Wakilii

National Housing and Construction Corporation v Kampala District Land Board and Another (Civil Application 6 of 2001)

Supreme Court · [2002] UGSC 45 · 2002 Objection Overruled ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Preliminary objection to the competence of an application for stay of execution, an injunction and stay of proceedings in the Supreme Court
Decision
Preliminary objection overruled; substantive notice of motion ordered to proceed to hearing

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Cited — treatment unverified cited in 5 (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 considered a preliminary objection that it lacked jurisdiction to hear the applicant's application for stay of execution, an injunction and stay of proceedings. It held that under Rule 5(2)(b) the only precondition to the exercise of its discretion is that a notice of appeal has been lodged in accordance with Rule 71. Such a notice was on the record and had not been challenged under Rule 77, so the application was properly before the Court. The Court declined to examine the merits or competence of the intended appeal at that stage. The objection was overruled and the substantive motion ordered to proceed.

Facts

The applicant, a construction parastatal, held a lease over the Bugolobi flats estate, in the middle of which lay the suit land formerly used by residents for recreation. In 1999 the first respondent leased the suit land to the second respondent, who registered it. Claiming the lease was fraudulent, the applicant sued in the High Court to have it cancelled; the suit was dismissed with costs. The applicant filed a notice of appeal to the Court of Appeal and unsuccessfully sought a stay of execution in both the High Court and the Court of Appeal. Dissatisfied, it gave notice of appeal to the Supreme Court and filed a notice of motion seeking a stay of execution, an injunction and a stay of proceedings to restrain the respondents from dealing with the suit land. The first respondent objected that the Court lacked jurisdiction to hear the application.

Issues

  1. Whether the Supreme Court has jurisdiction to entertain an application for stay of execution, an injunction and/or stay of proceedings under Rule 5(2)(b) of the Rules of the Court.
  2. Whether the Court must, on such an application, satisfy itself that the intended appeal is competent before exercising its discretion.

Orders

  • The preliminary objection is overruled.
  • The hearing of the substantive notice of motion is to proceed.
  • The costs occasioned by the objection shall be in the cause.

Key headnotes

Civil Procedure — Stay of Execution — Precondition under Rule 5(2)(b)
The only precondition to the exercise of the Supreme Court's discretion to order a stay of execution, an injunction or a stay of proceedings under Rule 5(2)(b) of the Rules of the Court is that a notice of appeal has been lodged in accordance with Rule 71.
Civil Procedure — Notice of Appeal — Challenge to Validity under Rule 77
The competence or validity of a notice of appeal can only be challenged by an application made under Rule 77; in the absence of such an application, an application for stay of execution, an injunction or a stay of proceedings supported by the notice is properly before the Court.
Civil Procedure — Stay of Execution — Merits of Intended Appeal Not Examined
On an application for a stay of execution the Court will not investigate the merits or the competence of the intended appeal; those matters fall to be determined when the appeal itself is heard.

Legislation cited (11)

  • Constitution of Uganda art.132(2)
  • Constitution of Uganda art.126(2)(d) and (e)
  • Judicature Act s.7(1)
  • Rules of the Supreme Court r.1(3)
  • Rules of the Supreme Court r.5(2)(b)
  • Rules of the Supreme Court r.40
  • Rules of the Supreme Court r.41
  • Rules of the Supreme Court r.71
  • Rules of the Supreme Court r.77
  • Rules of the Supreme Court r.97(b)
  • Civil Procedure Act ss.68 and 74

Cases cited (5)

  • Attorney General vs ... (No.1) (1971) EA 50
  • Barclays Bank of Uganda Ltd vs G. Mukiibi, Supreme Court Civil Application No. 9 of 1997 (unreported)
  • L.M. Kabazze Vs. D. Busingye, Supreme Court Civil Application 18 of 1990
  • F. Semhuga Vs. All Ports Light Services, Supreme Court Civil Application No. 15 of 1998
  • Somali Democratic Republic v Anoop Sunderlal Treon (Civil Application No. 11 of 1999)
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.