[2000] UGCA 36

### **THE REPUBLIC OF UGANDA** IN THE COURT OF APPEAL OF UGANDA **HOLDEN AT KAMPALA**

#### $\underline{\textbf{CORAM:}}$ HON. MR. JUSTICE G. M. OKELLO, JA. HON. MR. JUSTICE A. TWINOMUJUNI, JA. HON. LADY JUSTICE C. N. B. KITUMBA, JA.

## **CIVIL APPLICATION NO. 70 OF 1999**

#### **BETWEEN**

#### DOWOODI BOHORA JAMAAT } **CORPORATION KAMPALA** }:::::::::::::::::::::::APPLICANT

#### AND

# **UGANDA MUSLIM SUPREME COUNCIL:::::::::RESPONDENT RULING OF THE COURT**

This is an application by Motion on Notice under Rules 38 $(2)$ $(a)$ , 40 $(1)$ , 41 (1) and (2), 42 (1) and (4) of the Supreme Court Rules Directions, 1996; 040 rules 1 and 2 of the Civil Procedure Rules for leave of this Court to appeal to the Supreme Court against the ruling and order of this Court (Okello JA, Twinomujuni, JA and Kitumba, JA) delivered on the 30^th September, 1999. The application is supported by the affidavit of H. T A. Malkan, the Chairman of the applicant, deponed to on the 14^th October, 1999.

The applicant is the Plaintiff and the respondent is the defendant in High Court Civil suit No. 1308 of 1998. In Misc. Civil Application No. 38 of 1999, the applicant obtained order of the High Court to amend its pleadings by substituting the Registered Trustees of Dowoodi Bohora

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Jamaat Corporation as the Plaintiff. The respondent was aggrieved by the grant of that order and in Misc. Civil Application No. 274 of 1999, sought from the High Court leave to appeal against the grant. The application was dismissed on 2815199. The respondent filed in this Court Civil Application No. 37 of 1999 under rules 39 (1) (b) and 42 of the Rules of this Court for leave to appeal to the Court against the ruling and orders of the High Court in Misc. Application No. 28 of 1999.

When that application was called for hearing, Mr. Eric Muhwezi who appeared for the applicant in the present application raised three prelirninary objections namely: -

- t1l that the application before the court was incompetent because Misc. Civil Application No. 274 of ¹⁹⁹⁹ whose ruling gave rise to the application before the court was itself incompetent as it was filed out of time, - I2l that counsel for the applicant had complied with the order of substitution which was given by the High Court and had therefore waived the applicant's right to appeal and, - t3l that the affidavit of Richard Kiboneka deponed to on 1116199 was incompetent because the deponent certified matters of belief as matters of knowledge.

The court overruled all those objections with costs. It is against this ruling which overruled those objections that the applicant in this application now seeks leave of this court to appeal to the Supreme Court.

At the hearing of the application, an issue was raised as to whether leave was necessary to appeal against that ruling to the Supreme Court. Mr. Mohamed Mbabazi, learned counsel for the respondent, was of the view that no leave was necessary as appeal lies to the Supreme Court as of right from such decisions ofthe Court ofAppeal as are prescribed by law. He relied on sections 5 and ll of the Judicature Statute No. 13 of ¹⁹⁹⁶ He argued that there is no rule requiring leave to appeal against interlocutory decisions of the Court of Appeal like for example a decision striking out a Notice of Appeal. In his view, these are decisions of the Court of Appeal and appeal lies against them to the Supreme Court as of right. He pointed out by analogy that as no leave is required to appeal against interlocutory decisions of this court, so leave is not required to appeal against the decisions of this court overruling preliminary objections. The second reason advanced by Mr. Mbabazi is that all appellate decrees are appealabe as of right. In support of this view, he cited and relied on section 82 ofthe Civil Procedure Act

Mr. Muhwezi, learned counsel for the applicant, on the other hand contended that formerly appeal frorn the High Court decisions which arose from those rules not covered under 0 40 r I of the Civil Procedure Rules (CPR) lay to the Supreme Court with leave under 0 40 r 2 of the CPR. He argued that under rule 38 (2) (a) of the Supreme Court Rules Directions, 1996, appeal from the Court ofAppeal decisions arising from those rules not covered under 0 40 r I of the CPR lies to the Supreme Court with leave. He submitted that the decision which the applicant

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desired to appeal against arose from 0 I r l0 of the CPR which is not covered under 0 40 r I ofthe CPR and therefore requires leave.

Rule 38 (2) (a) of the Supreme Court Rules Directions, 1996 reads:-

"2 Where formerly an appeal lay from the High Court to the Court with leave of either the High Court or the Court, the same rules shall apply to appeal from the Court of Appeal to the Court:-

> (a) Where an appeal lies with leave of the Court of Appeal, application for the leave shall be made informally at the time when the decision against what it is desired to appeal is given; or failing that application or if the court so orders, by notice of Motion within fourteen days after the decision."

We agree that the above rule requires that where appeal formerly lay from the High Court to the Supreme Court with leave, the same rule applies to appeal from the Court of Appeal to the Supreme Court. Appeal from the High Court decision arising from any rule not covered under 0 40 r I of the CPR lay to the Supreme Court with leave. It follows from rule 38 (2) (a) above that, appeal from the Court ofAppeal decision arising from any of those rules not covered under 0. 40 r I of the CPR lies to the Supreme Court with leave. We are aware of the provision of Article 132 (2) of the Constitution and section 5 of the Judicature Statute No. 13 of 1996. In our view, the requirement of leave imposed by rule 38 (2) of the Supreme Court Rules on the right of appeal to the Supreme Court from a class of

decisions of the Court of Appeal is in line with the provisions of that article of the Constitution and section of the Judicature Statute referred to above as it is prescribed by law. We find therefore that leave is necessary for the intended appeal and the application was properly brought.

On the merits of the application, counsel for the respondent submitted that he would have no objection to the leave being granted if the court found that it was necessary. We are satisfied that there were legal issues that were raised in the preliminary objections which this court overruled. These are firstly the interpretation of rule 39 (1) (a) of the Court of Appeal Rules Directions, 1996, Order 40 Rules 3 and 4 of the CPR and Stephen Mango Vs Uganda Commercial Bank, Civil Appeal No.16A of 1984. Secondly, the interpretation of the doctrine of approbation and reprobation and finally whether an advocate who has read law can depone to his knowledge of the statement of the law. In our view, these are matters on which views may differ and as such opinion of a higher court is necessary. We think that these justify the grant of the leave sought.

Finally, Mr. Muhwezi informally applied for extension of time within which to lodge his client's intended appeal. He purportedly made the application under rules 40 (1) and 42 (2 (a) of the Supreme Court rules.

Mr. Mbabazi opposed the application reasoning that such application is made before a single judge. He argued that presenting such application to a full court deprives a respondent of a right of reference should he be dissatisfied with the decision of the court on the matter.

We agree that application for extension of time is made to a single judge under rule 4 of the Supreme Court Rules. Rule 40 (2) of the Supreme

Court Rules which empowers the court to make any consequential order of extension of time after granting leave to appeal applies to the Supreme Court but not to this Court. We think that this application is misconceived and therefore fails.

In the result, we allow application for leave to appeal. Leave to appeal against the decision of the Court of Appeal in Civil Application No. 37 of 1999 is hereby granted to the applicant. Application for extension of time within which to lodge the applicant's intended appeal is rejected. Costs ofthis application shall abide the result ofthe intended appeal.

0 t^ Dated at Kampala this day of 2000

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G. M. OKELLO JUSTICE OF APPEAL 7

A PPEAL L EO 0

Cl.-(A ' K.-r-^^.,.=s--\* C. N. B. KITUMBA

JUSTICE OF APPEAL

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