Mukiibi and Another v Ssentongo (Miscellaneous Application No. 88 of 2020) [2021] UGHCCD 251 (29 January 2021)

# THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT MASAKA

#### MISC. APPLICATION NO. 88 OF 2020

(Arising from Misc. Application No. 031 of 2019)

(Arising from Civil Suit No. No. 049 of 2014)

1. MUKIIBI PETER

2. KIWANUKA GWAVU EDWARD ::::::::::::::::::::::::::::::::::::::::: APPLICANTS VERSUS

SSENTONGO VINCENT FERRER ::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT

#### *Before; Hon. Lady Justice Victoria Nakintu Nkwanga Katamba*

# **RULING**

This application is brought by Notice of Motion under Order 44 Rule 1 (2 ,3 & 4) of the Civil Procedure Rules SI 71-1 seeking orders that leave be granted to the Applicants to appeal to the Court of Appeal against the Ruling and Order of the High Court delivered on the 30th day of June 2020 allowing the Application to reinstate the original suit in Civil Suit No. 049 of 2014 which had been dismissed under Order 9 Rule 22 of the Civil Procedure Rules.

The grounds of the application as contained in the 1st Applicant's affidavit are that;

- 1. The Respondent filed Misc. Application No. 031 of 2019 seeking an order to reinstate Civil Suit No. 49 of 2014. - 2. Previously the same Respondent had filed Misc. Application No. 205 of 2017 seeking the same orders which was dismissed for having been served out of time without leave contrary to Orders 5 Rules 2 & 3. - 3. The latter application was also served out of time.

- 4. That although Counsel for the Applicants objected that the application was res judicata and was served out of time, the High court overruled him and granted the application. - 5. That the Appeal has a likelihood of success.

In his affidavit in reply, the Respondent opposed the application stating that it is an abuse of court process and the Applicant's affidavit contains falsehoods as it alleges service of court process out of time. The grounds of the appeal do not pose substantial questions of law to be decided by an appellate court and neither do they exhibit an arguable case on appeal.

Both Parties filed written submissions and they are on court record.

Counsel for the Applicants on arguing the merits of the application submitted that the grounds of appeal are questions which raise serious judicial consideration and cited the case of *Sango Bay Estate vs Dredner Bank & A. G (1971) EA 17* where Spry V. P stated the principle upon which an application for leave to appeal may be granted as follows; "*As I understand, leave to appeal from an order in civil proceedings will normally be granted where prima facie it appears that there are grounds of appeal which merit serious judicial consideration."*

Counsel submitted that the original Civil Suit No. 49 of 2014 was dismissed under Order 9 Rule 22 of the Civil Procedure Rules and that Misc. Application No. 031 of 2019 which sought to reinstate the same, was determined despite it being *res judicata*. The Respondent filed Misc. Application No. 205 of 2017, Misc. Application No. 196 of 2018 and Misc. Application No. 031 of 2019 respectively which all sought the same orders to reinstate Civil Suit No. 49 of 2014. Misc. Application No. 205 of 2017 was heard and dismissed on a technicality having been served out of time and on that basis, MA No. 031 of 2019 which sought the same orders as in MA No. 205 of 2019 was res judicata and the trial judge erred in law in entertaining the same.

In reply, Counsel for the Respondent argued that the grounds as stated leave a lot to be desired in as far as their depiction of substantial grounds meriting serious judicial consideration in concerned. The same grounds were the subject of the court`s consideration in MA No. 31 of 2019. The matter that is subject of the intended appeal was decided on the law under Section 98 of the CPA and Order 9 Rule 23 which provisions give this court discretionary powers to set aside its order if in its discretion an Applicant satisfies it that the ends of justice dictate to that end. The application falls short of the requirement of showing how this court misdirected itself in exercise of its discretion.

Counsel further submitted citing the case of *Sobetra (U) Ltd & Anor vs Leads Insurance Ltd HCMA 377 of 2013* where it was stated that leave to appeal will be given where the court considers that the appeal has a prospect of success or there is some compelling reason why the appeal should be heard. The Applicants have not shown the grounds warranting serious judicial consideration and neither have they illustrated to this court the likelihood of success of their appeal.

In rejoinder, Counsel for the Applicants submitted that the intended appeal raises serious judicial questions in as far as it seeks to challenge the determination of MA 031 of 2019 yet there was still a pending application before the same court and also that the matter in question had been determined in MA No. 205 of 2017.

### **Determination of the Application;**

*Order 44 Rule 2 of the Civil Procedure Rules SI 71-1* provides that; "*An appeal under these rules shall not lie from any order except with leave of the court making the order or of the court to which an appeal would lie if leave were given.*"

The instant application seeks grant of leave to appeal against the ruling of this court in Misc. Application No. 031 of 2019 which allowed the re-instatement of Civil Suit No. 049 of 2014.

Spry V. P stated in the case of *Sango Bay Estate vs Dresdner Bank & Attorney General [1971] EA 17* on the principle upon which an application for leave to appeal that *leave to appeal from an order in civil proceedings will normally be granted where prima facie it appears that there are grounds of appeal which merit serious judicial consideration where the order from which it is sought to appeal was made in the exercise of judicial discretion*. (*cited in Andrew Kibirige Lutwama Vs Haruna Kato Misc. Application No. 920 of 2013)*

The Applicant seeking leave to appeal has to establish that there are points of law or issues of fact which would merit judicial consideration on appeal or that the appeal has a high prospect of success.

## **Points of law meriting judicial consideration on appeal;**

Counsel for the Applicants submitted that the appeal is intended to challenge an order of this court re-instating Civil Suit No. 49 of 2014 despite Misc. Application No. 031 of 2019 being *res judicata* and having been served out of time. It is clear from the pleadings and submissions that the grounds of this application and points of law raised in this application were the same objections raised in Misc. Application No. 031 of 2019 which was determined by this court in exercise of its discretion and consideration of the law.

In that regard, the Applicants have to prove that the orders made by this court in Misc. Application No. 031 of 2019 which is the basis of the intended appeal were made in error and have not only occasioned a miscarriage of justice but also require judicial consideration on appeal.

The decision of this court in Misc. Application No. 031 of 2019 was made in due consideration of the law, facts and circumstances of the application. The objections raised by Counsel for the Applicants in Misc. Application 031 of 2019 were heard and overruled upon determination that service out of time was occasioned by the delays in the court's administration regarding allocation of the file. The objection that the suit was *res judicata* was overruled having determined that Misc. Application No. 205 of 2017 had not been heard on its merits for it to be considered *res judicata.*

I therefore find that the orders made by this court were reached in due consideration of the law, the facts of the case and exercise of this court`s discretion without resulting into a miscarriage of justice. The Applicants therefore have not proved any points of law meriting judicial consideration on appeal.

#### **Whether the appeal has a prospect of success;**

Court in *Sbeity & Anor Vs Akello MA 249 of 2018* cited the case of **Swain v Hillman [2001] 1 All ER 91** where *Lord Woolf, MR* noted that;

*"A real prospect of success means that the prospect for the success must be realistic rather than fanciful. The court considering a prospect for permission is not required to analyse whether the grounds of the proposed appeal will succeed, but merely whether there is real prospect of success"*

A real prospect of success should be realistic and not just fanciful. A realistic prospect of success is more than just probable or highly likely. It should be clear from the application and circumstances of the application, that realistically, the appeal will be granted. This means that the grounds as to points of law meriting judicial consideration should be tenable from the onset not just mere dissatisfaction expressed by the Applicants. It is not enough that the Applicants states in the application or affidavit that the appeal has a likelihood of success. It should be clear that the decision that is subject of the appeal was made in error and a miscarriage of justice has been occasioned.

Where it is clear from the pleadings, the facts and the evidence adduced that indeed a miscarriage of justice has been occasioned and the appeal raises real points of law meriting consideration, then in such a case the prospect of success would be realistic than fanciful.

The Applicants have not adduced sufficient evidence of compelling reasons as to why this application should be granted and why the decision of this court merits judicial consideration on appeal. The application and circumstances of this case do not raise any arguable matters to support the grant of this application.

I therefore find that the intended appeal has no prospect of success, the Applicants have not adduced sufficient evidence of points of law and fact meriting judicial consideration on appeal, and the interest of justice is that Civil Suit No. 049 of 2014 should be heard and determined on its merits.

This application has no merits and is therefore dismissed. Costs will be in the main cause.

I so order.

Dated at Masaka this 29th day of January, 2021

# **Victoria N. N. Katamba Judge**