General Parts Uganda Limited and Another v Non-Performing Assets Recovery Tribunal (NPART) (Civil Application 49 of 2003) [2003] UGCA 22 (30 June 2003)
Full Case Text
### **THE REPUBLIC OF UGANDA**
## **IN THE COURT OF APPEAL OF UGANDA AT KAMPALA**
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# **CORAM: HON. JUSTICE A. TWINOMUJUNI, JA (SINGLE JUDGE)**
#### **CIVIL APPLICATION NO.49 OF 2003**
| | GENERAL<br>PARTS | LTD<br>ANOR<br>(U)<br>& | APPLICANT | |----|------------------|-------------------------|------------| | 15 | | VERSUS | | | | NPART | | RESPONDENT |
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# **RULING:**
**25** This is an application for an Interim Order to restrain the Non-Performing Assets Recovery Tribunal (NPART) from hearing Application No.004/2003 scheduled for hearing before it on 10th July 2003 until Civil Application No.48/2003 now pending in this court is disposed of.
**30** The main reason for both Civil Application No.48/2003 and the instant one (No 49/2003) is stated to bethat Hon. Justice Patrick Tabaro J. who is the Chairman ofthe Non-Performing Assets Tribunal has previously displayed a bias against the applicant in High Court Miscellaneous Application No.59 of 2002 and therefore should be stopped from presiding over Tribunal Application No.004/2003 to which the applicants are again a party. The
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application is supported by two affidavits sworn by Haji Haruna Semakula who is the second applicant and the Managing Director ofthe first applicant. The affidavits are dated 13th May 2003 and 17th June 2003 respectively.
**5 10** At the hearing of this application, Haji Semakula stated that he would represent both applicants because his lawyers had refused to take part in an application seeking to order the Chairman ofthe Tribunal NOT to preside on the grounds that he is biased. Owing to the fact that the order being sought is seeking to restrain a Judge of Courts of Judicature from exercising his constitutional and legislative jurisdiction, I, insisted that this application which was meant to be exparte, be served on counsel for the respondent.
**15 20 25** Mr. Ebert Byenkya represented the respondent at the hearing. He raised a preliminary point oflaw, which in my view disposes ofthis application. He submitted that this application was incompetent because Civil Appeal No.48/2003 upon which it is based is itself incompetent because it was filed without leave of the Tribunal or that of this court as required by law. The applicant, not being a lawyer, was unable to say or appreciate whether leave was required before he filed the appeal, but he conceded that he did not obtain the leave. Mr. Byenkya relied on the provisions ofsection 77 of Civil Procedure Act, Order 40 of the Civil Procedure Rules, and Rule 39 of the Court of Appeal Rules. Pie also cited **Balimoria & Another vs. T. D. Balimoria (1962) EA 198 and G. R. Mandavia vs. Rathan Singh (1962) 730** in which the former Eastern African Court of Appeal held that an appeal filed without leave, when such leave is a legal requirement, is incompetent
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and a court has no jurisdiction to entertain it.
I have carefully studied the provisions and the authorities cited to me by Mr. Byenkya. I have no doubt that the applicants were legally required to apply for leave of the Tribunal or of this court before they filed Civil Appeal No.48/2003. The applicants did not seek or obtain the leave as required. It appears to me therefore that the appeal could be incompetent and if I am correct on that, this application would also be incompetent.
However, under rule 52(1 )(c) of the rules of this court, I, as a single judge, have no authority to strike out a notice of appeal or an appeal. The power to do that is vested in the full bench which presumably will deal with the matter when dealing with Civil Application No.48/2003, which is this application before a full bench ofthis court.
**15** In the meantime, I find that Civil Appeal No.48/2003 is incompetent as it was filed without leave and therefore this application is equally incompetent. I have no jurisdiction to entertain an incompetent application and I must accordingly dismiss it. Costs ofthis application will abide the result in Civil Application No.48/2003.
APPEAL. sriciu
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Dated \Uyaa-0 , **<sup>20</sup>** in Kampala this day of 2003.