Uganda National Examinations Board v Mparo General Contractors Limited (Civil Application 19 of 2004) [2004] UGSC 51 (30 November 2004)

## THE REPUBLIC OF UGANDA

### IN THE SUPREME COURT OF UGANDA AT MENGO

(CORAM: ODOKI, CJ, ODER, TSEKOOKO, KAROKORA AND MULENGA, JJ. S. C.)

# CIVIL APPLICATION No.19 of 2004.

#### **BETWEEN**

UGANDA NATIONAL EXAMINATION BOARD] ....................................

AND

MPARO GENERAL CONTRACTORS LTD. ${\tt J} \dots {\tt \dots} \dots {\tt \dots} \dots {\tt \dots}$

### RULING OF THE COURT

This ruling relates to a Notice of Motion which was instituted in this Court by the Uganda National Examinations Board (the Applicant) under Rules 5(2)(b), 40(2) and 42 of the Rules of this Court. The principal $40(2)$ order sought by the applicant is formulated in a rather unusual fashion. It reads: -

The execution of the award of Arch P. Kamya dated 1. $30^{\rm th}$ May 2000 and filed in the High Court be stayed until the final disposal of the appeal to the Supreme Court against ruling of the Court of Appeal in Civil Application No.82 of 2004 pursuant to which the appellant's Notice of Appeal against the ruling of the High Court in Arbitration Cause No.3 OF 2000 was struck out.

In short the applicant is asking this Court to stay execution of a decree of the High Court.

A brief background to this matter is necessary.

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There was a dispute between the applicant and the respondent. The dispute was referred to arbitration. The arbitrator, Arch Kamya, made an award in favour of the respondent. The award was on $8/7/2002$ filed in the High The applicant unsuccessfully sought to set aside Court. that arbitration award. The High Court (Okumu Wengi. J) confirmed the award on $2/10/2002$ . On the same day $(2/10/2002)$ , the applicant filed a Notice of Appeal intending to appeal to the Court of Appeal against the decision of the High Court, confirming the award. Again on the same day the applicant wrote to the Deputy Registrar, High Court, requesting for a typed copy of the proceedings and of the judgment. That letter was copied to counsel for the Respondents who received it on $14/10/2002$ . On $28/11/2002$ the applicant got stay of execution of the decree of the High Court and deposited the arbitral amount of shs 160,085,370 in High Court as security.

The applicant appears to have been slow in following up the application for a copy of proceedings and of the judgment.

During 2003, the applicant filed in the Court of Appeal an application for stay of execution (Civil Application No.23 of $2003$ ). The application was rejected. The

Notice of Appeal Astruck out by the Court of Appeal. On 23/8/2004 that Court struck out the Notice of Appeal for failure to take an essential step, namely, failure to institute the intended appeal.

Thereafter the applicant filed a Notice of Appeal intending to appeal to this Court against the order of the Court of Appeal striking out the said Notice of Appeal.

On 31/8/2004, the applicant filed this application for stay of execution of the judgment of the High Court as stated earlier in this ruling. When this application was called up for hearing, Mr. Paul Byaruhanga and Mr. Ndyomugabe, both counsel for the respondent, raised preliminary objection challenging the competence of this application. The objection was based on three points:

- That no appeal lies to this Court from the decision 1. of the Court of Appeal striking out the Notice of Appeal. - The execution against which the application for stay 2. was made is not of the Court of Appeal but that of the High Court. - The application for stay should have been made first 3. to the lower court before it was brought here.

Before Mr. Byaruhanga could develop his arguments,

Mr. Masembe Kanyerezi interjected and attempted to argue that he has now become aware that Mr. Byaruhanga had also filed a different notice of motion seeking to move this Court to strike out the said Notice of Appeal. Learned Counsel argued that the points now raised in this preliminary objection would better be argued during the hearing of that pending application to strike out the Notice of Appeal. He however gave in, quite properly in our view, upon realising that his interjection would not take him far.

Mr. Byaruhanga, in arguing his first point of objection, submitted that in order for an intended appellant to have a right of appeal to this Court, the Court of Appeal should have considered and decided on merit an appeal against a decision of the High Court in the exercise of its original jurisdiction. The ruling of the Court of Appeal striking out a Notice of Appeal is not such a decision. In that regard, counsel contended that this Court has no jurisdiction to entertain this application.

Masembe Kanyerezi argued that Mr. the court has jurisdiction to hear this application. He relied on S.6 (1) of Judicature Act. He argued that by striking out the Notice of Appeal the Court of Appeal did in effect confirm the decision of the High Court and, therefore, there ought to be a right of appeal. He sought to rely

on Rule 40(2) of the Rules of this Court and urged that we should use our discretion to grant leave for the applicant to appeal. He wondered why in view of S.6 (1) of the Judicature Act, the ruling of the Court of Appeal is not justiciable.

Kanyerezi's arguments Mr. Masembe are no doubt attractive. However we must say straight away that they have no basis.

The right of appeal to this Court is conferred by the Constitution and statute. Clause (2) of Article 132 of the Constitution creates the appellate jurisdiction of this Court in these words: -

"(2) An appeal shall lie to the Supreme Court from such decisions of the Court of Appeal as may be prescribed by law."

Clause (3) of the same Article confers on this Court appellate jurisdiction in Constitutional Cases. The principal statute which prescribes the right of appeal to this Court from the Court of Appeal in civil cases is S.6 of the Judicature Act. Subsection (1) of the section provides for a right of appeal without leave, while subsection (2) confers a right of appeal with leave. Sub $S(1)$ of S.6 reads: -

"An appeal shall lie as of right to the Supreme Court where the Court of Appeal confirms, varies reverses judgment or or $\mathbf{a}$ order including

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interlocutory order given by the High Court in the exercise of its original jurisdiction and either confirmed, varied or reversed by the Court of Appeal."

According to this provision there is an automatic right of appeal from the Court of Appeal to this Court in civil matters decided by the High Court in the exercise of its original jurisdiction provided the Court of Appeal has considered and decided on merit an appeal to the Court from a decision of the High Court in the exercise of its original jurisdiction. In the case of Attorney General Vs Shah (No.4) [1971] E. A 50 the East African Court of Appeal said, and we agree, that it has long been established that appellate jurisdiction springs only from statute.

In the present case, the intended appeal does not arise from a decision of the Court of Appeal in which that Court considered and finally decided on merit a first appeal thereto. The decision of the Court of Appeal in striking out the Notice of Appeal is a house cleaning procedural exercise created by the rules of the Court to ensure efficient management of appeals or intended appeals by requiring parties to take all the essential steps in time to bring an appeal to maturity so that it is heard and decided on merits. The Notice of Appeal was

struck out under Rule 81 of the Rules of the Court of appeal.

rule 1 (3) regulates the courts exercise of its inherent powers. We do not think that in view of the provisions of Rule 81, it was necessary for the applicant to rely on Rule 1(3) which is applicable in cases where no other rule applies.

Be that as it may, Rule 81 reads-

"(81) A person on whom a notice of appeal has been served may at anytime, either before or after the institution of the appeal, apply to the Court to strike out the notice or the appeal, as the case may be, on the ground that no appeal lies or that some essential step in the proceedings has not been taken or has not been taken within the prescribed time."

Clearly this rule enables a respondent who believes, as in the present matter the respondent did believe, that there is no right of appeal to cause a notice of appeal to be struck out. The order striking out a notice of appeal is incidental to intended civil appeal but does not involve the decision of the appeal. The case of Uganda Vs Lule (1973) EA 362, though a criminal matter illustrates the point clearly. In that case, the respondent was convicted of the offence of possession of a forged shs $100/$ = note, C/S 336 of the Penal Code. He sentenced by the Chief Magistrate to 6 months **was**

$\overline{7}$ impri.sonmenE. He appealed to the High Court. On the day fixed for hearing his appeal, his advocate did not appear and so the appeal was dismissed for want of prosecution. The advocat.e faEer had the appeal reinstated. The state appeated to the CourE of eppeil for E. Africa against the order rei,nstating t.he appeal . The Court of Appeal dismissed Ehe appeal and relied on Ralph Vs R (1,960) EA 310 for the view t.haL appellaEe juri.sdiction is conte[Fea by statutse and that in the appeaf before that Courtl--an" state had not satisfied the court that the courE had jurisdiction to enLertain an appeal against an interlocutory order arising out of a High Court appeal not involving the decision of the appeal itself. The same is the case i.n this mat,ter.

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What the applicant is seeking to appeal against is not <sup>a</sup> decision of the Court of Appeal j-n the exercise of iEs appellate jurisdiction, but an incidentaL or interlocutory order made in respect of an intended appeal which has not been lodged or heard and decided on merit.

Rule Bl does noE staEe anywhere that t.he striking ouE of the Notice of Appea1 bars the intended appetlant. from ever persuing his or her right. of appeal . Striking out of the Notice is not a finaL decision. Clearly an intended appeLlant whose Notice of Appeal is struck out can, for instance, either move the court Eo have the Notice of Appeal reinsEated or opt to proceed under RuIe 4 and apply to the court for extension of the time wi.thin which

to lodge a fresh Notice of Appeal. In our opinion, the procedure provided by Rule 81 is useful in that it provides a convenient method by which the court can clear stale Notices of Appeal.

We do not appreciate the argument by Mr. Masembe Kanyerezi that we could under Rule 40(2) grant his client leave to appeal. First we have concluded that his client has no right of appeal against the order of the Court of Appeal. Secondly if learned counsel meant to argue that we can grant leave for his client to appeal to the Court of Appeal against the decision of the High Court, in our opinion, Rule 40(2) does not confer on this Court powers, in cases like the present, to grant leave to a party to appeal to the Court of Appeal.

In our opinion, point one of the preliminary objection was well taken and our consideration of it is sufficient to dispose of the application. We will, however, briefly deal with the other two points.

On the second point of objection whose effect is that the application for stay is misplaced, Mr Byaruhanga argued that the application seeks to stay execution of a decree of the High Court against which there is no appeal in this Court. Mr. Byaruhanga argued in effect that Rule 5(2)(b) is inapplicable. Mr. Masembe Kanyerezi argued that the rule is applicable. He contended that even if

there was a proper appeal in the Court of Appeal and that court granted an order for stay of execution in effect the stay of execution would relate to a decree of the High Court.

According to Rule $5(2)(6)$

"Subject to subrule(1), the institution of an appeal shall not operate to stay execution, but the court $may: -$

(b) in any civil proceedings, where a Notice of Appeal has been lodged in accordance with rules 71 order a stay of execution, an injunction or stay proceedings as the court may consider just."

In theory it is possible to say that any order granted by this Court to stay execution of a decision of the Court of Appeal would, some times, but not always, relate to the stay of a decree given at the trial by the High Court. But this is not universal. To illustrate: where the High Court dismisses a suit, a losing party can appeal against the dismissal and meantime seek stay for purposes of maintaining the status quo. In such a scenario a grant of stay by the Court of Appeal would not mean that the stay of execution is of the High Court order of dismissal of the suit.

A perusal of the provisions of Rule $71(1)$ shows that any person who desires to appeal to the court shall give

$\cdot$ notice in writing. Rule 71(2) suggests that in cases where leave to appeal is required, the notice of appeal may be filed before obtaining that leave. This implies that a Notice of Appeal would be filed only where there is a right of appeal whether as of right $[S.6(1)]$ or with leave [S.6(2)]. Clearly, therefore, a proper Notice of Appeal can only be filed where there is a right of appeal against the decision of the Court of Appeal made in exercise of its appellate jurisdiction.

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In this matter, the applicant's application to have the arbitrator's award set aside by the High Court was refused. The next step was to appeal to the Court of Appeal. Its notice of appeal to that Court was struck out for failure to take an essential step, namely to institute the appeal within the prescribed period. This means the Court of Appeal has not exercised its appellate jurisdiction by considering and deciding the merits of an appeal from the High Court. In our consideration of the first point of objection, we have concluded that the applicant has no right of appeal to this Court arising from the striking out of the Notice of Appeal of an intended appeal to the Court of Appeal. It follows, therefore, that no valid Notice of Appeal envisaged by Rule $\cancel{8}$ 71 exists. Consequently rule 5(2)(b) is not available to the applicant. So point two was also well taken.

point of objection is that the The third and last applicant should have first applied for stay in the lower court. We agree. We think that where the application may be made to either court, it is on rare occasions that we can entertain the application before it is first made and heard by the Court of Appeal. The present matter is not such a rare occasion.

In conclusion, we hold that the objection is well founded and we uphold it. The application is incompetent and the same is struck out with costs to the respondent. The request for an order for certificate of two counsel is refused. We order that the respondent shall have costs of only one counsel.

Delivered at Mengo this 39th day of Marcade 2004.

Odoki Chief Justice

A. H. O. Oder Justice of the Supreme Court.

J. W. N. Tsekooko

Justice of the Supreme Court

A. N. Karokora. Justice of the Supreme Court.


J. N. Mulenga Justice of the Supreme Court

Applicant and its Counsel also<br>Hibugh Served Crown. Mr. S. Mulmba<br>appears Loloy bring for mr. Masemb Kangere Ur-D Byarabarga for Resp.<br>Ur-Mobigin ut Greep Present Puling delivered in the<br>parked of the above. 13