Wakilii

Matovu & 2 Ors v Abacus Pharmacy (Africa) Ltd (HCT-00-CC-CA 11 of 2012)

High Court · [2012] UGCOMMC 157 · 2012 Appeal Struck Out AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from Chief Magistrate's Court order setting aside ex parte judgment and decree, arising from Misc Application No. 75 of 2012 in Civil Suit No. 846 of 2011
Decision
Appeal struck out for failure to obtain leave to appeal as required by law

Observed later treatment

No later-treatment classification is recorded for this judgment.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions—always read the source judgment before relying on it.

Holding

An appeal from an order made under Order 36 of the Civil Procedure Rules does not lie as of right and requires leave under Order 44 rule 2. Where appellants file an appeal without first obtaining leave from either the trial court or the appellate court, the appeal is incompetent and must be struck out. The defect is not curable, and Article 126(2)(e) of the Constitution does not permit disregard of mandatory procedural requirements.

Outcome

Appeal struck out for failure to obtain leave to appeal as required by law

Facts

The appellants appealed from an order of the Chief Magistrate's Court setting aside an ex parte judgment and decree. The original suit and miscellaneous application were brought under Order 36 of the Civil Procedure Rules. When the matter came up for mention, counsel for the respondent raised a preliminary objection challenging the competence of the appeal on the ground that the appellants had never sought leave to appeal as required under Order 44 rule 2 of the Civil Procedure Rules. Counsel for the appellants conceded the error but argued it was a mistake of their professional advisor that should not be visited upon the litigants, urging the court to invoke inherent powers to allow substantive justice.

Issues

  1. Whether the appeal was validly before the High Court given that leave to appeal had not been sought.

Orders

  • Appeal struck out as incompetent.
  • Costs awarded to the respondent.

Rules and key headnotes

Civil Procedure — Appeals — Leave to Appeal — Orders Under Order 36 CPR
An appeal against orders made under Order 36 of the Civil Procedure Rules does not lie as of right but requires leave to be sought under Order 44 rule 2 from either the court making the order or the court to which the appeal would lie if leave were given.
Civil Procedure — Appeals — Competence — Appeal Without Leave
Where leave to appeal is required by law and no application for leave has been lodged either in the trial court or the appellate court, the appeal is incompetent and must be struck out. The defect is not curable and the appeal cannot even be withdrawn.
Civil Procedure — Rules of Court — Compliance — Article 126(2)(e) of the Constitution
Article 126(2)(e) of the Constitution, which cautions against undue regard to technicalities, does not permit courts to disregard mandatory rules of procedure. The provision is subject to the law and is not a licence for ignoring existing law or a magic wand in the hands of defaulting litigants.
Civil Procedure — Counsel's Mistakes — Effect on Litigant — Statutory Requirements
While a litigant should ordinarily not be permanently deprived of the right to put forward a bona fide case by reason of counsel's default, this principle does not apply where the requirement is prescribed by statute and the law is settled that failure to comply renders the proceeding incompetent.

Legislation cited (6)

Cases cited (9)

  • Sango Bay Estates Ltd v Dresdner Bank A.G [1971] EA 17
  • Ismail Serugo v Kampala City Council and Attorney General (Constitutional Appeal No. 1 of 1998)
  • Yowasi Kabiguruka v Samuel Byarufu (C.C.A No. 18 of 2008)
  • Cloud 10 Limited v Standard Chartered Bank (Uganda) [1987] HCB 64
  • Banco Arabe Espanol v Bank of Uganda (SCCA No. 8 of 1997)
  • Makhangu v Kibwana [1995-1998] EA 175
  • Dr. Sheikh Ahmed Mohammed Kisuule v Greenland Bank (In Liquidation) (SCCA No. 11 of 2010)
  • Utex Industries Ltd v Attorney General (SCCA No. 52 of 1995)
  • Kasirye, Byaruhanga and Co. Advocates v Uganda Development Bank (SCCA No. 2 of 1997)

Full judgment

↓ Download PDF

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

Matovu & 2 Ors v Abacus Pharmacy (Africa) Ltd (HCT-00-CC-CA 11 of 2012) [2012] UGCommC 157 (4 December 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.