Bon Holdings Ltd v Busoga Growers Cooperative Union Ltd (Civil Application-2011/165) [2013] UGCA 11 (18 October 2013);
·
THE REPUBLIC OF UGANDA
IN THE COURT OF APPEAL OF UGANDA AT KAMPALA
C!VI
LAPPUCATION NO. 165 OF 2011.
5
BON HOLDINGS LTD APPLICANT ••••••••••••••••••••••••••• ~ ••••••••• o ••••••••
VERSUS
BUSOGA GROWERS CO-OP UNION LTD
:::::::::::::: RESPONDENT
CORAM
: HON.MR. JUSTICE A.S. NSHIMYE, JA
HON
. MR. JUSTICE RICHARD BUTEERA, JA
1
0 HON. MR. JUSTICE KENNETH KAKURU, JA
[Arising from decision of Hon. Geoffrey Kiryabwire
,J in Miscellaneous Application No.
488 of
2010 ar
ising from HCCS No. 103 of 2006J
RULING OF THE COURT.
1
5 This is an application for leave to appeal against a High Court decision
made by Hon
. Justice Geoffrey Kiryabwire (J) ( as he was then) in
Miscellaneous Application No. 488 of 2010 arising from HCCS No 103 of
2006
.
The application is brought under rules 40 (2) and 43 (1) and (2)
of the
2
0 Rules of this Court. The jurisdiction of this Court to grant leave to appeal
under the rules cited above is not in issue.
,.
. 1
1
5
What is in issue in whether the applicant has satisfied the requirement
s for
gran
t of such leave.
At the
hearing of this application Mr. James Nangwala appeared for the
applica
nt and Mr. Kandeebe Ntambirweki appeared for the respondent.
5
Both counsel made very lengthy oral submissions detailing the background
to this
application. These details are also contained in the affidavits of both
parties fi
ied in support of their cases. This application is not an appeal.
This Co
urt and the High Court have concurrent jurisdiction in this matter as
leave to
appeal can be granted by the High Court or by this Court.
1
0 Rules 40 2(b) and 42 (1) require that such an application first be made in
the H
igh Court. Where a party fails to obtain leave in the High Court then
such a
party is at liberty to file an application of the same nature in this
court. T
he rules stipulate as follows:
"40(2) (b) where formerly an appeal lay from the High Co
urt to
the Supreme Court with leave of either the High Cou
rt or
Supreme Court the same rules shall apply to appet'i
ls to the
court-
2
5
(b) if the High Court refuses to grant leave, or where an appea
l
otherwise lies with leave of the court, application for the leav
e
shall be lodged by notice of motion within fourteen days afte
r
the decision of the High Court refusing leave, or as the cas
e
may be, to eppeet; and the decision of the court granting o
r
refusing to grant leave is final
42(1) whenever an application may be made either in the c
ourt
or in the High Court, it shall be made first in the High Court
'
1
0 The above rules are not in issue and as such we will not dwell on them
h
ere. Suffice it to say that since this application is not in form of an appeal
this co
urt is not concerned with the detailed facts of the case from which it
aro
se. Those facts will be re-appraised in the appeal itself in the event that
this
application is successful.
15
We will therefore only deal briefly with the background to this application as
we un
derstood it.
The re
spondent was a defendant in High Court Civil Suit No, 103 of 2006.
The a
pplicant lost the suit and Judqrnent was entered against it.
3
=
Execution was issued against the property Plot 2 Bulamogi, Block
13,
Bulumbi village Kamuli
. At the time of attached the property was registered
i
n the names of the respondent. The property was sold to one Yatin
C
hauhar who later sold it to the applicant.
5
Four years later, the respondent applied to have the judgment in High
Court
Civil Suit No 103 of 2006_set aside vide High Court Miscellaneous
Application No
. 408 of 2010.
The respondent later applied to have the
app
licant added as a party to that Application No. 408 of 2010 .
.
The applicants opposed the application to be added as a party and
1
0 succeeded. The respondents then proceeded with the Application No. l:~08
of 201
0 to have the judgment set aside. They were successful.
Th
e learned Judge in his ruling made a number of findings and orders. He
al
so made an order of restitution of the names of the respondent to the title
o
f the suit property.
1
5 The applicant then applied to have this order reviewed by the same judge.
The
application was dismissed. The applicant then applied for leave to
ap
peal against the dismissal which was also dismissed. He then filed this
a
pplication in tbis court.
4
Grant of leave to appeal has for long now been guided by the de
cision of
t
he Court of Appeal for East Africa in the case of Sango Bay Estates Ltd vs.
D
resdnerBankA.G. [1971JEA
17in which SPRYvPstated as follows:
)4s I understand it, leave to appeal from an order in
Civil
5
Proceedings will normally be granted where prima facie it
appears that there are grounds of appeal which merit se
rious
judicial considerations
.
#I
This c
ase was cited by Mr. Nangwala and it has been followed by this court
and th
e Supreme Court in other cases such as G.M Combine (U) Ltd vs.
10
A.K. Detergents (U) Ltd, Supreme Court Civil Appeal No.23 of 1994.
It stat
es the correct proposition of the law in this regard. We agree with it
entirely.
As we
have already stated, I have listened to the lengthy argument of both
couns
el. We have read the application and all its supporting documents
1
5 and affidavits; we have also read the respondents reply and perused the
ruling
from which this application arises and we have noted the
observ
ations made, the findings and the orders therein. We are satisfied
that
prima facie :t appears, that in this case there are issues of law and fact
5
that co
nstitute grounds of appeal. Those issues require serious judicial
conside
ration by this court. Indeed ML Kandeebe counsel for the
responde
nt seemed to have conceded that fact when he remarked during
the hea
ring of this application, that he opposed to this application because
5
issues may arise on appeal to the detriment of his client. This was very
telling.
Accordin
gly this application is allowed. Leave is hereby granted to the
applicant
to file the appeal within 30 days from date hereof. The costs of
this appl
ication will abide the results of the appeal.
10
Dated this ...l8th daY of October 2013 at Kampala.
1
5
HON.
A.S. NSHIMYE
JUSTICE OF APPEAL
..
~~~ .
HON. RICHARD BUTEERA
JUSTICE OF APPEAL
2
0
......
................ ~ ...
HON. KENNETH KAKURU
JUSTICE OF APPEAL
.
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