THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

(COMMERCIAL DIVISION)

MISCELLANEOUS APPLICATION NO 1008 OF 2014

(ARISING FROM MISC. APPEAL NO. 97 OF 2013)

UGANDA GINNERS & COTTON EXPORTERS ASSOCIATION LTD & 10 OTHERS …………………………………………….. APPLICANTS

VERSUS

MUDDU AWULIRA ENTERPRISES LIMITED ………RESPONDENTS

BEFORE: LADY JUSTICE FLAVIA SENOGA ANGLIN

RULING

This was an application for leave to be granted to the Applicant to appeal against the decision of this court in Miscellaneous Civil Appeal No. 97/2014

The application was made under 0.44 r. 4 C.P.R.

Costs of the application were also applied for.

The grounds of the application are that court dismissed Civil Miscellaneous Appeal No.97/2014 with costs and the Applicants are aggrieved.

Leave to appeal was sought informally, but the Applicant was advised to make a formal application.

That the intended appeal raises a substantial point of law of great importance for determination by the Court of Appeal.

And it is in the interests of justice that the application be allowed.

The application is supported by the affidavit of Dr. John –Jean Barya, Advocate dated 10.11.14.

There is an affidavit in reply deponed by Peter Allan Musoke, Advocate.  He contends that the application does not disclose any ground of law that merits further judicial consideration, as the question raised by the Applicants has long been settled by the Supreme Court of Uganda.

The present court adopted the position of the Supreme Court concerning the calculation of interest forming part of the claim.

The application should therefore be dismissed with costs to the Respondent.

The application was called for hearing on 03.12.14.  Counsel for the Applicant recited the grounds of the application.  He then submitted that the principles for allowing the application like the current one are that “the Applicant must demonstrate that the intended appeal raises substantial or meritorious issues” – The case of Betuco (U) Ltd and Another vs. Barclays Bank [2009] KLR 475, Alley Route Ltd vs. Ug. Development Bank [2008] KLR 715, and Andrew Kibirige Lutwama vs. Haruna Kato Miscellaneous Application 920/2013 were relied upon in support.

Counsel stated that the intended appeal raises a substantial point of law to be decided as the decision intended to be appealed was based on S.26 C.P.A, a section that deals with award of interest when court has finally determined the suit; whereas the issue raised in the appeal was that when the Plaintiff files a claim for a liquidated sum with compound interest, from a specific date before filing the suit, when court is determining the fees payable, it should calculate how much the sum is at the time of filing the suit, by applying the sum to the claimed interest.

And that since there is a standard formula for calculating the interest; it ought to have been applied to the claim.  – The case of Uganda Commercial Bank vs. Yoramu Twaha [1999] KLR 947 – by Tinyinondi J was cited in support.

Further that, one of the issues in the appeal was whether pecuniary jurisdiction of a magistrate should be determined at the date of filing by aggregating the claim for special damages with interest claimed before filing.  That is, if the value of the subject matter is beyond the Chief Magistrates Court, then the court has no jurisdiction.

It is therefore important, Counsel submitted, that the issue be adjudicated upon on appeal for guidance of court on calculation of fees for filing, more so since court is a revenue collector.

Counsel then prayed for the application to be allowed.

The application was opposed on the following grounds:-

1. There is no question in the proposed appeal requiring serious judicial consideration.  That as pointed out on paragraph 3-4 of the ruling, the Supreme Court pronounced itself on compound interest – in the case of Attorney General vs. Richard Muthalam SC. CA 20/10 where it was held that “compound interest cannot form part of the subject matter of the claim if payable on agreement of the parties”

Court was urged to note that the case of Yoramu Twaha (Supra) relied upon by Counsel for the Applicant is a High Court case decided earlier than the binding authority of the Supreme Court.

Also that in the case of Sarah Kayaga Farm Ltd vs. Attorney General HC CS 351/91 Justice Kasule cited the _ House of Lords decision which is in tandem with the Supreme Court decision.  And that affirms that the question intended for appeal has already been settled by the Supreme Court.

2. That the proposed appeal has no chances of success in the appellate court as the grounds lack merit and the claim sought to be adjudicated is inextricably linked to an illegality; as the foundation of the claim of Counsel for the Applicant was based on a formula calculation of a witness who was found to have committed perjury before court.  – Referred to the evidence of Asaba Arthur dated 02.11.13 who claimed to have qualifications he had not yet attained.

• And that by seeking leave on grounds whose foundation is a crime and an illegality the Applicants are inviting both this Court and the Court of Appeal to sanction an illegality.

And that the case of UCB vs. Twala (Supra) ought to be distinguished from the present case which is based on illegalities.

3. The application is an abuse of court process.  On 19.06.14 the parties appeared before court.  They were directed to file scheduling notes pending the determination of the appeal.  While the Respondent filed their notes on 19.06.14 and served the Applicants, the Applicants have not filed theirs in contempt of court.

Court was prayed to dismiss the application and urge Applicants to file scheduling memo so that suit be heard.

The cases of Tusker Mattresses Ug. Ltd vs. Royal Care Pharmaceutical Ltd Miscellaneous Application 258/2011 and Sango Bay Estates vs. Dredner Bank Ltd and Others [1971] EA 307 were cited with the argument that the conditions set out therein have all been met. And GM Combined (U) Ltd vs. A.K Detergents (U) Ltd CA. 23/92, Ddegeya Trading Stores (U) Ltd vs. URA CA. 16/96 – to the effect that the application has to show that the appeal has reasonable grounds of success or has arguable grounds.

Counsel agrees with the principles set out in the case of Betuco (U) Ltd and Another vs. Barclays Bank (Supra) relied upon by the Applicants together with Alley Route Ltd (Supra) as still applicable but that in this case the principles necessary have not been satisfied.

And that like was done in the case of Andrew Kibirige vs. Kato (Supra) and Tusker Mattresses (Supra) leave should not be granted to the Applicants to appeal, more so when there are glaring contraventions of the law in this case.

It was prayed that the application be dismissed with costs to the Respondent.

Counsel for the Applicants reiterated earlier submissions adding that, the Registrar did not dismiss the application because of the formula used to arrive at calculation, but on the ground that deponent told a lie but that deponent had qualifications.  That therefore the issue which formula is applicable still stands.  That illegality of the affidavit is not relevant to the issue.

And that there is no abuse of court process as Applicants merely want to exercise right of appeal.  Emphasizing that the Applicant should not be denied the right, he maintained earlier prayers.

Superior courts have established that “where a party wishes court to grant it leave to appeal to the Court of Appeal, the party must show arguable grounds meriting the consideration of a higher court”.

In the present application, the Applicants sought leave of this court to appeal on the ground that the intended appeal raises a substantial point of law of great importance for determination by the Court of Appeal.

After careful consideration of the submissions of both Counsel, court finds that the said question of law Counsel for Applicant wishes to place before the Court of Appeal concerns the calculation of the fees payable where the Plaintiff files a claim for a liquidated sum with interest claimed from a specific date.

However, court is more persuaded by the submissions of Counsel for the Respondent to the effect that this question has already been pronounced upon by the Supreme Court in the case of Attorney General vs. Richard Muthalam SC CA 20/10 (Supra)

This was a decision made long after the case of Yorum Twala (Supra) relied upon by Counsel for the Applicant was made.

Since the question intended to be taken for appeal has already been settled by a court higher than the Court of Appeal, court finds that the application for leave to appeal cannot be granted in the circumstances.

The application is therefore disallowed with costs to the Respondent.  The parties should go ahead with scheduling and the main suit should be heard as earlier directed.

Flavia Senoga Anglin

JUDGE

30.01.14