Wakilii

Mwene Kahima v Amber Financial Services (Civil Applic. No. 56 of 2015)

Court of Appeal · [2015] UGCA 60 · 2015 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for leave to appeal and stay of proceedings arising from a High Court ruling overruling a preliminary objection
Decision
Leave to appeal granted and lower court proceedings stayed pending the appeal

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Holding

The Court of Appeal granted leave to appeal and stayed the High Court proceedings. It held that under Order 6 rule 28 of the Civil Procedure Rules, once a court, on application of a party, orders that a preliminary point of law be set down for hearing and disposed of before trial, that exception governs and the objection must be heard and determined before the main hearing. By reverting to the general rule and ordering the objection be decided after hearing evidence, the trial judge effectively overruled her own order, which was a misdirection. The matter accordingly warranted leave to appeal.

Outcome

Leave to appeal granted and lower court proceedings stayed pending the appeal

Facts

The respondent, a limited liability company, sued the applicant, an advocate, in the High Court for recovery of Shs 88,600,000. The respondent alleged it advanced Shs 64,000,000 to the applicant on a friendly basis, secured by three postdated cheques and a certificate of title, repayable by 7 January 2012. The cheques were dishonoured and the applicant failed to pay after demand. The applicant counterclaimed, alleging the documents were extracted from him under threat by the respondent's representative and goons. At trial the applicant raised a preliminary objection that the plaint disclosed no cause of action because the respondent lacked a money lending licence. The trial judge granted leave to make written submissions on the objection, which if upheld would dispose of the case, but ultimately ordered that all issues, including the licence question, be determined on evidence after hearing. The applicant sought leave to appeal that decision and a stay of proceedings.

Issues

  1. Whether leave to appeal should be granted against the trial court's decision deferring determination of a preliminary objection.
  2. Whether the trial judge erred by ordering a preliminary point of law set down for hearing before trial but then deferring its determination to after the hearing.
  3. Whether the proceedings in the lower court should be stayed pending the appeal.

Orders

  • Leave to appeal the decision in Civil Suit No. 215 of 2012 granted.
  • Proceedings in Civil Suit No. 215 of 2012 stayed until determination of the appeal.
  • Costs to abide the outcome of the appeal.

Rules and key headnotes

Civil Procedure — Preliminary Objections — Order 6 rule 28 — Timing of Determination
Where, on the application of a party, a court orders that a preliminary point of law be set down for hearing and disposed of before the main hearing under the exception in Order 6 rule 28 of the Civil Procedure Rules, the objection must be heard and determined before the hearing of the case; the court cannot revert to determining it after the hearing.
Civil Procedure — Judicial Decisions — Court Reversing Its Own Order — Misdirection
A trial judge who, having ordered a preliminary point of law to be determined before trial, then orders it to be determined after hearing evidence, effectively overrules her own order, which constitutes a misdirection warranting the grant of leave to appeal.
Banking & Finance — Money Lending — Friendly Loans — Need for Evidence
Whether a transaction constitutes money lending requiring a licence, or a friendly loan outside the Money Lenders Act, may depend on the relationship of the parties and the loan terms, which may require evidence to determine; not every person who lends money at interest carries on the business of a money lender.

Legislation cited (5)

Cases cited (7)

  • Ibaka Group CFI Ltd v John Kasigeire (Civil Appeal No. 12 of 2003)
  • Attorney General v Uganda Law Society (Constitutional Appeal No. 1 of 2006)
  • Shine Pay (U) Ltd v Sarah Kagoro & Anor HCT-00-CC-CS-548 of 2004
  • Ecumenical Churchloan Fund Eclof (U) Vs John Jwiza and Another HCT-00-CC-CS-614 of 2004
  • Ida Iterula v Joyce Mugutta (Civil Application No. 2 of 2006)
  • Naka Ltd v Kyobe Senyange [1982] HCB 52
  • Litchfield v Dreyfus [1906] 1 KB 584

Full judgment

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

Mwene Kahima Vs Amber Financial Services (Civil Applic. No. 56 of 2015) [2015] UGCA 60 (24 June 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.