Wakilii

Lwanga & 4 Ors v Kalibbala & Ors (Civil Appeal No. 203 of 2013)

Court of Appeal · [2015] UGCA 84 · 2015 Appeal Struck Out AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Civil appeal from High Court order dismissing a suit for non-appearance of plaintiffs
Decision
Appeal struck out as incompetent in law with costs to the respondents

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal upheld a preliminary objection that the appeal was incompetent. A suit dismissed under Order 9 rule 22 of the Civil Procedure Rules for the plaintiffs' non-appearance is not appealable as of right. The proper remedy was to apply to the High Court under Order 9 rule 23 to set aside the dismissal, which could be entertained by any High Court judge, not only the judge who made the order. Alternatively, leave to appeal under Order 44 rules 2 and 3 was required and never obtained. Having neither applied to set aside nor obtained leave, the appellants had no right to appeal directly. The appeal was struck out with costs to the respondents.

Outcome

Appeal struck out as incompetent in law with costs to the respondents

Facts

The appellants sued the respondents in the High Court at Nakawa over ownership and use of land comprised in Block 503 Plot 83 at Luwule, Namasera, Wakiso District, seeking a declaration that the land formed part of a deceased's estate, cancellation of the 2nd respondent's registration, and reinstatement of title. The suit was fixed for hearing on 6 May 2013, a date set on 26 February 2013 when all plaintiffs and their lawyer were present. On the hearing date, only the 1st plaintiff appeared and withdrew from the case; the other plaintiffs were absent. Counsel for the defendants prayed for dismissal under Order 9 rule 22 of the Civil Procedure Rules, and the trial judge dismissed the suit with costs. The plaintiffs did not apply to the High Court to set aside the dismissal. Instead, they lodged a direct appeal to the Court of Appeal, contending that they could not apply to set aside because the trial judge had since been elevated to the Court of Appeal.

Issues

  1. Whether the appeal was competent in law, given that it was lodged directly against a dismissal order under O.9 r.22 CPR without first applying to set aside the dismissal or obtaining leave to appeal.
  2. Whether the appellants could appeal as of right against the dismissal of their suit for non-appearance.

Orders

  • Appeal against the 3rd respondent withdrawn (allowed with no order as to costs).
  • Preliminary objection upheld.
  • Civil Appeal No. 203 of 2013 struck out as incompetent in law.
  • Costs of the appeal awarded to the respondents.

Rules and key headnotes

Civil Procedure — Dismissal for Non-Appearance — Order 9 rule 22 — No Right of Appeal
An order dismissing a suit under Order 9 rule 22 of the Civil Procedure Rules for the plaintiff's non-appearance is not appealable as of right; the plaintiff's remedy is to apply to set aside the dismissal, and only the order refusing such an application is appealable as of right.
Civil Procedure — Setting Aside Dismissal — Order 9 rule 23 — Application to 'the Court'
An application under Order 9 rule 23 to set aside a dismissal is made to 'the Court' and may be entertained by any judge of the same court, not necessarily the individual judge who made the dismissal order; the elevation or unavailability of the trial judge is no justification for bypassing the procedure.
Civil Procedure — Right of Appeal — Leave Required — Order 44 rules 2 and 3
The right of appeal is a creature of statute; where an order is not appealable as of right, an appeal lies only with leave, which must in the first instance be sought from the court making the order, and an appeal filed without such leave is incompetent.

Legislation cited (7)

Cases cited (1)

  • Augustine Chebet v Brieza Torokoch (High Court Civil Appeal No. 6 of 1996)

Full judgment

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

Lwanga & 4 Ors Vs Kalibbala & Ors (Civil Appeal No. 203 of 2013) [2015] UGCA 84 (26 October 2015)
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.