THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
Misc Appl No. 168 of 2014
[Arising out of Misc Application No. 24 of 288 of 2013 & Civil Suit No. 148 of 2013]
CRYSTAL CONSULT (U) LTD:::::::::::::::::::::::::::::::::::::::::::::: APPLICANT
1. HASS PETROLEUM (U) LTD
2. MOHAMMED BILLOW ::::::::::::::::::::::::::::::::::::::::: RESPONDENT
BEFORE HON. JUSTICE B. KAINAMURA
The applicant brought this application by Notice of Motion under Order 44 rule 2, 3 & 4 of the CPR seeking leave to file an appeal against the ruling / order delivered vide Misc Application No. 288 of 2013 arising from Civil Suit No. 148 of 2013 and costs.
The major ground on which the applicant relies is that the trial Magistrate declined to entertain the Misc Appl No. 24 of 2014 until the applicant deposited monies in court per ruling in Misc. Appl No. 288 of 2013.
The grounds of application are set out in the affidavit in support of the application deposed by Seye Ogunrotimi a Director of the applicant and briefly are that;
The applicant instituted Civil Suit No.148 of 2013 in the Chief Magistrate’s court of Makindye at Makindye and a default judgment was entered against the respondents for the sum of US dollars 2,971.
Subsequently execution proceedings were successfully conducted against the respondents who paid the entire sum due including the decretal sum of US dollars 2,971, taxation costs of UGX 2,236,000 and execution fees of UGX 2,000,000/= respectively.
Subsequent to the said execution of the decree, the respondents filed Misc. Appl No. 288 of 2013 seeking orders that the default judgment/decree and execution be set aside. The application was heard and determined in favor of the respondents and all the respective prayers granted.
The applicant filed Misc Appl No. 24 of 2014 in the Chief Magistrate’s court seeking leave to file an appeal against the ruling/order of the trial Magistrate vide Misc Appl No. 288 of 2013.
The trial Magistrate declined to entertain the application until the applicant deposited monies into court per the ruling in Misc. Appl No.288 of 2013.
The applicant being dissatisfied with the decision is now desirous of appealing against the entire ruling/order of Misc Appl No. 288 of 2013.
He has information that an appeal does not lie as of right and thus the only way of appealing against the same is by seeking leave from this court which has discretion to do so.
The intended appeal has merits and high probability of success.
Mr. Abdisalaam Ibrahim the General Manager of the 1st respondent swore an affidavit in reply on behalf of the 1st respondent. He admitted the contents in paragraphs 2 to 9 in the affidavit in support. He denied the contents in paragraphs 10,12,13,14 and 15 of the affidavit in support of the Notice of Motion. He deposed that nothing in the ruling warrants the applicant to appeal. He stated that the contemplated appeal is intended to delay justice and it is in the interest of justice that the application is rejected.
Counsel for the applicant submitted that the appeal has merits and high chances of success. He submitted that as was held in the case of Degeya Trading Stores (U) Ltd Vs Uganda Revenue Authority Court of Appeal Civil application No. 16 of 1996 ,an applicant seeking leave to appeal must show that either his intended appeal has reasonable chances of success or that he has arguable grounds of appeal. He stated that the grounds of appeal include;
- The trial magistrate erred in law and fact when he set aside the default judgment, decree passed against the respondents in Civil suit No. 148 of 2013.
- The trial Magistrate erred in law when he set aside execution of the judgment/ decree in Civil Suit No. 148 OF 2013 subsequent to successful completion of the same.
- The trial Magistrate erred in law and fact when he failed to properly evaluate the evidence on record thereby arriving at a wrong conclusion.
Counsel submitted that in light of the grounds raised, the intended appeal has reasonable chances of success and or an arguable ground of appeal.
He argued that the intended appeal does not lie as of right from the ruling or order of the trial court. He stated that it is a creature of statute. He submitted that the applicant as provided under Order 44 rule 3 applied for leave in the court of first instance. He added that the trial court did not consider the merits of the case. He submitted that this application is rightly before this court and invited the court to grant the application.
Counsel for the respondent first raised a preliminary objections that;
The proceedings were contemptuous by virtue of fact that the applicant was ordered to deposit all the money it received under the exparte decree in the main suit. The applicant did not obey the court order which is contempt of court as was held in the case of Hadkison Vs Hadkison 1952(2) ALLER 575.
Counsel went on to submit that:
The application offends section 6 of the Civil Procedure Act to the effect that court cannot proceed with a matter already proceeding in another court. He submitted that the matter has not been concluded in the lower court and court cannot condone such an illegality. He added that the application offends Order 44 rule 1(3) of the CPR which makes the application incompetent before this court.
Counsel submitted that the application does not warrant the grant of leave to appeal because the applicant has not raised a Primafacie case. He added that the applicant failed to show that the appeal has reasonable chances of success. He submitted that an appeal is not as of right to minimize unnecessary delays caused by appeals. He prayed that the application be dismissed with costs.
Counsel for the applicant in rejoinder submitted that the refusal by the Magistrate to entertain Misc Appl No. 24 of 2014 on its merits until the applicant deposited money in court denied the applicant the constitutional right to appeal against the ruling in Misc Appl No. 288 of 2013. He prayed that the preliminary objection of contemptuous proceedings be overruled. Further, in answer to the assertion that the application offends section 6 of the Civil Procedure Act, Counsel submitted that section 6 is to the effect that pendency of a suit in a foreign court shall not preclude a court from trying a suit in which the same matters or any of them are in issue in that suit in the foreign court. He submitted that section 6 is not applicable in the instant application. He prayed that the objection be overruled for being misguided.
Regarding whether the application offends Order 44 rule 1(3) of the CPR, Counsel submitted that Order 44 rule 2 gives this court concurrent jurisdiction to entertain the application. He submitted that the applicant was within its right to make this application. He added that in the alternative but without prejudice, Article 126(2) (e) of the Constitution emphasizes substantive justice as opposed to technical rules.
Addressing the issue of merits of the intended appeal, Counsel submitted that the applicant need not go into the merits of the appeal but the merits of the application. He prayed that the applicant be granted leave to appeal.
In reply to the rejoinder, Counsel for the respondent submitted that the proceedings are contemptuous and the reference to the right to appeal as a constitutional right a misconception of the law. He emphasized that the cases relied on are applicable since court orders were disobeyed. He submitted that the applicant misapplied section 6 of the CPA because the instant case is not before a foreign court. Regarding whether the application offends Order 44 rule 1(3) of the CPR, Counsel submitted that the case in the lower court is still pending since the applicant has failed so far to comply with the condition set by court. He submitted that the applicant can only come to this court after the lower court has disposed off the application for leave to appeal. He emphasized that there is no evidence that court refused to grant leave. Finally, regarding Article 126(2) e of the Constitution, Counsel submitted that whatever the applicant is doing is not only irregular but also an illegality which court should condemn by dismissing the application. Counsel reiterated his prayer that the application be dismissed with costs.
I have considered the argument of both Counsel. The applicant filed this application seeking leave to appeal against the decision of court dated February 24th 2014 in the Chief Magistrate’s court of Makindye at Makindye. The applicant filed a summary suit against the respondents and obtained an exparte summary judgment in its favor. Subsequently, execution of the decree was done and the decretal sum of US dollars 2,971, taxation costs of UGX 2,236,000 and execution fees of UGX 2,000,000/= respectively were paid.
The respondents filed an application to set aside the decision and the following orders were granted;
The execution of the decree in Civil Suit No 148/2013 was set aside
The applicants were granted unconditional leave to file their defence within 14 days.
The respondents were ordered to refund all the monies paid in execution of the decree.
The applicant, discontented with the decision of the trail Magistrate filed an application for leave to appeal against the entire decision but was ordered to first deposit in court the money already paid in satisfaction the decree under the summary suit.
The applicant then filed this application seeking leave to appeal against the whole decision of the trial Magistrate.
I agree with both Counsel that an appeal in such a matter does not lie as of right in light of the provisions of Order 44 rule 1 of the CPR. Therefore, leave must first be granted as required under order44 rule 2 of the CPR. I also agree that under Order 44 rule 3 of the CPR, applications for leave shall lie in the court of first instance.
The trial Magistrate in the application for leave, held as follows;
“The applicant is ordered to deposit the money ordered before the application for leave can be entertained”
This decision in my understanding connotes that hearing the application for grant of leave is conditional upon the payment of the sums mentioned. Since such an appeal sought is not as of right, the Magistrate has the discretion, to grant the application and, that grant may include conditional grant of leave to appeal. In this instant case, the condition was for deposit in court or sums paid in satisfaction of the decree and attendant costs.
Counsel for the respondent submitted that the application was contemptuous in nature because the applicant failed to do as ordered by court and now seeks redress form another court. He submitted that this is contrary Section 6 of the CPA. Section 6 of the CPA is to the effect that;
“ No court shall proceed with the trial of any suit or proceeding in which the matter in issue is directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where the suit or proceeding is pending in the same or any other court having jurisdiction in Uganda to grant the relief claimed.”
With due respect to Learned Counsel, I don’t see how Sec. 6 CPA is relevant in the case under review. This is an application under Order 44 CPR which provides for appeals from orders of court.
However what is pertinent to note in this application is that the lower court has not denied leave to appeal but imposed a condition to be fulfilled before leave is granted which was in my view within its remit to do. That said, the trial court was wrong to require the applicant first pay into court the sums in question before the application for leave to appeal was heard.
In the circumstances the ruling in Misc Appl No. 24 of 2014 is set aside and substituted with the following orders.
- Leave to appeal against the ruling/order of court in Misc Appl No. 288 of 2013 arising from C.S No. 148 of 2013 is granted.
- The applicant will deposit in court all the sums paid in satisfaction of the decree is C.S No. 148 of 2013 before the contemplated appeal is lodged.
- No order as to costs is made