Court name
High Court of Uganda
Case number
Civil Application-2011/241
Judgment date
21 October 2013

Numa Mubi Akulamusa v Friends Estates Lts & Anor (Civil Application-2011/241) [2013] UGHC 32 (21 October 2013);

Cite this case
[2013] UGHC 32
Coram
Kasule, JA

THE REPUBLIC OF UGANDA

IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

CIVIL APPLICATION NO. 241 OF 2011

5

 

 

HAJJI NUMANI MUBI AKULAMUSA ...................................... APPLICANT

VERSUS

1. F

 

 

RIENDS ESTATE LTD

2. M

 

 

ALKAN ........................................................................ RESPONDENTS

10

 

 

CORAM: HON.MR. JUSTICE REMMY KASULE, JA

HON. LADY JUSTICE FAITH E. MWONDHA, JA

HON. MR. JUSTICE KENNETH KAKURU, JA

RULING OF THE COURT.

15

 

 

This is an application for leave to appeal.

The fac

 

 

ts as set out by the parties in their conferencing notes are briefly as

follows

 

 

;

That the

 

 

applicant filed his Application No 435 of 2011 at the High Court,

against

 

 

the respondents for orders that the property comprised in

20

 

 

Leasehold Register Volume 149 Folio 81 Rubaga Road be released from

1

attachment and execution. The said application was dismissed on grounds,

among others, that it was brought under a wrong law .

.

 

 

The dismissal also related to aspects of fraud and illegalities surrounding

the title of the applicant herein. An application for leave to appeal was

5

 

 

made before the learned trial Judge, who dismissed it.

Hence this application.

Court clarifies from the onset that an application for leave to appeal such as

this one is not an appeal

 

 

.

Although the learned Judge dismissed a similar application before him,

1

 

 

0 made orally after his ruling and order on 218t Nov. 2011, this application is

not an appeal from that ruling and order

 

 

.

This application is stated to have been brought under Rules 43 and 45 of

the Rules of this Court as a substantive application to be heard and

determined by this court exercising its own inherent jurisdiction

 

 

.

2

At the h

 

 

earing of this application Mr. Cosma Kateeba together with Mr.

Andrew W

 

 

amina appeared for the applicant and Ms. Leah Namulondo

appeared

 

 

for the 1st respondent. This application names two respondents.

However n

 

 

either the 2nd respondent nor his counsel were present, at the

5

 

 

hearing of this application.

Mr

 

 

. Kateeba, then withdrew this application against the 2nd respondent with

leave of co

 

 

urt. No order was made as to costs.

Mr

 

 

. Kateeba made a correction on his notice of motion to the effect that this

application

 

 

was brougnht under rule 40 (2) (b) of the Rules of this court,

1

 

 

0 and not under Rules 43 and 45 as indicated thereon.

Rule 40(2)

 

 

(b) states as follows;

I

 

 

~O(2)(b) where formerly an appeal lay from the High Court to

the Supreme Court with leave of either the High Cour

 

 

t or

Supreme Court the same rules shall apply to appeals

 

 

to the

15

 

 

court-

3

(b) if the High Court refuses to grant leave, or where an appeal

otherwise lies with leave of the court, application for the leave

shall be lodged by notice of motion within fourteen days after

the decision of the High Court refusing leave, or as the case

may be, within fourteen days after the decision against which it

is desired to appeal,' and the decision of the court granting or

refusing to grant leave is final

The facts and issues in the court below do not concern us very much here

as those will be re-appraised on appeal in the event that this application

10

 

 

succeeds and the applicant proceeds to file an appeal.

5

We have listened to the rather lengthy arguments of both counse

 

 

l in this

matter.

We have also read the authorities cited to us. We will only briefly set out

the back ground to this application as we have understood it

 

 

.

15

 

 

This matter arose from the Commercial Division of the High Court in Civil

Suit No 435 of 2003.

4

The appellants in this application were not parties to the suit

 

 

. That suit was

heard and determined. In execution of the decree an order of vacant

possession was issued. It required that the decree holder be granted

vacant possession of a property comprised in Leasehold Register 140 Folio

5

 

 

8 Plot 1 Rubaga Road, Kampala. It seems the order that was issued by

court was not a 'warrant of attachment', but rather an order for vacant

possession.

However the persons to whom the order was addressed were not

 

 

in

possession of the suit property above described. It was the applicant in this

10

 

 

matter who is said to have been in possession.

The app

 

 

licant faced with this situation filed High Court Miscellaneous

Application No 435 of 2007. The application was for release of the above

property from 'attachment' and was made by motion under Order 22 Rules

55, 56, 57 and 52 (1) of the Civil procedure Rules.

1

 

 

5 This is what is referred to as objector proceedings.

5

The objec

 

 

tor application was heard by Hon. Justice Geoffrey Kiryabwire (J)

(as he wa

 

 

s then) and dismissed it.

However,

 

 

he did not just dismiss the application. During the hearing of the

applicatio

 

 

ns many issues had arisen, which he had to resolve.

5

 

 

As we have already stated above since this is not an appeal we will not

dwell on

 

 

the details of that application.

Suffice it

 

 

to say that the learned Judge dismissed that application after he

had mad

 

 

e a number of findings including allegations of fraud.

He also

 

 

, in addition to the order dismissing the application, made a number

10

 

 

of other orders. Some of the orders he made determined the ownership of

the pro

 

 

perty that the application sought to be released from the

'attachm

 

 

ent' .

The app

 

 

licant then made an application for leave to appeal the said order

which as

 

 

already stated the Judge rejected. As a result the applicant then

15

 

 

filed this application.

6

We agree with Mr. Kateeba learned counsel for the applicant, that this

Court whi

 

 

le exercising its discretion to grant or not to grant leave to appeal,

will first determine whether or not

 

 

prima facie there appears to be grounds

of appeal requiring serious consideration by this court.

5

 

 

This was the holding in the case of Sango Bay Estates and Others versus

Dresner Bank A. G [1971] EA 17.

The judgment of the Court of Appeal for East Africa by

 

 

SPRY (V.P) is still

very good law. He put the position of the law as follows:-

1

 

 

0

'

 

 

~s I understand it, leave to appeal from an order in civil

proceedings will normally be granted where prima facie it

appears that there are grounds of appeal which merit serious

consideration"

All that this court is thus required to do is to determine whether or not

prima facie

 

 

 

there are grounds of appeal that merit serious

1

 

 

5 consideration. (See also G.M Combined (U) LTD vs. A.K Detergents

(U) LTD: Supreme Court Civil Appeal No. 23 of 1994 where

 

 

 

the

7

Supreme Court followed the ho

 

 

lding in Sango bay Estates case

(

 

 

Supra)

This task is not as easy as it seems

 

 

. This is because on one hand

t

 

 

his Court is not required to inquire into the merits of the case from

5

 

 

which this application arose, since this is not an appeal. On the other

hand

 

 

, it is required to determine whether prima facie there exist

gro

 

 

unds of appeal that merit serious consideration. It is a balancing

act

 

 

.

W

 

 

e have heard the lengthy submissions of both counsel. We have

10

 

 

also read the ruling, the findings and orders made by the learned

Jud

 

 

ge in High Court Miscellaneous Application No. 435 of 2011.

The

 

 

findings and orders of the learned Judge (as he was then) in our

vie

 

 

w have far reaching consequences. They go as far as determining

the i

 

 

ssue of ownership of the suit property.

15

 

 

They involve multiple parties some of whom were not parties to the

origi

 

 

nal suit. We are therefore of the considered view that prima facie

grou

 

 

nds of appeal exist which require serious consideration by this

cour

 

 

t.

8

The authorities submitted by both counsel and their lengthy

arguments seemed to have been intended to lead us to a direction in

which the issues of the appeal itself would have been addressed. We

shall no go into that direction. Clearly their lengthy arguments point to

5

 

 

the fact that, prima facie there exist grounds of appeal.

Accordingly leave to appeal is hereby granted to the applicant

 

 

.

The applicant shall file the appeal within 30 days from date hereof.

The costs of this application will abide the result of the intended

appeal

 

 

. It is so ordered.

1

 

 

0 Dated this .21st .. day of....October. 2013 at Kampala.

HON. REMMY KASULE

JUSTICE OF APPEAL

 

 

.

1

 

 

5

HON. FAITH E. MWONDHA

JUSTICE OF APPEAL

 

 

.

20

 

 

HON. KENNETH KAKURU

JUSTICE OF APPEAL

 

 

.

9