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Supreme Court Uganda 2017 62 PDF
Supreme Court Uganda 2017 62 PDF
15 [Appeal from the ruling of the Court of Appeal at Kampala (Kavuma, D. C.J,
Nshimye and Mwondha, JJ.A.) in Civil Application No. 103 of 2015 dated 20th
August, 2015]
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5 appellant and the respondent share a common boundary to their
two pieces of land. The appellant’s land is Block 224 Plot 3344
whereas that of the respondent is Block 224 Plot 3542 located at
Muyenga in Kampala.
The appellant’s contention is that the access route to its plot of land
10 existed before the respondent acquired its plot, and that, therefore,
it has a right to continue using it. The respondent had placed
construction equipment including an excavator and a container in
front of its gate to stop the appellant from passing through its land.
Both parties filed suits in the High Court against each other which
15 were later consolidated. The respondent filed Misc. Applications No.
328 and No. 329 of 2015 for a temporary injunction pending the
disposal of the head suit and for an interim order maintaining the
status quo pending the disposal of the application for a temporary
injunction.
20 The appellant, on the other hand, filed Misc. Application No. 330 of
2015 for a temporary injunction to stop the respondent from
blocking the access to its land. This application was heard by
Kwesiga, J, who granted it on 24th April, 2015 by ordering the
removal of all blockades and re-opening of the access route.
25 However, the temporary injunction granted by the learned judge
was to last only up to 29th May, 2015 when the head suit would by
that time be disposed of by the learned judge himself.
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5 Being dissatisfied by the ruling of the High Court judge, the
respondent applied to the Court of Appeal for an interim order and
a substantive order for stay of execution. Both the interim
application and the substantive application were granted by a single
justice and by the Court of Appeal respectively. However, the order
10 by the Court of Appeal staying execution of the High Court judge’s
order was granted by that court after the judge’s order had expired.
3. The Honorable Justices erred in law and fact when they stayed
the orders of the trial judge which had expired.
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5 5. The Honorable Justices erred in law and fact when they found
that upholding the order of the trial judge would give the
appellant false, premature and psychological victory before the
trial court considers all the issues involved in the dispute.
7. The Honorable Justices erred in law and fact whey the relied
15 on an “emissary report” prepared by a stranger before the
hearing of the suits.
10. The Honorable Justices erred in law and fact when they failed
25 to evaluate the evidence on record and thus came to the wrong
conclusion.
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5 1. Allow the appeal and set aside the orders of the Court of
Appeal in Civil Application No. 103 of 2015.
2. The High Court/trial Judge renews the order issued on 24th
April, 2015 in the High Court (Land Division) Misc. Application
No. 330 of 2015 pending the final determination of the
10 consolidated suits.
3. Costs of this appeal be paid by the respondent in this court
Submissions of Counsel
At the hearing of the appeal, Mr. Sadi Seninde and Ms. Aniwa
15 Kayemba appeared for the appellant while Mr. Caleb Alaka
appeared for the respondent. Both parties filed written submissions
covering all the 10 grounds.
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5 On the issue of the court having stayed an expired order, counsel
submitted that the issue of the expiry of the order was brought to
the attention of the Court of Appeal and was not a new matter; that
the trial court’s order was attached to the application for stay of
execution as Annexture D, and that during the hearing, counsel for
10 the appellant brought it to the notice of the court that the order
which was being sought by the respondent had only three days to
expire, and that the learned Justices of Appeal acknowledged that
the order was for a short time and had since expired. Counsel
argued that since the order sought to be stayed had expired, there
15 was nothing to stay.
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5 On the expiry of the impugned order, counsel contended that the
issue was neither pleaded nor canvassed during the hearing in the
Court of Appeal. Counsel contended further that the order which
was intended to last up to 29th May 2015 was subject to extension.
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5 Rule 6(2)(b) of the Judicature (Court of Appeal Rules) Directions
governs the grant of applications for stay of execution to that court.
It states as follows:
Section 10 of the Judicature Act provides that “An Appeal shall lie
to the Court of Appeal from decisions of the High Court
prescribed by the Constitution, this Act or any other law.”
15 The order for stay of execution was discussed in the case of Somali
Democratic Republic vs. Anoop S. Sunderlal Trean, SCCA No. 11
of 1988 where this court stated:
8
5 Construction Corporation vs. Kampala District Land Board,
SCCA No. 6 of 2002.
That the applicant has shown that the appeal has a high
likelihood of success.
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5 granted and the balance of convenience seems to be in its
favour.
It is clear from the above quotation from the ruling of the learned
Justices of Appeal that they were aware that the order of the High
Court judge on which the application for stay of execution had been
10 based had expired. It had expired almost 3 months from the date of
their ruling. What is most perplexing is that with full knowledge of
the expiry of the trial judge’s order the learned Justices of Appeal
still went ahead to decide the application.
The respondent’s right of appeal against the High Court order was
extinguished on 29th May, 2015 when the order expired.
Consequently the Court of Appeal had no jurisdiction to determine
25 the application in accordance with rule 6(2)9b) of the Judicature
(Court of Appeal Rules) Directions, and section 10 of the Judicature
Act cited above. Accordingly, the ruling of the Court of Appeal and
the orders the court issued in respect thereof were null and void
and of no effect.
10
5 Learned counsel for the respondent’s argument that the hearing of
the respondent’s application for stay of execution commenced in the
Court of Appeal before the order expired, or that the High Court
order could be extended if the applicant satisfied that court that it
was necessary to do so, has no merit because the point at issue is
10 the ruling of the Court of Appeal in respect of the application and
not when the hearing of the application started. Furthermore, since
the High Court’s order had not been extended there was no order
for the respondent to complain about.
Accordingly, I would allow this appeal and set aside the orders of
the Court of Appeal.
I would not grant the appellant’s prayer asking this court to order
the High Court to renew the order issued on 24th April, 2015 in
20 Misc. Application No. 330 of 2015 pending the final determination
of the consolidated suits because the jurisdiction to do so belongs
not to this court but to the High Court which made the order and
set the conditions which had to be satisfied for its possible renewal.
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5 I would order costs in this appeal and in the Court of Appeal to be
paid by the respondent.
10
Jotham Tumwesigye
JUSTICE OF THE SUPREME COURT
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