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Asiimwe v Tumwongyeirwe (Miscellaneous Application No. 103 of 2011)

Court of Appeal · [2012] UGCA 64 · 2012 Application Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application for leave to appeal to the Court of Appeal and for validation of appeal documents already filed
Decision
Application for leave to appeal dismissed as incompetent with costs to the respondent

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Holding

The Court held that an order made in revision under section 83 of the Civil Procedure Act is not appealable as of right, so an intending appellant must first seek leave to appeal from the court that entertained the revision. While the word "shall" in Order 44 r.3 may be directory rather than mandatory depending on the scope and purpose of the provision, the applicant's failure to first apply to the trial court, coupled with his dilatory conduct and the prejudice to the decree holder who had already enjoyed the fruits of execution, rendered the application incompetent. The application was accordingly dismissed with costs.

Facts

The applicant and respondent were equal shareholders/directors in Bitooma Complex (1999) Limited. On 30 January 2006 the applicant bought out the respondent under a written agreement, with payment by installments, the last due 31 December 2007. The applicant failed to pay, and the respondent obtained judgment against him in Civil Suit No. 515 of 2008 in the Chief Magistrate's Court, Mengo, on 5 February 2008. The applicant did not appeal but later took out objector proceedings and proposed a payment plan he did not fulfil. In December 2009 the respondent attached and sold in execution the applicant's company shares, and new shareholders took over the company's assets in August 2010. On 1 September 2010 the applicant sought revision of the magistrate's judgment in the High Court, which was dismissed on 4 March 2011. He then lodged Civil Appeal No. 45 of 2011 in the Court of Appeal without first obtaining leave of the High Court, leading to this application.

Issues

  1. Whether the application for leave to appeal is validly before the Court of Appeal where the appellant had not first sought leave to appeal from the High Court.
  2. What remedies are available to the parties.

Orders

  • The application is held not to be validly before the Court.
  • The application is dismissed as incompetent.
  • Costs awarded to the respondent.

Key headnotes

Civil Procedure — Appeals — Leave to Appeal — Order in Revision Not Appealable as of Right
An order made in revision under section 83 of the Civil Procedure Act is not appealable as of right; an intending appellant must first seek leave from the court that entertained the revision, and only if leave is refused may the intending appellant apply to the appellate court.
Statutory Interpretation — Use of the Word "Shall" — Mandatory or Directory
There is no universal rule for determining whether the word "shall" in a statutory provision is mandatory or directory; the court must consider the whole scope and purpose of the enactment, the importance of the provision disregarded, and the consequences of non-compliance, asking whether the legislature can fairly be taken to have intended total invalidity.
Civil Procedure — Abuse of Process — Dilatory Conduct and Bypassing the Trial Court
A party may not bypass the trial court when seeking leave to appeal merely because he believes that court is unlikely to grant leave; where a litigant's dilatory conduct has allowed a decree holder to enjoy the fruits of execution, granting relief that undoes completed execution would cause injustice and the application is incompetent.

Legislation cited (5)

  • Civil Procedure Rules Order 44 rules 1(2), (3) and (4)
  • Civil Procedure Rules Order 44 rules 2, 3 and 4
  • Civil Procedure Act s.83
  • Judicature (Court of Appeal Rules) Directions r.40
  • Judicature (Court of Appeal Rules) Directions r.53

Cases cited (11)

  • Kizza Besigye Vs Museveni Yoweri & Another [2001-2005] HCB Vol.3
  • National Social Security Fund v Alcon International Ltd (Civil Application No. 23 of 2011)
  • Janmohamed Alibhai v Ramji Amarshi Raichura (Civil Appeal No. 81 of 1952)
  • Dr. Ahmed Muhamed Kisuule v Greenland Bank (In Liquidation) (Civil Appeal No. 10 of 2010)
  • Beatrice Kobusingye v Fiona Nyakana & Another (Civil Appeal No. 18 of 2001)
  • Sitenda Sebalu v Sam K. Njuba & Another (Election Petition Appeal No. 26 of 2007)
  • Edward Byaruhanga Katumba v Daniel Kiwalabye Musoke (Civil Appeal No. 2 of 1998)
  • Besweri Lubuye Kibuuka v Electoral Commission & Another (Constitutional Petition No. 8 of 1998)
  • The Secretary of State for trade and Industry Vs Langridge [1991] 3 Aller 591
  • R v Soneji [2005] UKHL 49
  • PROJECT BLUE SKY INC. VS. AUSTRALIAN BROADCASTING AUTHORITY [1998] 194CLR355
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.