Asaba v Afro-Kai Ltd and Another (HCT-01-LD-CA-0032-2024)

Observed later treatment

No later-treatment classification is recorded for this judgment.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

Holding

Held that an appeal from an order dismissing an application for review is not appealable as of right under Order 44 Rule 1(t) of the Civil Procedure Rules, which expressly provides for appeals only from orders granting review applications. The appellant was required to seek leave of court before lodging the appeal. The principle of expressio unius est exclusio alterius applies: by specifying 'granting,' the rule implicitly excludes 'refusing' from orders appealable as of right. The appeal was struck out for want of leave.

Outcome

Appeal struck out as incompetent for failure to obtain leave of court

Facts

The appellant appealed from a ruling of the Chief Magistrate dismissing her Miscellaneous Application No. 11 of 2024, which sought dismissal of Civil Suit No. 017 of 2021 for want of jurisdiction, review and setting aside of a consent judgment between the respondents, and a declaration that the respondents were in contempt of a temporary injunction. The underlying suit concerned alleged trespass to land. The appellant had filed a defence and counterclaim asserting ownership. The first and second respondents entered into a consent judgment whereby the second respondent agreed to vacate the land for compensation of UGX 100,000,000. The appellant filed several applications contesting the consent and seeking related remedies, all of which were dismissed. The Chief Magistrate found that the court had unlimited jurisdiction over trespass claims under Section 207(1)(a) of the Magistrates Courts Act, that the appellant had submitted to jurisdiction by filing a defence and counterclaim, and that the application was an afterthought intended to delay trial.

Issues

1. Whether the appeal was competent without leave of court
2. Whether the Chief Magistrate's Court had jurisdiction to entertain Civil Suit No. 017 of 2021
3. Whether the application was an afterthought
4. Whether the trial Court erred in failing to determine the issue of contempt

Orders

• The first preliminary objection is upheld.
• The appeal is struck out for want of leave.
• Costs awarded to both Respondents.

Rules and key headnotes

Legislation cited (21)

• Civil Procedure Act s.76
• Civil Procedure Act s.77
• Civil Procedure Act s.98
• Civil Procedure Act s.32
• Civil Procedure Rules Order 44 Rule 1(1)
• Civil Procedure Rules Order 44 Rule 1(2)
• Civil Procedure Rules Order 44 Rule 1(t)
• Civil Procedure Rules Order 46 Rule 1
• Civil Procedure Rules Order 46 Rule 2
• Civil Procedure Rules Order 46 Rule 3
• Civil Procedure Rules Order 46 Rule 4
• Civil Procedure Rules Order 46 Rule 8
• Civil Procedure Rules Order 52 Rule 1
• Civil Procedure Rules Order 52 Rule 3
• Civil Procedure Rules Order 43 Rule 1(1)
• Civil Procedure Rules Order 43 Rule 1(2)
• Civil Procedure Rules Order 6 Rule 28
• Magistrates Courts Act s.207
• Magistrates Courts Act s.207(1)(a)
• Constitution of Uganda 1995 Article 128(2)
• Constitution of Uganda 1995 Article 128(3)

Cases cited (34)

• National Water and Sewarage Corporation v Mulindwa Rogers (HCMA No. 30 of 2023)
• Attorney General v Shah (No. 4) [1975] EA 50
• Migadde Richard Lubinga and 2 Others v Nakibuule Sandra (Court of Appeal No. 53 of 2019)
• Attorney General v Shah [1971] EA 50
• Uganda Development Bank Ltd v Kasirye Byaruhanga & Co Advocates (Supreme Court Civil Appeal No. 2 of 2004)
• Kasedde Mukasa George and Others v Holiday Hotel Ltd and 2 Others (Civil Application No. 93 of 2019)
• Ranchobhai Shivabhai Patel Ltd and Another v Henry Wambuga and Another (Civil Appeal No. 6 of 2017)
• Kawanga Lawrence and Others v Ziwa & Sons Property Consultants Ltd (Civil Appeal No. 16 of 2021)
• Opedo Patrick and 16 Others v Kiconco Medard and 2 Others (HCT-00-CV-MC-0016 of 2022)
• Sheikh Mohammed Lubowa v Kitara Enterprises Ltd (Civil Suit No. 744 of 2007)
• Justine E.M.N. Lutaaya v Sterling Civil Engineering Co. Ltd [2005] UGSC 11
• Kawaga and 2 Others v Ziwa Sons Property Consultants Limited (Civil Revision No. 4 of 2018)
• Kintu v Nsubuga (Revision Cause No. 14 of 2016)
• Fanuel Mantiri Ng'unda vs. Herman Mantiri Ng'unda, [1995] TLR 155
• Pastoli v Kabale District Local Government Council and Others [2008] 2 EA 300
• Kagenyi v Musiramo and Another [1968] EA 43
• Desai v Warsama [1967] EA 351
• Bank of Uganda v Banco Arabe Espanol (Supreme Court Civil Appeal No. 8 of 1998)
• Makula International Ltd v His Eminence Cardinal Nsubuga and Another [1982] HCB 11
• Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Limited [1969] EA 696
• Uganda Telecom Ltd v ZTE Corporation (Supreme Court Civil Appeal No. 3 of 2017)
• Sitenda Sebalu v Secretary General EAC and Others (Reference No. 1 of 2010)
• Uganda Super League Ltd v Attorney General (HCMA No. 258 of 2012)
• Nsangiranabo v Col. Kaka Bagyenda and Another (Miscellaneous Cause No. 19 of 2022)
• Ddegeya Trading Stores (U) Ltd v URA (Court of Appeal Civil Appeal No. 44 of 1996)
• Stanbic Bank (U) Ltd and Another v The Commissioner General, URA (HCCS No. 48 of 2010)
• Lt David Kabarebe v Major Prossy Nalweyiso (Court of Appeal Civil Appeal No. 34 of 2003)
• Bukondo Yeremiya v E. Rwananenyere [1978] HCB 96
• Busulwa Isaac Bob v Kakinda Ibrahim [1979] HCB 179
• Kerchand vs. Jan Mohamed (1919-21) EAPLR 64
• Isaac Bob Busulwa v Ibrahim Kakinda [1979] HCB 179
• Hon. Sitenda Sebalu v Sam Njuba and Another (Election Petition Appeal No. 26 of 2007)
• Matanda and Others v Patel and Another (Civil Application No. 258 of 2020)
• Dr. Sheikh Ahmed Mohammed Kisuule v Greenland Bank (in liquidation) (Supreme Court Civil Appeal No. 11 of 2010)

The original judgment as reported. Read the original PDF before relying on any passage.