Otim & 3 Others v Uganda Revenue Authority (Civil Appeal 4 of 2018)

Supreme Court · [2019] UGSC 89 · 2019 Appeal Dismissed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Second appeal to the Supreme Court from a Court of Appeal ruling granting the respondent a stay of execution

Decision

Appeal dismissed; stay of execution upheld and matter remitted to the Court of Appeal to determine the pending and intended appeals

The full judgment

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Holding

The Supreme Court dismissed an appeal against a Court of Appeal order staying execution. It held that under rule 76(4) of the Court of Appeal Rules a notice of appeal may be lodged before leave to appeal is obtained, so the competence of the notice does not depend on whether leave was sought or granted; the notice was therefore valid and could ground the stay. A memorandum of appeal is not a precondition for a stay under rule 6(2)(b). The Court of Appeal correctly applied the established stay-of-execution principles, finding a prima facie right of appeal and that the appeal would be rendered nugatory. Issues not raised below, and grounds failing to specify alleged irregularities under rule 82(1), could not be entertained.

Facts

The appellants sued the respondent and the Attorney General to recover UGX 268,399,450 said to have been illegally deducted from their terminal benefits as PAYE. They obtained judgment before Nyanzi J and, in execution, a garnishee order absolute transferred over UGX 1 billion to their former lawyers. The appellants alleged that their former lawyers, without their knowledge, entered a consent with the respondent reversing the execution and returning the money. The appellants challenged that consent and Anglin J declared it null and void, ordering the respondent to refund the sum. The respondent filed a notice of appeal and obtained a stay of execution from the Court of Appeal. The appellants appealed to the Supreme Court, challenging the competence of the notice of appeal, the absence of a prior High Court application, and the Court of Appeal's application of the stay principles.

Issues

Whether a notice of appeal lodged without first obtaining leave to appeal is incompetent and incapable of grounding an application for stay of execution.
Whether a memorandum of appeal must be on record before the Court of Appeal can grant a stay of execution under rule 6(2)(b).
Whether the Court of Appeal could entertain an application for stay of execution that had not first been filed in the High Court.
Whether the Court of Appeal properly applied the established principles governing the grant of a stay of execution.
Whether the ground alleging unspecified irregularities complied with rule 82(1) of the Supreme Court Rules.

Orders

Appeal dismissed with costs.
Matter remitted to the Court of Appeal to handle the pending appeal (Civil Appeal No. 27 of 2017) and the intended appeal.

Key headnotes

Civil Procedure — Appeals — Notice of Appeal — Competence where leave not yet obtained

Under rule 76(4) of the Court of Appeal Rules, where an appeal lies only with leave, it is not necessary to obtain the leave before lodging the notice of appeal; the competence of a notice of appeal does not depend on whether leave to appeal has been sought or granted.

Civil Procedure — Stay of Execution — Whether memorandum of appeal a precondition

A memorandum of appeal is not a precondition under rule 6(2)(b) of the Court of Appeal Rules for the court to consider and grant a stay of execution; a duly lodged notice of appeal suffices.

Civil Procedure — Stay of Execution — Governing principles

An applicant for a stay of execution must establish a prima facie case of a right of appeal or likelihood of success, that the appeal would be rendered nugatory or irreparable damage suffered if no stay is granted, and that the application was made without delay; where the first two are established, the balance of convenience need not be considered.

Civil Procedure — Memorandum of Appeal — Duty to specify grounds

Under rule 82(1) of the Supreme Court Rules, a ground of appeal alleging irregularities must specify the points said to have been wrongly decided; a ground framed too generally, without specifying the alleged irregularities, does not comply with the rule.

Civil Procedure — Appeals — New points not raised in the court below

A decision of a lower court cannot be faulted on appeal over a matter that was never raised before or considered by that court; such a point cannot form the basis of a challenge on appeal.

Legislation cited (11)

Judicature Act s.10
Judicature Act s.33
Civil Procedure Act (Cap 71) s.76
Civil Procedure Act (Cap 71) s.98
Civil Procedure Rules (SI 71-1) Order 44 rr.1(2),(3),(4)
Judicature (Court of Appeal Rules) Directions r.6(2)(b)
Judicature (Court of Appeal Rules) Directions r.42(1)
Judicature (Court of Appeal Rules) Directions r.43
Judicature (Court of Appeal Rules) Directions r.76
Judicature (Court of Appeal Rules) Directions r.82
Judicature (Supreme Court Rules) Directions r.82(1)

Cases cited (5)

Lukwago Erias v Attorney General (Civil Application No. 6 of 2014)
Uganda Broadcasting Corporation v Simba (K) Ltd (Civil Application No. 12 of 2014)
Banco Arabe Espanol v Bank of Uganda (Civil Appeal No. 8 of 1998)
Uganda Revenue Authority v Siraje Hassan Kajura (Civil Appeal No. 9 of 2015)
Ssekikubo v Attorney General (Constitutional Application No. 6 of 2013)

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.