Wakilii

Mukiibi v Semusambwa (Civil Application 9 of 2003)

Supreme Court · [2003] UGSC 44 · 2003 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Ex parte application to a single judge for an interim order staying execution pending the inter partes hearing of a substantive stay application by the full bench
Decision
Application for an interim order of stay of execution dismissed; applicant left to pursue the pending substantive stay application before the full bench

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Sitting as a single judge, the court held that an intention to appeal is not of itself a ground for staying execution, and that while a single judge has inherent power under the Rules to grant an interim order for stay pending hearing of a substantive stay application by the full bench, that power may be exercised only in compelling circumstances to prevent the defeat of justice. The applicant had not shown that eviction was imminent or that he would suffer irreparable loss, and no cause was shown why the respondent should not be heard. The proper course was to pursue the pending substantive application. The application was dismissed with no order as to costs.

Outcome

Application for an interim order of stay of execution dismissed; applicant left to pursue the pending substantive stay application before the full bench

Facts

The Court of Appeal had ordered the applicant to give the respondent vacant possession of land at Plot 13 Kampala Road, in which the applicant claimed a leasehold interest. The applicant intended to appeal to the Supreme Court against that order, lodged a notice of appeal, and applied for a copy of the proceedings, but had not yet received it or compiled the record of appeal. A substantive application for stay of execution was filed to be heard inter partes by the full bench but had not been fixed for hearing. The applicant, fearing the respondent would evict him and demolish his developments before the substantive application was heard, brought this ex parte application before a single judge for an interim order of stay. The respondent was apparently awaiting a Court of Appeal ruling on his application to renew the warrant of eviction. No further eviction step had been taken since the May 2003 bailiff's notice to give vacant possession.

Issues

  1. Whether a single judge of the Supreme Court has power to grant an interim order for stay of execution pending the hearing of a substantive stay application by the full bench.
  2. Whether the applicant established compelling circumstances justifying an interim stay of execution.

Orders

  • Application dismissed.
  • No order as to costs.

Rules and key headnotes

Civil Procedure — Stay of Execution — Intention to Appeal Not a Ground
An intention to appeal, or the institution of an appeal, does not of itself operate as a stay of execution; an applicant must satisfy the court that there is sufficient cause why the successful party should postpone enjoyment of the judgment, including that execution may cause irreparable loss.
Civil Procedure — Stay of Execution — Inherent Power of a Single Judge to Grant an Interim Order
Although the rule excluding a stay of execution from determination by a single judge does not extend to an interim order, a single judge, in exercise of the court's inherent power and being vested with power to hear all applications, may grant an interim order for stay to prevent the defeat of justice pending the hearing of a substantive stay application by the full bench.
Civil Procedure — Interim Orders — Compelling Circumstances Requirement
The interim procedure must not be used as an alternative or substitute for the substantive stay procedure, nor to negative its import; an interim order ought to be made only in compelling circumstances to prevent the defeat of justice, strictly pending the full hearing of the substantive application.
Civil Procedure — Ex Parte Applications — Right to Be Heard
It is a cardinal principle of judicial procedure that, save in exceptional circumstances, every party is entitled to notice and an opportunity to be heard; a court will proceed ex parte only where it is satisfied that proceeding inter partes is likely to defeat the ends of justice, or where the party given notice fails to avail itself of the opportunity to be heard.

Legislation cited (5)

  • Rules of the Supreme Court r.1(3)
  • Rules of the Supreme Court r.5(2)
  • Rules of the Supreme Court r.41
  • Rules of the Supreme Court r.46(2)
  • Rules of the Supreme Court r.49

Cases cited (1)

  • Horizon Coaches Ltd v Francis Mutabazi and Others (Civil Application No. 11 of 2001)

Full judgment

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Mukiibi v Semusambwa (Civil Application 9 of 2003) [2003] UGSC 44 (10 September 2003)
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.