Wakilii

Musiitwa-Kyazze v Busingye [1990] UGSC 13

Supreme Court · 1990 Preliminary Objection Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application by motion on notice for a stay of execution pending appeal, heard on a preliminary objection in limine to the Supreme Court's jurisdiction.
Decision
Preliminary objection dismissed; the Supreme Court assumed jurisdiction and the application for a stay was directed to proceed to hearing on its merits.

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Cited — treatment unverified cited in 3 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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Holding

The Court held that the express power to grant a stay of execution conferred on the Supreme Court by Rule 5(2)(b) of the Court of Appeal Rules is not subject to a mandatory limitation under Rule 41, which operates only where the municipal law provides for concurrent jurisdiction. An application for a stay should ordinarily be made first, informally, to the trial judge; but the Supreme Court may intervene directly where the High Court doubted or wrongly refused jurisdiction, made an error apparent on the record that is palpably wrong, or caused great delay. Finding the striking out of the High Court application palpably wrong, the Court treated the application as substantially made and refused, dismissed the preliminary objection with costs, and assumed jurisdiction.

Facts

Lawrence Musiitwa Kyazze and Eunice Busingye litigated Civil Suit No. 898 of 1988 in the High Court. Kyazze lost and was ordered to vacate the suit premises within 30 days of judgment. He filed a notice of appeal in the High Court registry and brought a motion on notice in the Supreme Court seeking a stay of execution pending the appeal. He had earlier sought relief in the High Court, but that application was struck out as improper. When the motion came on for hearing, counsel for Busingye objected in limine that the Supreme Court could not entertain it because no proper application had first been made to the High Court as required by Rule 41 of the Court of Appeal Rules. The High Court had purported to act under Order 19 rule 26 of the Civil Procedure Rules rather than under the inherent jurisdiction preserved by section 101 of the Civil Procedure Act, and had wrongly proceeded on the basis that no notice of appeal had been lodged, although it had in fact been filed in time.

Issues

  1. Whether the Supreme Court can entertain an application for a stay of execution under its own jurisdiction where an application of some sort was made to the High Court and refused on any ground.
  2. Whether, where no application of any sort has been made to the High Court, the Supreme Court must forego its own jurisdiction and await the High Court's decision first, given Rule 41 of the Court of Appeal Rules.
  3. Whether the High Court's decision to strike out the application for a stay was palpably wrong, such that the Supreme Court could treat the application as having been substantially made and refused.

Orders

  • Preliminary objection dismissed with costs.
  • Parties called upon to continue the hearing of the application for a stay of execution before the Supreme Court.

Key headnotes

Civil Procedure — Stay of Execution — Concurrent Jurisdiction — Scope of Rule 41 of the Court of Appeal Rules
Rule 41 of the Court of Appeal Rules operates only where the municipal law confers concurrent jurisdiction on the High Court and the appellate court, and imposes no mandatory limitation on the express power to grant a stay of execution conferred on the Supreme Court by Rule 5(2)(b).
Civil Procedure — Stay of Execution — Express Power of the Supreme Court — Rule 5(2)(b)
The Supreme Court possesses an express power to grant a stay of execution pending appeal under Rule 5(2)(b) of the Court of Appeal Rules, which is not displaced by the absence of a prior application to the High Court.
Civil Procedure — Stay of Execution — Procedure — Application to the Trial Judge in the First Instance
An application for a stay of execution should ordinarily be made informally, in the first instance, to the judge who decided the case, who knows the facts and can deal with it promptly; recourse to the Supreme Court follows a refusal.
Civil Procedure — Stay of Execution — Direct Intervention by the Appellate Court
The Supreme Court may grant a stay directly, without a prior High Court refusal, where the High Court has doubted or wrongly refused jurisdiction, made an error apparent on the record that is palpably wrong, or caused great delay to the prejudice of a party.
Civil Procedure — Inherent Jurisdiction — Section 101 of the Civil Procedure Act — Form of Application
A stay of execution sought under the inherent jurisdiction preserved by section 101 of the Civil Procedure Act is properly brought by motion on notice; an appeal is not a fresh suit within the meaning of Order 19 rule 26 of the Civil Procedure Rules.
Civil Procedure — Preliminary Objection — Want of Form Not Fatal
A want of form is generally not fatal; where an application of substance was made to the lower court and wrongly struck out, the appellate court may treat it as having been substantially made and refused.

Legislation cited (18)

  • Court of Appeal Rules r.41
  • Court of Appeal Rules r.5(2)(b)
  • Court of Appeal Rules r.4
  • Court of Appeal Rules rr.38–40
  • Civil Procedure Act s.101
  • Civil Procedure Act s.68
  • Civil Procedure Act s.74
  • Civil Procedure Act s.76
  • Civil Procedure Act s.77(2)
  • Civil Procedure Rules Order 19 r.26
  • Civil Procedure Rules Order XXXIX r.4(3)
  • Civil Procedure Rules Order XL r.2
  • Civil Procedure Rules Order XL r.3
  • Civil Procedure Rules Order XLVIII r.1
  • Civil Procedure Rules Order XLVIII rr.8–9
  • Criminal Procedure Code Act s.326(6)
  • Trial on Indictments Decree s.131(1)
  • Trial on Indictments Decree s.131(2)

Cases cited (6)

  • Cropper v Smith (1883) Ch. Div. 305
  • Brin-For Properties Ltd v Cheshire County Council (1974) 2 All ER 448
  • Wilson v Church (1879) 11 Ch.D 576
  • Wilson v Church (No 2) (1879) 12 Ch.D 458
  • Mugenyi & Co. Advocates v National Insurance Corporation (Civil Appeal No. 14 of 1984)
  • Ujjagar Singh v Rundh Coffee Estates Ltd (1966) E.A. 263
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.