Scaffold Engineering & Construction Limited v Diamond Trust Bank Limited (Civil Application 1016 of 2023) [2024] UGCA 270 (13 September 2024)

Full Case Text

5 THE REPUBLIC OF UGANDA !N THE COURT OF APPEAL OF UGANDA AT KAMPALA CIVIL APPLICATION NO.1016 OF 2023 (AR|S!NG FROM CIVTL AppEAL NO.858 OF 20231 (AR|S|NG FROM M!SC. APPLICATION NO. 00L2 OF 2023)

#### SCAFFOLD ENGINEERING &

CONSTRUCTION LIMITED APPELLANT

VERSUS

#### DIAMOND TRUST BANK LTD RESPONDENT

## CORAM: MOSES KAZIBWE KAWUMI JA

### (SINGLE JUSTICEI

#### RULING

The Application from which this ruling arises was brought by Notice of Motion under Section 11 of the Judicature Act, Section 98 of the Civil Procedure Act and Rule 2(21 of the Judicature (Court of Appeal RuleslDirections. Sl 12-10. The Applicant seeks the following orders :-

- L. A Protective order restraining the respondent, its agents, assignees or any person claiming from or under it from; - a) Wasting, damaging, developing, utilizing or alienating the land comprised in LRV 3463 Folio25 Plot 51 Bukoto Drive, Kampala and LRV 1933 Folio 23 Plot 49 Bukoto Drive, Kampala and all property mortgaged by the applicant to the respondent pending determination of HCCS No.35 of 2023.

- b) Trying to use the plaintiff company to sell or otherwise deal with the property comprised in Block 220 Plot 1394 Land at Nakawa which belongs to Miracle Motors Limited. - c) Making unsubstantiated demands and interfering with the business/operations of the applicant $\quad\text{and}\quad$ halting the computation of time as per the Notice issued on 4th January 2023 until the final determination of the main application or any further orders of this Honourable court. - 2. Costs of this application to be provided for. 15

### Background.

A one Dinesh Kumar is the majority shareholder and director in the Applicant company and in Miracle Motors Limited. The Applicant is the registered proprietor of land comprised in LRV 3463 Folio 51 Bukoto Drive and LRV 1933 Folio 23 Plot 49 Bukoto Drive both properties located in Kampala. The two companies hold accounts in the defendant bank.

The applicant acquired overdraft facilities of USD.300,000 and UGX. 400,000,000 million using her properties registered as LRV 1933 Folio 23 Plot 49 Bukoto Drive, LRV 3463 Folio 25 Plot 51 Bukoto Drive and LRV 4310 Folio 18 No.2B Plantation Road Bugolobi as collateral.

At the time of recovering the loan, the respondent consolidated the accounts and loans of the Applicant and Miracle Motors Limited to UGX.5.667.909,998/= from the demand applicant $\quad\text{and}\quad$ made arrangements to foreclose the suit properties.

The Applicant filed High Court Civil Suit No.35 of 2023 seeking among other reliefs a Permanent injunction. The Applicant further filed HCMA No.56 of 2023 and 57 of 2023 seeking a temporary injunction and interim order restraining the respondent from disposing of the properties. The Registrar of the High Court declined to grant the sough temporary injunction.

$10$

$20$

$\overline{25}$

s ' The Applicant lodged Miscellaneous Application No.12 of 2023 against the decision of the Registrar but it was dismissed by the High Court Judge. The Applicant filed Civil Appeal No.858 of 2023 in this court out of which the present application arises.

#### 10 Representation

At the hearing of the application on 4th September 2024, Mr. Masiga Collin appeared for the applicant while Mr. Richard Bibangi)mba appeared for the Respondent. Written submissions earlier filed by both Counsel were adopted as their arguments for the determination of the application.

# Preliminary objection

The Respondent contends that the application is incompetent since it is premised on Civil Appeal No.858 of 2023 which is a nullity in law. Relying on section 76 (21 of the Civil Procedure Act it was submitted that no appeal lies from an appellate decision arising from an appeal prescribed as a right by the Civil Procedure Rules.

25 The Respondent on her part contends that the objection about the validity of the Appeal is based on sectionT6(1) of the Civil Procedure Act which lists the orders from which an appeal may arise. Counsel for the Respondent argues that section 76(21 clearly states that it is second appeals from orders in Section 76(1) that cannot be appealed against and the Appeal in this court is not premised on any of the orders unoer section 76(Ll.

30 Counsel for the applicant relied on Uganda Revenue Authority Vs. Siraje Kajura. SCCA No.09 of 2015 for the proposition that clea r a nd unambiguous words in a statute should be given their plain meaning antj nothing should be read into them. The case of The Registered Trustees of Kampala lnstitute Vs. Departed Asiana Property Custodian Board. 35 SCCA No.2I of 1993 was also referenced for the same proposition.

# s : Decision

I have carefully read the Memorandum of Appeal filed by the Applicant in Civil Appeal No.858 of 2023 and the submissions filed by Counsel for the parties. lt is not disputed that the Appeal is against the decision by the High Court Judge not to overturn the decision of the Court Registrar

10 who declined to grant the temporary injunction sought by the Applicant. Civil Appeal No.858 of 2023 is therefore a second appeal against the decision of the Registrar.

It is a settled principle of the law that the right to appeal is a creature of statute. No appeal shall lie unless such a right is established in the law.

1s Attorney Genera! V Shah l!.97t) EA 50; Baku Raphe! Obudra & Another Vs. Attorney General. SCCA No.1 of 2005.

SectionTS (1) (h) of the Civil Procedure Act relied on by the Respondent for the submission on the invalidity of Civil Appeal No.858 of 2023 provides that :-

20 "An appeal shall lie from the following orders, and except as otherwise expressly provided in this Act or by any law for the time being in force from no other orders-

(h) Any order made under rules from which an appea! is expressly allowed by rules."

Order 44 rule 1(u) of the Civil Procedure Rules provides for an appeal as of right from orders made in interlocutory matters handled by a Registrar and that explains why the Applicant lodged Miscellaneous Application N o. LZ of 2023 later dismissed by the Judge in the High Court. Section 76 (21 of the Civil Procedure Act however bars any further appeals. lt provides that :-

"No appeal shaMie from any order passed in appeal under this section."

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5 Ifind no merit in the submission by counsel for the Applicant to the effect that Civil Appeal No.858 of 2023 is not premised on any of the orders made under sectio n 76 of the Civil Procedure Act. The Appeal, as can be discerned from the Memorandum relates to the denial of an interlocutory order by both the Registrar and the Judge on Appeal.

(

Civil Appeal No.858 of 2023 from which the present application emanates is barred by section 76(21 of the Civil Procedure Act and it is a settled principle of the law that nothing valid can arise out of a nuliity.

- 15 The preliminary objection by Counsel for the Respondent is upheld. tVliscellaneous Application No.1016 of 2023 is dismissed for being incompetent since its premised on an invalid Appeal. Costs of the application shall be paid to the Respondent. - 20 y-\ Dated and delivered at Kampala this...t3....0 ay of 2024

Moses Kazibwe Kawumi ,JUSTICE OF APPEAL