Wakilii

Musuku v Bugiri Municipal Council & Anor (MISCELLANEOUS APPLICATION N0. 207 OF 2017)

High Court · [2018] UGHCCD 108 · 2018 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to strike out civil appeal as incompetent for failure to obtain leave
Decision
Appeal struck out for being filed without leave; matter remitted to Chief Magistrate's Court for hearing

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Holding

The High Court held that an appeal against an order overruling a preliminary objection on grounds of wrong procedure requires leave under Order 44 CPR. Order 6 rule 30(2) CPR, which provides for appeals as of right, applies only to orders striking out pleadings for not disclosing a cause of action or being frivolous and vexatious, not to objections based solely on procedural irregularity. The appeal filed without leave was struck out as incompetent.

Outcome

Appeal struck out for being filed without leave; matter remitted to Chief Magistrate's Court for hearing

Facts

The applicant filed Miscellaneous Cause No. 008/2017 in the Chief Magistrate's Court of Iganga. The respondents raised a preliminary objection arguing that the application was procedurally defective because it sought relief for detinue (a tortious claim requiring strict proof by plaint) but was brought by motion supported by affidavit. The trial Magistrate overruled the objection. The respondents then filed Civil Appeal No. 060/2017 against that order without seeking leave to appeal. The applicant applied to the High Court to strike out the appeal as incompetent on the ground that leave was required under Order 44 CPR.

Issues

  1. Whether Civil Appeal No. 060/2017 is incompetent for failure to obtain leave to appeal.
  2. Whether an order overruling a preliminary objection on grounds of wrong procedure is appealable as of right under Order 6 rule 30(2) CPR or requires leave under Order 44 CPR.
  3. Whether an affidavit sworn by an advocate in a contentious matter offends Regulation 9 of the Advocates (Professional Conduct) Regulations.

Orders

  • Civil Appeal No. 060/2017 struck out as incompetent.
  • Case file in respect of Misc. Cause No. 008/2017 returned to the Iganga Chief Magistrate's Court for hearing on its merits.
  • Applicant awarded 50% of the costs of the application.

Rules and key headnotes

Civil Procedure — Appeals — Leave to Appeal — Orders Appealable as of Right under Order 44 CPR
Appeals are a creation of statute and in most cases a right of appeal is available as a matter of right against any order or decree of a court. Where exceptions arise, specific provisions are available in the law to make specific provisions of how to access that right. Order 44 CPR specifies which orders are appealable as of right and all appeals outside that law require leave of court.
Civil Procedure — Preliminary Objections — Appealability — Order 6 Rule 30(2) CPR
Order 6 rule 30(2) CPR provides that an order made under rule 30(1) to strike out pleadings that do not disclose a cause of action or are frivolous and vexatious is appealable as of right. Such an order does not fall under the general provisions of Order 44 CPR which specify which orders are appealable as of right.
Civil Procedure — Preliminary Objections — Distinction between Absence of Cause of Action and Wrong Procedure
An objection that a motion does not state the law followed and that the facts raise contentious issues requiring proof by plaint rather than affidavit is an objection to procedure, not an objection that the pleadings disclose no cause of action. Where the facts reveal a recognisable cause of action (such as detinue) but the objection is to the procedure followed, the objection does not fall under Order 6 rule 30(1) CPR.
Civil Procedure — Affidavit Evidence — Advocates Swearing Affidavits — Regulation 9 of the Advocates (Professional Conduct) Regulations
Regulation 9 of the Advocates (Professional Conduct) Regulations bars advocates from swearing affidavits in contentious matters. However, where an affidavit contains substantially matters of law and statements of fact that are readily available on the court record and not in controversy, there is no bar to an advocate deposing to them, particularly where the advocate is not expected to be called as a witness.

Legislation cited (6)

  • Civil Procedure Rules O.44 r.1(1)-(4)
  • Civil Procedure Rules O.52 r.1
  • Civil Procedure Rules O.52 r.3
  • Civil Procedure Rules O.6 r.30(1)
  • Civil Procedure Rules O.6 r.30(2)
  • Advocates (Professional Conduct) Regulations Regulation 9

Cases cited (1)

  • Incafex Ltd v James Kabaterine (Civil Appeal No. 16 of 1997)

Full judgment

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Musuku v Bugiri Municipal Council & Anor (MISCELLANEOUS APPLICATION N0. 207 OF 2017) [2018] UGHCCD 108 (19 September 2018)
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.