[2015] UGCommC 198
The court held that the question of whether the respondent had an automatic right of appeal or required leave is an issue that should be determined by the judge handling the substantive appeal (Civil Appeal No. 13 of 2014), not through a separate miscellaneous application. Dismissing the appeal at this stage would...
Source-derived case information.
- Citation
- [2015] UGCommC 198
- Parties
- Applicant: N. Shah & Co.; Respondent: MK Financiers Limited
- Court
- Commercial Court of Uganda
- Jurisdiction
- Uganda
- Case Number
- Miscellaneous Application No. 502 of 2015
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Strike Out Appeal
- Outcome
- application dismissed
- Legal Topics
- Right of Appeal, Leave to Appeal, Abuse of Process, Striking Out Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
N. Shah & Co.
Applicant
MK Financiers Limited
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Strike Out Appeal
Legal Issues
- 1 Whether Civil Appeal No. 13 of 2014 should be struck out for lack of leave to appeal from the Chief Magistrate's Court.
- 2 Whether the right of appeal is automatic or subject to leave in the circumstances of this case.
- 3 Whether the application to strike out the appeal should be determined separately or as a preliminary objection in the appeal.
Ratio Decidendi
The court held that the question of whether the respondent had an automatic right of appeal or required leave is an issue that should be determined by the judge handling the substantive appeal (Civil Appeal No. 13 of 2014), not through a separate miscellaneous application. Dismissing the appeal at this stage would be unjust to the respondent. The application to strike out the appeal was therefore dismissed, with the applicant advised to raise the issue as a preliminary objection in the appeal itself, thereby reducing unnecessary multiplicity of proceedings and court workload.
Court Disposition
application dismissed
Orders
- The application is dismissed with no order as to costs.
- The applicant may raise the issue as a preliminary objection in the appeal.
Full Case Text
Judgment text and source record
23 paragraphs
**THE REPUBLIC OF UGANDA**
**IN THE HIGH COURT OF UGANDA AT KAMPALA**
**(COMMERCIAL DIVISION)**
**MISC. APPLICATION NO.** 502 of 2015
***{Arising from Civil Appeal 13 of 2014)***
**N. SHAH & CO.;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;; APPLICANT**
**VERSUS**
**MK FINANCIERS LIMITED;;;;;;;;;;;;;;;;;;RESPONDENT**
**BEFORE HON. LADY JUSTICE ELIZABETH JANE ALIYTDZA RULING**
This is an application by way of notice of motion brought under Section 98 of the **Civil Procedure Act CAP 71, Order** 44 **Rules** (2) **and** Order 52 **Rules** 1 **and 3 of the Civil Procedure Rules S. I 71-1.**
**This Application is supported** by the affidavit of Hetal Parikh of the Applicant Company.
The applicant Shah & Co Ltd wants this court to issue orders against MK Financiers, the Respondent. The Applicant wants Civil Appeal Nc.13 of 2014 MK Financer Limited Vs N. Shan & Co. Ltd struck out with costs. This is because no leave was granted to file the appeal from the Chief Magistrate's court where Civil Suit No. No 849 of 2014 was being mishandled. The grounds for this application are clearly set out in the attached affidavits. The Respondents also filed a reply. In summary, the parties filed a number of affidavits and submissions with several rejoinders and all are on record and i have taken them into consideration and 1 see no reason to reproduce them in this ruling.
It is important to remind myself of the history of this dispute between the Applicant and Respondent. Court records show that matter started in the Chief Magistrate’s Court Mengo in Civil Suit No.849 of 2014 as a simple dispute between landlord and tenant. The chief magistrate subsequently dismissed the main suit filed by MK Financiers Ltd because it did not disclose a cause of action and ordered the counterclaim filed by N Shah & co to proceed before the grade one magistrate since this matter was within his jurisdiction. As a result MA 414/2014 & M A 415 /2014 Also collapsed subsequently the respondent filed civil appeal no. 13 of 2014 in this court.
To date the Respondent MK Financier Ltd has filed over 10 misc. applications in relations to this appeal, MA 704/2014 and MA 900/2014 were disposed of in my court, Meanwhile MK Financiers ltd also applied for leave to appeal against these rulings in the above applications which was granted by this court. However these court files are still in the commercial court implying Court of Appeal has not requested for them yet. This application was the remaining matter to be resolved.
Meanwhile, the following applications remain pending before commercial court; CA 13/2014, MA 456/2014, MA 452/2014, MA 528/2014, MA 563/2014, MA 524/2014, MA 589/204, MA 781/2014, MA 850/2014 and 502/2015. This is the first time in my experience as a judicial officer to have such a case where the court appears powerless to control the tornado filing of multiple applications.
i
This application is argued on the right of appeal being automatic or whether in some instances, leave of court is required. It is my understanding that right of Appeal is constitutional and inherent for anyone seeking justice before a court of law and who is not happy with the final decision of the court. However, in order to avoid abuse of court process and bring litigation to an end, there are procedural formalities in terms of requirements needed so as not to over burden the court system. Whether the Respondent had an automatic right of appeal is a matter that can be resolved when handling the appeal and not as a separate matter.
The Civil Appeal 13 of 2014 and the numerous Miscellaneous Applications attached to it is set be heard by a visiting judge in the near future. Therefore the issue of whether appeal should be struck out should be handled by the Judge who is set to handle CA 13/2014. It would be causing an injustice to the Respondent to dispose of the appeal by way of this miscellaneous application.
Therefore, without determining the merits or lack of merits of the issues raised in this application, I dismiss the application with no order as to costs. The Applicant can raise this as a preliminary objection to the Appeal and reduce on court work by not filing separate matters.
So ordered
ELIZABETH JANE ALIVIDZA
JUDGE
3rd MAY 2015