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Katungulu and 2 Others v Rwabuganda (Civil Application 9 of 2021)

Supreme Court · [2021] UGSC 46 · 2021 Application Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application by Notice of Motion for an interim order of stay of execution pending the hearing of a substantive application, arising from Supreme Court Civil Appeal No. 16 of 2014
Decision
Application for an interim order of stay of execution dismissed with costs to the respondent

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Holding

A single Justice of the Supreme Court dismissed an application for an interim order of stay of execution. The court reaffirmed that an applicant must prove by evidence a competent Notice of Appeal lodged under Rule 72, a pending substantive application for stay of execution, and a serious threat of execution. The applicants attached no Notice of Appeal and no copy of any pending substantive application, so the application was incompetent. In any event, it offended the doctrine of res judicata under section 7 of the Civil Procedure Act, the same parties, cause of action and remedies having already been determined in earlier applications arising from the same Civil Appeal No. 16 of 2014. The application was dismissed with costs to the respondent.

Facts

The applicants sought an interim order to stay execution of a decree arising from Supreme Court Civil Appeal No. 16 of 2014, in which the court had confirmed the Court of Appeal's decision restoring the respondent as registered proprietor of land comprised in Singo Block 783 Plot 3 and cancelling the registration of Bitamisi Namuddu. The applicants claimed to be third parties with rights in the suit land who had filed objector proceedings, and said the respondent was executing the decree, including a Notice of Eviction dated 18 February 2021 giving 90 days to vacate. They asserted, but did not produce, a pending substantive application for stay of execution. The respondent opposed the application, contending it was incompetent for want of a Notice of Appeal under Rule 72 and was an abuse of process, the applicants having earlier filed Miscellaneous Application No. 4 of 2019 for an interim stay, which was heard and dismissed, and a substantive stay application dismissed for want of prosecution.

Issues

  1. Whether the application for an interim order of stay of execution was competent, given the requirements of a competent Notice of Appeal under Rule 72 and a pending substantive application for stay of execution.
  2. Whether the application was barred by the doctrine of res judicata under section 7 of the Civil Procedure Act.

Orders

  • The application is dismissed.
  • Costs are awarded to the respondent.

Key headnotes

Civil Procedure — Stay of Execution — Interim Orders — Prerequisites for Grant
Before an interim order of stay of execution may be granted, the applicant must satisfy the court by evidence that there is a competent Notice of Appeal lodged in accordance with Rule 72 of the Supreme Court Rules, a pending substantive application for stay of execution, and a serious threat of execution before the hearing of the substantive application.
Civil Procedure — Stay of Execution — Burden of Proof on the Applicant
It is the duty of the applicant, and not the respondent, to prove by attaching the relevant documents that a Notice of Appeal and a pending substantive application for stay of execution exist; the court will not infer their existence from unsupported averments, nor may an applicant rely on documents filed by the respondent to prove the applicant's case.
Civil Procedure — Res Judicata — Section 7 Civil Procedure Act
A subsequent application is barred by res judicata under section 7 of the Civil Procedure Act where the matter directly and substantially in issue, the parties, the cause of action and the remedies sought are the same as those already heard and finally decided by a competent court.

Legislation cited (6)

  • Supreme Court Rules r.6
  • Supreme Court Rules r.2(2)
  • Supreme Court Rules r.72
  • Civil Procedure Act s.7
  • Land (Amendment) Act 2004 s.30(d)
  • Civil Procedure Rules Order 5 r.2

Cases cited (9)

  • Hwang Sung Industries Ltd v Tajdin Hussein and Others (Civil Application No. 19 of 2008)
  • Patrick Kaumba Wiltshire v Ismail Dabule (Civil Application No. 3 of 2018)
  • Zubeda Mohamed and Another v Wallia and Another (Civil Reference No. 7 of 2016)
  • E. B. Nyakaana & Sons Ltd v Beatrice Kobusinge and 16 Others (Miscellaneous Application No. 13 of 2017)
  • Kamunye and Others v The Pioneer General Assurance Society Ltd [1971] EA 263
  • Karia and Another v Attorney General and Others [2005] 1 EA 83
  • Bitamisi Namuddu v Rwabuganda Godfrey (Civil Appeal No. 16 of 2014)
  • John Katungulu Matovu v Rwabuganda Godfrey and Bitamisi Namuddu (Civil Application No. 174 of 2014)
  • Bitamisi Namuddu v Rwabuganda Godfrey (Civil Application No. 4 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.