Wakilii

Progressive Group of Hotels Ltd v Luyanzi Academic Foundation Ltd (HCT-00-CC-CA 12 of 2010)

High Court · [2012] UGCOMMC 161 · 2012 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from the ruling and orders of the Registrar of the Commercial Court dated 19 May 2010 seeking extension of time to file appeal and setting aside of the Registrar's orders
Decision
Appeal allowed, Registrar's orders set aside, matter remitted for hearing on the merits after proper service

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court found that the appellant's former counsel made an error of judgment in filing a Memorandum of Appeal instead of a Notice of Motion, which constituted sufficient cause to extend time. The court further held that the Registrar erred by granting an ex-parte order for vacant possession without complying with Order 52 rule 2 of the Civil Procedure Rules, which requires notice to parties except in cases of urgency. This procedural error was ultra vires the Registrar's powers and constituted an error on the face of the record. The Registrar's orders were set aside and the matter was directed to be served and heard on the merits.

Outcome

Appeal allowed, Registrar's orders set aside, matter remitted for hearing on the merits after proper service

Facts

The appellants mortgaged properties in Kyadondo Block 227 (Plots 756, 966, and 1424 at Bweyogerere) and Kyadondo Block 226 (Plots 43, 72, and 89 of Buto) to Barclays Bank. When they defaulted, the bank sold the properties to the respondent, who was registered as proprietor. The appellants filed HCCS No. 204 of 2009 against Barclays Bank and the respondent challenging the sale. Meanwhile, the respondent filed MC No. 20 of 2010 before the Registrar seeking vacant possession. On 19 May 2010, the Registrar granted an ex-parte order for vacant possession. The appellants learned of this order on 25 May 2010 when served with a warrant of execution. Their former counsel initially filed a Memorandum of Appeal on 28 May 2010, which was the wrong procedure. New counsel filed this motion on 11 June 2010 seeking extension of time to file the appeal properly and to set aside the Registrar's orders.

Issues

  1. Whether the appeal filed out of time should be admitted on grounds of sufficient cause.
  2. Whether the Registrar acted ultra vires her powers under the Civil Procedure Rules and Practice Direction No. 1 of 2003 in granting an ex-parte order for vacant possession.
  3. Whether the Registrar's order for vacant possession should be set aside as a nullity.

Orders

  • The appeal is admitted as duly filed out of the prescribed limitation period.
  • The orders of the Registrar dated 19 May 2010 are hereby set aside.
  • The motion in MC No. 20 of 2010 shall be served on the Respondents within 7 days.
  • The Respondents shall file an affidavit in response within the prescribed time.
  • MC No. 20 of 2010 shall be heard by the trial Judge on its merits.
  • Costs of this application to the Appellants.

Rules and key headnotes

Extension of Time — Test for Sufficient Cause — Counsel's Error of Judgment
An error of judgment by counsel in selecting the wrong procedure to challenge an order, where the counsel acted promptly and within the limitation period but used a Memorandum of Appeal instead of a Notice of Motion, constitutes sufficient cause to extend time for filing the proper appeal.
Ex-Parte Orders — Notice Requirements — Order 52 Rule 2 CPR
Order 52 rule 2 of the Civil Procedure Rules requires that notice of a motion be given to parties affected, and an ex-parte order may only be made where the court is satisfied that delay in proceeding in the ordinary way would or might entail irreparable or serious mischief. An ex-parte order made without compliance with this rule is an error on the face of the record and ultra vires.
Registrar's Powers — Practice Direction No. 1 of 2003 — Ultra Vires
The powers of Registrars under Practice Direction No. 1 of 2003 are not exhaustive, as the preamble states that such powers 'include but not be limited to' the enumerated matters. However, a Registrar must still comply with procedural requirements of the Civil Procedure Rules, and failure to do so may render an order ultra vires and a nullity.
Extension of Time — Application of Tiberio Okeny Principles
In determining whether to extend time, the court must first establish sufficient reason for the delay. Only after sufficient reason is established does the court consider other factors such as prejudice and likelihood of success. Where counsel instructed in time makes an error or omission, such error should not be visited upon the litigant unless the litigant was guilty of dilatory conduct.

Legislation cited (8)

Cases cited (1)

  • Tiberio Okeny and Another v Attorney General and 2 Others (Civil Appeal No. 51 of 2001)

Full judgment

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Progressive Group of Hotels Ltd v Luyanzi Academic Foundation Ltd (HCT-00-CC-CA 12 of 2010) [2012] UGCommC 161 (13 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.