Wakilii

G.M.Combined (U) Ltd v A.K.Detergents (U) Ltd (Civil Application 23 of 1994)

Supreme Court · [1994] UGSC 3 · 1994 Preliminary Objection Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application to the Supreme Court for leave to appeal against a High Court order requiring security for costs; ruling on a preliminary objection that the application was incompetent.
Decision
Preliminary objection dismissed; application for leave to appeal to proceed to hearing on the merits.

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Holding

The Court held that rule 39(a) of the Supreme Court Rules, which permits an informal application for leave to appeal made at the time of the decision, prevails over the conflicting Order 40 rule 1(4) of the Civil Procedure Rules requiring a formal motion on notice, because the Supreme Court Rules derive their authority from section 43 of the Judicature Act 1967, an Act later in date. Following Sango Bay v Dresdner Bank, the choice of procedure rests with the applicant, and the respondent's duty is to resist leave on its merits, not to insist on a formal application. The High Court judge misdirected himself; the preliminary point was dismissed and the matter ordered to proceed on the merits.

Facts

G.M. Combined (U) Ltd borrowed from the Uganda Development Bank and the Development Finance Company of Uganda on the strength of debentures. Alleging default, the creditors exercised their power of sale and sold G.M.C.'s movable and immovable property to A.K. Detergents (U) Ltd. G.M.C. sued in the High Court to set aside the sales as invalid. A.K. Detergents applied under Order 23 Rule 1 of the Civil Procedure Rules and section 4 of the Companies Act for security for costs; the High Court (Tsekooko J.) ordered G.M.C. to provide Shs. 50 million within 90 days, staying proceedings. Counsel for G.M.C. applied informally for leave to appeal that order; the judge, after the respondent objected, refused the informal application as incompetent under Order 40 rule 1(4). G.M.C. then applied to the Supreme Court for leave, where the respondent raised the preliminary objection now ruled upon.

Issues

  1. Whether an applicant for leave to appeal may apply informally under rule 39(a) of the Supreme Court Rules, or is bound by Order 40 rule 1(4) of the Civil Procedure Rules requiring a formal motion on notice.
  2. Whether the respondent may insist on a formal application for leave to appeal rather than resisting leave on the merits.
  3. Whether a wrong or omitted citation of the enabling law is, by itself, a ground for striking out an application.

Orders

  • Preliminary point dismissed.
  • The application to proceed to hearing on the merits.
  • The proposer of the preliminary point to bear the costs of that hearing and of any consequent adjournment, in any event.

Key headnotes

Civil Procedure — Leave to Appeal — Informal Application — Conflict between Supreme Court Rules and Civil Procedure Rules
Where rule 39(a) of the Supreme Court Rules permits an informal application for leave to appeal made at the time the decision is given, it prevails over the conflicting Order 40 rule 1(4) of the Civil Procedure Rules requiring a formal motion on notice, because the Supreme Court Rules are preserved by section 43 of the Judicature Act 1967, an enactment later in date than the Civil Procedure Act and Rules.
Civil Procedure — Leave to Appeal — Choice of Procedure Vests in the Applicant
The choice whether to apply for leave to appeal informally at the time of delivery of the judgment or order, or by a later formal motion on notice, belongs in the first instance to the party seeking to appeal; it is not open to the respondent to insist on a formal application.
Civil Procedure — Leave to Appeal — Duty of the Respondent and the Court
The duty of a respondent to an application for leave to appeal is to resist leave on the merits of the decision; and the court, before refusing an informal application, must inquire into the grounds on which the appeal would be taken rather than reject it as incompetent for want of a formal motion.
Civil Procedure — Leave to Appeal — Effect of a Refusal by the High Court
Where the High Court refuses leave to appeal on a proper application, or treats as incompetent an application that ought to have been entertained, the refusal entitles the applicant to apply for leave to the appellate court.
Civil Procedure — Pleadings and Applications — Wrong or Omitted Citation of Enabling Law
A wrong or omitted citation of the law under which an application is brought is not, by itself, a ground for limiting, striking out or dismissing the application where the enabling power is well known and no prejudice or embarrassment is caused to the other side; the matter should ordinarily be put right.

Legislation cited (10)

  • Civil Procedure Rules Order 23 Rule 1
  • Civil Procedure Rules Order 40 Rule 1(1)
  • Civil Procedure Rules Order 40 Rule 1(2)
  • Civil Procedure Rules Order 40 Rule 1(3)
  • Civil Procedure Rules Order 40 Rule 1(4)
  • Civil Procedure Rules Order 40 Rule 2
  • Civil Procedure Rules Order 44 Rule 1(2)
  • Companies Act s.4
  • Supreme Court Rules rule 39(a)
  • Judicature Act 1967 s.43

Cases cited (1)

  • Sango Bay Ltd v Dresdner Bank (1971) E.A. 17
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.