Wakilii

David John Muchinton v A Dean and Company Ltd (Civil Appeal 79 of 2009)

High Court · [2012] UGHC 456 · 2012 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from an order of a Magistrate Grade I concerning locus standi and pleadings
Decision
Appeal struck off as incompetent for failure to obtain leave

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that the order appealed against was not a decree but an order, as it did not determine the substantial rights of the parties or dispose of the suit. Since the order was not listed under Order 44 rule 1 of the Civil Procedure Rules as appealable as of right, leave of court was required. The appellant failed to obtain leave before filing the appeal. The requirement for leave is not merely procedural but an essential step. The appeal was incompetent and struck off with costs to the respondent.

Outcome

Appeal struck off as incompetent for failure to obtain leave

Facts

The appellant appealed from an order of a Magistrate Grade I which held that AIG (U) Ltd had no locus standi to file Civil Suit No. 358 of 2009 in the appellant's name and that a contract of insurance had not been attached to the pleadings. The appellant did not obtain leave to appeal before filing the appeal. At the commencement of the hearing, counsel for the respondent raised a preliminary objection that the order was not appealable as of right under Order 44 rule 1 of the Civil Procedure Rules and that leave was required under Order 44 rule 2, which had not been obtained.

Issues

  1. Whether the appellant was required to obtain leave to appeal from the order of the Magistrate Grade I.
  2. Whether the order appealed against constituted a decree or an order under the Civil Procedure Act.

Orders

  • Appeal struck off.
  • Costs awarded to the respondent.

Rules and key headnotes

Civil Procedure — Appeals — Distinction Between Decree and Order
A decree is a formal expression of an adjudication which conclusively determines the substantial rights of the parties with regard to matters in controversy in the suit and must completely dispose of the suit. An order which does not determine the substantial rights for which relief is sought does not constitute a decree.
Civil Procedure — Appeals — Leave to Appeal — Orders Not Appealable as of Right
Where an order is not listed under Order 44 rule 1 of the Civil Procedure Rules as appealable as of right, an appeal from such order must be made with leave of court under Order 44 rule 2. The requirement for leave is not merely a procedural matter but an essential step envisaged by the Civil Procedure Rules.
Civil Procedure — Appeals — Competence — Failure to Obtain Leave
An appeal filed without obtaining the required leave of court is incompetent and liable to be struck off.

Legislation cited (3)

Cases cited (3)

  • Ruthi v Mungai & Others [1995-98] 2 EA 356
  • Dr Sheikh Ahmed Mohammed Kisuule v Greenland Bank (in liquidation) (Supreme Court Civil Appeal No. 11 of 2010)
  • Makkangu v Kibwana [1998-98] 1 EA 175

Full judgment

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

David John Muchinton v A Dean and Company Ltd (Civil Appeal 79 of 2009) [2012] UGHC 456 (30 April 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.