National Housing & Construction Corporation v Kampala District Land Board and Anor (Civil Application 6 of 2002)

Supreme Court · [2003] UGSC 4 · 2003 Application Granted ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Application to the Supreme Court for stay of execution, an injunction and a stay of proceedings pending an intended appeal against a Court of Appeal ruling refusing the same reliefs

Decision

Application for stay of execution, injunction and stay of proceedings granted on conditions, including a 45-day deadline to institute the intended appeal and that nothing be done about the suit land pending the appeals

The full judgment

Read the complete, verbatim text of this judgment.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions — always read the source judgment before relying on it.

Holding

On an application for stay of execution, an injunction and a stay of proceedings pending appeal, the Supreme Court held that the discretion to grant such relief is governed by rule 5(2)(b) of the Rules of the Court and not by the English practice in Wilson v Church, each case turning on its own facts. The Court of Appeal had misdirected itself by not considering that a notice of appeal had been lodged and by treating the dismissal of the suit as not lapsing the applicant's caveat. As the applicant's uncontradicted evidence showed material evidence was overlooked, the probability of success was not ruled out, and the applicant being willing to deposit security, the application was granted on conditions.

Facts

The applicant, a construction parastatal, held a 99-year lease over the Bugolobi flats estate in Kampala. In the middle of the estate lay the suit land (Plot 4 Luthuli Second Close, formerly Plot M.597), to which residents had access for recreation. In 1999 the first respondent, Kampala District Land Board, leased the suit land to the second respondent, Chemical Distributors Ltd, for five years, and it was registered under LRV 2860 Folio 20. Claiming the lease was fraudulent, the applicant sued in the High Court to cancel it; the suit was dismissed with costs. The applicant filed a notice of appeal and unsuccessfully sought a stay of execution in the High Court and then the Court of Appeal. The applicant then gave notice of appeal against that refusal and applied to the Supreme Court for the same reliefs, fearing the second respondent would dispose of the suit land and cause irreparable loss. The applicant's affidavit evidence that material evidence had been overlooked and that the caveat had lapsed on dismissal of the suit was not contradicted.

Issues

Whether the applicant established the conditions for the grant of a stay of execution, an injunction and a stay of proceedings pending appeal under rule 5(2)(b) of the Rules of the Court.
Whether the applicant would suffer substantial loss or irreparable damage if the suit land were disposed of before the intended appeal was determined.
Whether granting the application would in effect dispose of the intended appeal against the Court of Appeal's refusal of the same reliefs.

Orders

The application is granted on conditions.
The applicant will pay the taxed costs of the respondents in the Supreme Court in respect of this application and in the Court of Appeal in respect of Civil Application No. 87 of 2001.
The applicant must expeditiously institute the intended appeal in the Supreme Court, in any case within 45 days from the date of this ruling.
The appeal in the Court of Appeal ought to be disposed of as soon as it is practical.
Nothing should be done about the suit land until the pending appeals are disposed of or until further orders from the court.

Key headnotes

Civil Procedure — Stay of Execution Pending Appeal — Governing Rule and Discretion

An application to the Supreme Court for stay of execution, an injunction or a stay of proceedings pending appeal is governed by rule 5(2)(b) of the Rules of the Court, which empowers the court, where a notice of appeal has been lodged, to grant such relief as it considers just; the discretion is exercised under that rule rather than under English rules of practice.

Civil Procedure — Stay of Execution — Distinguishing Persuasive Authority on the Facts

Authorities such as Wilson v Church, which set tests for staying execution to prevent an appeal from being rendered nugatory, are distinguishable where the intended appeal is against an interlocutory refusal of relief rather than a decision on the merits, and where the relevant foreign rules of practice are not produced; no two cases have the same facts and each must be decided on its own.

Civil Procedure — Stay of Execution — Lodging of Notice of Appeal as a Precondition

The lodging of a notice of appeal in accordance with the rules is an important precondition for granting a stay of execution, injunction or stay of proceedings; a court that fails to consider whether a notice of appeal has been lodged misdirects itself.

Land & Property — Caveats — Effect of Dismissal of Suit on a Caveat

It is an error to hold that the dismissal of a suit does not lapse a caveat lodged by the plaintiff in support of that suit; where the caveat has lapsed, the suit land becomes capable of alienation and the risk of disposal pending appeal is real.

Civil Procedure — Stay of Execution — Conditions and Security

Where the probability of success on appeal is not ruled out and the applicant is willing to deposit adequate security, it is just to grant a conditional stay requiring payment of taxed costs, expeditious institution of the intended appeal within a fixed time, and preservation of the suit property until the appeals are determined.

Legislation cited (8)

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 Court of Appeal r.5(2)(b)
Rules of the Court of Appeal r.75
Condominium Properties Act 2001

Cases cited (5)

Wilson Vs Church (No.2) (1879) 12 Ch.D.454
L.M. Kyazze v E. Busingye (Civil Application No. 18 of 1990)
F. Sembuya v AH Port Freight Service (U) Ltd (Civil Application No. 15 of 1998)
Somali Democratic Republic v Anoop S. Sunderlal Treon (Civil Application No. 11 of 1988)
National Enterprises Corporation v Mukisa Foods Ltd (Miscellaneous Application No. 7 of 1998)

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.