Wakilii

Asiimwe Francis v Tumwongyeirwe Aflod (Miscellaneous Application No. 103 of 2011)

Court of Appeal · [2012] UGCA 21 · 2012 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for leave to appeal and validation of already-filed appeal documents, arising out of Civil Appeal No. 45 of 2011.
Decision
Application dismissed with costs for being incompetent

Observed later treatment

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Holding

The Court held that a party intending to appeal against an order made in revision under section 83 of the Civil Procedure Act must first apply for leave to appeal in the trial court under Order 44 rule 3 of the Civil Procedure Rules; only if refused may leave be sought from the appellate court. Although the word 'shall' can be directory, the purpose of the provision requires the trial court first to assess whether the intended appeal raises matters warranting appellate attention. The applicant, who had engaged in dilatory conduct and deliberately avoided the trial judge, could not have the appellate court grant leave in the first instance. The application was incompetent and not validly before the Court, and was dismissed with costs.

Outcome

Application dismissed with costs for being incompetent

Facts

The applicant and respondent were equal shareholder-directors in Bitooma Complex [1999] Limited. On 30 January 2006 the applicant agreed to buy out the respondent's shares in installments, the last due 31 December 2007. The applicant failed to pay, and the respondent obtained judgment against him in Civil Suit No. 515 of 2008 at the Chief Magistrate's Court, Mengo, on 5 February 2008. The applicant did not appeal or seek review at that time. In December 2009 the respondent attached and sold the applicant's shares in execution, and new shareholders took over the company's assets in August 2010. On 1 September 2010, the applicant sought revision of the magistrate's judgment in the High Court, which was dismissed by Mwangutsya J on 4 March 2011. The applicant then lodged Civil Appeal No. 45 of 2011 in the Court of Appeal without obtaining leave from the High Court, and subsequently filed this application seeking leave to appeal and validation of the filed appeal documents.

Issues

  1. Whether the application for leave to appeal is validly before the Court of Appeal where the appeal was lodged without first obtaining leave of the High Court.
  2. What remedies are available to the parties.

Orders

  • Application held not to be validly before the Court.
  • Application dismissed as incompetent.
  • Costs of the application awarded to the respondent.

Rules and key headnotes

Civil Procedure — Leave to Appeal — Order in Revision — Order 44 Rule 3 Requirement to First Apply to Trial Court
An order made in revision under section 83 of the Civil Procedure Act is not appealable as of right; a party intending to appeal must first apply for leave in the court that entertained the revision, and only where that leave is refused may application be made to the appellate court.
Statutory Interpretation — Mandatory or Directory — Meaning of 'Shall' — Consequences of Non-Compliance Test
There is no universal rule for determining whether 'shall' in a statutory provision is mandatory or directory; the whole scope and purpose of the enactment, the importance of the provision disregarded, and the consequences of non-compliance must be assessed to ascertain the legislative intention.
Civil Procedure — Abuse of Process — Dilatory Conduct — Avoidance of Trial Court
A party may not avoid the trial court and seek leave to appeal directly from the appellate court merely because he is convinced the trial judge is unlikely to grant leave; requiring the trial court to first express itself prevents abuse of court process.

Legislation cited (6)

Cases cited (11)

  • Kizza Besigye Vs Museveni Yoweri & Another [2001-2005] HCB Vol.3
  • NSSF v Alcon International Ltd (Civil Application No. 23 of 2011)
  • Janmohamed Alibhai v Ramji Amarshi Raichura (Civil Appeal No. 81 of 1952)
  • Dr Ahmed Muhamed Kisuule v Greenland Bank (in Liquidation) (Civil Appeal No. 10 of 2010)
  • Beatrice Kobusingye v Fiona Nyakana & Another (Civil Appeal No. 18 of 2001)
  • Sitenda Sebalu v Sam K. Njuba & Another (Election Petition Appeal No. 26 of 2007)
  • Edward Byaruhanga Katumba v Daniel Kiwalabye Musoke (Civil Appeal No. 2 of 1998)
  • Besweri Lubuye Kibuuka v Electoral Commission & Another (Constitutional Petition No. 8 of 1998)
  • The Secretary of State for trade and Industry Vs Langridge [1991] 3 Aller 591
  • R v Soneji & Another [2005] UKHL 49
  • Project Blue Sky Inc v Australian Broadcasting Authority [1998] 194 CLR 355

Full judgment

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Asiimwe Francis v Tumwongyeirwe Aflod (Miscellaneous Application No. 103 of 2011) [2012] UGCA 21 (14 June 2012)
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.