THE REPUBLIC OF UGANDA,
IN THE HIGH COURT OF UGANDA AT KAMPALA
MISCELLANEOUS APPLICATION NO 498 OF 2012
(Arising from Civil Appeal No. 689 of 2012 and Miscellaneous Application No. 527 of 2009)
ROYAL GROUP OF PAKISTAN} …………………………………………… APPLICANT
MAVID PHARMACEUTICALS LIMITED} …………………….………… RESPONDENT
BEFORE HON. JUSTICE CHRISTOPHER MADRAMA
The Applicants application is brought under section 33 of the Judicature Act cap 13, sections 96 and 98 of the Civil Procedure Act cap 71, rule 1 (2), 1 (3) and 1 (4) of order 44 of the Civil Procedure Rules and article 126 (2) (e) of the Constitution of the Republic of Uganda. It is for several orders namely: that the applicant is granted an extension of time within which to lodge an application for leave to appeal against the decision of his Lordship Christopher Madrama in civil appeal number 687 of 2012 delivered on 19 March 2012. Secondly, that the applicant is granted leave to appeal against the said ruling/decision in civil appeal number 687 of 2012. Thirdly, that the honourable court validates the notice of appeal. Fourthly, that the court grants an order staying proceedings in High Court civil suit number 319 of 2009. Lastly that costs of the application are provided for.
The grounds of the application are that the respondent filed civil suit number 319 of 2009 which was dismissed by the Registrar on 28 April 2010 for failure by the respondent to provide security for costs as ordered by court. The registrar of this court on 21 November 2011 after approximately 2 years reinstated civil suit number 319 of 2009 without the respondent having shown sufficient cause for its failure to provide security for costs as ordered. Thirdly, that the applicant was dissatisfied with the ruling of the registrar and appealed to a High Court judge. That whereas the High Court judge confirmed that the respondent had not shown sufficient reasons to set aside the dismissal, he proceeded to uphold the registrars decision contrary to cardinal principles of law and practice thereby occasioning the applicant grave injustice. The applicant has an arguable case worth considering on its own merits. The applicants counsel detected a mistake in failure to seek leave to appeal and the mistake ought not to be visited on the applicant but can be corrected by court. The appeal will be rendered nugatory if the proceedings are not stayed. The appeal is brought in good faith and has a high likelihood of success. Lastly that it is in the interest of justice and that it is fair and just that leave is granted to avoid barring the applicant from pursuing its right to be heard and accorded justice pursuant to article 126 (2) (e) of the Constitution of the Republic of Uganda.
The application is supported by the affidavit of the Country Manager of the applicant Mr. Anand Joshi.
The affidavit in reply is affirmed by the Managing Director of the Respondent Mr. Suleiman Bukenya. In support and opposition of the application learned counsels for both parties put in written submissions.
I have carefully considered the written submissions of counsels. One common thread runs through all the prayers of the applicant which ought to be decided before dealing with the application. This is a point of law as to whether the applicant has a right of appeal to the Court of Appeal.
The facts have been clearly stated that the registrar of the commercial court division dismissed the respondent’s suit on the ground of failure to furnish security for costs. Subsequently, the suit was reinstated by the registrar under order 26 rule 2 of the Civil Procedure Rules. Order 26 rule 2 (2) provides as follows:
"Where a suit is dismissed under this rule, the plaintiff may apply for an order to set the dismissal aside, and, if it is proved to the satisfaction of the court that he or she was prevented by any sufficient cause from furnishing the security within the time allowed, the court shall set aside the dismissal upon such terms as to security, costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit."
The power of the registrar to hear applications under order 26 was conferred by the Judicial Powers of Registrars [Practice Direction number 1/2002] issued by the Chief Justice. Rule 9 of the Practice Direction confers jurisdiction on registrars to hear the whole of order 26 on security for costs.
Originally applications under order 26 were handled by judges of the High Court. Consequently the applicant appealed the decision of the registrar reinstating the suit. The appeal was made under order 50 rules 8 of the Civil Procedure Rules by notice of motion to the High Court. Originally under order 44 rules 1 (1) (m) an appeal lay as a matter of right under section 76 of the Civil Procedure Act from orders listed in order 44 rule (1) of the Civil Procedure Rules. Order 44 rule 1 (1) (m) specifically provides that an appeal shall lie as of right under rule 2 of order 26. Under order 44 rule 1 (2) an appeal could not lie from any other order except with the leave of court making the order. Whereas order 44 rule 1 (1) (m) seems not to apply to reinstatement of a suit under order 26 rule 2, had it been a decision of a judge of the High Court, no appeal was possible without the leave of court.
As it where, the matter came to the High Court by way of an appeal from an interlocutory order made by a registrar under the Practice Direction referred to above. An order reinstating a suit is an interlocutory order made pursuant to an interlocutory application entertained by the registrar under order 26 rule 2 of the Civil Procedure Rules. Consequently, order 44 rule 1 (1) (u) provides that an appeal shall lie as of right from an interlocutory order made by a registrar. Reinstatement of a dismissed suit under order 26 rule 2 is an interlocutory order made by a registrar from which an appeal lies as of right to the High Court. This should be read in conjunction with order 50 rules 8 of the Civil Procedure Rules which gives a right of appeal to any person aggrieved by any order of the registrar of the High Court.
The applicant appealed to the High Court and the appeal was dismissed. Section 76 of the Civil Procedure Act provides that an appeal shall lie from the orders, listed under that section except as otherwise expressly provided in the Civil Procedure Act or by any law for the time being in force and from no other orders. Under section 76 (h) an appeal shall lie as of right from any order made under the rules from which an appeal is expressly allowed by rules. It can therefore be concluded that the applicant had an automatic right of appeal prescribed by the rules from a decision of the registrar under order 26 rule 2 of the Civil Procedure Rules. No appeal lies from an order made on appeal from an interlocutory decision of the registrar. In other words no appeal lies from an appellate decision arising from an appeal prescribed as a right by the Civil Procedure Rules. In this regard, section 76 (2) of the Civil Procedure Act provides:
"(2) No appeal shall lie from any order passed in appeal under this section."
An order was passed on appeal and dismissing the appeal from an order of the registrar in an interlocutory application made under order 26 rule 2 of the Civil Procedure Rules. The appeal to the High Court of the applicant fell squarely within the provisions of section 76 (h) of the Civil Procedure Act and particularly order 44 rule 1 (1) (u) of the Civil Procedure Rules which gives an automatic right of appeal from an interlocutory order passed by a registrar.
In the premises, section 76 (2) bars a second appeal from a decision made on appeal under section 76 (1) of the Civil Procedure Act. The result is that the applicant’s application to extend time within which to appeal, or to validate its notice of appeal, or for leave to appeal is incompetent and is hereby dismissed with costs there being no right of appeal from an appellate order in the circumstances of the case.
Ruling delivered in open court this 26th day of September 2012
Hon. Mr. Justice Christopher Madrama
Ruling delivered in the presence of:
Richard Latigo for the Respondent
Baluku holding brief for Brian Kaggwa for the applicant.
Charles Okuni: Court Clerk
Sheila Catherine Abamu: Research Assistant
Hon. Mr. Justice Christopher Madrama
26th of September 2012