land as a market, fell trees and dump non-biodegradable waste, and that the application was brought in bad faith and with inordinate delay. No affidavit evidence detailed the extent or nature of the applicant's actual use of the suit land.

Issues

Whether the applicant established an arguable appeal with a likelihood of success.
Whether the applicant would suffer irreparable loss, or the appeal would be rendered nugatory, if a stay of execution were not granted.
Whether the conditions for granting a stay of execution pending appeal were satisfied.

Orders

The respondent is ordered not to deal with the suit land in such a manner as would affect the ownership thereof, including by way of sale, mortgage, alienation, parting with possession, or creating any other encumbrance or interest, pending the hearing and resolution of the appeal.
Subject to the conservatory order, the application is dismissed with costs.

Key headnotes

Civil Procedure — Stay of Execution — Conditions for grant pending appeal

An applicant for a stay of execution pending appeal must establish that there is an appeal which is likely to succeed or is at least arguable, that absent a stay the applicant would suffer irreparable loss or the appeal would be rendered nugatory, and, where the court is in doubt, that the balance of convenience favours a stay.

Civil Procedure — Stay of Execution — Proof of irreparable loss

An applicant must show that the apprehended damage cannot be undone or compensated in damages; mere assertions of loss, unsupported by affidavit evidence of actual use of the property or of quantifiable loss, do not establish irreparable harm.

Land & Property — Eviction Orders — Whether self-executing

An order of eviction is not self-executing; its enforcement requires the involvement of the court, including the issue of eviction notices, timeframes for service and eviction warrants under the Civil Procedure Act, the Civil Procedure Rules and the Constitution (Land Eviction) Practice Directions, 2021.

Civil Procedure — Conservatory Orders — Preservation of subject matter of appeal

Even where an application for a stay of execution fails, the court may, in the interests of justice, issue a conservatory order to preserve the subject matter of the appeal, restraining the successful party from dealing with the property in a manner that would affect its ownership pending the determination of the appeal.

Legislation cited (4)

Judicature (Court of Appeal Rules) Directions, S.I. 13-16 r.6(2)(b)
Civil Procedure Act s.38
Civil Procedure Rules O.22 rr.7-8
Constitution (Land Eviction) Practice (Directions) 2021

Cases cited (1)

Gashumba Manirugaha v Sam Nkudiye [2015] UGSC 7

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.