Ssentongo v Balya (Civil Application No. 266 of 2017)
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Holding
The Court of Appeal dismissed the applicant's application for leave to appeal against High Court rulings. Under Rule 42(1) of the Court of Appeal Rules, an application that may be made either in the Court or the High Court must first be made in the High Court. The applicant had already filed Miscellaneous Application No. 177 of 2017 in the High Court seeking the same orders, which remained pending and unexplained. Filing a duplicate application in the Court of Appeal seeking identical relief, without justifiable cause, amounted to an abuse of court process. The application was dismissed with costs, but the applicant remained at liberty to pursue his pending and fresh applications in the High Court.
Facts
The applicant and the respondent were among the children and beneficiaries of the late Namyalo Nalongo, who died intestate leaving substantial property in Masaka. The applicant and his sisters obtained letters of administration but allegedly failed to distribute the estate. The respondent filed Civil Suit No. 02 of 2015 (originating summons) to compel distribution. The applicant and counsel failed to appear when the suit was called, prompting orders for written submissions. The applicant then filed Miscellaneous Application No. 164 of 2016 to vary or set aside those orders; it was dismissed when he again failed to appear. He filed Miscellaneous Application No. 081 of 2017 to reinstate it, which was struck out for late service rendering it an illegality. The applicant filed Miscellaneous Application No. 177 of 2017 in the High Court at Masaka seeking leave to appeal, then days later filed the present Civil Application No. 266 of 2017 in the Court of Appeal seeking the same orders, while the High Court application remained pending and unexplained.
Issues
- Whether the applicant should be granted leave to appeal to the Court of Appeal where an identical application for the same orders was already pending and undetermined in the High Court.
- Whether filing the application in the Court of Appeal while a similar application was pending in the High Court amounted to an abuse of court process.
Orders
- Application dismissed with costs.
- The applicant is at liberty to pursue his applications at the High Court.
- In respect of dismissed Applications No. 164 of 2016 and No. 081 of 2017, the applicant is at liberty to file fresh applications at the High Court.
Key headnotes
Legislation cited (3)
- Rules of the Court of Appeal r.42(1)
- Civil Procedure Rules O.39 r.4(3)
- Civil Procedure Rules O.48 r.1
Cases cited (1)
- Lawrence Musiitwa Kyazze v Eunice Busingye (Civil Appeal No. 18 of 1990)