[2023] UGCommC 269

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (COMMERCIAL DIVISION)

# **MISCELLANEOUS CAUSE NO. 0090 OF 2023**

NDOZIREHO DAVID:::::::::::::::::::::::::::::::::::

#### **VERSUS**

#### 1. MASTER TRADING CO. LTD

# **2. KAGIMU FRED::::::::::::::::::::::::::::::::::::**

# **BEFORE: HON LADY JUSTICE ANNA B. MUGENYI**

#### **RULING**

This Application is brought by way of Notice of motion under section 98 of the Civil Procedure Act, Order 44 rules 2, 3 & 4 and Order 52 rules 1, 2 &3 of the Civil Procedure Rules(CPR) for orders that the Applicant be granted leave to appeal to the High Court against the ruling of the trial magistrate in Miscellaneous Application No 74 of 2023, the proceedings arising out of civil suit no 48 of 2023 be stayed pending the determination of this matter and the costs of this Application be provided for.

This Application was supported by the Affidavit of Margaret Talemwa Kemigisha and opposed by the Affidavit in reply of Muhammad Asif Raja.

# **Background**

The 1^st Respondent sold a motor vehicle to the 2^nd Respondent at a sum of 67,000,000/=. The $2^{nd}$ Respondent paid the amount and remained with an outstanding balance of 20,000,000/=. The 1^st Respondent later entered into an agreement and transferred the vehicle to the $2^nd$ Respondent before the completion of the purchase price. The 2^nd Respondent then sold and transferred the vehicle to the Applicant. The 1^st Respondent instituted civil suit No. 48 of 2023 against the 2^nd Respondent for the balance and for an order of attachment before Judgment which was granted by the Court. Following the order for attachment, the Applicant instituted objector proceedings vide Miscellaneous Application No.74 of 2023, and the trial magistrate upheld the attachment of the vehicle. Dissatisfied with the ruling of the magistrate's court the Applicant through Miscellaneous Application 212 of

Only

2023, sought leave to appeal before the magistrate's court that passed the order, and the Court struck out their Affidavit for being incompetent. The Applicant now seeks leave of this Court to appeal against the decision of the trial magistrate.

#### REPRESENTATION

The Applicant was represented by M/s Musoke & Marzuq, Advocates and Legal Consultants and the Respondent was represented by IWs T-Davis Wesley & Co Advocates.

#### SUBMISSIONS

Counsel for the Applicant submitted that they seek leave to appeal as the trial Magistrate erred in attaching property that belongs to neither party to civil suit no 4812023 and the process through which it was done was legally and procedurally flawed. Further in delivering her decision, the magistrate stretched the application of order 22 rule 55 concerning objector proceedings thus usurping jurisdiction which is not permitted by the law. The magistrate also erred in law when she ruled that a seller's lien would transcend even where legal title passed to a different owner.

Conceming the prayer for a stay of proceedings, the Applicant submitted that the fact that there are objector proceedings under that suit, gives the Applicant sufficient nexus to the ongoing suit in the magistrate's court and they are therefore within their rights to ask for a stay of execution.

Counsel for the l't Respondent cited the case of Omaya John Samson v Elijah Odong where it was held that interlocutory appeals provisions under Order 44 of the CPR were enacted precisely so that difficult legal issues of significant importance could receive appealable consideration before the conclusion ofthe trial and submitted that the Applicant's questions intended to be raised on appeal are questions not contested by the 1't Respondent because they are just questions. The Applicant does not specifu where the magistrate erred in law or fact in her ruling and thus no grounds of Appeal have been proved. Counsel further submitted on the issue ofstay ofproceedings that the Applicant is not a parfy to the proceedings in civil suit no 48 of 2023 inLuzira and that the Applicant could have applied to be added as a party in those proceedings.

### RULING

I have read the pleadings and submissions of both the Applicant and the I't Respondent.

srq

During submissions, counsel for the Applicant moved the court to strike out the 2nd Respondent and he was accordingly struck out and thus not a party to the Application.

In the 1't Respondent Affidavit in reply, he raised a preliminary objection that the Affidavit in support swom by Margaret Talemwa Kemigisha should be struck out for being incurably defective as Advocates are barred from swearing Affidavits in contentious matters on behalf of clients.

Rule 9 of the Advocates (Professional Conduct) Regulations Sl 267-2 provides that:

"No advocate may appear before any court or tribunal in any matter in which he or she has reason to believe that he or she will be required as a witness to give evidence, whether verbally or by affidavit; and if, while appearing in any matter, it becomes apparent that he or she will be required as a witness to give evidence whether verbally or by afidavit, he or she shall not continue to appear; except that this regulation shall not prevent an adyocate from giving evidence whether verbally or by declaration or affidavit on a formal or non-contentious matter or fact in any matter in which he or she acts or appears ".

This rule therefore limits Advocates in personal conduct of a matter to giving evidence in formal and non-contentious matters.

In the case of Arthur Busingye and Anor v Gianluigi Grassi and Anor HCMA No. l13 of 2019 Justice Hellen Obura cited with approval the case of Jayantilal Amratlal Bhimji & Anotherv Prime Company Ltd, M. A. No 467 of 2007 wherc it was held that where an Advocate sreears an ffidavit in a contentious matter, the afidavit becomes incurably defective and should be struck out.

In the instant case, the Affidavit in support was swom by Margaret Talemwa Kemigisha and the matter in Court is in the personal conduct of Counsel Peter Allan Musoke. The counsel in personal conduct is not the same as the one who swore the Affidavit in question. Further, the deponent of the affidavit in issue is merely relating the sequence of events at the trial magistrates' court among other things which, in the view of this Court, cannot be construed to be a contentious matter.

I therefore find that the Affidavit is not defective and the preliminary objection is accordingly ovemrled.

I will now delve into the Application before this Coun.

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The law governing the Application for leave to appeal is provided for under Order 44 Rule 2 of the CPR thus:

"An appeal under these Rules shall not lie from any other order except with leave of the court making the order or of the court to which an appeal would lie if leave were given".

The case of Sango Bay Estate v Dresdner Bank & Attorney General [1971] EA 17 Spry V. P stated the principle upon which an application for leave to appeal may be granted as follows:

"As I understand it, leave to appeal from an order in civil proceedings will normally be granted where prima facie it appears that there are grounds of appeal which merit serious judicial consideration, but where, as in the present case, the order from which it is sought to appeal was made in the exercise of a judicial discretion, a rather stronger case will have to be made out."

Leave to appeal will be given where the court considers that the appeal would have a prospect of success or there is some compelling reason why the appeal should be heard (Musa Sbeity & Anor v Akello Joan & Anor HCMA No. 249 of 2018)

The main issue for determination is whether there are sufficient grounds to grant leave to appeal

For this application to succeed, the Applicant needs to satisfy this Court that there are matters whether of law or facts that deserve to be addressed by the appellate Court in the intended Appeal. These include showing how the Court misdirected itself or erred in law or fact or both law and fact.

For the Court to grant leave to appeal, it must satisfy itself that it prima facie appears that there are grounds of appeal which merit judicial consideration and it is necessary for attaining the ends of justice in a case.

In the present Application, the Applicant contends that the intended appeal will raise questions of law which should be considered by the High Court of Uganda, to wit: -

a) What is the applicability of Order 22 Rule 55 concerning the registered legal title of a property in the name of the objector;

b) What is the jurisdiction and extent of the mandate of a court in resolving questions raised under Order 22 rule 55, and whether the magistrate erred in law in extending the mandate and jurisdiction of the court?

Purp.

c) Whether the seller's lien is applicable in property possessed legally and physically by the objector.

The questions that the Applicant seeks the Court to determine are important questions that merit judicial consideration and in the submissions of counsel for the Applicant he rephrases the questions as; the trial Magistrate erred in attaching property that belongs to neither party to the civil suit no 48/2023 and the process through which it was done was legally and procedurally flawed, the Magistrate stretched the application of order 22 rule 55 conceming objector proceedings thus usurping jurisdiction which is not permitted by the law and the Magistrate also erred in law when she ruled that a seller's lien would transcend even where legal title passed to a different owner.

In a bid to protect the Applicant's right to appeal and to attain the ends ofjustice, I find that the issues raised by the Applicant's counsel merit serious consideration and I, therefore, grant leave to appeal.

The Applicant prayed for an order that the proceedings in and arising out ofcivil suit no. 48 of 2023 be stayed pending the determination of this motion. This prayer is overtaken by events by delivery ofthe Ruling herein and I decline to grant the same.

Costs shall abide the cause.

WIrl ,'^Ew.

HON. LADY JUSTICE ANNA B. MUGENYI DATED