[2024] UGHC 354

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA [CIVIL DIVISION] MISC. APPLICATION NO. 823 OF 2023 [ARISING FROM MISC. APPL NO. 276 OF 2022] [ARISING FROM CIVIL APPEAL NO. 001 OF 2020] OBBO THERESA MARY =============== APPLICANT

VERSUS

IGNATIUS LOYOLA MALUNGU ========= RESPONDENT

# **BEFORE: HON. JUSTICE EMMANUEL BAGUMA RULING**

This application is by notice of motion under section 98 of the Civil Procedure Act, Order 44 rule 1, 2, 3 & 4 of the Civil Procedure Rules seeking for orders that; -

- 1. Leave be granted to the applicant to appeal against the ruling and orders of this court made on 7th July 2023 in Miscellaneous Application No. 276 of 2022 allowing the application and ordering that Civil Appeal No. 1 of 2020, which had been dismissed, be reinstated for hearing. - 2. Costs of this application be provided for.

The grounds in support of this application are contained in the affidavit of **Obbo Theresa Mary** whose details are on record but briefly are; -

- 1. I have been informed by lawyers of M/S Muhumuza-Laki, Twesigire & Co. Advocates that I have sufficient grounds of appeal with high likelihood of success and such grounds merit serious judicial consideration by the appellate court. - 2. I am informed by my aforementioned lawyers that this court erred in law when it did not address itself to the mandatory provisions of the law relating to timelines for service of interlocutory miscellaneous applications and invoked article 126(2) (e) to circumvent mandatory provisions of the law.

3. I am informed by my lawyer that this court erred in law when it failed to decide the applicant for re-instatement on its merit as to whether there is sufficient cause and instead based on the history of the case.

In reply, the Respondent opposed the application and in an affidavit sworn by **Ignatius Loyola Malungu** the Respondent whose details are on record briefly stated that; -

- 1. I have been informed by my lawyers of M/S Wassanyi & Co. Advocates whose advise I verily believe to be true that this court addressed itself to the provisions of the law applicable to timelines within the overall constitutional context. - 2. I am advised by my aforementioned lawyers that this court considered the law applicable to readmission of an appeal and there was no error committed in considering the history of this matter. - 3. I am advised by my lawyers that the applicant's intended appeal is frivolous and devoid of merit.

#### **Representation.**

Counsel Augustine Twesigire represented the Applicant while Counsel Wassanyi Sepi represented the Respondent.

At hearing parties agreed to file written submissions whose details are on record.

#### **Submissions by counsel for the Applicant**

Counsel for the Applicant referred to the case of **Sango Bay Estates Ltd Vs Dresdner Bank A. G [1971] EALR at page 20** where it was held that; -

# *"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.................."*

Counsel contended that there are serious issues in the Applicant's appeal among which include failure by this court to address itself to mandatory timelines for service of interlocutory applications and the erroneous application of article 126 (2) (e) of the Constitution to circumvent mandatory provisions of the Civil Procedure Rules governing service of interlocutory application. He insisted that, this is a matter that merits consideration by the court of appeal.

### **Submissions by counsel for the Respondent.**

Counsel for the Respondent cited the case of **Omaya John Samson Versus Elija Odongwun and anor MA No. 44 of 2021** where it was held that; -

*"the interlocutory appeals provisions under order 44 of the CPR were enacted precisely so that difficult legal issues of significant importance could receive appellate consideration before conclusion of the trial.*

*The regime for interlocutory appeal was not designed against routine procedural and evidentiary rulings, not determinant of the rights of the parties in the ordinary course of a trial"*

Counsel submitted that this application is based on the procedure this court followed in readmitting the Respondent's appeal. That is timelines for service of summons in interlocutory applications and application of article 126 (2) (e) of the constitution. It does not raise questions of law but rather matters of procedure which amounts to an abuse of court process.

#### **Analysis of court**

In the case of **Sango Bay Estate Vs Dresdner Bank & Attorney General [1971] EA 17** as correctly cited by counsel for the applicant it was held that; **-**

*"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."*

The Supreme Court of Uganda in the case of *G. M. Combined (U) Ltd vs A. K. Detergents (U) Ltd Civil Appeal No. 23 of 1994* alluded to this principle which was subsequently followed the Court of Appeal in *Degeya Trading Stores (U) Ltd vs* *Uganda Revenue Authority, Civil Application No. 16 of 1996* where their Lordships stated;

*"An applicant seeking leave to appeal must show either that his intended appeal has reasonable chance of success or that he has arguable grounds of appeal and has not been guilty of dilatory conduct".*

Therefore, for this application to succeed, the applicant is required to show that there are grounds of appeal which merit serious judicial consideration. The ruling and order sought to be appealed against were made by this Court in exercise of its discretion under section 98 of the Civil Procedure Act for setting aside a dismissal of an appeal and article 126 (2) (e) of the 1995 Constitution for the interest of substantive justice.

It should be noted that when the appellant filed this appeal, the where abouts of the Respondent now Applicant where not known. Attempts to serve her where all futile. This court refused to proceed exparte and tasked the Appellant now Respondent to serve the Respondent now applicant. The Respondent was tasked to make extra efforts to serve the applicant until she was found and brought on board in the appeal. All this was done with the spirit of ensuring that the appeal is heard on merit and the dispute is resolved at once. It was unfortunate that counsel for the Applicant moved court to dismiss the Appellant's appeal when the appellant/Respondent missed court once yet the same matter was adjourned several times while tracing for the Applicant/Respondent.

It is my view that these proposed grounds of appeal do not merit serious judicial consideration as anticipated in the above authorities. This Court exercised its discretion while considering application to set aside a dismissal and re-admit the appeal to enable the dispute between the parties be resolved on merit.

To my mind the intended appeal is just an abuse of the court process which this Court is enjoined to prevent. While a party should in the normal course not be prevented from pursuing an appeal, it is also necessary to put in place mechanisms that will prevent abuse of Court process as was observed by the Court of Appeal of Uganda in *Asiimwe Francis vs Tumwongyeirwe Aflod Miscellaneous Application No. 103 of 2011***.**

On the whole, taking into account the circumstances of this case, I do not find any arguable grounds of the intended appeal that merit granting leave to appeal against the ruling and orders of this court made on 7 th July 2023 in MA No. 276 of 2022.

## **Conclusion**

In the final result, this application fails with the following orders; -

- **1. The application is hereby dismissed.** - **2. The Respondent is awarded costs of this application.** - **3. Let Civil Appeal No. 01 of 2020 proceed on its own merit.**

Dated, signed, sealed and delivered by email on this **21 st day of May 2024.**

Emmanuel Baguma

Judge.