Appeal from a ruling on  preliminary objection

IN THE HIGH COURT OF UGANDA AT KAMPALA

LAND DIVISION

CIVIL APPEAL NO. 42 OF 2013

(ARISING FROM MISC. APPLICATION NO. 002 OF 2010)

(ARISING OUT OF MISC. APPLICATION NO. 34 OF 2008)

(ORIGINALLY ARISING OUT OF CIVIL SUIT NO. 018 OF 2008)

EMMANUEL TUMUSIIME:::::::::::::::::::::::::::::::::::::::::::: APPELLANT

VERSUS

1. PERUSI NAMAGEMBE
2. NYINA BARONGO:::::::::::::::::::::::::::::::::::::::::::: RESPONDENTS

BEFORE: HON. MR. JUSTICE BASHAIJA K. ANDREW

Case summary

Brief facts

This is an appeal from the decision of His Worship Kobusheshe Francis, Chief Magistrate - Luwero Chief Magistrate’s Court (hereinafter the “trial court”)dismissing the Appellant’s application in Misc Appl. No.002 of 2013.

EMMANUEL TUMUSIIME (hereinafter referred to as the “the Appellant”) through his lawyers, Mr Harimwomugasho, filed Misc.Application No. 002 of 2013 in the trial court seeking to set aside the ex parte orders against him in Misc Application No. 34 of 2011 on grounds that he was never served with the court process in the application, and that the Appellant’s former Counsel, Mr. Arthur Katongole’s negligence ought not to be visited on him.

At the hearing of the application Mr. Matovu, Counsel for PERUSI NAMAGEMBE and NYINA BARONGO the Respondents at the trial (and herein on appeal) raised a preliminary objection on a point of law that the application was res judicata and that the trial court could not entertain it.

The trial court agreed with Counsel for the Respondents, and found no merit in the application because it was res judicata, and that service on the Applicant’s Counsel was proper service, and dismissed the application. The Appellant being dissatisfied with the decision of the trial court filed this appeal and preferred the following grounds.

1. The learned trial magistrate erred in law and fact when he completely failed to evaluate the Applicant’s evidence to come to a correct conclusion.
2. The learned trial magistrate erred in law and fact by holding that the matter was res judicata.
3. The trial magistrate erred in law and fact in ruling that the Applicant’s non appearance in court was an act of irresponsibility which disentitled him from pleading that Counsel’s acts should not be visited on him.
4. The trail magistrate erred in law and fact when he did not give the Applicant an opportunity to defend himself on the issues raised by the Respondents herein.

Counsel for the Respondents again raised preliminary objections on points of law that no appeal lies to this Court from the ruling of the trial court dismissing a matter on a preliminary point of law save with leave of court. That no such leave was sought hence this appeal is barred by law. Secondly, that the High Court has no jurisdiction to hear an appeal where no automatic right of appeal is created under the law.

Civil procedure- resjudicata

Appeals- appeals from an order arising out of a preliminary objection- whether appeal competent

Held

1. Section 76 CPA (supra) and Order 44 CPR(supra) spell out orders from which appeals lie as of right. The provisions do not include appeals against orders in preliminary objections. Leave must first be sought under Order 44 r.1 (2) CPR to appeal against an order on a preliminary objection. The Appellant should have first sought leave of the court that made the order before filing this appeal, and in the event that it was denied, he would seek for leave of this Court. The Appellant did not comply with these mandatory requirements of the law. Therefore, the argument by Counsel for the Appellant that leave to appeal in the lower court may be either oral or written lacks any basis in law.
2. It is the established law that an appeal is a creature of statute, and a court can only exercise appellate jurisdiction where that jurisdiction is given by statute. A party who seeks to avail himself or herself of the right of appeal must strictly comply with the conditions prescribed by the statute. See:  Hamam Singh Bhogal t/a. Hamam Singh & Co. v Javda Karsan (1953) 20 EACA 17 at 18.

Appeal found incompetent and struck out with costs to the respondent