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Hussien v Hussien (Civil Application 17 of 2003) [2003] UGSC 46 (25 September 2003)
- Citation
- [2003] UGSC 46
- Status
- Judgment
- Jurisdiction
- Uganda
- Court
- Supreme Court of Uganda
- Panel
- Oder, JSC
- Case number
- Civil Application 17 of 2003
- Language
- English
More details
- Court
- Supreme Court of Uganda
- Panel
- Oder, JSC
- Case number
- Civil Application 17 of 2003
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The Supreme Court found merit in the applicant's request for an interim stay of execution, determining that the urgency and risk of irreparable harm justified restraining the respondent from executing the consent order and from disposing of or damaging the subject properties. The orders were made to preserve the status quo until the settlement cum compromise agreement is set aside or until further order of the court. Costs were reserved to be determined in the main cause.
Court disposition
application granted
Orders
- The respondent Hussein Abdulla Hamdan is restrained from execution of the consent order dated 7th October 2002 arising from the settlement cum compromise agreement dated 2nd October 2002 in Supreme Court Civil Appeal No. 9 of 2002 until the agreement is set aside or until further order of the court.
- The respondent is restrained from disposing of or damaging properties on plots Nos. 30, 32 and 102/104, William Street, Kampala, or evicting tenants therefrom until the occurrence of the events specified above.
- Costs of this application shall be costs in the cause.
02
Material facts
Parties
Hussien Taherali Amji Malkan
Applicant Counsel: Apollo N. MakubuyaHussien Abdulla Hamdan
Respondent03
Procedural history
Posture
Stay Application / Interim Order
04
Questions and positions
Legal issues
- 01
Whether the applicant is entitled to an interim stay of execution of the consent order dated 7th October 2002.
- 02
Whether the respondent should be restrained from disposing of or damaging properties pending determination of the compromise agreement.
Party arguments
- Applicant
- The applicant, through counsel, argued that execution of the consent order should be stayed pending the setting aside or further determination of the settlement cum compromise agreement, as there is urgency and risk of irreparable harm to the applicant's interests in the subject properties.
- Respondent
- The application was heard ex parte and no arguments from the respondent were recorded at this stage.
05
Court’s reasoning
Legal principles
- 01
Supreme Court Rules, rule 46(2)
The court may grant an interim stay of execution to preserve the subject matter pending determination of the main dispute.
- 02
Supreme Court Rules, rule 41(1), (2), (3)(a) and (b)
The court has discretion to restrain parties from disposing of or damaging property subject to litigation to prevent irreparable harm.
06
Ratio, limits and disposition
Ratio decidendi
The Supreme Court found merit in the applicant's request for an interim stay of execution, determining that the urgency and risk of irreparable harm justified restraining the respondent from executing the consent order and from disposing of or damaging the subject properties. The orders were made to preserve the status quo until the settlement cum compromise agreement is set aside or until further order of the court. Costs were reserved to be determined in the main cause.
Court disposition
application granted
- The respondent Hussein Abdulla Hamdan is restrained from execution of the consent order dated 7th October 2002 arising from the settlement cum compromise agreement dated 2nd October 2002 in Supreme Court Civil Appeal No. 9 of 2002 until the agreement is set aside or until further order of the court.
- The respondent is restrained from disposing of or damaging properties on plots Nos. 30, 32 and 102/104, William Street, Kampala, or evicting tenants therefrom until the occurrence of the events specified above.
- Costs of this application shall be costs in the cause.
Source and reliance status
Supreme Court of Uganda
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
Supreme Court of Uganda
Judgment
THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA CIVIL APPLICATION NO. 17 OF 2003 BETWEEN
HUSSIEN TAHERALI AMJI MALKAN:::::::::::::::::::::::::::::::::::
$AND$
HUSSIEN ABDULLA HAMDAN:::::::::::::::::::::::::::::::::::
HON. JUSTICE ODER. ISC, BEFORE:
ORDER OF THE COURT
The applicant Hussien Taherali Amiji Malkan, brought this application under rule $1(3)$ ,
5. 2, 41 (1), (2), (3) (a) and (b). 46 (2) of the rules of this court.
The application is brought ex parts under rule $46(2)$ of rules of this court. The appellant's counsel, Mr. Apollo. N. Makubuya filed a certificate of urgency for that purpose on 10<sup>th</sup>-September-2003.
The application seeks an interim order staying execution of the consent order dated 7<sup>th</sup>-October-2002 arising from a settlement cum compromise agreement dated 2<sup>nd</sup>-October-2002 in Civil Appeal No. 9/2000 of this court
I have read the affidavit of Hussein T Amji Malkan the applicant, filed in support of the application. I have also heard the arguments of Mr. Apollo. N. Makubuya, the applicant's learned counsel in this application.
I am convinced that there is merit in this application and that it should be granted. Accordingly the appllication is hereby granted with the following orders:
- (a) That respondent Hussein Abdulla Hamdani be and is hereby restrained from execution of the consent order dated 7<sup>th</sup> 10 2002 arising from a settlement cum comprise agreement dated 2<sup>nd</sup> 10 2002 in Supreme Court Civil Appeal No. 9 of 2002 until the said settlement cum compromise agreement is set aside or until further order of the court. - (b) That the respondent Hussein Abdalla Hamdani is restrained from disposing of or damaging properties on plots Nos. 30, 32 and 102/104, William street Kampala or to evict the tenants there from until the occurrence of the events in (b) above.
(c) That the costs of this application shall be costs in the cause.
The reasons for this order shall be given on notice to the parties.
Dated at Mengo this 25<sup>th</sup> day of September ,2003.
HON. JUSTICE . A. H. O. ODER. JUSTICE OF THE SUPREME COURT.
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