Wabwire Namisano and Another v Imochu Namisano (Miscellaneous Application 10 of 2023) [2024] UGHCCD 186 (8 November 2024)

## **IN THE REPUBLIC OF UGANDA**

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

### **(CIVIL DIVISION)**

### **MISC. APPLICATION NO. 0010 OF 2023**

**(ARISING FROM DECISION OF THE REGISTRAR IN MISCELLANEOUS CAUSE NO. 14 OF 2023 ARISING FROM COMPANY CAUSE NO. 078 OF 2022)**

- **1. PATRICE WABWIRE NAMISANO** - **2. OKECHA MICHEAL :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPLICANTS**

#### **versus**

**JANE IMOCHU NAMISANO:::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT**

**BEFORE: Hon. Justice Ssekaana Musa**

### **RULING**

This is an application brought under Section 292, 173(3) of the Companies Act, 2012 and Order 38 rule 2 and Order 50 rule 8 Civil Procedure Rules, Section 33 Judicature Act Cap 13, Order 43 Rule 14 and Order 52 Rule 1and 3 Civil procedure Rules S. I 71-1 seeking the following orders;

- *1. The decision of the registrar of companies in Miscellaneous Cause No. 14 of 2023 arising from Company Cause No. 078 of 2022 dated 27th January 2023 be set aside.* - *2. A declaration that both the 1st and 2nd appellants, being parties in Petition Cause No. 078 of 2022, have a right to be examined in the presence of either party.*

*3. The costs of this application be awarded to the appellants.*

The grounds for the application state as follows,

- 1. That the Registrar erred in law when he made orders affecting the rights of the appellants and held that the 1st and 2nd appellants cannot be present at the same time during the process of cross examination on the evidence from the statutory declarations and one should step out as the other is examined to avoid contradictions and copying answers to the questions during the process. - 2. That the Registrar erred in law when he made that decision without having regard to the requirement of a party's mandatory presence, at his or her trial, constituting non derogable right to a fair hearing provided for under Article 28(5) of the Constitution of 2005 of the Republic of Uganda - 3. That the Registrar erred in law when he made a decision without having any regard to the fact that the 1st and 2nd appellants were not just witnesses but also parties to the petition cause and as such each had aright to be present, during the examination of the pother party.

The respondent file an affidavit in reply and contended that;

- 1. That during the hearing of the appellants' case the lawyer applied for one of them to step aside as the other was being cross examined to avoid tailoring of answers and collusion during the process. - 2. That it was in the interest of justice that one of the appellants should step out as the other was being cross examined to avoid contradictions and copying of answers to the questions during the process.

- 3. The appellants indicated their decision to appeal the order and requested the registrar for a certified copy of the ruling. A certified ruling of the registrar was formally given on the 27th day of January, 2023 and the respondent's lawyers picked a copy of the ruling on the same day. - 4. That the appellants failed to file an appeal within 30 days stipulated and the appellants picked the certified copy of the ruling on 3rd April 2023. The conduct of the appellants was a tactic in their trickery to oppress and delay justice for the minority shareholder. - 5. That the appeal is barred for having been filed after 90 days and it is an abuse court process. - 6. That the ruling of the Registrar is proper and in the interest of justice since the issues for determination involve issues of fraudulent dealings, connivance and deceit of the majority shareholder and company officer to oppress a minority shareholder.

The applicant was represented by Counsel *Stella Twikirize* while the respondent was represented by *Counsel Tewa Rose.*

The parties filed submissions which this court has read and further the respondent's counsel raised a preliminary objection as to the propriety of the appeal. I have decided to determine this issue first since it has the effect of disposing of the entire appeal.

# **Whether the appeal was filed out of time or whether the appeal is competently before the court?**

Counsel for the respondent submitted that the appeal was filed 78 days after the date of the ruling thus it is filed out of time and is incompetent before this court. The respondent contended that although the appellants' counsel wrote a letter requesting for certified copies of the ruling, there is no evidence that the appellant made any effort to follow up on the issue like a vigilant litigant but rather sat back and no appeal was filed within the stipulated time.

Further, the since there was no notice of appeal filed, the respondent's lawyers wrote a letter to the registrar of Companies on 3rd April 2023 requesting for the final ruling on the petition given that no appeal had been filed. It was only after this letter that the appellant's picked the certified copy of the ruling and proceeded to file an appeal on the 12th of April 2023.

The appellants' counsel denied any dilatory conduct and negligence and contended that they will demand strict proof of these claims. Counsel contended that the respondent relies on facts to which she could not have access and alleges the exact time the record of proceedings was made available to the appellant despite not being copied in the letter requesting for the proceedings.

The appellants' counsel contended that the record was provided to the appellants on the 5th of April 2023, and the appeal was filed promptly within the statutory timeframe.

#### *Analysis*

This is an appeal arising out of the preliminary ruling made in respect of procedural matter which was not determining or disposing of the dispute before the Registrar of Companies in her quasi judicial capacity.

A right to appeal is created by the Constitution therefore, no court has jurisdiction to hear any appeal unless it is derived from a constitutional or statutory provision. There is no inherent right of appeal without clear law to support such an appeal.

## See *KCB Bank Limited v Gichohi Ngari & 2 Ors Civil Appeal No. 0323 of 2023*

Right of appeal or denial of a right of appeal must be provided for in the clearest possible language since the conferment of a right of appeal is a curtailment of the jurisdiction of the court whose decision is being appealed from, and extension of jurisdiction of the court to which the appeal lies.

It is not only that appellate jurisdiction should be conferred by statute, but the parties entitled to appeal and conditions under which they can appeal is statutorily defined. In order to be entitled to exercise a right of appeal, the appellant must come within the provisions of the statute creating such a right. It is thus proper for an appellate court to raise the issue of the right of appeal *suo moto* since it is crucial to the appeal and any proceedings leading to a judgment given without jurisdiction is a nullity, however well conducted. See *National Bank v Weide & Co [1996] 9-10*

## *SCNJ 147 at 159*

The Companies Act provides for a right of appeal against a decision of the Registrar. Section 173(3) provides;

# *A person aggrieved by a decision of the registrar under this section may appeal to court.*

Section 292 provides as follows;

*In any appeal from a decision of the registrar to the court under this Act, the court shall have and exercise the same discretionary powers as under this Act are conferred upon the registrar.*

The right of appeal envisaged under the Companies Act is an appeal on final determination of the complaint and not the interlocutory rulings made in between the trial. Otherwise the complaint would never be disposed of, if the parties have the luxury of appealing every ruling which is not final to High court. Just like in the ordinary procedure of court, there is no right of appeal upon every ruling made in the course of the trial.

The interlocutory ruling made by the Registrar could not be appealed against before the end of the hearing. The interlocutory ruling could be appealed against along with the other grounds of appeal in the final judgment or ruling. An appeal against an interlocutory ruling may be included in the appeal against the final decision of the court. The intention is to guard against unnecessary delay in the determination of the main issues joined by the parties.

The High court while sitting as an appellate court reviews all the proceedings including interlocutory decisions given in the trial. The appellants did not have a right of appeal against an interlocutory ruling. The right of appeal given is against the final ruling of the Registrar. This purported appeal would be struck out on this ground alone.

Secondly, the respondent contended that the appellant filed the appeal after 78 days instead of the 30 days prescribed by the law. Section 79(1) of the Civil Procedure Act provides;

*Except as otherwise specifically provided in any other law, every appeal shall be within 30 days of the decree or order of the court; or within seven (7) days of the date of the order of a registrar, as the case may be, appealed against; but the* *appellate court may for good cause admit an appeal though the period of limitation prescribed by this section has elapsed.*

The appellant filed the purported appeal after 78 days and the appellant does not explain the delay save for the argument that he was waiting for the certified ruling and proceedings. He relies on section 79(2) of the Civil Procedure Act which provides;

In Computing the period of limitation prescribed by this section, the time taken by the court or the registrar in making a copy of the decree or order appealed against and of the proceedings shall be excluded.

The appellant failed to explain the delay by way of evidence save for contending that they will put the respondent to strict proof on these allegations. A party to fails to comply with the timelines set under the law must explain their conduct and the justify the delay.

The ruling and record were so brief and there is no justification for the prolonged period of 78 days. This court agrees with the respondent that their conduct dilatory and there was inordinate delay in filing the appeal. The appellants were woken up from their 'slumber' by the respondent's letter to the registrar dated 3rd April 2023 which was served on them on 4th April 2023.

The import of the timeline set under Section 79 of the Civil Procedure Act is that an appeal must be filed timeously and where the appeal was filed out of time or otherwise from fundamental and radical defect which went to the root of the appeal, then notionally there is nothing before the court with respect to which the court might exercise jurisdiction. It is a requirement of due process that all parties who desire to appeal in cases that have been tried must comply with the conditions

under which the right of appeal has been conferred on them. Any appeal filed outside the statutory period provided under the law without any valid extension is void.

One of the most vexed and worrying problems in the administration of civil justice is of delay. Delay in disposal of case threatens justice. The lapse of time blurs truth, weakens memory of witnesses and makes presentation of evidence difficult. This leads to loss of public confidence in the judicial process which in itself a threat to rule of law and consequently democracy.

The appeal lodged by the appellant was an abuse of court process and was solely intended to delay the determination of the dispute between the parties. The Registrar of Companies was wrong suspending the hearing of the complaint simply because counsel for the appellants intimated to him that he was going to appeal against his ruling.

This application is dismissed with costs to the respondent.

I so Order

*Ssekana Musa Judge 08th November 2024*