Wakilii

Haji Ssalongo v Kasese Town Council and Another (Civil Suit 13 of 91)

High Court · [1994] UGHC 43 · 1994 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for leave to appeal to the Supreme Court against a ruling dismissing the suit
Decision
Application dismissed with liberty to re-apply in proper form

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

An application for leave to appeal to the Supreme Court from a High Court ruling must be made by motion on notice as required by Order 40 rule 4 of the Civil Procedure Rules. This requirement is mandatory, not directory. Rule 39 of the Court of Appeal for East Africa Rules 1972, which permits informal applications, presupposes a situation where leave has been refused by the High Court and the applicant seeks leave from the superior court. A verbal informal application that does not comply with Order 40 rule 4 is incompetent and misconceived.

Outcome

Application dismissed with liberty to re-apply in proper form

Facts

The plaintiff's suit had been dismissed by the High Court on the ground that the first defendant had not been served with the statutory notice of intention to sue as required under section 1(1)C of the Civil Procedure and Limitation Act 1969. Counsel for the plaintiff verbally applied for leave to appeal against that ruling to the Supreme Court. The application was opposed by counsel for both defendants. Counsel for the plaintiff argued that he was acting under Order 40 rules 2 and 5 of the Civil Procedure Rules and rule 39 of the Court of Appeal for East Africa Rules 1972, and had opted to apply informally. Defendants' counsel argued that the application should have been brought by notice of motion under Order 40 rule 4 of the Civil Procedure Rules, and that the Court of Appeal rules were not applicable at this stage.

Issues

  1. Whether an application for leave to appeal to the Supreme Court can be made verbally and informally under Order 40 of the Civil Procedure Rules.
  2. Whether the application should have been brought by notice of motion under Order 40 rule 4 of the Civil Procedure Rules.
  3. Whether rule 39 of the Court of Appeal for East Africa Rules 1972 permits informal verbal applications for leave to appeal to the Supreme Court from the High Court.

Orders

  • Application for leave to appeal dismissed with costs.
  • Applicant not precluded from filing another application in accordance with the Civil Procedure Rules.

Rules and key headnotes

Civil Procedure — Appeals — Leave to Appeal — Application Procedure
An application for leave to appeal to the Supreme Court from a High Court decision must be made by motion on notice as mandatorily required by Order 40 rule 4 of the Civil Procedure Rules, not verbally or informally.
Civil Procedure — Appeals — Court of Appeal Rules — Applicability
Rule 39 of the Court of Appeal for East Africa Rules 1972, which permits informal applications for leave to appeal, presupposes a situation where leave has been refused by the High Court and the applicant seeks leave from the superior court. It does not apply to initial applications for leave to appeal from the High Court to the Supreme Court.
Civil Procedure — Procedural Non-Compliance — Mandatory vs Directory Rules
Non-compliance with procedural rules may be treated as an irregularity that can be ignored if the rule is directory rather than mandatory and if it does not occasion a miscarriage of justice. However, Order 40 rule 4 of the Civil Procedure Rules is mandatory in nature, and failure to comply renders an application incompetent and misconceived.

Legislation cited (10)

Cases cited (1)

  • Sebamalo v Registered Trustees of Namirembe Diocese and Another (1988-1990) HCB 141

Full judgment

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

Haji Ssalongo v Kasese Town Council and Another (Civil Suit 13 of 91) [1994] UGHC 43 (28 July 1994)
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.