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China Road Bridge Corporation v Welt Machinen Engineering and Others (Miscellaneous Cause 12 of 2022; Miscellaneous Cause 13 of 2022)

Supreme Court · [2023] UGSC 42 · 2023 Application Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application for stay of execution of a final Supreme Court judgment pending the hearing of an application to recall and review that judgment
Decision
Application for stay of execution dismissed; the impugned judgment stands and the execution period had in any event lapsed

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Holding

The majority held that an application to stay execution of a final Supreme Court judgment pending its recall and review cannot be brought under rule 6(2)(b) of the Supreme Court Rules, which applies only where a notice of appeal is pending; appeal, review and recall are distinct. The application disclosed no likelihood of success: the applicant sought to adduce fresh evidence the Court has no power to receive (rule 30(1)), and its underlying transaction was tainted by illegality, so under the ex turpi causa principle it could not invoke the Court's aid. The 60-day execution period having lapsed, there was nothing to stay. Application dismissed with costs; Madrama and Tibatemwa-Ekirikubinza JJSC dissenting.

Facts

The applicant, a road contractor, extracted granite from the Kamusalaba rock for road works under a contract with the Nakapiripirit Local Government. The first respondent claimed rights to the rock and litigation followed. In consolidated Civil Appeals Nos. 13 and 14 of 2019, delivered on 2 February 2022, the Supreme Court ordered the first respondent to pay UGX 23,995,130,000 — the value of the aggregates per the contract bill of quantities — to the Nakapiripirit District Land Board, the constitutionally mandated entity to deal with the rock, within 60 days. The applicant filed an application to recall and review that judgment, contending the Court had mistaken the value of the processed aggregates for the value of the raw rock, which it said was only UGX 287,694,151, and that fresh evidence showed deposited funds had been paid to the first respondent and to advocates with whom it had no dealings. Pending determination of that review, the applicant sought a stay of execution to prevent the decretal sum being paid over to the Land Board.

Issues

  1. Whether rule 6(2)(b) of the Judicature (Supreme Court Rules) Directions can be invoked to stay execution where there is no pending appeal but an application to recall and review a final judgment.
  2. Whether the applicant's application for recall and review of the judgment had a likelihood of success.
  3. Whether the applicant would suffer irreparable damage or substantial loss if the stay of execution was not granted.
  4. Whether the applicant satisfied the conditions for a stay of execution, namely absence of undue delay and provision of security.
  5. Whether a party whose underlying transaction is tainted by illegality may invoke the aid of the court.

Orders

  • Miscellaneous Cause No. 12 of 2022 dismissed with costs to the second respondent.
  • Miscellaneous Cause No. 13 of 2022 dismissed.
  • Per the dissent of Madrama and Tibatemwa-Ekirikubinza JJSC: the application has merit and a stay of execution ought to have been granted.

Key headnotes

Civil Procedure — Stay of Execution — Rule 6(2)(b) requires a pending notice of appeal
Rule 6(2)(b) of the Judicature (Supreme Court Rules) Directions authorises a stay of execution only where a notice of appeal has been lodged in accordance with rule 72; it cannot be invoked to stay execution pending an application to recall and review a final judgment, where no appeal is pending.
Civil Procedure — Review, Recall and Appeal — Distinction between the three
Appeal, review and recall are distinct remedies: review under section 82 of the Civil Procedure Act corrects an error apparent on the record, recall annuls a judgment given without jurisdiction or in breach of natural justice, and neither is an appeal; the terms are not synonymous and must not be used interchangeably to disguise a third appeal in the final court.
Civil Procedure — Review — No power to receive additional evidence
On an application for review the Supreme Court has no discretion to take additional evidence under rule 30(1) of the Supreme Court Rules; a party cannot establish a likelihood of success by adducing figures and calculations that were never part of the record on appeal.
Contract Law — Illegality — Ex turpi causa non oritur actio
A court of law will not enforce an illegal contract nor lend its aid to a litigant whose claim is founded on an illegal or void transaction; where there is a nexus between the party's improper conduct and the right it seeks to enforce, equity follows the law and the claim cannot be protected.
Civil Procedure — Stay of Execution — Application overtaken by lapse of execution period
Where the time fixed by the court for performance of its order has long lapsed, there is no subsisting execution capable of being stayed and an application for stay of execution is overtaken by events.

Legislation cited (18)

  • Judicature (Supreme Court Rules) Directions rule 6(2)(b)
  • Judicature (Supreme Court Rules) Directions rule 42(1) and (2)
  • Judicature (Supreme Court Rules) Directions rule 43(1)
  • Judicature (Supreme Court Rules) Directions rule 2(2)
  • Judicature (Supreme Court Rules) Directions rule 30(1)
  • Judicature (Supreme Court Rules) Directions rule 35(1)
  • Judicature (Supreme Court Rules) Directions rule 72(1)
  • Civil Procedure Act s.98
  • Civil Procedure Act s.82
  • Civil Procedure Act s.7
  • Civil Procedure Act s.1
  • Judicature Act Cap 13 s.7
  • Land Act s.56(1) and (2)
  • Land Act s.59
  • Land Act s.60
  • Constitution of Uganda 1995 Article 241
  • Constitution of Uganda 1995 Article 132(1)
  • Constitution of Uganda 1995 Article 211(6)

Cases cited (11)

  • Theodore Ssekikubo and others v Attorney General (Constitutional Application No. 06 of 2013)
  • Mohammed Mohammed Hamid v Roko Construction Limited (Miscellaneous Cause No. 18 of 2017)
  • Hilda Wilson Namusoke and Anor v Owalla's Home Investment Trust (EA) and Anor (Civil Appeal No. 15 of 2017)
  • Active Automobile Spares Ltd v Crane Bank Ltd and Anor (Civil Appeal No. 21 of 2001)
  • Scott v Brown Doering McNab & Co [1892] 2 QB 724
  • Mukwano Enterprises Limited v Ranchhobhai Shivabhai Patel and Anor (Civil Appeal No. 16 of 2019)
  • State of Punjab v Davinder Singh Bhullar (2012) Cr LJ (Supreme Court of India)
  • AID Ltd v. The Federal Airports Authority of Nigeria [2020] EWACA (M585(CA))
  • Dr Ahmed Mohammed Kisuule v Greenland Bank (In Liquidation) (Civil Application No. 07 of 2020)
  • Uganda Revenue Authority v Nsubuga Guster and another (Miscellaneous Application No. 16 of 2018)
  • Wilson v Church (1879) 12 Ch D 454
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.