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Nyakana & Sons Ltd v Kobusingye & 16 Ors [2017] UGSC 25

Supreme Court · 2017 Application Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application before a single Justice of the Supreme Court for an interim order of stay of execution of a Court of Appeal judgment pending the hearing of a substantive application for stay of execution
Decision
Application for an interim order of stay of execution dismissed with costs

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Holding

On an application for an interim order of stay of execution, the single Justice held that the applicant had not complied with Rule 41(1), which requires an application within the concurrent jurisdiction of the Supreme Court and Court of Appeal to be made to the Court of Appeal first, because no evidence of a prior Court of Appeal application was attached. Proceeding nonetheless under Rule 41(2), the Court found the applicant failed to prove a Notice of Appeal lodged under Rule 72, a pending substantive application, or a serious threat of execution, and had filed no valid supporting affidavit. The application was dismissed with costs.

Facts

The respondents petitioned the High Court to wind up the applicant company on grounds of mismanagement. On 4 July 2013 the High Court granted the winding-up order as just and equitable and appointed a liquidator. The applicant's appeal to the Court of Appeal was dismissed, with judgment delivered on 14 December 2016, and the Court of Appeal directed that the applicant's properties be cancelled, transferred to executors and distributed among estate beneficiaries within twelve months, making no order as to costs. The applicant filed an intended appeal to the Supreme Court and sought an interim order staying execution of the Court of Appeal judgment pending a substantive application for stay (said to be Civil Application No. 12 of 2017). The applicant claimed to have first applied to the Court of Appeal and to have lodged a Notice of Appeal, but attached neither those documents, the substantive application, nor a competent supporting affidavit. The Notice of Motion named Sam Phiri as deponent, yet the affidavit on record was sworn by Kate Nyakana in support of a different application.

Issues

  1. Whether the applicant complied with Rule 41(1) of the Judicature (Supreme Court) Rules by first making its application to the Court of Appeal, the courts having concurrent jurisdiction.
  2. Whether the applicant satisfied the requirements for the grant of an interim order of stay of execution pending the determination of the substantive application.

Orders

  • Application dismissed.
  • Costs of the application awarded to the 1st to 11th respondents.

Key headnotes

Civil Procedure — Stay of Execution — Concurrent Jurisdiction — Rule 41(1) of the Judicature (Supreme Court) Rules
Where an application may be made to either the Supreme Court or the Court of Appeal, it must be made to the Court of Appeal first; the Court of Appeal, having power under Rule 2(2) of its Rules to stay execution of its own orders, exercises concurrent jurisdiction over such applications.
Civil Procedure — Interim Stay of Execution — Source and Nature of the Power — Rule 2(2) Inherent Powers
An interim order of stay of execution is granted under the inherent power in Rule 2(2) of the Judicature (Supreme Court) Rules, not Rule 6(2)(b); it is a stop-gap measure heard by a single Justice to ensure the substantive application is not rendered nugatory, and is granted pending the substantive application rather than the appeal.
Civil Procedure — Interim Stay of Execution — Requirements for Grant
Before granting an interim order of stay of execution the Court must be satisfied that a Notice of Appeal has been lodged in accordance with Rule 72, a substantive application for stay of execution is pending before the Court, there is a serious threat of execution before the hearing of that application, and the application has been filed without undue delay.
Civil Procedure — Affidavit Evidence — Burden of Proof on the Applicant
An applicant bears the duty of proving its own case by adducing and attaching the relevant documents to its supporting affidavit; it is bad practice for the applicant or the Court to rely on documents filed by the respondent to establish the applicant's case.

Legislation cited (10)

  • Judicature (Supreme Court) Rules r.2(2)
  • Judicature (Supreme Court) Rules r.6(2)(b)
  • Judicature (Supreme Court) Rules r.41(1)
  • Judicature (Supreme Court) Rules r.41(2)
  • Judicature (Supreme Court) Rules r.42
  • Judicature (Supreme Court) Rules r.43
  • Judicature (Supreme Court) Rules r.72(2)
  • Judicature (Supreme Court) Rules r.4(a) & (e)
  • Judicature (Court of Appeal) Rules r.2(2)
  • Constitution of the Republic of Uganda 1995 art.126(2)(e)

Cases cited (9)

  • Editor in Chief of the New Vision Newspaper v Jeremiah Ntabgoba (Civil Application No. 63 of 2004)
  • Theodore Ssekikubo & 4 Others v Attorney General (Constitutional Application No. 04 of 2014)
  • Bitamisi Namuddu v Rwabuganda (Civil Application No. 11 of 2014)
  • Zubeda Mohamed & Anor v Laila Kaka Wallia & Anor (Civil Reference No. 07 of 2016)
  • Katayira Francis v Rogers Bosco Bugembe (Civil Application No. 23 of 2016)
  • Horizon Coaches Ltd v Rurangaranga & Anor [2010] 1 EA 77
  • Housing Finance Bank Ltd & Anor v Edward Musisi (Miscellaneous Application No. 158 of 2010)
  • Yakobo Senkungu & Ors v Cresensio Mukasa (Civil Application No. 05 of 2013)
  • E. B. Nyakaana & Sons v Beatrice Nyakana & 16 Others (Civil Application No. 13 of 2017) (No. 1)
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.