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

Supreme Court · [2003] UGSC 50 · 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

Decision

Application granted on conditions, including a restraint preserving the suit land pending disposal of the appeals

The full judgment

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Holding

On an application for stay of execution, injunction and stay of proceedings pending an intended appeal, the Supreme Court held that the relevant tests are those spelt out in Rule 5(2)(b) of its Rules, and distinguished Wilson v Church because there the right of appeal sprang from a decision on the merits whereas here the intended appeal was against an interlocutory ruling. Finding that the Court of Appeal had misdirected itself on the effect of filing a notice of appeal and on whether dismissal of the suit lapsed the applicant's caveat, and that the probability of success was not ruled out, the Court granted the application on conditions, including expeditious institution of the appeal and preservation of the suit land.

Facts

The applicant, a construction parastatal, held a lease over the Bugolobi flats estate. Within the estate lay the suit land, formerly Plot M.597, used by residents for recreation. In 1999 the first respondent, Kampala District Land Board, leased the suit land to the second respondent, Chemical Distributors Ltd, which was registered as proprietor under LRV 2860 Folio 20 as Plot 4 Luthuli Second Close. Alleging 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 to the Court of Appeal and sought stay of execution in both the High Court and the Court of Appeal, both unsuccessfully. The Court of Appeal dismissed the stay application, holding that there was no danger of disposal given an existing caveat and a development covenant, and that the applicant had not shown irreparable loss. The applicant gave notice of appeal against that refusal and brought the present application in the Supreme Court for stay of execution, an injunction and stay of proceedings to restrain disposal or development of the suit land.

Issues

Whether the applicant had established grounds under Rule 5(2)(b) of the Rules of the Supreme Court for an order of stay of execution, an injunction or a stay of proceedings pending its intended appeal.
Whether the applicant was likely to suffer substantial loss or irreparable damage incapable of monetary compensation if the suit land were disposed of before the appeal.
Whether the intended appeal had a probability of success such that it ought not to be rendered nugatory.

Orders

The applicant will pay the taxed costs of the respondents in this 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 this Court, in any case within 45 days from the date hereof.
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 this Court.

Key headnotes

Civil Procedure — Stay of Execution Pending Appeal — Governing Tests under Rule 5(2)(b)

On an application for stay of execution, an injunction or a stay of proceedings pending appeal, the tests the court must apply are those spelt out in Rule 5(2)(b) of the Rules of the Court, the essential consideration being whether the applicant has lodged a notice of appeal and whether refusal would, if the appeal succeeds, render it nugatory.

Civil Procedure — Stay of Execution — Preserving the Subject Matter of an Unrestricted Right of Appeal

Where an unsuccessful party is exercising an unrestricted right of appeal, the court ought to make such orders for staying execution as will prevent a successful appeal from being rendered nugatory, unless the appeal does not appear bona fide or other sufficient exceptional circumstances exist.

Civil Procedure — Precedent — Distinguishing Authority on its Facts

Each case must be decided on its own facts; the principle in Wilson v Church is distinguishable where the intended appeal is against an interlocutory decision rather than a decision on the merits, since in the latter the right of appeal is obvious whereas in the former it is not.

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

Dismissal of a suit does not automatically lapse a caveat lodged by the plaintiff on the disputed land, and a court that proceeds on the contrary footing misdirects itself when assessing the risk of disposal pending appeal.

Legislation cited (6)

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.47
Rules of the Court of Appeal r.5(2)(b)
Condominium Properties Act 2001

Cases cited (5)

Wilson v Church (No.2) (1879) 12 Ch.D. 454
L.M. Kyazze v E. Businge (Civil Application No. 18 of 1990)
F. Sembuya v All 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)

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