Wakilii

Hwan Sung Industries Ltd v Tajdin and Others (Civil Application 19 of 2008)

Supreme Court · [2008] UGSC 29 · 2008 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to a single Justice of the Supreme Court for an interim order of stay of execution pending the hearing of a substantive stay application.
Decision
Interim order granted staying sale of the attached property pending disposal of the substantive stay application or until 17 November 2008, whichever came first.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The single Justice held that for an interim order of stay of execution it suffices to show that a substantive stay application is pending and that there is a serious threat of execution before the substantive application is heard; the applicant need not establish the special circumstances and good cause required for a substantive stay. The Court further held that in execution by attachment and sale both steps must be completed, so attachment alone on 15 September 2008 did not complete execution and the application had not been overtaken by events. The application was allowed and sale of the attached property stayed pending disposal of the substantive application or a fixed review date.

Outcome

Interim order granted staying sale of the attached property pending disposal of the substantive stay application or until 17 November 2008, whichever came first.

Facts

The applicant had successfully sued the respondents in HCCS No. 271 of 2003 for breach of contract. On appeal, the Court of Appeal decided in favour of the respondents. The applicant, dissatisfied, appealed to the Supreme Court in Civil Appeal No. 08 of 2008. The respondents then applied to execute the Court of Appeal decree, prompting the applicant to file a substantive application for stay of execution (Civil Application No. 18 of 2008) and the present application for an interim order of stay. After the applicant failed to respond to a notice to show cause, the Registrar of the Court of Appeal issued a warrant of attachment and sale, and the court bailiff attached the applicant's property on 15 September 2008. The attachment had been effected, but the attached property had not yet been sold when the interim application was heard.

Issues

  1. Whether the applicant was entitled to an interim order of stay of execution pending the disposal of a substantive application for stay of execution.
  2. Whether the application had been overtaken by events because attachment in execution had already been effected.
  3. What an applicant must show to obtain an interim order of stay, as distinct from a substantive stay of execution.

Orders

  • Sale of the property attached on 15-09-08, as shown in the inventory signed by a representative of the applicant and attached to James Birungi's affidavit, to stay pending the disposal of Civil Application No. 18 of 2008 or until 17-11-08, whichever comes first.
  • If by 17-11-08 the substantive application (No. 18 of 2008) is still pending, the matter must be brought to court for review.
  • Costs of this application to abide the result of the substantive application.

Rules and key headnotes

Civil Procedure — Stay of Execution — Interim Order — Requirements distinct from substantive stay
For an interim order of stay of execution it suffices to show that a substantive application for stay is pending and that there is a serious threat of execution before that application is heard; the applicant need not establish the special circumstances and good cause required for a substantive stay, nor pre-empt the matters relevant to the substantive application.
Civil Procedure — Execution — Attachment and Sale — When execution is complete
In execution by attachment and sale, both the attachment and the sale must be completed for the execution to be complete; attachment alone does not complete execution, so staying a sale that has not yet occurred preserves rather than reverses the status quo and the application is not overtaken by the attachment.
Civil Procedure — Supreme Court — Inherent power under rule 2(2)
Rule 2(2) of the Rules of the Supreme Court preserves the inherent power of the Court to make any order to achieve the ends of justice or to prevent abuse of its process, including an interim order ensuring a substantive stay application is heard before execution renders it nugatory.

Legislation cited (4)

  • Rules of the Supreme Court r.2(2)
  • Rules of the Supreme Court r.42(1)
  • Rules of the Supreme Court r.47(2)
  • Civil Procedure Rules O.22 r.39

Cases cited (1)

  • Editor-in-Chief of the New Vision Newspaper v Ntabgoba (Civil Application No. 63 of 2004)

Full judgment

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

Hwan Sung Industries Ltd v Tajdin and Others (Civil Application 19 of 2008) [2008] UGSC 29 (19 September 2008)
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.