Wakilii

Sugar Corporation v Sendege and 4 Others (Miscellaneous Application No. 171 of 2021)

High Court · [2021] UGHC 62 · 2021 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for stay of execution and leave to appeal arising from Miscellaneous Application No. 86 of 2018 (which arose from Civil Suit No. 75 of 2013)
Decision
Application granted; stay of execution ordered pending appeal to Court of Appeal

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court granted the applicant leave to appeal to the Court of Appeal and ordered a stay of execution pending determination of the appeal. The court found that the purported execution of orders was based on questionable titles issued without proper authority, that the applicant had arguable grounds of appeal meriting judicial consideration, and that the applicant would suffer substantial loss if stay was not granted. The court rejected preliminary objections on locus standi and the propriety of seeking leave to appeal from an ex parte ruling.

Outcome

Application granted; stay of execution ordered pending appeal to Court of Appeal

Facts

Sugar Corporation of Uganda Limited held land pursuant to orders in Civil Suit No. 75 of 2013. In Miscellaneous Application No. 86 of 2018, the court ordered cancellation of subsisting titles and creation of Mailo titles in favour of the respondents. The applicant sought leave to appeal and stay of execution, alleging the ruling was made ex parte despite counsel indicating intention to raise points of law. The respondents claimed orders were already executed through creation of Mailo certificates of title. The Commissioner Land Registration had written seeking confirmation of orders but there was no record of confirmation being issued. The court issued an interim stay order on 11 May 2021. Evidence showed titles were purportedly created citing orders from Civil Suit No. 75 of 2013 rather than Miscellaneous Application No. 86 of 2018, and some entries were made after the interim stay order.

Issues

  1. Whether the orders of court in Miscellaneous Application No. 86 of 2018 were fully executed before the filing of the application for stay of execution.
  2. Whether the applicant has locus standi to file the application despite being a non-Ugandan citizen holding freehold interest.
  3. Whether a party aggrieved by an ex parte judgment/ruling has a right to apply for leave to appeal.
  4. Whether a party who does not file a defence can raise points of law.
  5. Whether the powers of attorney relied upon by the respondents' deponents were valid and properly executed.
  6. Whether leave to appeal should be granted and whether stay of execution should be ordered pending appeal.

Orders

  • Leave is granted to the Applicant to appeal to the Court of Appeal.
  • Stay of execution is granted pending the determination of the appeal.
  • Costs of the application shall abide the decision of the Court of Appeal.

Rules and key headnotes

Stay of Execution — Principles for Grant
A court will grant stay of execution where the applicant shows a notice of appeal was lodged, substantial loss may result unless stay is granted, the application was made without unreasonable delay, and security for due performance has been provided. Additionally, there must be serious threat of execution that would render the appeal nugatory, the appeal must not be frivolous and must have likelihood of success, and refusal to grant stay would inflict more hardship than it would avoid.
Leave to Appeal — Test for Grant
Leave to appeal will normally be granted where prima facie it appears that there are grounds of appeal which merit serious judicial consideration. Where the order from which it is sought to appeal was made in the exercise of judicial discretion, a rather stronger case will have to be made out. It is not for the court at this stage to consider matters which may prejudge the issues which may arise at the appeal or amount to a review of its own ruling.
Land Disputes — Resolution on Merits
It is a cardinal principle that as far as possible litigation of land matters should be resolved on merits. The substance of land disputes must be investigated on their merits and errors, late filings of court pleadings and lapses should not necessarily debar a litigant from pursuing his right.
Points of Law — Right to Raise Without Filing Defence
A party who does not file an affidavit in reply can raise a point of law which was not raised in the pleadings. If a party intends to raise a point of law, he does not have to file a defence but instead notifies court of the intention to raise a point of law. Where counsel intimates to court an intention to raise preliminary points of law, this is sufficient testimony that the party has intentions to participate in the proceedings.
Ex Parte Proceedings — Violation of Right to Be Heard
Where a party has indicated intention to raise points of law, it is a violation of the party's right to be heard under Article 28 of the Constitution for a court to proceed ex parte thereby denying the party the right to be heard. An illegality once brought to the attention of court must be dealt with and overrides all questions of pleading, including any admission made thereon.
Powers of Attorney — Strict Construction
The authority conferred by a power of attorney is that which is within the four corners of the instrument either in express terms or by necessary implication. Powers of attorney cannot extend to property other than that for which they were granted. Doing so would be attempting to bind the principal to commitments beyond his express or implied authorization. Where an agent uses a power of attorney to do something for the agent's own purposes to the exclusion and detriment of the principal, the actions of the agent will be outside the scope of the power of attorney and are not even capable of ratification by the principal.
Title Registration — Authenticity of Certificates
Where titles purport to have been created pursuant to court orders but the entries cite orders different from those actually made, such titles are not authentic legal instruments. Where titles are created after an interim stay of execution has been issued and served on the Commissioner Land Registration, such entries cannot stand. A court cannot recognize as authentic titles that were created through questionable maneuvers at the Land Registry to the detriment of parties.

Legislation cited (14)

Cases cited (13)

  • Alhaji Yahaya Balyejusa v Development Finance Ltd (Court of Appeal Civil Appeal No. 34 of 2000)
  • Nicholas Rousous v Gulam Hussein Habib (Supreme Court Civil Appeal No. 9 of 1993)
  • Fredrick Kabuga Sebugulu v Administrator General (Court of Appeal Civil Appeal No. 69 of 2010)
  • Makula International Ltd v His Eminence Cardinal Nsubuga and Another (Civil Appeal No. 4 of 1981)
  • Fredrick J.K Zaabwe v Orient Bank and 5 Others (Supreme Court Civil Appeal No. 4 of 2006)
  • Imperial Bank of Canada v Begley [1936] 2 All ER 367
  • Lawrence Musiitwa Kyozze v Eunice Businge (Supreme Court Civil Application No. 18 of 1990)
  • Theodore Ssekikubo and Others v Attorney General and Others (Constitutional Application No. 03 of 2014)
  • Kyambogo University v Prof. Isaiah Omolo Ndiege (Court of Appeal Civil Appeal No. 341 of 2013)
  • Sango Bay Estates Ltd and Others v Dresdner Bank A.G [1971] E.A 70
  • P.K Sengendo v Busulwa Lawrence (Court of Appeal Civil Appeal No. 207 of 2014)
  • National Enterprise Corporation v Mukisa Foods (Miscellaneous Application No. 7 of 1998)
  • Mohammed Albhai v W.E Bukenya Mukasa and Another (Civil Appeal No. 56 of 1996)

Full judgment

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Sugar Corporation v Sendege and 4 Others (Miscellaneous Application No. 171 of 2021) [2021] UGHC 62 (28 October 2021)
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.