Commercial Bank of Africa (Uganda) Limited v Kare Distribution Ltd (Civil Application No 258 of 2021)

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal held that no appeal lies as of right from an order dismissing an application to review a consent judgment; such an appeal lies only with leave under Order 44 rule 1(2) and Order 46 rule 3(1) of the Civil Procedure Rules. Obtaining leave from the High Court within the prescribed time was a mandatory essential step which the respondent failed to take. That failure was not a mere technicality curable under Article 126(2)(e) of the Constitution, nor could leave be granted retrospectively. As a right of appeal is a creature of statute requiring strict compliance with conditions precedent, the appeal was incompetent. The strike-out application was granted and Civil Appeal No. 245 of 2021 struck out with costs.

Outcome

Strike-out application granted; Civil Appeal No. 245 of 2021 struck out with costs to the applicant

Facts

The respondent filed a civil suit against the applicant bank in the High Court Commercial Division, which the parties settled by a consent judgment and decree. The respondent later applied to review or set aside the consent judgment, alleging a fundamental mistake or error apparent on its face. Justice David Wangutusi dismissed the review application with costs, holding that no ground for review had been established. The respondent, dissatisfied, lodged a notice of appeal and filed Civil Appeal No. 245 of 2021 in the Court of Appeal without first obtaining leave to appeal from either the High Court or the Court of Appeal. The applicant brought this application to strike out that appeal on the ground that no appeal lay as of right from the dismissal of a review application and that the respondent had failed to take the essential step of seeking leave within the prescribed time.

Issues

1. Whether Civil Appeal No. 245 of 2021 was incompetent for failure to take an essential step, namely obtaining leave to appeal, within the prescribed time.
2. Whether the failure to obtain leave to appeal was a procedural technicality curable under Article 126(2)(e) of the Constitution or by the grant of leave retrospectively.
3. What remedies were available to the parties.

Orders

• The application to strike out succeeds.
• Civil Appeal No. 245 of 2021 is struck out for failure to take essential steps in the proceedings within the prescribed time.
• The respondent shall bear the costs of this application and the appeal.

Rules and key headnotes

Legislation cited (11)

• Judicature (Court of Appeal Rules) Direction SI 13-10 r.43(1)(2)
• Judicature (Court of Appeal Rules) Direction SI 13-10 r.44(1)
• Judicature (Court of Appeal Rules) Direction SI 13-10 r.82
• Judicature (Court of Appeal) Rules r.40(2)
• Judicature (Court of Appeal) Rules r.40(4)
• Civil Procedure Act Cap 282 s.76
• Civil Procedure Act Cap 282 s.67(2)
• Civil Procedure Rules O.44 r.1(1)
• Civil Procedure Rules O.44 r.1(2)
• Civil Procedure Rules O.46 r.3(1)
• Constitution of the Republic of Uganda 1995 art.126(2)(e)

Cases cited (6)

• Erias Lukwago v Attorney General (Supreme Court Civil Application No. 6 of 2014)
• Rose N Namukasa v Namyanja Mayanja Grace (Court of Appeal Civil Application No. 391 of 2024)
• Dr. Sheikh Ahmed Mohammed Kisuule v Greenland Bank (in liquidation) (Supreme Court Civil Appeal No. 11 of 2010)
• Fort Hall Bakery Supply Company v Fredrick Muigai Wangoe [1959] EA 474
• Banco Arabe Espanol v Bank of Uganda [1999] UGSC 13
• Makhangu v Kibwana [1995-1998] 1 EA 175

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