Wakilii

Mugabe v Twinobusingye (Civil Appeal No. 050 of 2009)

High Court · [2011] UGHC 174 · 2011 Appeal Struck Off AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from Grade One Magistrate's dismissal of application for leave to defend a summary suit
Decision
Appeal struck off for being filed irregularly without leave; matter remitted to trial court to conclude original suit proceedings

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

An order dismissing an application for leave to defend in a summary suit under Order 36 of the Civil Procedure Rules is not among the categories of orders appealable as of right under Order 44 Rule 1. Leave to appeal is mandatory under Order 44 Rule 2. An appeal filed without the required leave is irregularly before the court and must be struck off.

Outcome

Appeal struck off for being filed irregularly without leave; matter remitted to trial court to conclude original suit proceedings

Facts

The respondent filed a summary suit under Order 36 of the Civil Procedure Rules to recover a liquidated sum of Shs. 660,000/= arising from a memorandum dated 1 September 2007. The appellant applied for leave to defend the suit before the Grade One Magistrate at Kabale, who dismissed the application on grounds that it did not establish any triable issue. The dismissal ruling was dated 29 September 2009. The appellant filed a memorandum of appeal on 7 October 2009 seeking to be allowed to file a defence and have the suit set down for hearing. The respondent raised a preliminary objection that the order was not appealable without leave of court.

Issues

  1. Whether the order dismissing an application for leave to defend under Order 36 is appealable as of right or requires leave to appeal.

Orders

  • Appeal struck off with costs to the respondent.
  • File to be returned to the trial court to conclude the proceedings in the original suit.

Rules and key headnotes

Civil Procedure — Appeals — Leave to Appeal — Summary Suits
An order dismissing an application for leave to defend in a summary suit under Order 36 of the Civil Procedure Rules is not one of the orders appealable as of right under Order 44 Rule 1 of the Civil Procedure Rules, and an appeal from such an order requires leave of court under Order 44 Rule 2.
Civil Procedure — Appeals — Preliminary Objections — Irregular Appeals
Where an appeal is filed in violation of mandatory procedural requirements for leave to appeal, the appeal is irregularly before the court and constitutes an incurable irregularity warranting the appeal being struck off.

Legislation cited (5)

Full judgment

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Mugabe v Twinobusingye (Civil Appeal No. 050 of 2009) [2011] UGHC 174 (8 December 2011)
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.