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Bisimillah Trading Ltd v Falcon Estates Ltd [2017] UGSC 46

Supreme Court · 2017 Appeal Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Appeal to the Supreme Court from a Court of Appeal ruling granting stay of execution of a High Court order
Decision
Appeal allowed; Court of Appeal's ruling and orders staying execution set aside as null and void

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Holding

The Supreme Court allowed the appeal. The High Court temporary injunction the respondent sought to stay had expired on 29 May 2015, before the Court of Appeal ruled. Once the order ceased to exist, the right of appeal against it was extinguished and there was nothing to stay. Consequently the Court of Appeal had no jurisdiction under rule 6(2)(b) of the Judicature (Court of Appeal Rules) Directions and section 10 of the Judicature Act to determine the application, and the other preconditions for a stay became irrelevant. The Court of Appeal's ruling and orders were therefore null and void and of no effect, and were set aside.

Facts

The appellant and the respondent owned adjoining plots at Muyenga, Kampala (Block 224 Plots 3344 and 3542) and disputed whether the appellant could access its land by passing through the respondent's land. The respondent placed construction equipment to block the access route. Both parties sued in the High Court and the suits were consolidated. On 24 April 2015 Kwesiga, J granted the appellant a temporary injunction ordering removal of the blockades and re-opening of the route, but that injunction was to last only until 29 May 2015, when the head suit was expected to be disposed of. The respondent applied to the Court of Appeal for a stay of execution. By the time the Court of Appeal granted the stay, the High Court order had already expired some three months earlier. The appellant appealed to the Supreme Court.

Issues

  1. Whether the Court of Appeal had jurisdiction to grant a stay of execution of a High Court order that had already expired.
  2. Whether the Court of Appeal erred in granting a stay of execution after finding that the question of the likelihood of success of the appeal was moot.

Orders

  • Appeal allowed.
  • The ruling and orders of the Court of Appeal in Civil Application No. 103 of 2015 set aside.
  • The appellant's prayer for an order directing the High Court to renew the order of 24th April 2015 declined, that jurisdiction belonging to the High Court.
  • Costs of the appeal and in the Court of Appeal to be paid by the respondent.

Key headnotes

Civil Procedure — Stay of Execution — Jurisdiction over an expired order
A court has no jurisdiction to grant a stay of execution of a lower court order that has already expired, because there is no subsisting order to stay and any ruling or orders made in respect of such an application are null and void and of no effect.
Civil Procedure — Stay of Execution — Extinguishment of the right of appeal
Where the order appealed against expires, the right of appeal against that order is extinguished, and the conditions ordinarily required to support an application for stay of execution become irrelevant as they no longer have a ground on which to stand.
Civil Procedure — Stay of Execution — Minimum conditions for grant
An applicant for a stay of execution must show that a notice of appeal has been filed in accordance with the rules, that the appeal has a high likelihood of success, that the applicant will suffer irreparable damage or the appeal will be rendered nugatory if the stay is refused, and the court must consider where the balance of convenience lies.

Legislation cited (4)

  • Judicature (Court of Appeal Rules) Directions r.6(2)(b)
  • Judicature (Court of Appeal Rules) Directions r.72(2)
  • Judicature (Court of Appeal Rules) Directions r.76
  • Judicature Act s.10

Cases cited (7)

  • Hon. Ssekikubo and 4 Others v Attorney General and 4 Others (Constitutional Application No. 03 of 2014)
  • Banco Arabe Espanol v Bank of Uganda (Civil Appeal No. 8 of 1998)
  • Themi Nakibuuka Sebalu v Peter Sematimba and 2 Others (Civil Appeal No. 15 of 2015)
  • Somali Democratic Republic v Anoop S. Sunderlal Trean (Civil Appeal No. 11 of 1988)
  • Lubega v Attorney General and 2 Others (Civil Appeal No. 13 of 2015)
  • Hwang Sung Industries Ltd v Tadjin Hussein and 2 Others (Civil Appeal No. 19 of 2008)
  • National Housing and Construction Corporation v Kampala District Land Board (Civil Appeal No. 6 of 2002)
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.