Wakilii

Asadi Semiko v Maimuna Zirabamuzale (MISCELANOUS APPLICATION. NO.5 92)

High Court · [1992] UGHCCD 112 · 1992 Application Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for stay of execution pending appeal from ex parte judgment in civil suit
Decision
Stay of execution granted conditionally; applicant to deposit half the costs of the suit pending disposal of appeal.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court granted a conditional stay of execution pending appeal. The argument that the order to vacate was made per incuriam failed because the applicant should have applied to set aside the ex parte judgment under O.9 rr.24-25. However, the court held that natural justice required the applicant to be served with the bill of costs or notice before taxation, even where the original suit proceeded ex parte. Stay was granted on condition that the applicant deposit half the costs of the suit, given that the disputed land had already been returned to the respondent and only costs remained to be realised.

Outcome

Stay of execution granted conditionally; applicant to deposit half the costs of the suit pending disposal of appeal.

Facts

The respondent obtained an ex parte judgment in C.S. No. MM 45/89 on 2 December 1991 ordering the applicant to vacate suit land by 31 December 1991. The suit land was recovered and handed to the respondent on or about 19 March 1992. The trial magistrate taxed the bill of costs ex parte on 3 March 1992 without serving the applicant or his advocates with the bill or notice. Execution proceedings were commenced to realise costs of UGX 643,600, including through the advertised sale of the applicant's house and plot. The applicant filed this stay application on 11 May 1992, seeking to halt execution pending disposal of H.C.C.A. No. 13/91. The applicant averred that the suit land was his only means of livelihood and that he and his family of 18 would be rendered destitute if execution proceeded. The respondent conceded that the suit land had been returned to her and that she had no claim on the parcel where the applicant built his house, except for realisation of costs.

Issues

  1. Whether the order to vacate the suit land was made per incuriam.
  2. Whether the execution proceedings constituted an abuse of the court process due to ex parte taxation of costs without notice to the applicant.
  3. Whether substantial loss would result to the applicant if stay of execution is not granted.

Orders

  • Stay of execution granted on condition that applicant deposits half the costs of the suit to the court.
  • Appeal pending to be disposed of as soon as possible.
  • Costs of this application to be in the cause.

Rules and key headnotes

Civil Procedure — Ex Parte Judgments — Setting Aside — Proper Procedure
Where a party seeks to adduce facts that were not brought to the attention of the trial court in an ex parte judgment, the proper procedure is to apply to set aside the ex parte judgment under O.9 rr.24 and 25 of the Civil Procedure Rules, not to argue that the order was made per incuriam.
Civil Procedure — Taxation of Costs — Natural Justice — Service of Bill of Costs
Natural justice requires that a party or their advocates be served with the bill of costs or notice of taxation even where the original suit proceeded ex parte. The fact that a suit was decided ex parte does not automatically entitle the successful party to have costs taxed ex parte without notice to the other side.
Civil Procedure — Stay of Execution — Conditions for Grant — O.39 r.4(3)
Under O.39 r.4(3) of the Civil Procedure Rules, a stay of execution may be granted where: (a) substantial loss may result to the applicant unless the order is made; (b) the application has been made without unreasonable delay; and (c) security has been given for due performance of the decree. However, where the grounds for stay are closely linked to the grounds of the pending appeal, the court may exercise discretion to grant a conditional stay to avoid disposing of the appeal itself at the interlocutory stage.

Legislation cited (8)

  • Civil Procedure Rules O.39 r.4(1)
  • Civil Procedure Rules O.39 r.4(3)
  • Civil Procedure Rules O.39 r.4(5)
  • Civil Procedure Act s.101
  • Civil Procedure Rules O.9 r.9
  • Civil Procedure Rules O.9 r.24
  • Civil Procedure Rules O.9 r.25
  • Civil Procedure Rules O.9 r.17(1)(a)

Cases cited (1)

  • Balwantrai D. Bhatt v Ajeet Singh & Anor (1962) E.A. 103

Full judgment

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Asadi Semiko v Maimuna Zirabamuzale (MISCELANOUS APPLICATION. NO.5_92) [1992] UGHCCD 112 (27 May 1992)
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.