Wakilii

Sembuya v All Port Freight Service (U) Ltd (Civil Application 15 of 1998)

Supreme Court · [1999] UGSC 35 · 1999 Application Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application by notice of motion for stay of execution of a High Court decree pending a second appeal to the Supreme Court
Decision
Stay of execution granted pending the applicant's intended appeal, conditional on deposit of a certificate of title plus Shs.50 million within 30 days

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Holding

The Supreme Court granted a stay of execution pending a second appeal, holding that a stay under Rule 5(2)(b) requires special circumstances and good cause. These existed because forcing the applicant to pay the whole decretal sum before his appeal would cause substantial loss and render the appeal nugatory, while the respondent's interest was protected by a co-defendant who had admitted liability jointly and severally. The respondent had not proved the applicant could not pay the final decree; its complaint was inadequate security, curable by additional security. A certificate of title is acceptable security, as the Rules do not exclude land; the court ordered the title plus Shs.50 million cash within 30 days.

Facts

The applicant and a co-defendant traded under the unregistered name Aero International Ltd. In 1993 the respondent delivered cement valued at Shs.200 million to them. Payment by cheque was dishonoured; after part payment of Shs.53 million, a balance of Shs.147 million remained unpaid. The respondent sued both in High Court Civil Suit No. 409 of 1995. The co-defendant admitted the claim and had consent judgment entered against him. The applicant disputed liability but lost; both defendants were ordered jointly and severally to pay Shs.147 million special damages with interest at 22% and Shs.15 million general damages with interest at 6%. The Court of Appeal dismissed the applicant's appeal on 2 December 1998, and he filed a notice of appeal to the Supreme Court. Earlier stays granted by the High Court (on conditions) and the Court of Appeal lapsed once the first appeal was dismissed, prompting this application for a stay pending the second appeal. The applicant offered a certificate of title for land valued at Shs.75 million as security.

Issues

  1. Whether the applicant had shown special circumstances and good cause to justify the grant of a stay of execution pending a second appeal.
  2. Whether a certificate of title to land was adequate security for the stay of execution.
  3. Whether the order for stay of execution should extend to costs in the Supreme Court and the courts below.

Orders

  • The application is allowed.
  • Execution of the decree and orders in High Court Civil Suit No. 409 of 1995 is stayed pending determination of the applicant's intended appeal or further orders of the court.
  • The applicant is to provide security by depositing into court the certificate of title in respect of his land comprised in Block 273 Plot 405 Kyadondo together with Shs.50 million in cash within 30 days.
  • Costs of the application shall be in the cause.

Key headnotes

Civil Procedure — Stay of Execution — Special circumstances and good cause
A stay of execution pending appeal under Rule 5(2)(b) of the Rules of the Supreme Court can only be granted where the applicant shows special circumstances and good cause.
Civil Procedure — Stay of Execution — Appeal rendered nugatory
Where allowing execution to proceed would defeat the purpose of a pending appeal and render it nugatory, that is a special circumstance justifying the grant of a stay of execution.
Civil Procedure — Stay of Execution — Substantial loss
Compelling an applicant to pay the whole decretal amount before the intended appeal is heard may cause substantial loss amounting to a special circumstance for a stay.
Civil Procedure — Stay of Execution — Applicant's ability to satisfy the decree
A stay may be refused where it is shown the applicant will be unable to pay the final decree if the appeal fails, but the burden lies on the party so contending and is not discharged by mere assertion of inadequate security.
Civil Procedure — Stay of Execution — Security — Certificate of title to land
A certificate of title to land is acceptable security for a stay of execution, as the Rules of the Supreme Court do not exclude land as security; any inadequacy may be cured by directing further security rather than requiring payment of the full decretal amount.

Legislation cited (6)

  • Supreme Court Rules r.5(2)(b)
  • Supreme Court Rules r.40(2)
  • Supreme Court Rules r.41
  • Supreme Court Rules r.100
  • Supreme Court Rules r.100(1)
  • Supreme Court Rules r.100(3)

Cases cited (8)

  • Somali Democratic Republic v Anoop Sunderji Treon (Civil Application No. 11 of 1998)
  • Bakes vs Laverv (1885) 14. QB 769 C.A.
  • Annot Lyle (1886) 11 P.D. 114 C.A.
  • Monks v Bartram (1891) 1 QB 346 C.A.
  • Shantilal Maneklal Ruwala v R. [1957] E.A. 570 C.A.
  • Barclays Bank (U) Ltd v Godfrey Mubiru (Civil Appeal No. 9 of 1997)
  • Kampala City Council v National Pharmacy Ltd (1979) HCB 215
  • Wilson v Church (No. 2) (1879) 12 Ch. D 458
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.