Court name
Commercial Court of Uganda
Judgment date
7 June 2011

Tusker Mattresses U Ltd v Royal Care Pharmaceuticals Ltd (Miscellaneous Application-2011/258) [2011] UGCommC 52 (07 June 2011);

Cite this case
[2011] UGCommC 52


THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
(COMMERCIAL COURT)
MISCLLANEOUS APPLICATION NO. 258 OF 2011
(ARISING OUT OF MISCLLANEOUS APPLICATION NO. 150 OF 2011)
(ARISING FROM CIVIL SUIT NO.393 OF 2010)
TUSKER MATTRESSES (U) LTD::::::
::::::::::::::::::::::::::::APPLICANT/DEFENDANT
VERSUS
ROYAL CARE PHARMACEUTICAL LTD
::::::::::::::::::::::RESPONDENT/PLAINTIFF
BEFORE HON. LADY JUSTICE HELLEN OBURA
RULING
This ruling arises from an application brought under section 98 of the Civil Procedure Act and Order 44 rules 1, 2, 3 and 4 of the Civil Procedure Rules. The applicant is seeking for orders that leave to appeal against the ruling and orders of this Court made on 10th May 2011 in M.A. No. 150 of 2011 be granted and costs be provided for. The application is supported by the affidavit of Mr. Hassan Ali Abdi sworn on the 17th May 2011.
The gist of the grounds of this application as contained in the affidavit are that the respondent sued the applicant and two others by way of a summary suit in H.C.C.S No. 393 of 2010 claiming a total of UGX 400,000,000= against the defendants as unpaid rental arrears for a specified period. That the applicant filed an application for leave to appear and defend which was heard and disposed off by this Court on
14th February 2011 with an order that the applicant deposit into Court a sum of UGX 200,000,000= and file its defence within 15 days from the date of the order.
Further that the applicant was unable to comply with the order of court due to circumstances that were brought to the attention of the Court in a letter to the Registrar of the High Court, Commercial Division dated
28th March 2011. A copy of the said letter was attached to the affidavit. That three days prior to the date of the aforesaid letter, the respondent’s advocate applied for and obtained judgment and extracted a decree in H.C.C.S No. 393 of 2010 under order 9 rule 6 of the CPR.
That the applicant then filed M.A. No. 150 of 2011 seeking for orders to set aside the default judgment, stay execution of the decree and for leave to file a defence out of time. That at the hearing of that application on
10th May 2010, counsel for the applicant applied orally to amend the law under which the motion was brought which application was heard and denied. That the applicant being dissatisfied with that decision intended to appeal against it hence this application for leave to appeal.
That the deponent was informed by the applicant’s advocate that the said ruling and orders of this Court is appealable with the leave of Court and it has a reasonable chance of success.
The affidavit in reply was sworn by Ms. Tatiana Ermoshkina in her capacity as director of the respondent company on
19th May 2011. She admitted paragraphs 2, 3, 4, 5, 7, 8 and 9 of the affidavit in support but stated that she was advised by her advocates that those paragraphs concern matters of merit in the main application and not the instant one. That she was further advised by her advocates that this application is frivolous, a waste of time and an abuse of Court process as the applicant had not shown any ground to warrant it.
She stated that the respondent is prejudiced by this application given that the applicant is a sitting tenant who is seeking to avoid its obligation of paying rent by buying time through numerous applications and prayed that the application be dismissed with costs.
When this application came before me for hearing on the 19th May 2011, it was argued by Mr. Paul Rutisya for the applicant and Mr. Nathan Osinde for the respondent. Counsel for the applicant submitted that an appeal is a creature of statute as was held in Shah v Attorney General [1971] EA 50. That the grounds upon which an appeal lies from the orders of the High Court are specifically set out under Order 44 rule 1 (1) of the Civil Procedure Rules and refusal to grant leave to amend pleadings is not included.
That therefore the applicant required the leave of Court and for leave to be granted in an application like this, the applicant must prove two things namely;

1.)     
That he or she has an arguable case worth considering by an appellate Court.
2.)      That the appeal has reasonable chance of success.
He stated that this was the holding in Alley Route Ltd v UDB HCMA No 634 of 2006 (2). He then submitted that these two conditions are captured in paragraphs 2, 3, 4, 5, 6, 7, 8 and 9 of the affidavit in support. He contended that based on these paragraphs, what is arguable is whether judgment can be entered under order 9 rule 6 where leave is granted under Order 36 and the defendant fails to file a defence within the prescribed time. He submitted that these matters presuppose an arguable case worth consideration by an appellate court.
On the question of reasonable chance of success, counsel contended that Order 36 of the Civil Procedure Rules is a unique order which permits judgment without trial whereas in all the other orders, there is a presupposition that there will be a trial and eventually judgment. He further contended that Order 36 does not make any reference to the importation of other orders for its application but rather it stands alone. He gave an example of Order 44 rule 2 which provides that the rules under Order 43 shall apply.
He concluded that this was a proper case for leave to appeal to be granted and prayed that leave be granted to the applicant and costs of the application be provided for.
Counsel for the respondent opposed the application based on the grounds stated in the affidavit in reply particular paragraph 3 which stated that what was averred in paragraphs 2, 3, 4, 5, 7, 8 and 9 of the affidavit in support concern matters of merit in the main application and therefore cannot be relied upon as grounds in this application.
On the ground stated in the notice of motion that the respondent will not be prejudiced if this application is granted, counsel referred to paragraph 6 of the affidavit in reply and submitted that the applicant is a sitting tenant who is seeking to avoid its obligation of paying rent by buying time through numerous applications.
As regards the authorities of
Alley Route Ltd (supra) which sets the principle upon which leave to appeal can be granted, counsel submitted that it was their considered opinion that the instant case could not have a scintilla of success for reasons that there was a court order made by this court which has never been varied in any way. He cited the case of Amrit Goyal v Harrichand Goyal and 3 Others Court of Appeal Civil Appeal No. 103 of 2004 where the strength of a Court order was considered. He submitted that in that case it was held that a court order is a court order and unless something changes that to the contrary it remains so. Further that court orders must be respected and complied with and those who choose to ignore do so at their own peril.
He submitted that in the instant case, the judgment that the applicant is challenging was made by this Court and if at all it was entered erroneously under a different order there were other remedies to vary the same. That those remedies do not include amendment of the law under which the pleading was brought. He contended that even if this Court had allowed an amendment of the applicant’s pleading it would not have per se cured the judgment. He submitted that the proper application would have been for a review if at all there was an apparent error. Counsel concluded that on the basis of the foregoing, this application is misconceived, lacks merit and does not have any reasonable chance of success.
On the contention of counsel for the applicant that order 36 is unique and therefore suits brought under it should be strictly heard and determined under that order alone without importing the provisions of other orders, counsel submitted that Order 36 ceases to have its meaning, that is, to be a summary procedure when an application for leave to defend is granted like in the instant case. In conclusion, he submitted that this application is frivolous and more time wasting and prayed that it should be dismissed with costs.
Counsel for the applicant in rejoinder reiterated his earlier submission that there is an arguable case and contended that counsel for the applicant confirmed this by his submission particularly by going into great details to show the difference between Order 36 and Order 9. He defended the paragraphs in the affidavit in support that were attacked for containing matters of merit in the main application by submitting that they also form grounds of this application. He reiterated his earlier submission that the intended appeal had arguable grounds with reasonable chance of success and prayed that the orders sought be granted.
Upon listening to the submission of both counsels and perusal of the application, affidavits and the case law authorities referred to by both counsels and taking into account the circumstances of this case, I do not find any grounds of the intended appeal that merit serious consideration by the appellate court. The principle upon which leave to appeal can be granted was stated in the case of
Sango Bay Estates Ltd & Others v Dresdner Bank AG (1972) EA 17 where Spry V.P. stated at page 40 that:
“As I understand it, leave to appeal from an order in civil proceedings will normally be granted where prima facie it appears that there are grounds of appeal which merit serious judicial consideration, but where as in the present case, the order from which it is sought to appeal was made in the exercise of a judicial discretion, a rather stronger case hill have to be made out”.
This principle was alluded to by the Supreme Court of Uganda in G.M. Combined (U) Ltd v A.K. Detergents (U) Ltd Civil Appeal No. 23 of 1994 and subsequently followed by Mukasa Lameck J, in the Alley Route Ltd case (supra). In the Alley Route Ltd case (supra), the Court also followed the decision of the Court of Appeal in Degeya Trading Stores (U) Ltd v Uganda Revenue Authority, Civil Application No. 16 of 1996 where their Lordships stated that;
“An applicant seeking leave to appeal must show either that his intended appeal has reasonable chance of success or that he has arguable grounds of appeal and has not been guilty of dilatory conduct”.
Going by that principle, the applicant was required to show grounds of appeal which merit serious judicial consideration. The ruling and order sought to be appealed against was made by this Court in exercise of its discretion under Order 6 rule 19 of the Civil Procedure Rules. In that oral application for leave to amend, counsel for the applicant had concluded his submission as follows;
“In conclusion, I humbly submit that Order 36 rule 10 & 11, Order 9 rule 12 and section 98 of the Civil Procedure Act are the proper provisions under which applications of this nature should be brought”.
Earlier in his submission he had also stated that;
“I would also like to rely on order 9 rule 12 in the alternative. Under order 9 rule 12 if judgment has been passed pursuant to the preceding rules in that order, the court may set aside or vary the judgment upon such terms as may be just”.
I have quoted the above passages from counsel’s submission to show that the applicant had made an alternative prayer to retain order 9 rule 12 under which the application was originally brought. By this Court declining to grant the application for leave to amend, it implied that the alternative prayer was allowed. In effect the applicant would be appealing against a ruling and order that granted its alternative prayer. I do not therefore see any ground of the intended appeal that merit serious judicial consideration.
I agree with counsel for the respondent that the question being raised by the applicant as meriting judicial consideration by the appellate court should have been raised in a separate application that seeks to cure the alleged error in the law under which the judgment was obtained. The applicant did not challenge the law under which that judgment was entered in its main application to set aside the judgment which is still pending determination by this Court. At least that was not one of the grounds stated in the motion and the affidavit in support of that application from which this one arose. I believe the applicant is now trying to smuggle in what was not at all contained in the grounds for that application as an afterthought moreover through a wrong procedure that will just end up causing confusion.
I therefore find that the question raised by counsel for the applicant is misconceived and even if it is argued before the appellate court it would be an academic exercise with no reasonable chance of success.
Finally, I also wish to point out that the applicant is a sitting tenant in the respondent’s premises and therefore prolonging resolution of the dispute between them by entertaining numerous applications and appeals would prejudice the respondent who has been prevented from enjoying proceeds from the rent. This Court cannot sanction what is clearly intended to delay justice and abuse the court process.
In the result, I decline to grant the order for leave to appeal sought by this application. The applicant is at liberty to apply for leave from the Court of Appeal if it so wishes. Otherwise the main application should be fixed for hearing. Cost of this application shall be in the main application.
I so order.

Hellen Obura
JUDGE
08/06/2011