[2024] UGHC 833

# 5 **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KABALE CIVIL APPEAL NO. 0014 OF 2022 (Arising from of Civil Suit No. 0013 of 2019) ANDREW MUGISHA**:::::::::::::::::::::::::::::::::::::::::::::::::::**APPELLANT** ¹⁰ **VERSUS**

## **1. BYAMUGISHA CLAVER**

15 **2. SEBATWALE EVAREST**:::::::::::::::::::::::::::::::::::::::::**RESPONDENTS**

#### **BEFORE: HON. JUSTICE SAMUEL EMOKOR**

#### **RULING**

The Appellant brings the instant Appeal against the ruling of His Worship 20 Muchelule Dismas Magistrate Grade one at Kisoro Chief Magistrates Court delivered on the 15/07/2022 wherein he dismissed the Appellants preliminary objections and made findings that the Plaintiffs suit disclosed a cause of action, that the suit was not resjudicata and that the same was not statutorily barred.

The Appellant being dissatisfied with the said ruling instituted the instant Appeal 25 on the following grounds;

- 1) That the learned trial Magistrate erred in law and fact when he failed to properly evaluate and consider all the evidence before him thereby making erroneous conclusions occasioning a miscarriage of justice. - 2) That the learned trial Magistrate erred in law and fact and occasioned a 30 miscarriage of justice by holding that the pleading disclosed a cause of action against the 2nd Defendant (Appellant).

- 5 3) That the learned trial Magistrate erred in law and fact and occasioned a miscarriage of justice by holding that the suit against the 2nd Defendant (Appellant) was not resjudicata. - 4) That the learned trial Magistrate erred in law and fact and occasioned a miscarriage of justice by holding that the suit was not time barred. - 10 When this Appeal came up for hearing the Appellant was represented by Messrs MNA Advocates while the Respondents were represented by Messrs Mutungi & Co. Advocates.

This Court a vailed the parties a schedule to file written submissions to which the parties complied.

15 The Respondent's Counsel in his Written Submissions raised a Preliminary point of law that this Court will deal with before deciding on whether to proceed with the substance of this Appeal.

It is the submission of Counsel for the Respondents that this Appeal is incompetent, unstainable and bad in law for being brought without seeking leave 20 of Court to bring the Appeal. Counsel contends that an appeal is a creature of statute and that the right to an appeal is not inherent. To buttress his point Counsel relies on **Section 76** of the **Civil Procedure Act** and **Order 44 Rule 1** of the **Civil Procedure Rules** that outlines the circumstances under which one can appeal as of right against an order of Court.

25 It is the argument of the Respondent's Counsel that orders of the Magistrate in respect of the instant appeal does not fall under any of the categories out lined in the above provisions of the law and that the Appellant ought to have obtained 5 leave from the Magistrates Court before lodging his appeal under **Order 44 Rule 1(2)** of the **Civil Procedure Rules.**

Counsel therefore prays that the instant appeal is dismissed with costs.

Counsel for the Appellant in his written submissions contends that under **Order 6 Rules 28, 29 and 30(1)** of the **Civil Procedure Rules** a party is entitled to raise 10 points of law and the same may be disposed of at or after hearing. Where Court is satisfied that the point of law may substantially dispose of the suit, the Court may dismiss the suit or make such orders in the suit as may be just and that under **Order 6 Rule 30 (2)** the orders made are appealable as of right.

It is the submission of Counsel that the Preliminary Objections on the point of law 15 determined by the lower Court interalia included whether the plaint discloses a cause of action against the 2nd Defendant (Appellant) and that the decision of the lower Court falls under the Provisions **of Order 6 Rules 30(1) and (2)** of the **Civil Procedure Rules**.

Counsel also argues that **Article 126(2) (e)** of the **Constitution** cures such lacuna 20 and saves both Court and litigants from wasting resources and time.

To buttress his case Counsel relied on the decision of **Justice Wagona in Kithende Appolinaris Kalyebogha versus Mrs Eleonora Wismer & 03 others HCMA No. 0110 of 2022**, in which he observed thus:

"*The rationale why orders made under Order 6 Rule 30(1) are appealeable as of*

25 *right is because they determine the case and have a consequential effect on the right of the parties.*

5 *They are decrees of sort since they determine the suit and an aggrieved party must have an automatic right of appeal. It is thus my view that for all orders made under Order 6 Rule 30(1) an aggrieved party has a right to appeal as of right"*

It is the submission of Counsel that the above authority is on all fours with the instant appeal and prays that the Preliminary Objection is overruled.

### 10 **Determination.**

Chief Justice **Odoki (as he then was) in Baku Raphael Obura & another versus Attorney General Constitutional Appeal No. 0001** of **2005** held thus:

"*It is trite law that there is no such thing as inherent Appellant jurisdiction. Appellate jurisdiction must be specifically created by law, it cannot be inferred or* 15 *implied"*

It is not in dispute that the instant Appeal is not provided for under **Section 76(1)** of the **Civil Procedure Act** nor is it provided for under **Order44** of the **Civil Procedure Rules.**

Counsel for the Appellant submits that the same is provided for under Order 6

20 **Rule 30(1) and (2)** of the **Civil Procedure Rules** that I will for ease of reference reproduce below:

*"striking out pleading.*

*(1) The Court may, upon application, order any pleading to be struck out on the ground that it discloses no reasonable cause of action or answer and* 25 *in any such case, or in case of the suit or defence being shown by the*

- 5 *pleading to be frivolous or vexatious, may order the suit to be stayed or dismissed or judgment to be entered accordingly, as may be just.* - *(2) All orders made in pursuance of this rule shall be appealable as of right"*

The first observation that one makes in regard to the above provision is that it is coached in a negative sense.

10 The sub title under **Rule 30** above is *"striking out pleading"* This is a precursor to the contents of **sub Rule (1)** that relates to Court issuing orders that any pleading be struck out, suit be stayed or dismissed or judgment to be entered accordingly as may be just.

While **sub Rule (2)** is to the effect that orders made in pursuance of **sub Rule (1)** 15 shall be appealable as of right.

It is my considered opinion that the orders made reference to in **sub Rule (2)** above must be analogous to **sub Rule (1).** This means that the pleading in **sub Rule (1)** must have been dealt with as outlined and not every matter dealt with under **sub Rule (1)** but not resulting in the same being struck out, stayed, 20 dismissed or judgment being entered will be competent under **sub Rule (2)**.

The decision of my brother Judge in **Kithende Appolinaris Kalyebogha versus Eleonara Wismer & 03 others [Supra]** That:

*"the rational why orders made under Order 6 Rule 30(1) are appealable as of right is because they determine the case and have a consequential effect on the rights of* 25 *the parties…"*

5 Is a position that I fully associate with because the orders of Court envisaged under **Order 6 Rule 30(1)** is one that determines that matter in the modes outlined there in affecting the rights of the parties. This explains my view that the above provision is coached in a negative sense.

The facts of this Appeal are that the trial Magistrate in Civil Suit No. 0013 of 2019 10 from which the instant appeal arises dismissed the Preliminary Objections to the suit disclosing no cause of action, that it was resjudicata and statutorily barred. The trial Magistrate thereafter issued orders that the suit proceeds for parties to prove their case.

Clearly the ruling and orders of the trial Magistrate were not those envisaged by

15 the drafters of **Order 6 Rule 30(1) and (2)** of the **Civil Procedure Rules**. No pleadings were struck out, the suit was not stayed or dismissed neither was judgment entered against any of the parties.

I therefore hold the firm view that the Appellant did not enjoy the right provided under **sub Rule (2)** to lodge the instant appeal as of right.

20 I would therefore agree with the Respondent's Counsel that the Appellant ought to have obtained leave before lodging this Appeal under **Order 44 Rule 1(2) and (3)** of the **Civil Procedure Rules.**

Counsel for the Appellant sought to cure this shortcoming by citing the Provisions of **Article 126(2) (e)** of the **Constitution**.

25 The Supreme Court in **Kasirye Byaruhanga & Co. Advocates versus Uganda Development Bank, SC Civil Application No. 0002 of 1997** held that;

5 *"…a litigant who relies on the provisions of Article 126(2) (e) of the Constitution must satisfy the Court that in the circumstances of a particular case before the Court it was not desirable to pay undue regard to the relevant technicality. Article 126(2) (e) is not a magic wand in the hands of defaulting litigants"*

The Court in **Alinyo versus R [1974] EA 544** held that the right to appeal is a 10 creature of statute, for one to appeal he or she must have a right to appeal granted by law.

It therefore follows that the Appellant cannot shield himself under **Article 126(2) (e)** of the **Constitution as Amended**.

In the result the Preliminary Objection is upheld.

15 The instant Appeal is hereby dismissed with costs to the Respondents.

The Assistant Registrar of this Court is hereby directed to return the lower Court file to the trial Court for determination.

Before me,

………………….……………. 20 **Samuel Emokor Judge 21/05/2024.**

25