[2014] UGHCCD 63
The appeal was struck out as incompetent because the order appealed from was not listed under Order 44 rule 1 of the Civil Procedure Rules and therefore required leave of court before an appeal could be filed. The Appellant failed to obtain such leave, and as a result, the appellate court lacked jurisdiction to...
Source-derived case information.
- Citation
- [2014] UGHCCD 63
- Parties
- Appellant: Deo Mwasa; Respondent: Don Musoke; Respondent: Vincent Mukasa; Respondent: Kajunge Paddy
- Court
- HC: Civil Division (Uganda)
- Jurisdiction
- Uganda
- Case Number
- Civil Appeal No. 54 of 2011
- Procedural Posture
- Civil Appeal / Ruling on Preliminary Objection
- Outcome
- appeal struck out as incompetent
- Legal Topics
- Leave to Appeal, Preliminary Objection, Competence of Appeal, Order Vs Decree
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Deo Mwasa
Appellant
Don Musoke
Respondent
Vincent Mukasa
Respondent
Kajunge Paddy
Respondent
Procedural Posture
Civil Appeal / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the appeal was competent without leave of court under Order 44 rule 2 of the Civil Procedure Rules.
- 2 Whether the trial magistrate's order was appealable as of right or required leave of court.
Ratio Decidendi
The appeal was struck out as incompetent because the order appealed from was not listed under Order 44 rule 1 of the Civil Procedure Rules and therefore required leave of court before an appeal could be filed. The Appellant failed to obtain such leave, and as a result, the appellate court lacked jurisdiction to entertain the appeal. The trial magistrate's decision was a ruling on a preliminary point of law, not a decree, and did not conclusively determine the rights of the parties or terminate the proceedings. The mandatory provisions of Order 44 rule 2 CPR were not complied with, rendering the appeal premature and incompetent.
Court Disposition
appeal struck out as incompetent
Orders
- The appeal is struck out for failure to obtain leave of court.
- Costs are awarded to the 1st and 3rd Respondents.
Full Case Text
Judgment text and source record
37 paragraphs
**THE REPUBLIC OF UGANDA**
**IN THE HIGH COURT OF UGANDA AT JINJA**
**CIVIL APPEAL NO. 54 OF 2011**
(ARISING FROM MUKONO CIVIL SUIT NO. 544 OF 2007)
**DEO MWASA ::::::::::::::::::::::::::::::::::::::::::::::::::: APPELLANT**
**VERSUS**
1. **DON MUSOKE** 2. **VINCENT MUKASA** 3. **KAJUNGE PADDY :::::::::::::::::::::::::::::::::: RESPONDENTS**
**BEFORE: THE HON. MR. JUSTICE GODFREY NAMUNDI**
**RULING**
During the hearing of the substantive suit before the trial magistrate, a preliminary objection was raised by Counsel for the Defendants (current Respondents).
It was to the effect that the Plaint did not disclose a cause of action against the 1st and 3rd Defendants.
The record shows that an Order was extracted and signed by the trial magistrate.
The Appellant filed an Appeal in this Court challenging the said Ruling.
Two grounds of Appeal were raised as follows:
1. That the magistrate erred in law and fact when she held that the Plaint does not disclose a cause of action against Respondents 1 and 3. 2. That the magistrate erred in law and fact when she held that the Plaintiff/Appellant should pay costs to Respondents 1 and 3.
When this appeal came up for hearing, Counsel for the Respondents raised a preliminary point of law. This was to the effect that under Order 44 r.2 CPR, the Appellant should have sought leave of Court before filing this Appeal.
In reply, it was submitted for the Appellant that section 2 CPA defines a Decree to mean a formal result of adjudication and determines the rights of the parties in regard to the matters in Court.
That the order that the Respondents complain of was termed as an Order and conclusively determined the matter between the parties.
In rejoinder, Counsel for the Respondents reiterated that this was a Ruling and not a Decree and that the proceedings of the lower Court were not terminated as a result. That the appeal is therefore incompetent.
I have considered the submissions by Counsel.
The decision of the trial magistrate was based on a preliminary point of law. It did not determine the rights of the parties neither did it deal with the merits of the case. In any case the trial Court was required to make a **Ruling** based on the preliminary point of law. The said Ruling was therefore not a Judgment so as to give rise to a Decree. It was an Order.
Order 44 (1) CPR provides for appeals from orders and sets out orders that are appealable as of right.
Rule (2) thereof requires that all orders of Court not listed under rule (1) require leave from the Court that made the order or the Court to which an appeal would lie.
Rule (3) is mandatory, requiring that leave to appeal be first made to the Court making the order sought to be appealed from.
In the instant case, the order sought to be appealed from does not fall under the provisions of Order 44 r.1 CPR. Where leave is not obtained where it is required before an appeal is filed, the appeal is incompetent, and the appellate Court has no jurisdiction to hear it. Ref: **Bilimoria& Another Vrs. T. D. Bilimoria (1962) EA 198.**
I find that this appeal is incompetent and premature for failure by the Appellant to first seek leave before filing the appeal.
It is struck out with costs to the 1st and 3rd Respondents.
**Godfrey Namundi**
**Judge**
**30/04/2014**
30/4/2014:
Ssekide on brief for Nassiwa for Respondents
Appellant present
Court: Ruling delivered.
**Godfrey Namundi**
**Judge**
**30/04/2014**