Mohammed Mohamed Hamid v Roko Construction Ltd (Miscellaneous Application 23 of 2017)

Supreme Court · [2017] UGSC 47 · 2017 Application Dismissed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Application by notice of motion for an interim stay of execution pending the hearing of the main application for stay of execution.

Decision

Application for interim stay of execution dismissed with costs to the respondent

The full judgment

Read the complete, verbatim text of this judgment.

Cited — treatment unverified cited in 7 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions — always read the source judgment before relying on it.

Holding

Sitting as a single Justice, the Court first overruled three preliminary objections, holding that non-attachment of the substantive application and late filing of the list of authorities are not fatal, and that an affidavit on matters not requiring legal expertise is valid though sworn by a non-advocate. On the merits, the Court dismissed the application: as no appeal lies against its own judgment, the pending review application could be treated as analogous to a notice of appeal only on proof of special circumstances and a reasonable likelihood of success, which the applicant neither prayed for nor established; and the applicant produced no cogent evidence of any imminent threat of execution.

Facts

The parties entered a 2005 construction agreement under which the respondent was to build a residential house for the applicant. The applicant defaulted in payment and the respondent terminated the contract and obtained an arbitral award. The applicant successfully set the award aside in the High Court, but the Court of Appeal reversed and reinstated the award; on a first appeal the Supreme Court returned the matter to the Court of Appeal for a properly constituted coram, which again reinstated the award. The applicant's further appeal (Civil Appeal No. 14 of 2015) was dismissed by the Supreme Court. The applicant then filed an application for review of that judgment, a substantive application for stay of execution, and this interim stay application. He alleged the respondent had taken steps towards execution, principally by filing for taxation of the bill of costs.

Issues

Whether the respondent's preliminary objections — non-service of the substantive application, an affidavit sworn by a non-advocate, and late filing of the list of authorities — should be upheld.
Whether the applicant adduced sufficient grounds to justify the grant of an interim order for stay of execution.

Orders

All three preliminary objections overruled.
Application for interim stay of execution dismissed.
Costs of the application awarded to the respondent.

Key headnotes

Civil Procedure — Stay of Execution — Criteria for an Interim Stay

For an interim order of stay of execution it suffices to show that a substantive application for stay is pending and that there is a serious imminent threat of execution before that application is heard; the court need not pre-empt the matters relevant to the substantive application.

Civil Procedure — Stay of Execution — Review Application Treated as Analogous to a Notice of Appeal

Where no notice of appeal can lie because the impugned judgment is that of the final court, an application for review may be treated as analogous to a notice of appeal under Rule 2(2) only where the applicant demonstrates special circumstances and that the review stands a reasonable likelihood of success.

Civil Procedure — Interim Stay — Proof of Imminent Threat of Execution

An applicant for an interim stay must adduce cogent evidence of a serious and imminent threat of execution; a bare averment, unsupported by evidence that the bill of costs has been taxed or that an application for execution has been filed, is insufficient.

Civil Procedure — Representation — Affidavit Sworn by a Non-Advocate

Under Rule 23(1) of the Supreme Court Rules and Article 28(3)(d) of the Constitution a party may appear and act in person, and an affidavit deposing to matters that do not require legal expertise is not defective merely because the deponent is not an advocate.

Civil Procedure — List of Authorities — Effect of Late Filing under Rule 27

Although Rule 27 prescribes no time limit, the list of authorities should be filed with the application or at the earliest opportunity; late filing of the list is not fatal to the application.

Civil Procedure — Interim Applications — Non-Attachment of the Substantive Application

While attaching a copy of the substantive application for stay to an interim application is desirable practice, non-compliance is not fatal because the information can readily be verified from the court record.

Legislation cited (12)

Judicature (Supreme Court Rules) Directions r.2(2)
Judicature (Supreme Court Rules) Directions r.6(2)(b)
Judicature (Supreme Court Rules) Directions r.23(1)
Judicature (Supreme Court Rules) Directions r.27(1)
Judicature (Supreme Court Rules) Directions r.27(3)
Judicature (Supreme Court Rules) Directions r.42
Judicature (Supreme Court Rules) Directions r.43
Judicature (Supreme Court Rules) Directions r.72
Judicature (Supreme Court Rules) Directions r.105
Judicature (Supreme Court Rules) Directions r.106
Constitution of Uganda art.28(3)(d)
Section 98 (Act not specified in judgment)

Cases cited (8)

Joel Kato and Another v Nuulu Nalwoga (Civil Application No. 12 of 2011)
Francis Drake Lubega v Attorney General and 2 Others (Civil Application No. 13 of 2015)
Hon. Theodore Sekikubo and Others v Attorney General (Civil Appeal No. 6 of 2013)
Mathew Rukikaire v Incafex (Civil Appeal No. 11 of 2015)
Hwan Sung Industries Ltd v Tajdin Hussein and 2 Others (Civil Application No. 19 of 2008)
Giuliano Gariggio v Claudio Casadio (Civil Application No. 3 of 2013)
Kiganda John and Another v Yakobo M.N Senkungu and 5 Others (Civil Application No. 16 of 2017)
Belex Tours & Travel Ltd v Crane Bank Ltd (Miscellaneous Application No. 21 of 2015)

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.