Wakilii

Gulbanu and Another v Singh (Civil Suit No. 16 of 1955)

East African Court of Appeal · [1955] EACA 13 · 1955 Application Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application by unsuccessful defendant for stay of execution pending appeal from damages award
Decision
Stay of execution granted on condition that principal sum is paid into Court or satisfactory security given within seven days, and taxed costs paid on advocates' undertaking to repay or paid into Court

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Stay of execution pending appeal is not granted as of course but requires special cause. The unrebutted evidence of the plaintiffs' poverty and precarious finances satisfied the court that they would be unable to repay the damages if the decree were reversed on appeal, constituting special cause. The court ordered the defendant to pay the principal sum into Court within seven days unless satisfactory security was found. Taxed costs were to be paid to the plaintiffs' advocates on their written undertaking to repay if the decree were reversed, failing which costs were to be paid into Court. The costs of the application were ordered to follow the event of the appeal due to the obduracy of the plaintiffs' advocates who declined to offer the customary undertaking and ignored established English practice.

Outcome

Stay of execution granted on condition that principal sum is paid into Court or satisfactory security given within seven days, and taxed costs paid on advocates' undertaking to repay or paid into Court

Facts

The plaintiffs, husband and wife, obtained a judgment for damages of Sh. 11,631.50 and costs against the defendant. The defendant appealed and applied for stay of execution. Before the application, the defendant's advocates offered security in the form of the defendant's own bond with surety, stating he owned immovable property. The plaintiffs' advocates refused and threatened execution. In affidavits, the defendant averred that the plaintiffs had no valuable assets, received a small and precarious monthly income, and that recovery of money paid would be difficult if the appeal succeeded. The male plaintiff responded by affidavit that the defendant's immovable property was a single plot burdened with three mortgages, which the defendant did not deny. Neither party disputed the other's evidence of financial position. The plaintiffs' advocates declined to give an undertaking to repay costs if the decree were reversed, necessitating the formal application.

Issues

  1. Whether a defendant is entitled to a stay of execution pending appeal as of course or whether special cause must be shown.
  2. Whether the poverty of successful plaintiffs constitutes special cause for ordering stay of execution.
  3. Whether the principal sum should be paid into Court or security accepted from the defendant.
  4. Whether taxed costs should be paid directly to plaintiffs' advocates on their personal undertaking to repay if the appeal succeeds, or paid into Court.
  5. Who should bear the costs of the application for stay of execution.

Orders

  • Principal sum to be paid into Court within seven days unless satisfactory security is found by the defendant.
  • Liberty to either party to apply on the issue of the sufficiency of any security tendered.
  • If the plaintiffs' advocates give a written personal undertaking within seven days to repay the taxed costs if the defendant is ultimately successful, the costs are to be paid to them upon receipt of the undertaking.
  • If the undertaking is not given within seven days, the taxed costs are to be paid into Court.
  • On compliance with these orders, execution is stayed.
  • Subject of interest may be dealt with after appeal by application under section 91(1) of the Civil Procedure Ordinance.
  • Costs of the application to follow the event of the appeal.

Rules and key headnotes

Stay of Execution — Application Before Trial Judge
The salutary practice for applications for stay of execution pending appeal is to bring the application before the trial Judge whenever possible.
Stay of Execution — Special Cause — Poverty of Successful Party
A defendant is not entitled to a stay of execution pending appeal as of course; in the absence of special cause shown, the court will not order stay. Special circumstances may be proved by affidavit. The precarious economy and absence of assets of successful plaintiffs constitutes special cause where, if they receive payment of damages, they would not be in a position to repay the money if the decree were reversed on appeal.
Stay of Execution — Security and Payment into Court
Where an applicant for stay shows no substantial assets, the court may order payment of the principal sum into Court within a specified time unless satisfactory security is found, with liberty to either party to apply on the issue of the sufficiency of any security proffered.
Stay of Execution — Payment of Costs to Advocates — Undertaking to Repay
The court will not order an advocate to give an undertaking to repay costs paid to him in the event of a successful appeal, but it can make payment of costs to the advocate contingent upon the advocate consenting to give such an undertaking. If the advocate refuses to give the undertaking, the court may in the alternative order payment of costs into Court. The unrebutted evidence of poverty of the plaintiffs is sufficient cause for the court to intervene to stay execution for payment of costs to the plaintiffs directly, but these circumstances do not extend to the plaintiffs' advocates, who as officers of the Court are subject to any order for repayment the Court may make.
Stay of Execution — Costs of Application — Discretion of Court
Although the customary English practice is to order the applicant for stay to pay the costs of the application in any event, the court retains a discretion and may depart from the general rule where the conduct of the respondent justifies it, such as where the respondent's advocates have shown obduracy by neither considering security proffered before the application nor offering to repay costs if paid to them. In such circumstances the costs may be ordered to follow the event of the appeal.
Stay of Execution — Interest on Principal Sum and Costs
Any claim for interest eventually due on the principal sum or costs can conveniently be postponed until after the appeal and dealt with on application to the court under section 91(1) of the Civil Procedure Ordinance.

Legislation cited (3)

  • Civil Procedure (Revised) Rules 1948 Order 41 rule 4(1)
  • Civil Procedure (Revised) Rules 1948 Order 41 rule 4(2)
  • Civil Procedure Ordinance Cap. 5 s.91(1)

Cases cited (14)

  • Burdick v Garrick (1870) LR 5 Ch App 453
  • Merry v Nickalls (1873) LR 8 Ch App 205
  • Cooper v Cooper (1876) LR 2 Ch 492
  • Morgan v Elford (1876) LR 4 Ch D 352
  • Barker v Lavery (1885) 14 QBD 769
  • The Annot Lyle (1886) 11 PD 114
  • Native Guano Co v Sewage Manure Co (1888) 4 TLR 438
  • Monk v Bartram (1891) 1 QBD 346
  • In re Queensland Mercantile Agency Company (1892) 61 LJ (NS) 48
  • Swyny v Harland (1894) 1 QBD 707
  • Hood Barrs v Heriot (1896) 1 QBD 610
  • Earl of Shrewsbury v Trappes (1860) De G F & J 172
  • Topham v Duke of Portland (1863) 1 De G J & S 603
  • Walford v Walford (year unknown) LR 3 Ch App 812

Full judgment

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Gulbanu and Another v Singh (Civil Suit No. 16 of 1955) [1955] EACA 13 (1 January 1955)
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.