Stay of Execution

Public Procurement And Disposal Of Public Assets Authority v Clear Channel Independent(u) LTD (Misc.App.No.242 Of 2009) ((u)) [2009] UGHC 188 (15 June 2009);


Search Summary: 

This was an application for an order that this court
stays execution of the orders passed in
Miscellaneous Application No. 380/08. It was
premised on the ground that:

a). Applicant has lodged an appeal.

b). The decision and/or orders in Miscellaneous
Application No. 380/08 are to be executed

c). The appeal has not been set down for

d). The execution will render the pending
appeal nugatory.

Counsel for the respondent raised a point of law.
He argued that a prerogative order of certiorari has
already been issued and so has a prerogative
order of prohibition. The decision of the applicant
was declared a nullity and court ordered that the
tender process be repeated. In his view, none of
these orders can be stayed against the respondent
as they took immediate effect and the respondent
is not the one expected to cause repetition of the
tender process.

Headnote and Holding: 

Court was of the view that the objection is
sustainablethis was so because the respondent
caused the decision of the applicant to be
reviewed. It was reviewed and declared a nullity.
As court stated in that ruling, a nullity is not only
bad but incurably bad. There is no need for an
order of court to set it aside because it is
automatically null and void without more ado,
though it is sometimes convenient, as was the
case herein, to have the court declare it to be so.
On the basis of that ruling the decision was
quashed. It was further ordered that the tender
process be repeated. It is not the applicant to
repeat that tender process but CAA. The said

CAA is not party to these proceedings. Court was
puzzled as to how in these circumstances some
life can be breathed into a nullity to allow stay of
execution of a consequential order.
Court held that it would have been of a different
view if the party ordered to repeat the process, the
Civil Aviation Authority, was the one seeking stay
of execution, pending determination of the appeal,
assuming that it would have the power to sustain
the application when it was not party to the
proceedings. The applicant herein was proceeded
against not because it was involved in the tender
process but because it made a decision which
court has since declared null and void. This is not
to say that the order of this court nullifying the
decision of the applicant cannot be challenged. I
believe it can be challenged as between the right
parties thereto. However, for as long as the
decision to repeat the tender process is not against
the respondent herein, the application for stay of
execution against the respondent is misconceived.
For the reasons stated above, court allowed the
objection and disallowed the application as against
the respondent.

This was without prejudice to the applicant’s right
to seek an appropriate relief from the court
handling the appeal.


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