Court name
Commercial Court of Uganda
Judgment date
12 November 2015

Kengazi v Metl (U) Ltd (Miscellaneous Application-2015/471) [2015] UGCommC 172 (12 November 2015);

Cite this case
[2015] UGCommC 172
Coram
Adonyo, J

 

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

MISCEALLANEOUS APPLICATION NO.471 OF 2015

ARISING FROM CIVIL SUIT NO.723 OF 2014

KENGAZI ANGELLA……………………………………………………APPLICANT

VERSUS

METL (U) LTD…………………………………………………………..RESPONDENT

BEFORE THE HON. MR. JUSTICE HENRY PETER ADONYO:

RULING:

  1. Background:

This an application brought by way of notice of motion under Section 98 of the Civil Procedure Act and Order 44 Rules 2, 3 and 4 of the Civil Procedure Rules seeking for orders that leave be granted to the applicant to appeal the court’s ruling in High Court Miscellaneous Application No.972 of 2014 arising from High Civil Court Suit No.723 of 2014 and that costs of and incidental to the application be provided for.

 

  1. Grounds for the application:

The grounds for the application are briefly stated in the application but are further expounded in the affidavit in support of the application. In summary the grounds are that the applicant is aggrieved by the ruling of this Honourable Court made in High Court Miscellaneous Application No. 927 of 2014, that High Court Miscellaneous Application No.959 of 2014 was not filed well within time with the court’s the electronic register being manipulated to make it appear as if the applicant had filed the said application in time whereas not and that as a result of the ruling delivered on the 15th day of June 2015 an injustice has been caused to the applicant who stands to lose Ug. Shs. 177,132,200 being the amount awarded in the default judgment entered on the 24th October, 2014 and that the applicant has sufficient grounds of appeal with a likelihood of success.

  1. Submissions:

On the 4th day of November 2015 when this matter came up for hearing, Mr. John Bosco Mudde appeared for the applicants and Mr. Allan Tumwesigye appeared for the respondents.

For the applicants, it was submitted that the applicant has arguable grounds which she intends to raise on appeal as she believes it has a likelihood of success in the Court of Appeal and as such wishes to be allowed to exercise her right of appeal in the circumstances. In arguing this point, the applicant pointed out that the courts have since held in the case of Sango Bay Estates Ltd and Others v Dresdner Bank [1972] EA 17 that while considering an application for leave to appeal, the same shall be granted where there is shown that there are grounds of appeal that merit judicial consideration with their Lordships of Appeal in the case of Degeya Trading Stores (U) Ltd v Uganda Revenue Authority Court of Appeal Civil Appeal No.16 of 1996 providing the ratio decidendi which an applicant seeking leave to appeal must show , that is , that the appeal has a reasonable chance of success or that has arguable grounds of appeal.

Relating the above court holdings to the instant matter, the applicant states that she has arguable grounds of appeal for she maintains that she filed her application in time as evidenced by entries on the court record on the particular days indicated and that the electronic register of the court was not manipulated by her as was found by the court but was a true reflection of the events as they unfolded and as such the leave sought against the ruling of this court to that effect should be granted so that the applicant can exercise her rights of appeal in the Court of Appeal.

For the respondents it was submitted that the respondent while relying on the affidavit in reply deposed one Mr. Pandya it’s country manager maintains that this application has no merit and should be dismissed with costs for the reason that the applicant has not satisfied the court that there are arguable grounds of appeal meriting serious judicial consideration because the ruling from which the applicant seeks leave to appeal was made by this court in exercise of its judicial discretion for the court while making the ruling in High Court Miscellaneous Application No.972 of 2014 rightly found that the applicant had not filed her application for leave to appear and defend the head suit within the required ten days and that she had also manipulated the court’s electronic register to look as if her application for leave had been filed within time.

That for this application to succeed the applicant is required to show that there are grounds of appeal that merit serious judicial consideration as was stated in the case of Sango Bay Estates (supra) with what the applicant then showing is that she is aggrieved by the order of this court when it dismissed her application on the grounds that she did not file the application in time thus not satisfying the requirements that there are matters of law or fact to be addressed by the Court of Appeal such as how this court misdirected itself in the exercise of its judicial discretion and as a result arrived at a wrong decision or that there has been a miscarriage of justice.

In support of this line of argument, the respondent relied on the case of Sobetra (U) Ltd & Another v Leeds Insurance Company Ltd HCMA No 377 of 2013 in which Hon Lady Justice Hellen Obura while citing the case of Sango Bay Estates Ltd ( above) observed that leave to appeal an order in civil proceedings will normally be granted where prima-facie it appears there is a ground of appeal which merits 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 judicial discretion a rather stronger case will have to be made noting that in arriving at this conclusion, the learned judge here was restating the principle pronounced by the courts in the of GM Combined (u) Ltd versus AK detergents (U) Ltd CA No.23 of 1994 thus the respondent asked for the matter to be dismissed.

The respondent, however, in the alternative stated that were the court to be inclined to grant this application then the applicant ought to be ordered to deposit security for due performance of the decree in monetary terms amounting to Ug. Shs 177,132,200/- in addition to the costs incidental thereto.

In rejoinder, Mr. Mudde John Bosco pointed out that Section 98 of the Civil Procedure Rules grants the courts wide powers which are geared towards ensuring that the ends of justice are met and that considering the issues raised in this application the applicant has shown that she has arguable grounds of appeal with her insistence that she filed her application for leave to appear and defend in time and that since she is aggrieved by the ruling of this court that there was a manipulation of the records of court meaning that she could have been involved in that unlawful activity yet no evidence was called of any court official to show that she did so yet the court went on to make that finding without any evidence of any such court official called to explain that anomaly then that was the major area the applicant intends to appeal upon for the court’s duty is to ensure that the ends of justice are met and therefore based on that reason the applicant sought to appeal to the Court of Appeal as she maintains that she did not manipulate the court register at all and that even if the court made its decision based on its judicial discretion it should does not mean that one looses the right of appeal but rather an applicant only had to show that she has a strong case be granted leave to appeal which she has done .

And on the issue of security the due performance of the decree already issued against her, the applicant argues that there was no basis shown for that prayer but instead it was brought to deter her right of appeal as it was based on an amount which she disputes.

  1. Resolution:

I have had the opportunity to peruse and consider both the pleadings, the affidavits for and against this matter and the submissions of parties’ in this matter and in resolving this matter I have taken the same into consideration.

Order 44 Rule 2 of the Civil Procedure Rules provides that an appeal under these rules shall not lie from any other order except with the leave of the court making it a precondition for a to seek for leave to appeal an order of such nature to the court which issued the order before a party may seek to for orders before the court which an appeal would lie if leave were not given.

Order 44 Rule 3 of the Civil Procedure Rules provides that applications for leave to appeal shall in the first instance be made to the court making the order sought to be appealed from.

Thus taking the provisions of these rules into account the court in the case of Herbert Sekandi t/a Land Order Developers v Crane Bank Ltd HCMA No 44 of 2007 noted that an applicant for leave to appeal to the Court of Appeal must show that the application for leave to appeal bore substantial questions of law to be decided by the appellant court and that the intended appellant has a bonafide and arguable case on appeal with what amounting to a question of law is that the issue raised or involved one of general principle which is to be decided for the first time or where the question is one upon which further argument and a decision of the superior court would be to the public advantage.

Arising from the decision of Herbert Sekandi (supra) it would mean that an applicant for leave to appeal is duty bound to show the court that the application in question bears substantial questions of law to be decided by the appellant court and has a bonafide and arguable case on appeal.

From the submissions of the applicant the major contention is that the court in its ruling of the 15th day of June 2015 made a finding that the applicant had or participated in the manipulation of the court’s electronic register to make it appear as if her application for leave to appear and defend had been filed in time yet that was not the case. It is against that finding majorly that the applicant argues would amount to arguable grounds of appeal for she maintains she did not manipulate the court’s electronic register but filed her condemned application in time and thus making her appeal to have a likelihood of success in the Court of Appeal.

My impression and understanding of the burden imposed on an applicant in an application such as the instant one is that an applicant of this nature must clearly show the grounds upon which he or she intends to appeal and must further illustrate the likelihood of success of such an application on appeal by laying out those grounds. In my view it cannot be merely enough for an applicant to aver that one is aggrieved with a decision of the court as it were for that would not suffice with this being the position taken by the court in the case of Alley Route Ltd v Uganda Development Bank Ltd H.C.M.A No 634 of 2006 while citing with approval the view held by the court in the case of Degeya Trading Stores (U) Ltd v URA CACA No 16 of 1996 for it was noted that an applicant seeking leave to appeal must show either that the intended appeal has reasonable chance of success or that he has arguable grounds of appeal and has not been guilty of dilatory conduct.

Thus arising from the above, it is the considered view of this court that the applicant has not proven any of the above required ingredients for this court to exercise its discretion and grant the applicant leave to appeal its earlier decision for no sufficient grounds have been raised by the applicant to convince this court otherwise than the speculative submissions that the applicant is aggrieved by the courts decision. This court maintains and correctly so that the Registrar of this court did find that the applicant’s application for leave to appear were filed out of time and indeed there is evidence on the court record of manipulation of the court’s electronic register which show bad faith which could have been by the action of the applicant or the relevant persons concerned with the registration of matters in the registry of this court did so but that fact which is glaring from the records of the court and there was no need for the court to look elsewhere than the records itself.

That being the case, this court maintains that the applicant has not shown by affidavit evidence that there are arguable grounds to be considered by the appellant court but merely reciting that is is aggrieved by the court ruling. That being the case and in consideration of the duty imposed on an applicant of this nature arising from the authorities cited above this court would decline to grant this application and thus consequently dismiss it with costs even without considering the alternative arguments raised that were this court to be inclined to grant this application then sufficient security for performance be placed or not.

  1. Orders :

This application lack merits and thus is dismissed with costs.

 

 

HENRY PETER ADONYO

JUDGE

12TH NOVEMBER, 2015