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Hima Cement Ltd v Uganda Cooperative Insurance (Civil Application No. 82 of 1999)

Court of Appeal · [1999] UGCA 78 · 1999 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for stay of execution pending an intended appeal
Decision
Application for stay of execution dismissed with costs

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal dismissed an application for stay of execution. It rejected the objection to the supporting affidavit, holding the Commissioner for Oaths' stamp showing Kampala satisfied the Oaths Act. However, under Rule 5(b) a notice of appeal must be filed before the court can entertain a stay application, and the inherent power under Rule 1(3) applies only where no law governs the situation. As no notice of appeal existed, the application was incompetent. The court distinguished Micah's case, where a notice of appeal had been filed though defective. It was also not satisfied that paying costs of UGX 2,836,000 would render the appeal nugatory, as the subject matter was the guarantee bond sum exceeding UGX 27m.

Outcome

Application for stay of execution dismissed with costs

Facts

The applicant sued the respondent in High Court Civil Suit No. 619 of 1998 on a guarantee bond for slightly over UGX 27m issued by the respondent as guarantor after the applicant supplied cement to N.P.K. Paints, which the respondent failed to pay. The suit was struck out on 6 April 1999. The applicant's High Court application for stay (Misc. Appl. No. 839 of 1999) was dismissed. The applicant's notice of appeal was struck out on 14 September 1999 for not being served in time, with costs to the respondent. An application for extension of time to serve the notice (Misc. Application No. 53 of 1999) was withdrawn as the notice had already been struck out. The applicant then filed Misc. Application No. 81 of 1999 for extension of time to file a notice of appeal, which remained pending. The present application for stay of execution was filed on 12 November 1999 after the respondent demanded payment of costs of UGX 2,836,000.

Issues

  1. Whether the supporting affidavit was incompetent for failing to comply with the Oaths Act regarding the jurat.
  2. Whether the court could entertain an application for stay of execution where no notice of appeal had been filed.
  3. Whether the applicant would suffer irreparable loss rendering the appeal nugatory if the stay was not granted.

Orders

  • Application dismissed with costs to the respondent.

Rules and key headnotes

Civil Procedure — Stay of Execution — Prerequisite of a Notice of Appeal
An application for stay of execution under Rule 5(b) of the Court of Appeal Rules cannot be entertained unless a notice of appeal has first been lodged; where no notice of appeal exists at all, the application is incompetent.
Civil Procedure — Inherent Powers of the Court — Scope and Limits
The inherent power of the court under Rule 1(3) of the Court of Appeal Rules is to be invoked only where no specific rule of law provides for the situation; it cannot be used to circumvent the express requirement to file a notice of appeal before seeking a stay of execution.
Civil Procedure — Affidavits — Compliance with the Oaths Act and the Jurat
An affidavit is not rendered incompetent merely because the jurat does not state where it was sworn, where the stamp of the Commissioner for Oaths indicates the place of deposing, thereby satisfying the Oaths Act.
Civil Procedure — Stay of Execution — Irreparable Loss and Nugatory Appeal
Payment of costs that are not the subject matter of the intended appeal does not render the appeal nugatory and does not constitute irreparable loss justifying a stay of execution.

Legislation cited (5)

Cases cited (1)

  • Francis Mansio Micah v Nura Walakira (Civil Application No. 9 of 1990)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Hima Cement Ltd v Uganda Cooperative Insurance (Civil Application No. 82 of 1999) [1999] UGCA 78 (1 January 1999)
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.