THE REPUBLIC OF UGANDA
IN THE COURT OF APPEAL OF UGANDA AT KAMPALA
CIVIL APPLICATION NO. 241 OF 2011
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HAJJI NUMANI MUBI AKULAMUSA ...................................... APPLICANT
VERSUS
1. F
RIENDS ESTATE LTD
2. M
ALKAN ........................................................................ RESPONDENTS
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CORAM: HON.MR. JUSTICE REMMY KASULE, JA
HON. LADY JUSTICE FAITH E. MWONDHA, JA
HON. MR. JUSTICE KENNETH KAKURU, JA
RULING OF THE COURT.
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This is an application for leave to appeal.
The fac
ts as set out by the parties in their conferencing notes are briefly as
follows
;
That the
applicant filed his Application No 435 of 2011 at the High Court,
against
the respondents for orders that the property comprised in
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Leasehold Register Volume 149 Folio 81 Rubaga Road be released from
1
attachment and execution. The said application was dismissed on grounds,
among others, that it was brought under a wrong law .
.
The dismissal also related to aspects of fraud and illegalities surrounding
the title of the applicant herein. An application for leave to appeal was
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made before the learned trial Judge, who dismissed it.
Hence this application.
Court clarifies from the onset that an application for leave to appeal such as
this one is not an appeal
.
Although the learned Judge dismissed a similar application before him,
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0 made orally after his ruling and order on 218t Nov. 2011, this application is
not an appeal from that ruling and order
.
This application is stated to have been brought under Rules 43 and 45 of
the Rules of this Court as a substantive application to be heard and
determined by this court exercising its own inherent jurisdiction
.
2
At the h
earing of this application Mr. Cosma Kateeba together with Mr.
Andrew W
amina appeared for the applicant and Ms. Leah Namulondo
appeared
for the 1st respondent. This application names two respondents.
However n
either the 2nd respondent nor his counsel were present, at the
5
hearing of this application.
Mr
. Kateeba, then withdrew this application against the 2nd respondent with
leave of co
urt. No order was made as to costs.
Mr
. Kateeba made a correction on his notice of motion to the effect that this
application
was brougnht under rule 40 (2) (b) of the Rules of this court,
1
0 and not under Rules 43 and 45 as indicated thereon.
Rule 40(2)
(b) states as follows;
I
~O(2)(b) where formerly an appeal lay from the High Court to
the Supreme Court with leave of either the High Cour
t or
Supreme Court the same rules shall apply to appeals
to the
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court-
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(b) if the High Court refuses to grant leave, or where an appeal
otherwise lies with leave of the court, application for the leave
shall be lodged by notice of motion within fourteen days after
the decision of the High Court refusing leave, or as the case
may be, within fourteen days after the decision against which it
is desired to appeal,' and the decision of the court granting or
refusing to grant leave is final
The facts and issues in the court below do not concern us very much here
as those will be re-appraised on appeal in the event that this application
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succeeds and the applicant proceeds to file an appeal.
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We have listened to the rather lengthy arguments of both counse
l in this
matter.
We have also read the authorities cited to us. We will only briefly set out
the back ground to this application as we have understood it
.
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This matter arose from the Commercial Division of the High Court in Civil
Suit No 435 of 2003.
4
The appellants in this application were not parties to the suit
. That suit was
heard and determined. In execution of the decree an order of vacant
possession was issued. It required that the decree holder be granted
vacant possession of a property comprised in Leasehold Register 140 Folio
5
8 Plot 1 Rubaga Road, Kampala. It seems the order that was issued by
court was not a 'warrant of attachment', but rather an order for vacant
possession.
However the persons to whom the order was addressed were not
in
possession of the suit property above described. It was the applicant in this
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matter who is said to have been in possession.
The app
licant faced with this situation filed High Court Miscellaneous
Application No 435 of 2007. The application was for release of the above
property from 'attachment' and was made by motion under Order 22 Rules
55, 56, 57 and 52 (1) of the Civil procedure Rules.
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5 This is what is referred to as objector proceedings.
5
The objec
tor application was heard by Hon. Justice Geoffrey Kiryabwire (J)
(as he wa
s then) and dismissed it.
However,
he did not just dismiss the application. During the hearing of the
applicatio
ns many issues had arisen, which he had to resolve.
5
As we have already stated above since this is not an appeal we will not
dwell on
the details of that application.
Suffice it
to say that the learned Judge dismissed that application after he
had mad
e a number of findings including allegations of fraud.
He also
, in addition to the order dismissing the application, made a number
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of other orders. Some of the orders he made determined the ownership of
the pro
perty that the application sought to be released from the
'attachm
ent' .
The app
licant then made an application for leave to appeal the said order
which as
already stated the Judge rejected. As a result the applicant then
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filed this application.
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We agree with Mr. Kateeba learned counsel for the applicant, that this
Court whi
le exercising its discretion to grant or not to grant leave to appeal,
will first determine whether or not
prima facie there appears to be grounds
of appeal requiring serious consideration by this court.
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This was the holding in the case of Sango Bay Estates and Others versus
Dresner Bank A. G [1971] EA 17.
The judgment of the Court of Appeal for East Africa by
SPRY (V.P) is still
very good law. He put the position of the law as follows:-
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0
'
~s 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
consideration"
All that this court is thus required to do is to determine whether or not
prima facie
there are grounds of appeal that merit serious
1
5 consideration. (See also G.M Combined (U) LTD vs. A.K Detergents
(U) LTD: Supreme Court Civil Appeal No. 23 of 1994 where
the
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Supreme Court followed the ho
lding in Sango bay Estates case
(
Supra)
This task is not as easy as it seems
. This is because on one hand
t
his Court is not required to inquire into the merits of the case from
5
which this application arose, since this is not an appeal. On the other
hand
, it is required to determine whether prima facie there exist
gro
unds of appeal that merit serious consideration. It is a balancing
act
.
W
e have heard the lengthy submissions of both counsel. We have
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also read the ruling, the findings and orders made by the learned
Jud
ge in High Court Miscellaneous Application No. 435 of 2011.
The
findings and orders of the learned Judge (as he was then) in our
vie
w have far reaching consequences. They go as far as determining
the i
ssue of ownership of the suit property.
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They involve multiple parties some of whom were not parties to the
origi
nal suit. We are therefore of the considered view that prima facie
grou
nds of appeal exist which require serious consideration by this
cour
t.
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The authorities submitted by both counsel and their lengthy
arguments seemed to have been intended to lead us to a direction in
which the issues of the appeal itself would have been addressed. We
shall no go into that direction. Clearly their lengthy arguments point to
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the fact that, prima facie there exist grounds of appeal.
Accordingly leave to appeal is hereby granted to the applicant
.
The applicant shall file the appeal within 30 days from date hereof.
The costs of this application will abide the result of the intended
appeal
. It is so ordered.
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0 Dated this .21st .. day of....October. 2013 at Kampala.
HON. REMMY KASULE
JUSTICE OF APPEAL
.
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HON. FAITH E. MWONDHA
JUSTICE OF APPEAL
.
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HON. KENNETH KAKURU
JUSTICE OF APPEAL
.
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