Court name
Commercial Court of Uganda
Judgment date
29 March 2016

Nabbosa & Anor v Binyerere (Civil Application-2015/13) [2016] UGCommC 32 (29 March 2016);

Cite this case
[2016] UGCommC 32

THE REPUBLIC OF UGANDA,

IN THE HIGH COURT OF UGANDA AT KAMPALA

(COMMERCIAL DIVISION)

CIVIL APPLICATION NO 13 OF 2015

(ARISING FROM HIGH COURT CIVIL APPEAL NO 14 OF 2015)

  1. NABOSSA AISHA}
  2. NAMAZZI EDITH}....................................................................APPLICANTS

VS

BINYERERE EMMANUEL}................................................................RESPONDENT

BEFORE HON. MR. JUSTICE CHRISTOPHER MADRAMA IZAMA

RULING

The Applicant commenced this application for leave to appeal the decision of this court in Civil Appeal Number 14 of 2015 to the Court of Appeal and for costs of the application to abide the outcome of the intended appeal.

The Applicant is dissatisfied with the decision of this court in High Court Civil Appeal Number 14 of 2015 delivered on 3 December 2015. The Applicant avers that they have grounds of appeal with a high probability of success.

The affidavit in support of the application is that of the first Applicant Ms Nabossa Aisha, who deposed that Appeal was struck out on a point of law on 3 December 2015. She instructed her Counsel to file an appeal in the Court of Appeal against the ruling of the court. She further deposes on the advice of her lawyers that she could not appeal directly to the Court of Appeal without leave. She believes that there are arguable grounds to appeal to the Court of Appeal.

The Applicant is represented by Peter Alan Musoke while the Respondent is represented by Felix Kintu Nteza. On 9 March 2016 when the application came for hearing, Counsels were directed to address the court in written submissions. The Applicant duly filed written submissions but there is no reply from the Respondent’s Counsel when the file was forwarded to me for writing the ruling.

The Applicant’s Counsel submitted that an application of this nature would normally be granted where it appears that prima facie, there are grounds of appeal which merit serious judicial consideration according to the case of Sango Bay Estates Ltd and others versus Dresdner Bank AG (1972) EA 17. He also relied on the case of Degeya Trading Stores (U) Ltd versus Uganda Revenue Authority Civil Application Number 16 of 1996. In determining an application of this nature, the court should look at the ruling of the trial judge to assess whether there is an arguable case according to the case of Venonah Margaret Bray versus Raymond Jack Bray [1957] East African Law Reports 302.

The main ground of appeal which is not explicitly stated in the application itself is that an appeal to the High Court of Uganda from the Magistrate's Court is not competent for want of the extraction of the decree or order of the decision of the Magistrate's Court. The Applicant’s appeal was struck out on the ground that the magistrate erred to transfer of the file to the appellate court without extracting an order from the ruling and accordingly the appeal was barred in law. Counsel relied on paragraph 5 of the affidavit in support that the Appellant believes there are good grounds to appeal to the Court of Appeal with a high chance of success. Secondly Counsel submitted that the application was not opposed and no affidavit in reply was filed.

The appeal of the Applicants was decided on a point of law. The Respondent’s Counsel had raised two preliminary objections. The first one was that the appeal was incompetent because it was filed out of time. Secondly that there is no order appealed from attached to the memorandum of appeal or even on the court record. The court relied on the case of the Commissioner of Transport versus the Attorney General of Uganda and Another [1959] 1 EA 329 where the Court of Appeal for East Africa held that an appeal lies from the decrees and orders of a Magistrate's Court to the High Court. They considered the definition of a decree and held that the Kenyan rules had been amended and it was no longer necessary to first extract a decree but there was no corresponding amendment to the Ugandan Civil Procedure Code. I noted that section 67 of the Ugandan Civil Procedure Act has remained unchanged and the provision of the law remained the same. The East African Court of Appeal had considered section 68 of the CPA which is the revised section 67 and which provides that unless otherwise expressly provided for in the Act, an appeal shall lie from the decrees or any part of the decrees and from the orders of the High Court to the Court of Appeal. These provisions are in pari materia with section 220 (1) (a) of the Magistrate's Court Act which provides inter alia that an appeal shall lie from the decrees or any part of the decrees and from the orders of the Magistrate's Court to the High Court. There are several other judgments of the High Court to the same effect and where appeals have been struck off for being incompetent for failure to extract a decree or order.  These include Kalokola Karoli vs. Ndugga Robert Civil Appeal No. 1 of 2013; Robert Biison vs. Mary Tibamwenda 1991 [HCB] 91 and Civil Appeal No. 5 of 1987; Barclays Bank (U) Ltd vs. Rodriguez 1987 [HCB] 36; Board of Governors and the Headmaster Gulu SSS vs. Phinson E. Odong High Court Civil Appeal No MG.2 of 1990 at Gulu and Mukasa vs. Ocholi (1968) EA 89.

The decision of the court striking out the appeal is consistent with the above authorities. The Applicant’s Counsel did not advance any arguments or produced any authority which has reversed the above position. The wording of section 220 (1) (a) of the Magistrates Courts Act has remained the same. Any judgment interpreting the Court of Appeal Rules or the Supreme Court rules on the same issue would not be applicable and unless they interpreted a provision in pari materia with section 220 (1) (a) of the Magistrate's Court Act. In fact the decision of Kibuuka Musoke William & Another vs. Dr. Apollo Kaggwa Civil Appeal No. 46 of 1997 interpreted the former Court of Appeal for East Africa Rules. In that case the provision to include the decree in the record of appeal was considered a mere technicality since an appeal by its nature is against the judgment or a reasoned order and not the decree extracted from the judgment or the reasoned order.

That decision did not interpret section 220 (1) (a) of the Magistrates Courts Act and is inapplicable to the facts and circumstances of this application.

I have not found any arguable points of law in the interpretation of the above provisions of the law that merits judicial consideration by an appellate court. The very least that the Applicant’s Counsel could have done is to produce one authority from an appellate court which has since reversed the authorities in which appeals have been struck out as incompetent for failure to extract the decree or order of a Magistrate's Court. Secondly in the written submissions, the Applicant’s Counsel has not attempted to point out what the arguable point of law would be. He only submitted on the principles applied in applications for leave to appeal. He further submitted that the Applicant was an aggrieved person. The fact that the Applicant is aggrieved is not an arguable point of law that merits consideration by the Court of Appeal. What should be considered is whether there are arguable grounds of an appeal.  An arguable point must relate to the ruling of the court showing that there is a possibility that the court erred in law and there is a chance to have it overturned on appeal. Where no arguable point has been submitted on or raised, the application for leave to appeal ought not to be entertained. The Court of Appeal is already overburdened with several appeals and only arguable points of law ought to be forwarded for the consideration.

In the premises the Applicant’s application lacks merit and is dismissed with costs.

Ruling delivered in open court on 29 March 2016

 

Christopher Madrama Izama

Judge

Ruling delivered in the presence of:

Peter Allan Musoke Counsel for the Applicants

Applicant is not in court

No appearance for the Respondent

Charles Okuni: Court Clerk

 

Christopher Madrama Izama

Judge

29th March 2016