Court name
Court of Appeal of Uganda
Judgment date
18 October 2013

Bon Holdings Ltd v Busoga Growers Cooperative Union Ltd (Civil Application-2011/165) [2013] UGCA 11 (18 October 2013);

Cite this case
[2013] UGCA 11

·

 

 

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

 

 

.

6