Mayanja & 2 Others v Habre International Trading Co. Limited (Miscellaneous Application 68 of 1990) [1990] UGHC 35 (8 November 1990)

Full Case Text

The Hon. Mr. Bustice P. R. Soluade

## REFUBLIC OF UGANDA

| | | IN THE HIGH COURT OF UGANDA AT NAMPALA | | |--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------|----------------------------------------|------------| | MISC. APPLICATION NO. 68 OF 1990 | | | | | 1. NORAH MAYAHJA 🎙 | | | | | 2. FANTA $\mathbb{A}$ $\mathbb{A}$ $\mathbb{A}$ $\mathbb{A}$ $\mathbb{A}$ $\mathbb{A}$ $\mathbb{A}$ $\mathbb{A}$ $\mathbb{A}$ $\mathbb{A}$ $\mathbb{A}$ $\mathbb{A}$ $\mathbb{A}$ $\mathbb{A}$ $\mathbb{A}$ $\mathbb{A}$ $\mathbb{A}$ $\mathbb{A}$ $\mathbb{A}$ $\mathbb{A}$ $\mathbb{A}$ $\mathbb{A}$ $\mathbb{A}$ $\mathbb{$ | | . | APPLICANT. | | 3. MAASO | VERSUS | | | | HABRE INTERNATIONAL TRADING CO., LTD. RESPONDENT. | | | |

BEFORE:- The Honourable Mr. Justice J. W. N. Tsekooko age of the

## ORDER

The applicants who were defendants in Mengo Court Civil Suit No. GK 562 of 1989 have instituted Chamber Application under Order 39 Rule 4 (1) and (4) of Civil Procedure Rules and Section 65 (e) and Section 101 of Civil Procedure Act.

The application was made exparts. I relactuatly granted the preliminary application to hear this application exparte. The affidavit and the Chamber Summons did not clearly set out the necessity to despense with service upon the respondnet. Although 0. 39 Rule 4 (4) gives court descretion to make an exparte Order for stay of execution, the power is discretionery and the applicant has to make out a case satisfying the court to exercise the discretion in his favour. In any case generally no final order for stay should be made exparte. I am supported in this view by the ruling of Faud J. in the case.of Charles Kasirye Vs. N. D. Patel /19727 IULR. 106. At page 108 of the report the learned judge stated this.

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nIt has frequently been held in India under similar legislation that a bourt has 'inherent jurisdition to stay execut ion aj:• art fr<\*> m t1 •. e specific powe rs given ' un ; er 0 • 18 Rule 11, 0.19 Rules 23 and 26 and 0.39 Rules and 7\* There is some support for this propostion in Singh Vs. Runda Coffee /19667 SA. 263; but it will be in very exceptional cases that an order for stay is properly made exparte us it was in this case . Although an interim stay order can be passed -pending the disposal of the application to stay without notice to the docreholder, a final order, staying execution, should not be made without such notice'1.

This seems to be the proper and usual practice.

Mr, Matovu Lubega did not ask for an interim Order. He in fact asked for final stay order.

Besides his submissions that the applicants may be evicted anytime were not very satisfactory.

Mr. Luboga informed me from the bar that each applicant has a permanent residence on the disputed land, that he has been to the land himself and has seen the buildings and that the applicants will suffer injustice if their buildings are demolished before the appeal to this court is disposed of,

Because of Mr. Lubega's information augmenting the application's content I am prepared to grant an interim Order for Stay.

But Mr. Lubega and other advocates who seek stay orders especially Interim stay Order, must set out necessary information satisfactorily in the affidavits supporting the application. I may add that if an application for execution has been instituted this i.tust be clearly stated.

In the circums tances of this application, I refuse to grant final order for stay of execution. However, I grant an Interim Order for stay of execution. T direct that the applies a*nts* do c aus j a otice to be served upon Pe spondent af t er fixing a date\* for hearing the application seeking orders of final order of stay of execution. This must be done within unless the next 30 (thity) days from the date hereof/otherwise directed by this Court.

Costs shall he in the cause.

J. V/. If 'tsekooko

JU DC E 8/11/1990.

Order delivered\*

J. W.bl. TSEKOOKO

JU DOE 8/11/1990.