Hwan Sung Industries Ltd v Tajdin Hussein & Ors [2008] UGSC 17

Supreme Court · 2008 Application Granted ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Application to a single Justice of the Supreme Court for an interim order of stay of execution pending the hearing of a substantive stay application

Decision

Interim order granted staying sale of the attached property pending disposal of the substantive stay application

The full judgment

Read the complete, verbatim text of this judgment.

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

On an application to a single Justice for an interim order of stay of execution, the court held that for an interim order it suffices to show that a substantive stay application is pending and that there is a serious threat of execution before that application is heard; it is not necessary to establish the special circumstances and good cause required for a substantive stay. Attachment of property alone does not complete an execution by attachment and sale — both attachment and sale must be completed — so the application had not been overtaken by events. The court granted the interim order staying the sale of the attached property pending disposal of the substantive application.

Facts

The applicant had successfully sued the respondents in HCCS No. 271 of 2003 for breach of contract. On appeal, the Court of Appeal found for the respondents. The applicant appealed to the Supreme Court (Civil Appeal No. 08 of 2008) and filed a substantive application for stay of execution (Civil Application No. 18 of 2008). The respondents sought execution of the Court of Appeal decree; the Registrar issued a warrant of attachment and sale after the applicant did not respond to a notice to show cause, and the bailiff attached the applicant's property on 15 September 2008, though no sale had yet occurred. The applicant then filed this application for an interim order to preserve the status quo and stay sale pending the hearing of the substantive stay application.

Issues

Whether the application for an interim order of stay of execution had been overtaken by events because attachment in execution had already been effected.
What an applicant must show to obtain an interim order of stay of execution pending the hearing of a substantive stay application.

Orders

Sale of the property attached on 15-09-08 (per the inventory attached to James Birungi's affidavit) must stay pending disposal of Civil Application No. 18 of 2008 or until 17-11-08, whichever comes first.
If by 17-11-08 the substantive application (No. 18 of 2008) is still pending, the matter must be brought to court for review.
Costs of this application to abide the result of the substantive application.

Key headnotes

Civil Procedure — Stay of Execution — Interim Order — Requirements Distinguished from Substantive Stay

To obtain an interim order of stay of execution, an applicant need only show that a substantive application for stay is pending and that there is a serious threat of execution before that substantive application is heard; the special circumstances and good cause required for a substantive stay need not be established.

Civil Procedure — Execution — Attachment and Sale — When Execution is Complete

In an execution by attachment and sale, both attachment and sale must be completed before the execution is complete; attachment of property alone does not complete the execution, so an application to stay the sale is not overtaken by events merely because attachment has occurred.

Civil Procedure — Inherent Jurisdiction — Rule 2(2) — Preventing an Appeal from Being Rendered Nugatory

The inherent power of the court preserved by rule 2(2) of the Rules of the Supreme Court permits the court to make interim orders to preserve the subject matter and prevent a pending substantive application or appeal from being rendered nugatory.

Legislation cited (4)

Rules of the Supreme Court r.2(2)
Rules of the Supreme Court r.42(1)
Rules of the Supreme Court r.47(2)
Civil Procedure Rules O.22 r.39

Cases cited (1)

Editor - in - Chief New Vision, News paper - vs - Ntabgoba, Civil Application No. 63 of 2005, Court of Appeal (un reported)

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.