Nakibuka v Sematimba & 2 Ors [2014] UGSC 17

The full judgment

Read the complete, verbatim text of this judgment.

Holding

On an application to stay execution of Court of Appeal orders pending an intended appeal, the Supreme Court, by majority, held that the applicant had not shown the intended appeal had a likelihood of success. Whether the disputed Muyenga plots formed part of the deceased's intestate estate or had been validly transferred to the first respondent was a matter for the full trial of the pending High Court suit, and a registered proprietor in possession could not be dispossessed save by a final decree of court. The position remained as it was when the Court of Appeal decided the matter. The application was dismissed, costs to abide the intended appeal. Kisaakye JSC dissented, holding the requirements for a stay were met.

Facts

Paulo Sebalu, a prominent advocate, died intestate on 8 November 2013, survived only by the applicant, his only child, and no spouse. At his death he was the registered proprietor of four plots at Muyenga (Kyadondo Block 244 Plots 1791, 1792, 3646 and 5867), on which Muyenga Club Ltd — in which he held 99% of the shares — operated. On 11 December 2013 the first respondent, the deceased's nephew, became registered proprietor of the plots and took over the business, asserting that the deceased had gifted and signed transfers of the plots to him in March 2013. The applicant sued in the High Court (HCCS 29 of 2014) alleging fraudulent transfer and obtained an interim injunction from the Deputy Registrar restraining intermeddling and appointing administrators pendente lite. Tuhaise J vacated that order and dismissed the injunction application, finding the applicant had unlawfully evicted the respondents. The Court of Appeal upheld that decision and ordered the applicant to vacate the plots. The applicant filed a notice of appeal to the Supreme Court and applied to stay the Court of Appeal's orders pending the intended appeal.

Issues

1. Whether the applicant satisfied the requirements for a grant of a stay of execution by the Supreme Court.
2. Whether the applicant's intended appeal against the ruling of the Court of Appeal had a likelihood of success.
3. Whether the applicant would suffer irreparable damage, or the intended appeal be rendered nugatory, if a stay of execution was not granted.

Orders

• The application is dismissed.
• The costs should abide the determination of the intended appeal.

Key headnotes

Legislation cited (14)

• Judicature (Supreme Court) Rules r.2(2)
• Judicature (Supreme Court) Rules r.6(2)(b)
• Succession Act s.25
• Succession Act s.191
• Succession Act s.218
• Succession Act s.268
• Registration of Titles Act s.46
• Registration of Titles Act s.54
• Registration of Titles Act s.59
• Registration of Titles Act s.92
• Registration of Titles Act s.139(1)
• Administrator General's Act s.11(1)
• Constitution of Uganda Article 21
• Constitution of Uganda Article 126(2)(e)

Cases cited (10)

• Uganda Revenue Authority v Golden Leaves Hotel and Resort Ltd and Another (High Court Miscellaneous Application No. 0783 of 2007)
• Banco Arabe Espanola v Bank of Uganda (Civil Appeal No. 8 of 1998)
• Akankwasa Damian v Uganda (Constitutional Application Nos. 7 and 9 of 2011)
• Muhammed Kisuule v Greenland Bank (In Liquidation) (Civil Application No. 7 of 2010)
• American Cyanamid Co v Ethicon Ltd [1975] 1 All ER 504
• Rwabinumi v Bahimbisomwe (Civil Appeal No. 10 of 2009)
• Robert Kavuma v Hotel International (Civil Appeal No. 8 of 1990)
• Hon. Anifa Kawooya v Attorney General & Anor (Constitutional Court Miscellaneous Application No. 46 of 2010)
• Horizon Coaches Ltd v Rurangaranga & Another (Civil Application No. 18 of 2009)
• Tropical Bank Ltd v Grace Were Muhwana (Civil Application No. 3 of 2012)