Court name
Commercial Court of Uganda
Judgment date
25 February 2013

Muhumuza v Kalyegira & Anor (Miscellaneous Application-2012/468) [2013] UGCommC 37 (25 February 2013);

Cite this case
[2013] UGCommC 37

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

(COMMERCIAL COURT DIVISION)

MISC. APPLICATION NO. 468 OF 2012

(Arising from Misc. Application No. 36 of 2011)

(Arising from Civil Suit No. 205 of 2010)

 

MUHUMUZA HILLARY ::::::::::::::::::::::::::::::::::::::::::::APPLICANT

VERSUS

  1. KEITH KALYEGIRA:::::::::::::::::::::::::::::::} 1ST RESPONDENT
  2. WENSI NUWAGABA:::::::::::::::::::::::::::::::} 2ND RESPONDENT

 

BEFORE: LADY JUSTICE HELLEN OBURA

 

RULING

This application for leave to appeal was brought by the applicant following my ruling in Misc. Application No. 36 of 2011where I refused to release land comprised in Block 206 Plot 2641 from attachment majorly on the ground that the buyer of the suit property had not been made a party to the application. I also considered the fact that sale had already taken place and the proceeds thereof were used to sort out the 2nd respondents many financial obligations and so many persons who were not party to the application would be affected by an order setting aside the sale.

In effect, I refused to set aside the sale in the ruling sought to be appealed against. In that context I am not quite sure whether this application was necessary in view of the provisions of Order 44r1(h) that gives automatic right of appeal against an order refusing to set aside sale.

However, just in case leave is necessary, it is now a well established principle that an applicant in an application like this needs to satisfy court that, “the intended appeal has reasonable chance of success or that he has arguable ground of appeal and has not been guilty of dilatory conduct”. See the landmark case of Sango Bay Estates Ltd &Others-v-Dresdner Bank AG [1972] EA17 which was followed in Alley Route Ltd-v- Uganda Development Bank Ltd MA 634 of 2006.

I have looked at the application and the supporting affidavit where it is stated that the applicant intends to appeal the ruling and order of this court in M.A No. 364 of 2011. The ground of the application is that the intended appeal has high chances of success as the applicant’s interest in the suit land and disobedience of the court order is admitted which makes the attachment an illegality that cannot be condoned by court.

I have carefully considered the above ground of this application in light of the principle stated above and I do find that the intended appeal has arguable grounds that merit consideration by the appellate court.

I have also taken into account the fact that this application is not opposed. The respondents have not filed any affidavit in reply. The matter has so far come up twice before me and today is the third time. The first time both respondents were absent but since court was not satisfied with the service of the application on the 2nd respondent, fresh service on him was ordered. There was no appearance for the 1st respondent despite being effectively served.

The second time this matter came up it was only the applicant who appeared in person and reported that his lawyer was attending another court. When the case was called on today counsel for the applicant was not present. The applicant was present. He informed court that his lawyer was appearing before another judge of the Commercial Court. The 2nd respondent was present but also unrepresented. He came to seek an adjournment to enable his lawyer appear.

It is clear from the conduct of the respondents that they were not prepared to oppose this application. There would therefore be no justification to keep adjourning the matter when it is a simple application that could be disposed of on the basis of what is stated in the notice of motion and the affidavit in support.

In the circumstances, since this application passes the test for grant of leave to appeal, it is allowed with no order as to costs.

 

I so order.

Dated this 25th Day of February 2013.

 

………………………………….

Hellen Obura

JUDGE

 

Ruling read in open court in the presence of the applicant and the second respondent.

 

JUDGE

25/2/2013