Wakilii

Obwana v The Registered Trustees of Tororo Diocese (Civil Application 14 of 2021)

Supreme Court · [2021] UGSC 53 · 2021 Application Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application to a single Justice of the Supreme Court for an interim order of stay of execution pending the disposal of a substantive application for stay of execution.
Decision
Application for interim stay of execution dismissed with costs to the respondent

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Cited — treatment unverified cited in 1 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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Holding

A single Justice held that an interim order of stay of execution requires a competent notice of appeal, a pending substantive application, and a serious threat of execution. Under section 6(1) of the Judicature Act no right of appeal lies to the Supreme Court from an interlocutory order of the Court of Appeal, so the applicant's notice of appeal was incompetent and could not ground the application; the inherent power under Rule 2(2) cannot override that statute. There was also no serious threat of execution, no execution having occurred since 2018 and a Chief Justice circular prohibiting evictions being in force. The application was dismissed with costs.

Facts

The respondent and applicant had a land dispute spanning roughly 27 years over land at Apokor Kwapa, Tororo. In 1994 the respondent filed HCCS No. 2 of 1994; judgment was entered for the respondent in 2008, ordering the applicant to give vacant possession. The applicant's appeal (Civil Appeal No. 16 of 2009) was struck out by the Court of Appeal in 2011 for non-compliance with section 68 of the Civil Procedure Act. The applicant filed Miscellaneous Application No. 131 of 2011 seeking leave to appeal to the Supreme Court, which remained pending. After the respondent obtained warrants of execution in 2012, the applicant pursued stay applications in the Court of Appeal; the substantive stay (Civil Application No. 85 of 2012) was dismissed in June 2020 and the related reference (Civil Reference No. 69 of 2020) dismissed in March 2021. The applicant then filed a substantive stay application (Civil Application No. 13 of 2021) in the Supreme Court and this interim application. No execution had occurred since 2018.

Issues

  1. Whether the applicant satisfied the conditions for the grant of an interim order of stay of execution.
  2. Whether the Notice of Appeal, lodged against an interlocutory order of the Court of Appeal, was competent and capable of grounding the application.
  3. Whether there was a serious threat of execution warranting the grant of an interim stay.

Orders

  • The application is dismissed.
  • Costs of the application to the respondent.

Key headnotes

Civil Procedure — Stay of Execution — Conditions for an Interim Order
An applicant for an interim order of stay of execution must satisfy three conditions: a competent notice of appeal, a pending substantive application for stay, and a serious threat of execution before the hearing of the substantive application.
Civil Procedure — Right of Appeal — Interlocutory Orders of the Court of Appeal
No right of appeal lies to the Supreme Court under section 6(1) of the Judicature Act from an interlocutory order of the Court of Appeal, such orders being incidental to and not resulting from the final determination of the appeal.
Civil Procedure — Notice of Appeal — Competence as Basis for Stay
Where a notice of appeal is filed but no right of appeal exists, the notice of appeal is incompetent and cannot form the basis for an application for stay of execution, because there is no pending appeal.
Statutory Interpretation — Inherent Powers — Rule 2(2) Cannot Override Statute
The inherent power of the Supreme Court under Rule 2(2) of its Rules to make orders achieving the ends of justice cannot be applied to override the clear provisions of the Judicature Act, which is the parent and superior law.
Statutory Interpretation — Right of Appeal — Creature of Statute
The right of appeal is a creature of statute and there is no inherent right of appeal; an application for stay of execution pending appeal must rest on an existing statutory right of appeal.

Legislation cited (7)

  • Judicature (Supreme Court) Rules r.2(2)
  • Judicature (Supreme Court) Rules r.6(2)(b)
  • Judicature (Supreme Court) Rules r.41(2)
  • Judicature (Supreme Court) Rules r.42(1)(2)
  • Judicature (Supreme Court) Rules r.72
  • Judicature Act s.6(1)
  • Civil Procedure Act s.68

Cases cited (15)

  • Attorney General v Michael Kabaziguruka (Constitutional Application No. 5 of 2021)
  • Francis Mansio Micah v Nuwa Walakira [1992-93] HCB 88
  • G. Afaro v Uganda Breweries Ltd (Civil Application No. 12 of 2008)
  • Horizon Coaches Ltd v Pan African Insurance Ltd (Civil Application No. 20 of 2002)
  • Stanbic Bank Uganda Ltd v Atabya Agencies Ltd (Civil Application No. 31 of 2004)
  • Hwang Sung Industries Ltd v Tajdin Hussein (Civil Appeal No. 19 of 2008)
  • E.B. Nyakana & Sons Ltd v Beatrice Kobusingye & 16 Others (Civil Appeal No. 13 of 2017)
  • Uganda National Examinations Board v Mparo General Contractors Ltd (Civil Application No. 19 of 2004)
  • China Henan International Cooperation Group Co. Ltd v Justus Kyabahwa (Civil Application No. 30 of 2021)
  • Bitamisi Namuddu v Rwabuganda Godfrey (Civil Application No. 4 of 2015)
  • Theodore Ssekikubo & 3 Others v Attorney General & Others (Constitutional Application No. 4 of 2014)
  • Zubeda Mohamed & Anor v Laila Wallia & Anor (Civil Reference No. 7 of 2016)
  • Dr. Kasirivu Atwooki & Others v Grace Bamurangye Bororoza & Others (Civil Application No. 2 of 2010)
  • Beatrice Kobusingye v Fiona Nyakana & Another (Civil Appeal No. 5 of 2004)
  • Lukwago Erias v KCCA (Civil Application No. 6 of 2014)
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.