Wakilii

Ndiwalana George William v Namutete Henry (Civil Appeal No. 12 of 2022)

High Court · [2023] UGHCLD 515 · 2023 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from Chief Magistrates Court ruling dismissing application to set aside ex-parte judgment
Decision
Appeal struck out as incompetent for failure to obtain prior leave of court

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court struck out the appeal as incompetent. The appellant had appealed an order made under Order 9 rule 12 of the Civil Procedure Rules, which is not among the orders from which an appeal lies as of right under Order 44. Prior leave of court is required for such appeals. The appellant failed to obtain prior leave before filing the appeal and the Registrar lacked jurisdiction to grant leave to appeal out of time for orders falling outside Order 44.

Outcome

Appeal struck out as incompetent for failure to obtain prior leave of court

Facts

The respondent filed Civil Suit No. 32 of 2020 in the Chief Magistrates Court of Kajjansi against the appellant seeking a declaration of trespass, injunction, eviction and damages concerning land comprised in Block 52 plots 24 and 25 at Bukwe. The suit proceeded ex-parte and judgment was entered against the appellant on 3 December 2020 including general damages of UGX 7,000,000. The appellant then filed Miscellaneous Application No. 704 of 2020 to set aside the ex-parte judgment on grounds of non-service. The trial magistrate dismissed the application on 11 March 2021, finding that the appellant had been properly served. The appellant filed Miscellaneous Cause No. 29 of 2022 in the High Court on 7 April 2022 for leave to appeal out of time. The Registrar granted the order on 1 September 2022. The appellant filed a memorandum of appeal on 28 September 2022. The respondent filed Miscellaneous Application No. 1111 of 2022 challenging the competence of the appeal.

Issues

  1. Whether the appeal was competent given that it was filed against an order not listed under Order 44 of the Civil Procedure Rules without prior leave of court.
  2. Whether Miscellaneous Cause No. 29 of 2022 was properly before court when it sought leave to appeal out of time but did not seek the requisite prior leave to appeal the underlying order.

Orders

  • Appeal struck out with costs.
  • Costs awarded to the respondent.

Rules and key headnotes

Appeals — Right of Appeal — Orders Requiring Prior Leave
An appeal does not lie as of right from an order made under Order 9 rule 12 of the Civil Procedure Rules. Prior leave of the court making the order or the appellate court is required under Order 44 rule 2 of the Civil Procedure Rules before such an appeal may be filed.
Appeals — Leave to Appeal — Concurrent Applications for Leave and Extension of Time
Where leave is required to file an appeal against an order not listed in Order 44 of the Civil Procedure Rules and the party also seeks leave to file the appeal out of time, both prayers should be made in a single application before a judicial officer with jurisdiction to hear both applications.
Jurisdiction — Registrar's Powers — Leave to Appeal Out of Time
The Registrar may only deal with uncontested matters or formal interlocutory applications falling under Order 50 rules 2 and 3 of the Civil Procedure Rules and lacks jurisdiction to grant leave to appeal out of time for orders falling outside the scope of Order 44.

Legislation cited (9)

Cases cited (1)

  • Kamuntu Henry v Uganda (Supreme Court Criminal Appeal No. 10 of 1997)

Full judgment

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

Ndiwalana_George_William_v_Namutete_Henry_(Civil_Appeal_No._12_of_2022)_[2023]_UGHCLD_515_(18_April_2023)
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.