Wakilii

Begumisa v East Africa Development Bank & 3 Others (Miscellaneous Application 1043 of 2023)

High Court · [2023] UGCOMMC 151 · 2023 Application Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for leave to appeal to the Court of Appeal against dismissal of objector proceedings in HCMA 436 of 2022
Decision
Leave to appeal granted on two of four proposed grounds; matter proceeds to Court of Appeal on limited grounds

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court granted the Applicant leave to appeal on two of four proposed grounds. The court held that an objector whose application is dismissed under Order 22 Rule 60 CPR is not barred from appealing with leave, as objector proceedings determine interests in property rather than rights in rem, which the separate suit mechanism addresses. Leave to appeal is granted where the Applicant demonstrates prima facie grounds meriting serious judicial consideration. The Applicant succeeded in showing that two grounds—relating to whether the objector application was designedly delayed and whether the court erred in failing to consider the Applicant's occupation of the property—warranted appellate review. The other two grounds did not meet the threshold. The court rejected the 1st Respondent's argument that the Applicant's only remedy was to file a suit.

Outcome

Leave to appeal granted on two of four proposed grounds; matter proceeds to Court of Appeal on limited grounds

Facts

The Applicant brought objector proceedings in HCMA 436 of 2022 to prevent the attachment of four properties in Namuwongo and Ggaba, claiming they were matrimonial properties mortgaged by her husband without her consent to judgment creditors. She contended she had resided on the properties for seventeen years with her children. The Applicant filed Civil Suit 163 of 2008 against her husband and the banks but withdrew it in 2011 after her husband informed her the financial dispute was resolved and the properties would be released to her. She later discovered the properties had not been released and the Respondents continued attempting to sell them and evict her. The High Court dismissed the objector application as being filed out of time with costs to the Respondents. The Applicant then filed this application for leave to appeal that dismissal to the Court of Appeal.

Issues

  1. Whether the Applicant has demonstrated grounds of appeal that merit serious judicial consideration warranting the grant of leave to appeal.
  2. Whether an objector whose application was dismissed is limited to filing a suit under Order 22 Rule 60 CPR or may also appeal with leave.
  3. Whether the Applicant was guilty of inordinate delay in filing the application for leave to appeal.
  4. Whether the trial court erred in finding that the Applicant's objector application was designedly delayed.
  5. Whether the trial court erred in failing to consider that the suit property was occupied by the Applicant and not the judgment debtor.

Orders

  • The Applicant is granted leave to appeal the ruling and orders in HCMA 436 of 2022 to the Court of Appeal on grounds (b) and (d) only.
  • Leave to appeal on any other grounds/matters is rejected.
  • Costs of this application shall abide the outcome of the appeal.

Rules and key headnotes

Civil Procedure — Leave to Appeal — Test for Granting Leave — Reasonable Prospects of Success
Leave to appeal will be granted where prima facie it appears that there are grounds of appeal which merit serious judicial consideration. The court will only refuse leave if satisfied that the Applicant has no realistic prospects of succeeding on appeal. A real prospect of success means that the prospect must be realistic rather than fanciful.
Civil Procedure — Objector Proceedings — Relationship Between Objector Application and Separate Suit under Order 22 Rule 60
An objector application seeks to establish an interest in attached property, while a separate suit under Order 22 Rule 60 CPR seeks to establish rights in rem. There is no provision barring an appeal with leave from an order dismissing an objector proceeding. A separate suit may be commenced notwithstanding the result of the objector application, as they serve different purposes.
Civil Procedure — Leave to Appeal — Effect of Premature Filing of Notice of Appeal
Where an order requires leave to appeal, no step in an appeal can be lawfully commenced without first obtaining leave. The filing and service of a notice of appeal before leave is granted are actions taken in vain and do not constitute valid procedural steps.
Civil Procedure — Leave to Appeal — Delay — Inordinate Delay
Grant of leave to appeal is a judicial discretion and not a right. Where a party takes an inordinate delay in seeking discretionary relief, the court is entitled to refuse to grant that relief. An inordinate delay is a delay that is unusually or disproportionately large or excessive.

Legislation cited (6)

Cases cited (21)

  • Hamam Singh Bhogal T/a Hamam Singh & Co. v Jadva Karsan (1953) 20 EACA 17
  • Baku Raphael v Attorney General (Supreme Court Civil Appeal No. 1 of 2005)
  • Attorney General v Shah (No. 4) [1971] EA 50
  • Luwa Luwa Investments Limited v URA (HCCA 43 of 2022)
  • Roche Transport v URA (HCCA 20 of 2021)
  • Sango Bay Estates Limited and others v Dresdner Bank [1992] EA 17
  • GM Combined (U) Ltd v AK Detergents (U) Ltd (Supreme Court Civil Appeal No. 23 of 1994)
  • Degeya Trading Stores (U) Ltd v Uganda Revenue Authority (Court of Appeal Civil Application No. 16 of 1996)
  • Swain v Hillman [2001] 1 All ER 91
  • Hosea Ssonko & Ors v Dick Banoba (HCMA 122 of 2018)
  • Junaco (U) Ltd v DFCU Bank (HCMA 27 of 2023)
  • Dr. Andrew Kyando v Juma Shabani & Ors Civil Appeal 7/2022
  • Thomas Kimaro v Martin Karl Mkumbo & Anor (2002) TRL 369
  • Lucy Oker Lagol & Ors v Bonga Ronald Okech & Anor (HCCA 119 of 2019)
  • Asiimwe Francis v Tumugyeire Aflod (Court of Appeal MA 103 of 2011)
  • Arapyona Salimo v Barawa General Agencies (HCCA 27 of 2013)
  • Omanya John Samson v Elijo Odongwun & Anor (HCMA 44 of 2021)
  • David Muhenda v Humphrey Mirembe (SCCA 5 of 2012)
  • Fred Byamukama & Anor v Michael Katungye (HCMA 773 of 2022)
  • Femisa International Limited & Ors v Equity Bank Limited (HCMA 357 of 2022)
  • Abel Belemesa v Yesero Mugenyi (HCMA 126 of 2019)

Full judgment

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

Begumisa v East Africa Development Bank & 3 Others (Miscellaneous Application 1043 of 2023) [2023] UGCommC 151 (27 November 2023)
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.