Marts JP Consult - SMC Ltd v Airtel Uganda Ltd (Miscellaneous Application No. 1481 of 2021) [2023] UGCommC 10 (11 January 2023)

#### THE REPUBLIC OF UGANDA

#### IN THE HIGH COURT OF UGANDA AT KAMPALA

#### (COMMERCIAL DIVISION)

#### **MISCELLANEOUS APPLICATION No. 1481 OF 2021**

## (ARISING FROM MISCELLANEOUS APPEAL No. 007 OF 2021)

(ARISING FROM MISCELLANEOUS APPLICATION No. 727 OF 2021)

## (ARISING FROM CIVIL SUIT No. 338 OF 2021)

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MARTS JP CONSULT - SMC LTD APPLICANT

#### **VERSUS**

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.................................... AIRTEL UGANDA LIMITED 15

## BEFORE: HON. LADY JUSTICE SUSAN ABINYO

## **RULING**

## **Introduction**

$\mathsf{S}$

- This application was brought by Notice of Motion under Order 44 Rules 2, 3, and 20 4, and Order 52 Rule 1 of the Civil Procedure Rules SI 71-1, and section 98 of the Civil Procedure Act, Cap 71, where the Applicant seeks for orders that: - 1. The Applicant be granted leave to appeal against the ruling, and orders of the Learned Judge in Miscellaneous Appeal No. 007 of 2021. - 2. Stay of the hearing, and or proceeding in Miscellaneous Appeal No. 007 of 25 2021. - 3. Costs of this application be provided for.

**Facts**

This Application is supported by the affidavit of Mr. Patrick John Kateeba the Applicant's Manager, in which the grounds are deposed in paragraphs 1-30, but 30 briefly that;

- The Applicant instituted Civil Suit No. 338 of 2021 against the Respondent, $\mathsf{S}$ $\mathsf{L}$ and the same was allocated to Hon. Justice Richard Wejuli. That after filing the said suit, the Applicant filed two applications to wit Miscellaneous Application No. 727, and 728 of 2021, for a temporary, and interim injunction respectively. - Upon hearing the said applications by His Worship Kisawuzi Erias as the trial $\mathbf{H}$ 10 Registrar, an order was issued in Miscellaneous Application No.727 of 2021 for a temporary injunction. The Respondent was served with the said order on 14<sup>th</sup> June, 2021, and they filed an appeal arising from the said order, which was forum shopped to Her Lordship Susan Abinyo. - The Respondent abused the orders issued by the Learned Registrar, and the $\mathbf{H}$ 15 Applicant filed an application for contempt of Court vide Miscellaneous Application No. 1269 of 2021. That the said application was allocated to His Lordship Richard Wejuli since he was the trial Judge in Civil Suit No. 338 of 2021. - The Advocates for the Applicant raised a preliminary objection before Her IV. 20 Lordship Susan Abinyo in respect of the administrative error, and anomalies in the allocation of the appeal pending the hearing of an application for contempt of Court adjourned before the trial Judge but was dismissed on the grounds that it was proper for her to hear the appeal, and the trial Judge hears the main suit, and the application for contempt. The Learned 25 Judge is faulted, and the Applicant intends to appeal against the same. - This application has been brought without delay, and that it is the interest $\vee.$ of justice that the application is allowed.

The Respondent opposed this application in an affidavit deposed in paragraphs 1-18 by Mr. Hudson Andrew Katumba the Legal, and Commercial Manager of 30 the Respondent, and summarised as hereunder:

That he has been advised by his Lawyers M/S Verma Jivram & Associates which advice, he believes to be true that:

This application is misconceived, frivolous, vexatious, and an abuse of Court İ. process.

- The allegations of forum shopping are unfounded, baseless, and false since ii. Miscellaneous Appeal No. 007 of 2021 was allocated and fixed for hearing by the Registrar of the Commercial Court and not the Respondent. - $\mathsf{2}$

- 5 . On 261h Ociober, 2021 , Hon. Juslice Wejuli Wobwire sioyed Miscelloneous Applicotion No. 1269 ot 2021 becouse il hod been filed on lst October, 2021 , long ofler Miscelloneous Appeol No. 007 ot 2021 , which wos filed on l5th June, 2021 . - The Applicont is not in ony woy prejudiced by the ruling of the Court since lhe Leorned Hon. Justice Suson Abinyo hos the inherent powers ond .furisdiction lo heor, ond determine Miscelloneous Appeol No. 00/ ot 2021 . - The grounds stoted by the Applicont ore not sufficient to wonont the orders for leove to oppeol ond stoy of proceedings os olleged. - The correcl procedure where o person is oggrieved with odministrotive decisions ol the Court, is to moke o wrilten comploint bocked by evidence 1o the Heod of ihe Court.

The Applicont filed on offidovit in rejoinder, deposed in porogrophs I - I 0, in which he reiieroled the overments in the offidovit in support of this opplicoiion, excepl lhot there wos no need to lodge o comploint with the Heod of the Courl, since lhe triol Judge in Miscelloneous Applicotion No.007 of 2021 hod mode o decision

20 on the objeciion.

# Represenlolion

The Applicont wos represenled by Counsel Ogombo lsso of M/S Proxlex Advocotes while the Respondenl wos represented by Counsel Deepo Vermo jointly with Counsel Dyobogomboki Roymond of M/S Vermo, Jivrom & Associotes.

# lssues for determinoii on

Counsel for Applicont did not frome issues for determinotion by this Court. ln occordonce wiih the provision of Order l5 Rule 3 of the Civil Procedure Rules Sl 7l -1. this Court fromed the issues os below:

- L Whether lhis opplicolion discloses grounds for leove 1o oppeol? 30 - 2. Whot remedies ore ovoiloble?

# Decision

lhove considered the evidence odduced by the porties, ond the submissions of Counsel for the porties herein, to find os follows: -

Otdet 44 Rule 1(2) of the Civil Procedure Rules Sl /l-l provides thot;

"An appeal under these Rules shall not lie from any other order except with leave $\mathsf{S}$ of the court making the order or of the court to which an appeal would lie if leave were given."

It is settled law that in an application for leave to appeal, the Applicant should prove that there are grounds of appeal which merit serious judicial consideration,

and where the appeal is from an order which is discretionary, a stronger case has 10 to be made out. (See the case of Sango Bay Estates Ltd and Others Vs Dresdner Bank A G [1971] 1 EA 17 pg. 20)

I am further persuaded by the decision in Kengazi Angella Vs Metl(U) Ltd, HCMA No. 723 of 2015 (Arising from HCCS No. 723 of 2014), relied upon by Counsel for the Respondent, which cited with approval the case of **Degeya Trading Stores (U) Ltd** Vs URA CACA No. 16 of 1996, where the Court noted that an Applicant seeking

- leave to appeal must show either that the intended appeal has reasonable chance of success or that he has arguable grounds of appeal and has not been guilty of dilatory conduct. - In the instant case, the Applicant stated the intended grounds of appeal under 20 paragraph $15(i - p)$ of the affidavit in support of this application.

It's well established that the requirement for leave to appeal is intended as a check to unnecessary or frivolous appeals. (See the case of Kilama Tonny & Anor Vs Mrs. Grace Perpetua Otim HC Civil Appeal No. 031 of 2019), cited by Counsel for the Applicant.

$15$

In the case of Modern Developments Uganda Ltd & Anor Vs FBW Uganda Ltd HCMA No. 434 of 2014(Arising from HCCS No.481 of 2012), cited by Counsel for the Respondent, the Learned Judge observed that in decided cases, appeals arising from interlocutory decisions could be made part of the appeal at the

- conclusion of the main suit and that it is therefore not necessary to appeal against 30 an interlocutory ruling separate from the final decision. And that to hold otherwise may lead to a multiplicity of appeals upon incidental orders made in the course of the hearing, when such matters can be more conveniently considered on appeal from the final decision. - Taking into further consideration the persuasive decision in Kilama Tonny & Anor 35 Vs Mrs. Grace Perpetua Otim(supra), where the Court further held that leave to appeal should not be refused simply because the trial Magistrate or the Appellate

- <sup>5</sup> Judge is of the opinion thot the decision is correct. lf lhe question is one of principle ond o novel one, ordinorily leove to oppeol should be gronied... However, if the question roised be one in respect of which there is no outhoritotive decision thol would be o guide to the porlies, then the circumstonces fovour gronting of leove. lt is for thot reoson thot leove is hereby gronled by rotificolion. - <sup>I</sup>hove considered the persuosive decisions in Modern Developmenls Ugondo Ltd & Anor Vs FBw Ugondo Ltd HCMA, ond (ilomo Tonny & Anor Vs Mrs. Grace Perpeluo Ofim(supro); it is my considered view thot the question roised should be one thot is novel in principle, ond with o substonliol effect on lhe subiect motter from which the objection is roised. An objection thol is roised from o decision 10 - mode in the exercise of judiciol discretion, os it is in the instont motter, moy not usuolly hove o substoniiol effect on the subject motter before the Couri. lt is therefore, my understonding thol on opplicolion for leove to oppeol ogoinsl o decision which hos no significonl beoring on the subject motter before Court, moy only couse further deloy in the disposol of the moin suit or oppeol. 15 - lhove loken into occount the intended grounds of oppeol, ond the circumstonces of this cose os obove, to find thot the Applicont hos not mode out o stronger cose to worronl serious judiciol consideroiion by the Appellote Court. 20

For reosons obove. I find thot this opplicotion is frivolous.

This issue is therefore onswered in the negotive.

# 25 lssue No.2: Whot remedies ore ovoiloble?

This Court hoving found issue (l) obove in the negotive, further finds thot the remedies sought by lhe Applicont ore not ovoiloble.

ln the result, I find thot Miscelloneous Appeol No. 007 ot 2021 , will not be rendered nugotory, ond os such, the Applicont is denied the remedy of stoy of proceedings

30 in the soid oppeol.

> Consequently, this opplicotion is dismissed with costs in the couse. The oppeol sholl be fixed for furlher heoring.

Doted, signed ond delivered elecironicolly, this I l il doy of Jonuory, 2023.

SUSAN ABINYO JUDGE 11101/2023