Wakilii

Osman Kassim Ramathan v Century Bottling Company Ltd (Civil Application 34 of 2019)

Supreme Court · [2020] UGSC 35 · 2020 Application Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application to the Supreme Court for stay of execution of a Court of Appeal judgment pending determination of an intended appeal
Decision
Application for stay of execution dismissed; interim order vacated

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Cited — treatment unverified cited in 11 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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Holding

The Supreme Court dismissed an application for stay of execution pending appeal. Under Rule 41(1) such an application must be made to the Court of Appeal first; proceeding directly to the Supreme Court under Rule 41(2) requires proof of exceptional circumstances or good cause, which the applicant failed to advance, and the application failed on that ground alone. The applicant also failed every substantive condition: he placed no material (such as a draft memorandum of appeal) before the court to show likelihood of success, did not prove by affidavit evidence any irreparable damage or that the appeal would be rendered nugatory, and the balance of convenience favoured the respondent holding the judgment.

Facts

The applicant, a beneficiary of an estate trading as Bombo Wholesalers, sued the respondent in the High Court (Civil Suit No. 431 of 2006) for breach of a dealership contract, claiming general and special damages. The High Court, on 25 March 2010, awarded him general damages of UGX 5,000,000 and special damages of UGX 5,520,000 with interest and half the costs. His appeal to the Court of Appeal was dismissed with costs on 19 August 2019, and the respondent filed a bill of costs of UGX 71,424,338, pending taxation before the Registrar. The applicant lodged a Notice of Appeal to the Supreme Court on 29 August 2019 and applied to stay execution of the Court of Appeal judgment pending that intended appeal, citing a threat of execution and risk that his appeal would be rendered nugatory.

Issues

  1. Whether the application for stay of execution was competent before the Supreme Court when it had not first been made to the Court of Appeal as required by Rule 41(1) of the Supreme Court Rules.
  2. Whether the applicant's supporting affidavit was rendered incompetent by falsehoods.
  3. Whether the applicant satisfied the conditions for the grant of an order for stay of execution.

Orders

  • The application is dismissed.
  • The interim order dated 13 March 2020 in Misc. Application No. 35 of 2019 is vacated.
  • The costs of both applications shall abide the outcome of the appeal.

Key headnotes

Civil Procedure — Stay of Execution — Concurrent Jurisdiction — Rule 41 Supreme Court Rules
Where the Supreme Court and the Court of Appeal have concurrent jurisdiction, an application for stay of execution must under Rule 41(1) be made to the Court of Appeal first; an applicant who comes directly to the Supreme Court under Rule 41(2) must establish that he was aware of the general rule but had good cause, amounting to exceptional circumstances, for not first applying to the Court of Appeal.
Civil Procedure — Stay of Execution — Likelihood of Success
To establish a likelihood of success of an intended appeal, an applicant for stay of execution must place material before the court that goes beyond a bare averment, such as a draft memorandum of appeal, the proposed grounds, or the impugned judgment; a mere statement on affidavit that the appeal has a likelihood of success is insufficient.
Civil Procedure — Stay of Execution — Irreparable Damage and Nugatory Appeal
An applicant for stay of execution must prove by affidavit evidence the irreparable loss he will suffer or that the appeal will be rendered nugatory if the stay is refused; it is insufficient merely to assert in the affidavit that irreparable loss may be occasioned, and where there is no executable order in place the alleged threat of execution is not made out.
Civil Procedure — Affidavits — Errors of Drafting Distinguished from Falsehoods
Careless drafting errors in an affidavit that do not go to the root of the application, and where the correct information is otherwise on record, do not amount to falsehoods rendering the affidavit incompetent; the carelessness or negligence of counsel should not be visited upon the litigant.

Legislation cited (8)

  • Supreme Court Rules r.2(2)
  • Supreme Court Rules r.6(2)(b)
  • Supreme Court Rules r.41(1)
  • Supreme Court Rules r.41(2)
  • Supreme Court Rules r.42(1)
  • Supreme Court Rules r.42(2)
  • Supreme Court Rules r.72
  • Constitution of Uganda 1995 art.126(2)(e)

Cases cited (4)

  • Gashumba Maniraguha v Sam Nkundiye (Civil Appeal No. 24 of 2015)
  • Attorney General & Electoral Commission v Eddie Kwizera (Civil Application No. 1 & 3 of 2020)
  • Lawrence Musitwa Kyazze v Eunice Busingye (Civil Application No. 18 of 1990)
  • Mohammed Mohammed Hamid v Roko Construction Ltd (Miscellaneous Application No. 23 of 2017)
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.