Wakilii

Nalikka and Others v Sensarire and Others (Civil Application No. 35 of 1999)

Court of Appeal · [1999] UGCA 88 · 1999 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application by notice of motion for stay of execution and injunction pending disposal of appeal from HCCS No. 432 of 1989
Decision
Injunction and stay of execution granted pending disposal of the appeal

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal held that its inherent powers under rule 1(3) and its wide discretion under rule 5(2)(b) allowed it to accept an informal amendment of a notice of motion and to grant an injunction where circumstances, forced on the applicants by the respondent's unlawful demolition of the disputed building, required it. Service of the notice of appeal on parties is governed by rule 77, not rule 75, so alleged late service did not render proceedings under rule 5(2) incompetent. Applying the principle in Wilson v Church, the court would not allow an appeal to be rendered nugatory. The application was allowed and an injunction and stay of execution granted pending the appeal.

Outcome

Injunction and stay of execution granted pending disposal of the appeal

Facts

The applicants filed HCCS No. 432 of 1989 against the respondents concerning property comprised in mailo land at Mengo/Ndeba Estate in Kampala, on which stood a commercial building. The suit was decided in favour of the respondents; the court held that the 5th defendant was a bona fide purchaser, that the plaintiffs had no leasehold interest, and ordered the 5th defendant to pay the plaintiffs UGX 4,000,000 as customary compensation for the building. The applicants lodged a notice of appeal and applied for a stay of execution to prevent the 5th respondent from demolishing the building. The High Court refused a stay. Between 28 and 31 August 1999, the 5th respondent demolished the building, describing it as removing illegal structures, before the application could be heard. At the hearing the applicants sought to amend their motion to seek an injunction to prevent further interference with the disputed property and stay taxation of costs.

Issues

  1. Whether the application was incompetent because no competent notice of appeal had been filed and served in accordance with the rules of the court.
  2. Whether the court could grant an injunction on an application originally framed as one for stay of execution.
  3. Whether the applicants had established grounds to justify a stay of execution or injunction pending appeal.

Orders

  • Application allowed.
  • Order of injunction granted stopping the respondents from further developments of the suit property.
  • Stay of execution granted generally until disposal of the appeal.
  • Costs of the application awarded to the applicants.

Rules and key headnotes

Court of Appeal — Inherent Powers — Amendment of Notice of Motion to Attain Ends of Justice
Under rule 1(3) of the Rules of the Court of Appeal the court retains inherent power to make such orders as may be necessary to attain the ends of justice and prevent abuse of process, and may accept an informal application to amend a notice of motion where circumstances forced on the applicant by the opposing party's conduct require it.
Stay of Execution and Injunction — Rule 5(2)(b) — Wide Discretion Independent of Order 39 rule 4 CPR
The Court of Appeal's power under rule 5(2)(b) to order a stay of execution, an injunction or a stay of proceedings pending appeal is wide and is not confined by the conditions applicable to injunctions under Order 39 rule 4 of the Civil Procedure Rules.
Notice of Appeal — Service on Parties Governed by Rule 77 not Rule 75
Rule 75 does not deal with service of a notice of appeal on parties or their counsel; that matter is governed by rule 77, so alleged late service on counsel does not render proceedings brought under rule 5(2)(a) incompetent.
Stay Pending Appeal — Principle Against Rendering Appeal Nugatory
Where an unsuccessful party is exercising an unrestricted right of appeal, the court will ordinarily make such order for staying proceedings under the judgment appealed from as will prevent the appeal, if successful, from being rendered nugatory.
Preservation of Subject Matter — Party May Not Benefit From Unlawful Destruction of Disputed Property
A party who unlawfully destroys or develops the subject matter of a dispute cannot be permitted to benefit from that illegal act, and the court will grant an injunction and stay to preserve the disputed property pending appeal.

Legislation cited (6)

  • Rules of the Court of Appeal rule 1(3)
  • Rules of the Court of Appeal rule 5(2)(a)
  • Rules of the Court of Appeal rule 5(2)(b)
  • Rules of the Court of Appeal rule 75
  • Rules of the Court of Appeal rule 77
  • Civil Procedure Rules Order 39 rule 4

Cases cited (2)

  • Lawrence Musiitwa Kyazze vs Businge S.C.C. Appl. No.18/1990 (unreported)
  • Wilson v Church (No 2) (1879) 12 Ch D 454

Full judgment

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Nalikka and Others v Sensarire and Others (Civil Application No. 35 of 1999) [1999] UGCA 88 (3 November 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.