Ssembuya v All Port Freight Service Uganda Limited (Civil Application No. 15 of 1998)

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court held that a stay of execution pending appeal under Rule 5(2)(b) of the Supreme Court Rules may be granted only where the applicant establishes special circumstances and good cause. It found such circumstances present: requiring the applicant to pay the whole decretal sum before his intended second appeal was heard would cause substantial loss and render the appeal nugatory, while the respondent's interest was protected by the option to proceed against a co-defendant who had admitted liability. The likelihood of success of the appeal is not a condition for stay. Inadequacy of the security offered did not defeat the application; it could be cured by ordering additional security under Rule 100(3). The stay was granted on security terms.

Outcome

Stay of execution granted pending the intended second appeal, conditional on the applicant depositing the certificate of title plus Shs. 50 million as security within 30 days.

Facts

The applicant and a co-defendant traded under an unregistered name and in 1993 received cement valued at Shs. 200 million from the respondent. Their cheque was dishonoured; they later paid Shs. 53 million, leaving Shs. 147 million unpaid. The respondent sued both in High Court Civil Suit No. 409 of 1995. The co-defendant admitted the claim and had judgment entered by consent; the applicant disputed liability but the suit was decided against him. Both were ordered jointly and severally to pay Shs. 147 million as special damages with interest at 22% per annum and Shs. 15 million as general damages with interest at 6% per annum. The applicant's appeal to the Court of Appeal was dismissed on 2 December 1998. He filed a notice of appeal to the Supreme Court and, the earlier stay having lapsed, brought this application for stay of execution, again offering as security a certificate of title to land valued at Shs. 75 million in 1996.

Issues

1. Whether the applicant had shown special circumstances and good cause to justify a grant of stay of execution pending a second appeal.
2. Whether the certificate of title offered by the applicant was adequate security for the stay.
3. Whether the order for stay of execution should extend to costs, including costs in the courts below.

Orders

• Application for stay of execution allowed.
• Execution of the decree and orders in High Court Civil Suit No. 409 of 1995 stayed pending determination of the applicant's intended appeal or further orders of the court.
• Applicant to provide security by depositing into court the certificate of title for land comprised in Block 273 Plot 405 Kyadondo together with Shs. 50 million in cash within 30 days.
• Costs of this application shall be in the cause.

Rules and key headnotes

Legislation cited (7)

• Rules of the Supreme Court r.5(2)(b)
• Rules of the Supreme Court r.40(2)
• Rules of the Supreme Court r.41
• Rules of the Supreme Court r.100
• Rules of the Supreme Court r.100(1)
• Rules of the Supreme Court r.100(3)
• Rules of the Supreme Court r.108

Cases cited (9)

• Somali Democratic Republic v Aroop (Civil Appeal No. 11 of 1998)
• Bakes v Lavery (1885) 14 QBD 769 (CA)
• The Annot Lyle (1886) 11 PD 114 (CA)
• Kampala Bottlers Ltd v Uganda Bottlers Ltd (Civil Appeal No. 25 of 1995)
• Shantilal Maneklal Ruwala v R [1957] EA 570 (CA)
• Monk v Bartram (1891) 1 QB 346 (CA)
• Barclays Bank of Uganda Ltd v Godfrey Mubiru (Civil Appeal No. 9 of 1997)
• Kamoala Citv Council vs National llerceerUO.(1979) HCB 215
• Wilson v Church (No. 2) (1879) 12 Ch D 454 (CA)

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