Kazzora v Rukuba (Civil Application No. 4 91)

Supreme Court · [1991] UGSC 31 · 1991 Application Struck Out ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Application to the Supreme Court for stay of execution and an injunction pending appeal from a High Court judgment

Decision

Application struck out as incompetent, with liberty to re-file with the required documents.

The full judgment

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Holding

On an application for a stay of execution and an injunction pending appeal, the Court restated the established principles: the High Court has inherent jurisdiction to stay its own orders and should ordinarily deal with a stay application on its merits first; the Supreme Court intervenes only where the High Court wrongly declines jurisdiction, where there is great delay, or in special and rare cases, and then only when appraised of all the facts. Because the affidavit omitted vital facts, including that the High Court had already refused a stay, and the judgment, notice of appeal and other relevant documents were not filed, the application was incompetent and was struck out, with liberty to re-submit.

Facts

The applicant purchased a plot of land with a house on it (Plot 261 Block 234). The respondent was in possession of the house and was the registered proprietor of the property. The applicant's High Court suit (Civil Suit No. 320 of 1988) sought vacant possession and mesne profits and was dismissed with costs by Tabaro J on 18 March 1991. The applicant filed a notice of appeal the same day and applied for the record. He then sought from the Supreme Court a stay of execution and an order restraining transfer of the property to third parties pending appeal, contending that the transfer to the respondent had been procured through fraudulent and irregular registration entries and that he would suffer irreparable loss if the property were sold to bona fide purchasers. It emerged during argument that he had earlier made a verbal application for a stay to the High Court, which had been refused, a fact omitted from his supporting affidavit; the parties gave conflicting accounts of the reasons for that refusal.

Issues

Whether the application for stay of execution and an injunction pending appeal was competently before the Supreme Court given the omission of material facts and supporting documents.
Whether the Supreme Court should entertain an application for a stay of execution where the High Court had already declined to grant a stay and the affidavit failed to disclose this and other vital facts.
In what circumstances the Supreme Court may entertain an application for a stay of execution before the High Court has refused one.

Orders

Application struck out as incompetent.
Applicant at liberty to re-submit the application with all the relevant documents.

Key headnotes

Civil Procedure — Stay of Execution — Inherent Jurisdiction of the High Court

Every court has an inherent jurisdiction to stay its own orders, and the High Court accordingly has power to order a stay of execution pending an appeal from one of its orders to the Supreme Court.

Civil Procedure — Stay of Execution — Court to Approach First — Role of the High Court

An application for a stay of execution should preferably be made first to the High Court on its merits; the Supreme Court will intervene and accept jurisdiction only where the High Court has refused jurisdiction for manifestly wrong reasons or where there has been great delay.

Civil Procedure — Stay of Execution — Application to Appellate Court Before High Court Refusal

The Supreme Court may, in special and probably rare cases, entertain an application for a stay of execution before the High Court has refused a stay, but only in the interests of justice and only when it has been appraised of all the relevant facts.

Civil Procedure — Affidavit in Support — Material Non-Disclosure — Competence of Application

An affidavit in support of a formal application must disclose all facts vital to the court's consideration; where material facts, such as a prior refusal of a stay by the High Court, are omitted and the required supporting documents are not filed, the application is incompetent and will be struck out.

Civil Procedure — Stay of Execution — Need to See the Impugned Judgment

An appellate court should not grant a stay of execution pending appeal without sight of the judgment intended to be appealed and an understanding of the reasons for it, since a stay is a matter of discretion to be exercised for good reason and granting stays as of course would encourage frivolous appeals.

Legislation cited (6)

Civil Procedure Act s.101
Court of Appeal Rules r.5(2)(b)
Court of Appeal Rules r.42
Court of Appeal Rules r.43
Court of Appeal Rules r.41
Court of Appeal Rules r.1(3)

Cases cited (6)

Iron & Steelwares Ltd v C.W. Martyr (1956) 23 EACA 175
Wilson v Church (No 2) (1879) 12 Ch D 454
Mugenyi & Co Advocates v National Insurance Corporation (Civil Appeal No. 13 of 1984)
Francis Nansio Micah v Nuwa Walakira (Civil Application No. 9 of 1990)
Lawrence Musiitwa Kyazze v Eunice Busingye (Civil Application No. 18 of 1990)
Yunusu Ismail t/a Bombo City Store v Alex Kamukamu & Another (Supreme Court Civil Appeal No. 7 of 1987)

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.