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