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Mukaaya v Ssekamwa (Civil Application 1139 of 2023)

Court of Appeal · [2023] UGCA 351 · 2023 Application Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application before a single Justice of the Court of Appeal for a temporary injunction to maintain the status quo over land pending the hearing of a civil appeal.
Decision
Application for a temporary injunction dismissed with costs; the court declined to consider the merits for want of a competent appeal.

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Holding

The applicant sought a temporary injunction to preserve land pending appeal against a High Court ruling that had upheld a preliminary objection under Order 6 rule 29 CPR and dismissed his suit. The single Justice held that an appeal from such a ruling is not available as of right; under Order 44 rules 1(1) and (2) CPR leave to appeal was required and was never obtained. Because the right of appeal is a creature of statute, the Notice of Appeal was incompetent and could not form the basis for an application for a temporary injunction pending appeal. The court declined to consider the merits of the application and dismissed it with costs to the respondent.

Facts

The applicant, Mukaaya William, sued the respondent, Ssekamwa Sande (administrator of the estate of the late Nadduli Keresipo), in the High Court (Land Division) vide Civil Suit No. 084 of 2023, claiming to be the rightful owner of about 10.15 acres at Busiro Block 40 Plot 50, Lutisi, Namayumba Town Council, Wakiso District, allegedly received from his late father as a gift inter vivos. The respondent contended the estate had been distributed, that the applicant had instead received Plot 22 Block 40, and that the suit property had been shared among other beneficiaries, some of whom sold to third parties. The respondent raised a preliminary objection (Misc. Application No. 2762 of 2023) that the alleged gift inter vivos did not satisfy legal requirements. On 10 October 2023 the High Court upheld the objection and dismissed the suit with costs. The applicant lodged a notice of appeal and filed this application for a temporary injunction to restrain dealings with the land and maintain the status quo pending appeal. The respondent challenged the validity, competence and service of the notice of appeal.

Issues

  1. Whether there was a valid and competent Notice of Appeal capable of grounding the application for a temporary injunction.
  2. Whether the applicant had a right of appeal against a High Court ruling that upheld a preliminary objection under Order 6 rule 29 CPR without first obtaining leave to appeal.
  3. Whether the applicant satisfied the conditions for the grant of a temporary injunction pending appeal.

Orders

  • The application for a temporary injunction is dismissed.
  • Costs of the application to the respondent.

Key headnotes

Civil Procedure — Appeals — Right of Appeal as a Creature of Statute
The right of appeal exists only where it is conferred by statute; there is no inherent right of appeal and no inherent appellate jurisdiction.
Civil Procedure — Appeals — Leave to Appeal — Rulings under Order 6 rule 29 CPR
An appeal against a ruling determining a preliminary objection under Order 6 rule 29 of the Civil Procedure Rules does not lie as of right; leave to appeal must first be obtained under Order 44 rules 1(1) and (2).
Civil Procedure — Injunction / Stay Pending Appeal — Competence of the Notice of Appeal
Where a Notice of Appeal has been filed but no right of appeal exists, the Notice of Appeal is incompetent and cannot form the basis for an application for a temporary injunction or stay of execution pending appeal.
Civil Procedure — Court of Appeal Rules — Preconditions for Injunction or Stay
Under Rule 6(2)(b) of the Court of Appeal Rules an injunction or stay pending appeal may be granted only where a valid Notice of Appeal in writing has been lodged in accordance with Rule 76 and within the prescribed time.

Legislation cited (8)

  • Civil Procedure Act Cap 71 s.98
  • Judicature (Court of Appeal Rules) Directions S.I. 13-10 r.2(2)
  • Judicature (Court of Appeal Rules) Directions S.I. 13-10 r.6(2)(b)
  • Judicature (Court of Appeal Rules) Directions S.I. 13-10 r.76(1)
  • Judicature (Court of Appeal Rules) Directions S.I. 13-10 r.76(5)
  • Judicature (Court of Appeal Rules) Directions S.I. 13-10 r.78(1)
  • Civil Procedure Rules S.I. 71-1 O.6 r.29
  • Civil Procedure Rules S.I. 71-1 O.44 r.1(1) and (2)

Cases cited (9)

  • Geilla v Cassman Brown & Co Ltd (1973) EA 358
  • Crane Bank Limited (In Receivership) v Sudhir Ruparelia & Anor (Supreme Court Civil Appeal No. 32 of 2020)
  • Herbert Semakula Musoke & Anor v Lawrence Mabanda & 2 Ors (Supreme Court Civil Application No. 22 of 2019)
  • David Otuket v Okonyo Mustafa & Anor (Court of Appeal Civil Application No. 170 of 2009)
  • Kampala Financial Services Ltd & Anor v Hussein Muhamed (Court of Appeal Civil Application No. 146 of 2021)
  • Osman Kassim v Century Bottling Co Ltd (Supreme Court Civil Application No. 34 of 2019)
  • Yahaya Yusufu & 2 Ors v Sauda Nabunya & 3 Ors (Court of Appeal Civil Application No. 89 of 2023)
  • Attorney GeneralVs. Shah (No. ) [1971] at page 50
  • Lukwago Erias & Anor v Attorney General & Anor (Supreme Court Civil Application No. 6 of 2014)
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.