Lubega & Another v Ssinabulya & 2 Others (Civil Application 13 of 2024)

Supreme Court · [2024] UGSC 37 · 2024 Application Granted ✦ 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 determination of the substantive application for stay of execution (Civil Application No. 12 of 2024), arising from Civil Appeal No. 18 of 2012.

Decision

Interim order staying execution of the decretal orders arising from Civil Appeal No. 18 of 2012 granted, pending determination of the substantive application for stay of execution.

The full judgment

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Holding

A single Justice of the Supreme Court held that the application was not barred by rule 41(1) and did not amount to forum shopping or abuse of process: under rule 41(2) the Court may entertain an application under rule 6(2)(b) to safeguard the right of appeal even where no application was first made to the Court of Appeal, and here the applicant had sought relief in the Court of Appeal, which declined jurisdiction, before withdrawing those applications and filing in the Supreme Court. On the merits, a notice of appeal, a pending substantive application for stay, and an imminent threat of execution (eviction notices and acts of dispossession) were established. The interim stay was accordingly granted.

Facts

The applicants were the unsuccessful parties in Civil Appeal No. 18 of 2012, concerning mailo land at Buye, Ntinda (Kyadondo Block 216, Plots 1218, 3960 and 3961). The original proprietor, Yozefu Bukenya, died intestate; his widow Petolalina Nabulya administered and was registered on the title. She died testate, appointing the respondents as executors, but before grant of probate the applicants forcefully entered the land. The respondents' High Court suit for eviction failed, but the Court of Appeal reversed that decision. The first applicant lodged Civil Appeal No. 5 of 2024 in the Supreme Court and a substantive application for stay of execution (Civil Application No. 12 of 2024). Having earlier sought stay in the Court of Appeal (which declined jurisdiction) and withdrawn those applications, he brought this interim application. The respondents had obtained a decree directing cancellation of land entries, issued eviction notices through court bailiffs, and allegedly placed containers and destroyed a banana plantation on the suit land.

Issues

Whether the application was barred by rule 41(1) of the Supreme Court Rules and amounted to forum shopping or an abuse of court process.
Whether the applicant satisfied the prerequisites for the grant of an interim order of stay of execution, in particular whether there was an imminent threat of execution.

Orders

An interim order is issued staying the execution of the decretal orders arising from Civil Appeal No. 18 of 2012 until the determination of Civil Application No. 12 of 2024.
Costs of this Application shall abide the substantive application for stay of execution, Civil Application No. 12 of 2024.

Key headnotes

Civil Procedure — Stay of Execution — Order of application between Supreme Court and Court of Appeal under rule 41

Although an application that may be made either to the Supreme Court or the Court of Appeal must ordinarily be made to the Court of Appeal first, rule 41(2) confers a discretion on the Supreme Court to entertain an application under rule 6(2)(b) to safeguard the right of appeal notwithstanding that no application has first been made to the Court of Appeal.

Civil Procedure — Abuse of Court Process — Forum Shopping

Withdrawing applications from the Court of Appeal and filing equivalent applications in the Supreme Court does not amount to forum shopping or an abuse of court process where the Court of Appeal had declined jurisdiction, the courts exercise concurrent jurisdiction over the relief, and the party seeks urgent relief from the appropriate court.

Civil Procedure — Interim Stay of Execution — Prerequisites

An interim order of stay of execution requires a notice of appeal (a sine qua non), a pending substantive application for stay of execution in respect of a pending appeal, and an imminent threat of execution of the lower court's orders before the determination of the substantive application.

Civil Procedure — Interim Orders — Preservation of status quo and ends of justice

The grant of an interim order is governed by the Court's inherent power under rule 2(2) to make orders necessary for the ends of justice; preserving the parties' right of appeal and the status quo pending determination of the contested issues by the full court speaks to the ends of justice.

Legislation cited (10)

Judicature (Supreme Court Rules) Directions S.I 13-11 r.2(2)
Judicature (Supreme Court Rules) Directions S.I 13-11 r.6(2)(b)
Judicature (Supreme Court Rules) Directions S.I 13-11 r.41(1)
Judicature (Supreme Court Rules) Directions S.I 13-11 r.41(2)
Judicature (Supreme Court Rules) Directions S.I 13-11 r.42(2)
Judicature (Supreme Court Rules) Directions S.I 13-11 r.43
Judicature (Supreme Court Rules) Directions S.I 13-11 r.72
Judicature (Supreme Court Rules) Directions S.I 13-11 r.94(3)
Judicature Act s.12
Constitution (Land Evictions) Practice Directions, 2021

Cases cited (6)

Theodore Ssekikubo & Others v Attorney General & 3 Others (Constitutional Application No. 6 of 2014)
Hwan Sung Industries Limited v Tajdin Hussein & Others (Civil Application No. 19 of 2008)
Benkay Nigeria Limited v Cadbury Nigeria PLC (SC 29 of 2006)
Muhammed Mohamed Hamid v Roko Construction Ltd (Miscellaneous Application No. 23 of 2017)
Uganda Revenue Authority v Nsubuga Guster & Another (Miscellaneous Application No. 16 of 2018)
Patrick Kaumba Wiltshire v Ismail Dabule (Civil Application No. 3 of 2018)

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.