[2025] UGHC 6

#### THE REPUBLIC OF UGANDA

#### IN THE HIGH COURT OF UGANDA HOLDEN AT MBALE

# MISC. APPLICATION NO. 434 OF 2023

### (ARISING FROM CIVIL SUIT NO. 09 OF 2022)

### 1. BAKER WAMANGA

# 2. GREEN WISH EXPRESS

TRAVELLERS & INVESTMENT LID :::::::::::::::::::::::::::::::::::

#### **VERSUS**

# 1. BALLON VENTURES LTD

2. OPONDO COMPANY LTD :::::::::::::::::::::::::::::::::::

### **BEFORE HON. JUSTICE LUBEGA FAROUQ**

#### **RULING**

#### 1. Introduction

2. This application was brought by way of notice of motion under order 44 rule $1(2)$ , (3) & (4) of the Civil Procedure Rules SI 71-1 for orders that the Applicants be granted leave to appeal against the ruling of this court which was delivered on 22^nd November 2023 in Civil Suit No. 09 of 2023 and costs of this application be provided for.

### 3. Background

- 4. The background of this application is that on 18^th March 2022, the Applicants filed Civil Suit No.9 of 2022 before this court wherein the Respondents then filed a written statement of defence which was stamped on 24^th March 2022, without leaving a space for a registrar of court to sign and seal and later, on the $9^th$ May 2022, filed a counterclaim. - 5. On 17^th May 2022, the Applicants responded by raising preliminary objections on grounds that the Respondents filed their counterclaim out of

time and that the written statement of defence is defective since it lacked the signing space for the registrar and it was thereby not sealed.

- 6. This court delivered a ruling on the said preliminary objections where it held that - a. The $1^{st}$ and $2^{nd}$ Defendants' joint written statement of defence was signed in accordance with order 6 rule 26; - b. Fault of leaving no space for the signature and seal of the registrar could not be visited on the innocent litigants; and - c. Upheld the $3^rd$ preliminary objection which was to the effect that the counterclaim is defective for being filed out of time and accordingly struck out the same. - 7. The grounds in support of this application are alluded in the affidavit in support of the 1^st Applicant which has been relied upon in the determination of this application and briefly states that - a. The Applicants intended appeal raises serious questions of law and fact which merit judicial consideration by the Appellate Court to wit; - $i$ . Whether a written statement of defence which was not signed and sealed by an appropriate officer of court can be cured by amending to insert a space for the signature of the registrar; - That the trial judge struck off the Respondent's counter claim but did ii. not award costs, neither was there reason why costs were not awarded yet the Applicants had prayed for costs; - b. The Applicants have no automatic right of appeal against the ruling and orders of the High Court but must seek leave to appeal; - c. The Applicants have not been guilty of dilatory conduct; - d. The Applicant's intended appeal has reasonable chances of success; - e. If leave to appeal is not granted to the applicants the applicants will suffer grave injustice. - 8. The grounds in opposition of this application are alluded in the affidavit in reply of **OSCAR RWIGYEMA**, the managing director of the 1^st Respondent,

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which has been relied upon in the determination of this application and briefly states that-

- a. At the commencement of the trial or at the nearest opportunity, they shall raise preliminary point of law to the effect that the instant application is an abuse of court process, and only intended to waste court's precious time as the same doesn't disclose any grounds for its grant, reason of which this court shall be moved to dismiss the same with contempt; - b. The negligence or carelessness, if any, in drafting of the said document cannot be visited on any of the Respondents since it's their former lawyers who drafted the same and the learned judge in his decision clearly explained that; - c. The award of costs is at the discretion of court and not subject to any formality; - d. The Applicant has brought this application in bad faith only intended to hinder the $1^{st}$ Respondent from enforcing its rights.

# 9. Legal representation

- Counsel Mugoda Denis appeared for the Respondents while Counsel 10. Wesire Yona represented the Appellants. - During the hearing of this application, counsel were granted timelines to $11.$ file their respective written submissions. Both parties complied, and their submissions have been duly considered in the determination of this court.

#### 12. **Analysis of court**

- Court framed two issues for the determination of this application to wit-13. - a. Whether this application discloses any grounds for grant of leave to appeal *against the ruling of this court?* - b. What remedies are available to the parties in the circumstances? - Issue 1: Whether this application discloses any grounds for grant of $14.$ leave to appeal against the ruling of this court? - Order 44 rule 2 of the Civil Procedure Rules provides that-15.

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

- The above provision presupposes that an appeal is a creature of statute 16. and for that reason, there is no inherent right of appeal. If no appeal is provided for by the law, an aggrieved party cannot appeal. - In Livingstone Kayaga Kizito V. Charles Waligo Court of Appeal 17. Miscellaneous Application No. 80 of 2012 citing with approval of its decision Degeya Trading Stores (U) Ltd Vs Uganda Revenue Authority Civil Application No. 16 of 1996 and Sango Bay Estates Ltd & Ors Vs Dresdner Bank A. G (1972) EA 17, held that-

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

- In Swain V. Hillman [2001] 1 All ER 91 Lord Woolf, MR held that-18. "The court considering a prospect for permission is not required to analyse whether the grounds of the proposed appeal will succeed, but merely whether there is real prospect of success." - In the instant case, the Applicants averred in paragraphs 2 to 11 of the 19. affidavit in support that their intended appeal raises serious questions of law and fact which merit judicial consideration by the appellate court to wit; - a. Whether a written statement of defence which was not signed and sealed by an appropriate officer of court can be cured by amending to insert a space for the signature of the registrar; - b. That the trial judge struck off the Respondent's counter claim but did not award costs, neither was there reason why costs were not awarded yet the Applicants had prayed for costs.

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- **The first ground:** Whether a written statement of defence which was not 20. signed and sealed by an appropriate officer of court can be cured by amending to insert a space for the signature of the registrar; - 21. From my ruling I noted that-

"It is noted by this court that the written statement of defence was drafted by the Defendants' counsel.

It is trite that mistake of a lawyer should not be visited on the litigants. In the case of Godfrey Magezi and Another v Sudhir Ruparelia Civil Application No.10 of 2002, the honourable Justices of the Supreme Court held that- "omissions or mistakes or inadvertences of counsel should not be visited on the litigant".

The fault of leaving no space for the signature of the Registrar in the written statement of defence cannot therefore, be blamed on the litigants since they are represented. Accordingly, the Defendants are allowed to amend the written statement of defence to include the provision for the signature of the Registrar and the seal of court."

- In the view of the above reasoning, I have not found any merit in the first 22. ground worth grant of leave to appeal. - **The second ground:** That the trial judge struck off the Respondent's 23. counter claim but did not award costs, neither was there reason why costs *were not awarded yet the Applicants had prayed for costs.* - It is apparent from the court record that the counter claim was struck off 24. the court record for having been filed out of time, which means it was illegally filed. For that reason, court could not award costs to illegalities. - In any case, award of costs is ordinarily at the discretion of court. 25.

- From the foregoing, I am satisfied that this court exercised its discretion 26. judiciously in granting the said orders. I have not found any compelling reasons to warrant the grant of this application. - <u>Issue No. is answered in the negative.</u> 27. - Issue 2: What remedies are available to the parties in the 28. circumstances? - Having found issue.1 in the negative, this application accordingly fails and 29. is hereby dismissed with costs to the Respondents.

I so order.

# **LUBEGA FAROUO** Agt. JUDGE

Ruling delivered via the emails of the advocates of the parties on 15^th day of January, 2025