[2013] UGCA 11

## · THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA C!VILAPPUCATION NO. 165 OF 2011.

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### VERSUS

#### BUSOGA GROWERS CO-OP UNION LTD :::::::::::::: RESPONDENT

### CORAM: HON. MR. JUSTICE A. S. NSHIMYE, JA HON. MR. JUSTICE RICHARD BUTEERA, JA 10 HON. MR. JUSTICE KENNETH KAKURU, JA

*[Arising from decision of Hon. Geoffrey Kiryabwire,J in Miscellaneous Application No.* 488 *of 2010 arising from HCCS No. 103 of 2006J*

### RULING OF THE COURT.

15 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 20 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 requirements for grant of such leave.

At the hearing of this application Mr. James Nangwala appeared for the applicant 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 fiied in support of their cases. This application is not an appeal. This Court 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. - 10 Rules 40 2(b) and 42 (1) require that such an application first be made in the High 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. The rules stipulate as follows:

*"40(2) (b) where formerly an appeal lay from the High Court to the Supreme Court with leave of either the High Court or Supreme Court the same rules shall apply to appet'ils to the court-*

*(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, to eppeet; and the decision of the court granting or refusing to grant leave is final*

# *42(1) whenever an application may be made either in the court or in the High Court, it shall be made first in the High Court'*

10 The above rules are not in issue and as such we will not dwell on them here. Suffice it to say that since this application is not in form of an appeal this court is not concerned with the detailed facts of the case from which it arose. 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 understood it.

The respondent was a defendant in High Court Civil Suit No, 103 of 2006. The applicant lost the suit and Judqrnent was entered against it.

Execution was issued against the property Plot 2 Bulamogi, Block 13, Bulumbi village Kamuli. At the time of attached the property was registered in the names of the respondent. The property was sold to one Yatin Chauhar who later sold it to the applicant.

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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 applicant added as a party to that **Application No. 408 of 2010 .**

. The applicants opposed the application to be added as a party and 10 succeeded. The respondents then proceeded with the Application No. *l:~08* of 2010 to have the judgment set aside. They were successful.

The learned Judge in his ruling made a number of findings and orders. He also made an order of restitution of the names of the respondent to the title of the suit property.

15 The applicant then applied to have this order reviewed by the same judge. The application was dismissed. The applicant then applied for leave to appeal against the dismissal which was also dismissed. He then filed this application in tbis court.

Grant of leave to appeal has for long now been guided by the decision of the Court of Appeal for East Africa in the case of *Sango Bay Estates Ltd vs. DresdnerBankA. 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 serious judicial considerations.* #I

This case was cited by Mr. Nangwala and it has been followed by this court and the Supreme Court in other cases such as *G. M Combine (U) Ltd vs.*

### *10 A. K. Detergents (U) Ltd, Supreme Court CivilAppeal No.23 of 1994.*

It states 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 counsel. We have read the application and all its supporting documents 15 and affidavits; we have also read the respondents reply and perused the ruling from which this application arises and we have noted the observations 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

that constitute grounds of appeal. Those issues require serious judicial consideration by this court. Indeed ML Kandeebe counsel for the respondent seemed to have conceded that fact when he remarked during the hearing 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.

Accordingly 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 application will abide the results of the appeal.

¹⁰ Dated this ...l~.~daY 0 *A:1r.* 2013 at Kampala. **HON.** A. S. **NSHIMYE JUSTICE OF APPEAL** ..~~~ . **HON. RICHARD BUTEERA JUSTICE OF APPEAL** 20 ...................... ^~ ... **HON. KENNETH KAKURU JUSTICE OF APPEAL.**

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