Serwadda v Nanteza (Civil Application 663 of 2022)

Observed later treatment

No later-treatment classification is recorded for this judgment.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

Holding

A single Justice of the Court of Appeal struck out an application for interim stay of execution because the notice of motion failed to state the grounds on which it was based, contrary to the mandatory requirement of Rule 43 of the Rules of the Court. The court held that Article 126(2)(e) of the Constitution is not a magic wand for defaulting litigants and does not wipe out the rules of procedure; substantive justice must be administered with due regard to the circumstances of each case, but mandatory procedural rules must still be followed. The application was found to be incompetent and struck out with costs.

Outcome

Application struck out as incompetent with costs

Facts

The applicant was a party in High Court Miscellaneous Cause No. 31/2010 in which a consent judgment provided that property comprised in LRV 3610 Folio 23, Plot 11 Katazamiti Road, Kiswa Zone 5, Bugolobi be transferred to the applicant and two other beneficiaries of the estate of the late Tereza Nalumansi. The respondent filed Miscellaneous Application No. 568/2016 seeking review of the decree, which was granted, and the consent judgment was set aside. The applicant filed applications for extension of time to appeal and for stay of execution in the High Court, the latter being dismissed. She then filed applications in the Court of Appeal, including the substantive Civil Application No. 662 of 2022 and the instant application for interim stay of execution, contending the property was being advertised for sale and she faced irreparable loss. The respondent objected that the notice of motion disclosed no grounds and that the application was an abuse of court process.

Issues

1. Whether the application for interim stay of execution disclosed the grounds on which it was based as required by Rule 43 of the Rules of the Court of Appeal.
2. Whether Article 126(2)(e) of the Constitution could cure the failure to state the grounds in the notice of motion.
3. Whether the application amounted to an abuse of court process.

Orders

• The application is incompetent and is struck out with costs.

Rules and key headnotes

Legislation cited (6)

• Civil Procedure Act cap 71 s.100
• Constitution of Uganda Article 126(2)(e)
• Rules of the Court of Appeal r.6(2)
• Rules of the Court of Appeal r.42(2)
• Rules of the Court of Appeal r.43
• Rules of the Court of Appeal r.2(2)

Cases cited (8)

• Hutan Sung Industries v Tajdin Hussein and 2 Others (Civil Application No. 79 of 2008)
• Theodore Ssekikubo & 4 Others v Attorney General & 4 Others (Constitutional Appeal No. 4 of 2014)
• Tororo Cement Co. Ltd v Frokina International Ltd (Civil Appeal No. 2 of 2001)
• Laurence Nabbamba Leonard and Another v Herbert Ssemakula Musoke and 5 Others (Miscellaneous Application No. 544 of 2020)
• Laurence Musitwa Kyazze v Eunice Businge (Civil Application No. 18 of 1990)
• Julius Rwabinumi v Hope Bahimbisomwe (Civil Application No. 14 of 2009)
• Utex Industries Ltd v Attorney General (Civil Application No. 52 of 1995)
• Kasirye Byaruhanga & Co. Advocates v Uganda Development Bank (Civil Application No. 2 of 1997)

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