Wakilii

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

Supreme Court · [2008] UGSC 30 · 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; sale of the attached property stayed pending disposal of the substantive stay application (No. 18 of 2008) or until 17-11-08, whichever comes first

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

On an application to a single Justice for an interim order of stay of execution, the court held that it suffices for the applicant to show that a substantive stay application is pending and that there is a serious threat of execution before that application can be heard; the matters relevant to a substantive stay (special circumstances, good cause, inability to refund) need not be pre-empted. Although the respondents had already attached the applicant's property, attachment alone did not complete the execution, which by attachment and sale requires both steps; the sale had not occurred. The application was therefore not overtaken by events. The court allowed the application and stayed the sale of the attached property.

Outcome

Interim order granted; sale of the attached property stayed pending disposal of the substantive stay application (No. 18 of 2008) or until 17-11-08, whichever comes first

Facts

The applicant successfully sued the respondents in HCCS No. 271 of 2003 for breach of contract. On appeal, the Court of Appeal found for the respondents. The applicant, dissatisfied, appealed to the Supreme Court in Civil Appeal No. 08 of 2008. The respondents applied to execute the Court of Appeal decree. The applicant filed a substantive application (Civil Application No. 18 of 2008) for stay of execution pending the appeal, and the present application for an interim order of stay. Meanwhile, on the respondents' application and after the applicant failed to respond to a notice to show cause under O.22 r.39 of the Civil Procedure Rules, the Registrar of the Court of Appeal issued a warrant of attachment and sale, and the court bailiff attached the applicant's property on 15-09-2008. The sale of the attached property had not yet taken place.

Issues

  1. Whether the applicant was entitled to an interim order of stay of execution pending the hearing of its substantive application for stay of execution.
  2. Whether the application had been overtaken by events because attachment of the applicant's property in execution had already been effected.

Orders

  • Sale of the property attached on 15-09-08, as shown in the inventory attached to James Birungi's affidavit, must 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, this 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 — Conditions for Grant
On an application for an interim order of stay of execution, it suffices for the applicant to show that a substantive application for stay is pending and that there is a serious threat of execution before that substantive application can be heard; it is not necessary to pre-empt the matters considered in deciding the substantive application for stay.
Civil Procedure — Execution — Attachment and Sale — Whether Execution Complete
In an execution by attachment and sale, both attachment and sale must be completed before the execution is complete; attachment of property alone does not complete the execution, so an application for stay is not overtaken by events where the attached property has not yet been sold.
Civil Procedure — Supreme Court — Inherent Power — Rule 2(2) of the Rules of the Court
Rule 2(2) of the Rules of the Supreme Court preserves the inherent power of the court to make any orders necessary to achieve the ends of justice or to prevent abuse of its process, including an interim order preserving the status quo so that a pending substantive stay application is not rendered 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, New Vision Newspaper v Ntabgoba (Civil Application No. 63 of 2004)

Full judgment

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Hwan Sung Industries Ltd v Tajdin and Others (Civil Application 19 of 2008) [2008] UGSC 30 (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.