Musoke v Agard & 2 Others (Civil Application 37 of 2021)

The full judgment

Read the complete, verbatim text of this judgment.

Holding

On an application for an interim stay of execution, the single Justice held that an applicant must satisfy three conditions: a competent Notice of Appeal, a pending substantive application, and a serious threat of execution. Where an intended third appeal to the Supreme Court requires a certificate that a point of law of great general or public importance is involved, the Notice of Appeal is only validated once that certificate or leave is granted. The applicant had been denied a certificate by the Court of Appeal and his application for leave in the Supreme Court was still pending, so he had no competent Notice of Appeal. The application accordingly failed and was dismissed with costs.

Facts

The respondents, neighbours of the applicant, sued him for damages and trespass, alleging he excavated an access road they used to reach their homes to a depth of over two metres, blocking access and damaging their water supply line. The applicant counterclaimed as the registered proprietor of the suit land, contending it had no access road passing through it and that he had given the respondents notice to stop crossing his plot. The trial court entered judgment for the respondents; the applicant's appeals to the High Court and then the Court of Appeal were both dismissed. The applicant sought leave and a certificate of importance to bring a third appeal to the Supreme Court, plus a stay of execution; the Court of Appeal dismissed those applications and vacated the stay. He then filed in the Supreme Court an application for leave to appeal and an application for a substantive stay of execution, out of which this interim application arose. The respondents were said to be in advanced stages of re-executing the lower court orders, with a bill of costs of UGX 126,312,239 and a threatened arrest and attachment of the suit property.

Issues

1. Whether the applicant satisfied the conditions for the grant of an interim order of stay of execution, in particular whether he had a competent Notice of Appeal.

Orders

• The application fails and is dismissed.
• Costs to the respondents.

Key headnotes

Legislation cited (7)

• Judicature (Supreme Court Rules) Directions SI 13-11 r.2
• Judicature (Supreme Court Rules) Directions SI 13-11 r.6
• Judicature (Supreme Court Rules) Directions SI 13-11 r.42
• Judicature (Supreme Court Rules) Directions SI 13-11 r.2(2)
• Judicature (Supreme Court Rules) Directions SI 13-11 r.39(1)
• Judicature (Supreme Court Rules) Directions SI 13-11 r.72
• Judicature (Supreme Court Rules) Directions SI 13-11 r.72(4)

Cases cited (7)

• Hwang Sung Industries Ltd v Tajdin Hussein and 2 Others (Civil Application No. 19 of 2008)
• G. Afaro v Uganda Breweries Ltd (Civil Application No. 12 of 2008)
• Zubeda Mohamed and Another v Laila Wallia and Another (Civil Reference No. 7 of 2016)
• Ssekikuubo and Others v Attorney General and Others (Constitutional Application No. 4 of 2014)
• Yakobo Senkungu and Others v Crescensio Mukasa (Civil Application No. 5 of 2013)
• Ginliano Garigio vs Calaudio Casadio
• Busulwa Blasio v Uganda (Criminal Reference No. 1 of 2016)