Wakilii

Dr. Sheikh Ahmed Mohammed Kisuule v GreenLand Bank ( In Liquidation)

Supreme Court · [2011] UGSC 13 · 2011 Appeal Struck Out ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Second civil appeal from a Court of Appeal decision confirming the dismissal of an application to review a High Court judgment.
Decision
Appeal struck out as incompetent for failure to obtain the required leave to appeal.

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Cited — treatment unverified cited in 2 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions — always read the source judgment before relying on it.

Holding

The respondent objected that the appeal was incompetent because the appellant had not obtained leave to appeal against the order dismissing his application to review the High Court judgment. The Supreme Court held that an order refusing review under Order 46 rule 3(1) is not among the orders appealable as of right; under Order 44 rule 2 leave must first be sought from the court that made the order or the court to which the appeal would lie. No such leave was obtained, and the appellant's counsel had forged the supplementary record to suggest leave was granted. The omission of leave was the failure of an essential step under rule 78, not a mere procedural matter. The appeal was struck out with costs.

Facts

In November 1995 the appellant and one Karisa jointly obtained an overdraft facility of UGX 30,000,000 from the respondent bank, secured by two certificates of title for land at Makerere Kikoni. The borrowers defaulted. In 1998 Karisa withdrew and the appellant undertook to repay UGX 1,500,000 monthly, but again defaulted. The bank sold the securities for UGX 7,265,000, credited the proceeds, and sued for the outstanding balance plus interest. The High Court entered judgment for the bank with interest at 15% and costs. The appellant later applied to review that judgment, relying on a letter dated 14 July 1998 he said showed the bank had agreed to freeze interest; the review application was dismissed with costs. He appealed to the Court of Appeal, which dismissed the appeal, and then to the Supreme Court. At no stage did he obtain leave to appeal against the order refusing review.

Issues

  1. Whether the appeal was competent where the appellant had not obtained leave to appeal against the order dismissing his application for review.

Orders

  • Appeal struck out with costs to the respondent in this Court and in the courts below.
  • The advocate who forged the court record to be reported to the Law Council for further investigation and necessary action.

Key headnotes

Civil Procedure — Appeals — Leave to Appeal — Order refusing review of a judgment
An order refusing an application for review under Order 46 rule 3(1) is not among the orders from which an appeal lies as of right; under Order 44 rule 2 a dissatisfied party must first obtain leave to appeal from the court that made the order or the court to which an appeal would lie.
Civil Procedure — Appeals — Competence — Failure to obtain leave as an essential step
Where leave to appeal is required but not obtained, the failure is not a mere procedural matter but the omission of an essential step within rule 78; the resulting appeal is incompetent and cannot even be withdrawn as an appeal.
Civil Procedure — Appeals — Objection to competence raised in written submissions
Where both parties file written submissions, a respondent's objection to the competence of an appeal raised in those submissions may be entertained and determined by the court without a separate application under rule 78.

Legislation cited (9)

  • Civil Procedure Rules Order 44 rr.1 & 2
  • Civil Procedure Rules Order 46 r.3(1)
  • Rules of the Supreme Court r.78
  • Rules of the Supreme Court r.94
  • Rules of the Supreme Court r.98(b)
  • Civil Procedure Act ss.72, 73 & 74
  • Judicature Act
  • Constitution Article 132(2) & (3)
  • Court of Appeal Rules r.29

Cases cited (3)

  • Mohammed v Bukenya & Departed Asians Property Custodian Board (Civil Appeal No. 56 of 1996)
  • Makhangu v Kibwana [1995-1998] 1 EA 175
  • Sango Bay Estates Ltd v Dresdner Bank AG (1971) EA 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.