Kassim Dungu v Nakato Nuliat & Anor (Civil Appeal No. 72 of 2002)

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that an order by a Chief Magistrate striking out a party from proceedings in the exercise of original civil jurisdiction is appealable to the High Court as of right under section 220(1)(a) of the Magistrates Courts Act. The appeal was properly before the court. Scheduling conferences under the Civil Procedure Rules are mandatory for trial courts in civil cases, not for appellate courts which concentrate on errors of law or fact by the trial court. The preliminary objection was an abuse of process where counsel had already raised the same issue in an earlier related application arising from the same suit and should have challenged that ruling rather than re-raising the objection.

Outcome

Preliminary objection dismissed; appeal to proceed on merits

Facts

The appellant had applied to be added as a party in a civil suit pending before the Chief Magistrate's Court of Nabweru. The Chief Magistrate granted the application and the appellant was added as third defendant. The respondents subsequently filed a miscellaneous application seeking to strike out the appellant on grounds he had been fraudulently added and they had no claim against him. The Chief Magistrate allowed the application and struck the appellant off the pleadings. The appellant appealed to the High Court. At the hearing of the appeal, respondent's counsel raised a preliminary objection that the appeal was not properly before court because the order appealed against was not appealable as of right and required leave under the Civil Procedure Rules, which had not been sought or granted. The same counsel had raised the identical preliminary objection in an earlier miscellaneous application arising from the same underlying suit.

Issues

1. Whether the appeal is properly before the High Court without leave under the Magistrates Courts Act.
2. Whether a scheduling conference should be held in appellate proceedings.
3. Whether the preliminary objection should be entertained given it had been raised and determined in an earlier related application.

Orders

• Preliminary objection overruled.
• Costs of the preliminary objection awarded to the appellant.

Rules and key headnotes

Legislation cited (7)

• Civil Procedure Rules Order 44 rule 1
• Civil Procedure Rules Order 44 rule 2
• Civil Procedure Rules Order 1 rule 10(1)
• Civil Procedure Act cap 71 s.76
• Magistrates Courts Act cap 390 s.220(1)(a)
• Magistrates Courts Act cap 390 s.220(1)(c)
• Magistrates Courts Act cap 390 s.220(4)

Cases cited (2)

• Tororo Cement Co Ltd v Frokina International (Civil Appeal No. 2 of 2001)
• Hajj Kassim Ddungu v Nakato Nuliat & Anor (Miscellaneous Application No. 45 of 2001)

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