zziwa v Nabagesera (Civil Appeal 34 of 1996) [1997] UGCA 18 (5 February 1997)

Full Case Text

### THE REPUBLIC OF UGANDA

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

## CIVIL APPEAL NO. 34 OF 1996

CORAM: S. T. MANYINDO D. C. J, S. C. ENGWAU J.

& F. M. S EGONDA NTENDE J., 1

MARGARET ZZIWA ::::::::::::::::::::::::::::::::::::

AND

CATHERINE NAAVA NABAGESERA : : : : : : : : : : : : : : : : : : :

[Arising from Election Petition No. 11 of 1966 in the High Court of Uganda sitting at Kampala before Tabaro, J.]

JUDGMENT OF THE COURT

At the conclusion of the hearing of this appeal, we dismissed it, and now give our reasons.

This appeal arose out of election petition No. 11 of 1996. The appellant is the third respondent in the election petition. On the 30th August 1996, the trial court, upon application of the appellant, ordered a stay of hearing of the election petition, pending the disposal of an appeal, lodged against the trial court's refusal to grant leave for an appeal against an interlocutory order. The learned trial Judge gave his reasons for that order which we need not go into.

Subsequently on the 29/9/1996 the respondent moved the trial court citing rule 24 of $S.1$ . 27 of 1996 - The election petition rules, Order 42 of the Civil Procedure Rules and S.101 of the Civil Procedure Act for a review of the order staying hearing of

the proceedings so that it is set aside. On the third October 1996 the trial court vacated its earlier order staying proceedings citing the letter and spirit of the Election Petition Rules which ordered expedition in election petition matters. The Judge did not, in his ruling determine whether Order 42 of the Civil Procedure Rules applied or not. It is a against that decision that the present appeal lies.

At the hearing of the appeal, Mr. Matovu, Learned Counsel for the appellant raised a preliminary point of Law, submitting that the appeal before us was incompetent and that this court had no jurisdiction to hear the same. He submitted that an appeal to this court was a right available only by statute and in this particular case, no right had been provided for an appeal against interlocutory orders of election petition trial court. He referred to the case of Margaret Zziwa v Catherine Naava Nabagesera, Parliamentary election petition Misc. App. No. 9 of 1996, a decision of a single Judge of this court.

Mr. Blaze Babigumira, Learned Counsel for the appellant opposed the preliminary objection. He submitted, if, we followed correctly what he said, that the order sought to be appealed from, was not an interlocutory order. The order appealed from was a review of an earlier decision made under Section 83 of the Civil Procedure Act and Order 42 Rule 1 of the Civil Procedure Rules. He contended that review of an earlier order of court is an independent right against which an appeal may lie.

$\overline{2}$

Section 96(6) of the Parliamentary Election (Interim Provisions) Statute, No.4 of 1996 states:-

> $"(1)$ A person aggrieved by the determination of the High Court on hearing an election petition may appeal to the Court of Appeal against the decision."

The appeal envisaged here is an appeal against a decision determining an election petition rather than a decision from an interlocutory matter. We cannot read in this section any right of appeal against decisions on interlocutory matters. The right to appeal must be created by express enactment.

We agree with the conclusion reached by Manyindo D. C. J sitting as a single Judge of this court in Margaret Zziwa v C. N Nabagesera Misc. App. No.9 of 1996 when he stated:-

> "....... I agree with Counsel for the respondent that section 96(1) of Statute No.4 of 1996, does not confer upon this court jurisdiction to entertain appeals arising from interlocutory orders made by the High Court when hearing election petitions. In absence of any other statutory provision granting this court jurisdiction, the court cannot entertain the intended appeal".

An appeal can only lie against the decision determining the election petition.

$\overline{3}$

$\mathcal{L}$

Mr. Babigumira contended that the appeal before us was not an interloculory natter but was agalnst a decision made in the exerci se of an independent ri ght of reviev. And I t was therefore appealable. Then Mr, Babigunira was asked for authority for this proposltion he was unable to clte any, statutory or otherwise. The decision against which this appeal I ies vacated an order stayinS the hearing of an electlon petitlon. The decision was not tnade in accordance vi th Order 42 of the Clvi I Procedure Rules. The learned trlal Iudge on his part stated!-

> In vier of ry ftndings, i t i s not necessary to establlsh uhether 0.,1 2 CPR appl ies. In any case i t rrould have to be applled subject to the Parliatentary Elections (Election Petitlons) Rules. 1996, by virtue of Rule l7 thereof-

Slnce the Judge's decision the Civl l Procedure Rules, arising out of the exercise if aval lable, under section predicaled upon 0rder 42 of appeal cannot be sald to be i ndependen t right of rev I ev. the Civil Procedure Act and u/a s no t lhi s o f an 83 of Order 42 of the Civil Procedure Rules,

act ion bef ore the made by the corlrt that does not dispose of the cour t . It ls an order incidental It is trile lav that an interlocutory order in the life of a suit is such an order to or arising fron the action before tlre cour I . ISee Total Oi Products E. A v NLIAUTO. t- t d and others. [ 1968 ] E. A 611 at 6131.

The order appealed from, vacated the order for a stay of the hearing of the election petition. Its effect was to propel the hearing of the petition forward. It did not finally determine the petition before the court. It was, indeed, an interlocutory order. We agreed with Mr. John Matovu that the order appealed from is an interlocutory order from which no appeal lies at this stage.

We accordingly dismissed the appeal.

$\mathsf{S}$

Dated at Kampala this .................... day............. 1997.

. . . . . . . . . . . . . . . . . .

S. T. MANYINDO, D. C. J.

. . . . . . . . . . . . . . . . . . . .

. . . . . . . . . .

S. G. ENGWAU, J.

F. M. S EGONDA NTENDE, J.

# THE REPUBLIC OF UGANDA

IN THE COURT OF APPEAL OF UGAIDA AT KANPALA

S. T. HANYIDO - D. C. J. 3. G. ENGHAU - J. $\ell$ . CORAM: F. M. S. EGONDA-NTENDE - J.,

CIVIL APPEAL NO. 34 OF 1996

BETWEEN

MARGARET ZZIWA

APPELLANT

$A N D$

CATHERINE NABAGESERA

RESPONDENT

[Arising from Election Petition No. 11 of 1996 in the High Court of Ugarda sitting at Kampala before Tabaro, J. 7

#### REASONS FOR THE DECISION:

At the conclusion of the hearing of this appeal, we dismissed it and now give our reasons.

citing rule 24 of S.1. 27 of 1996 - The election petition rules, 0.42 of the Civil Procedure Rules and S.101 of the Civil Procedure Act for a review of the order staying hearing of the proceedings so that it is set aside. On the third October 1996 the trial court vacated its earlier order staying proceedings citing the letter and spirit of the election petition rul s which ordered expedition in election potition matters. The Judge did not, in his ruling determine whether Order 42 of the Civil Procedure Ruhes applied or not. It is a against that decision that the present appeal lies.

$.../2$

At the hearing of the appeal, Mr. Matovu, Learned Counsel for the appellant raised a preliminary point of law, submitting that the appeal before us was incompetent and that this court had no jurisdiction to hear the same. He submitted that an appeal to this court was a right available only by statute and in this particular case, no right had been provided for an appeal against interlocutory orders of an election petition trial court. He referred to the case of Margaret Zziwa v Catherine Naava Nabagesera, Parliamentary election petition Misc. App. No. 9 of 1996, a decision of a single Judge of this court.

Mr. Eleze Echigumira, Learned Counsel for the appellant opposed the preliminary objection. He submitted, if we followed correctly what he said, that the order sought to be appealed from, was not an interlocutory order. The order appealed from was a review of an earlier decision made under Section 83 of the Civil Procedure Act and 0.42 Rule 1 of the Civil Procedure Rules. He contended that review of an earlier order of court is an independent right against which an appeal may lie.

Section 96(6) of the Parliamentary Election (Interim Provisions) Statute, No.4 of 1996 states -

> $"(1)$ A person aggrieved by the determination of the High Court on hearing an election petition may appeal to the Court of Appeal against the decision."

> > ... $/3$

We agree with the conclusion reached by Manyindo D. C. J sitting as a single Judge of this court in Margaret Zziwa v C. N. Nabagesera Misc. App. No. 9 of 1996 when he stated :-

$\lambda$ $-$

"......... I agree with Counsel for the respondent that section $%$ (1) of Statute No. 4 of 19%, does not confer upon this court jurisdiction to entertain appeals arising from interlocutory orders made by the High Court when hearing election petitions. In absence of any other statutory provision granting this court jurisdiction, the court cannot entertain the intended appeal".

In appeal can only lie against the decision determining the election petition.

Mr. Babigumira contended that the appeal before us was not an interlocutory matter but was against a decision made in the exercise of an independent right of review. And it was therefore appealable. When Mr. Babigumira was asked for authority for this proposition he was unable to cite any, statutory or otherwise. The decision against which this appeal lies vacated an order staying the hearing of an election petition. The decision was not made in accordance with Order 42 of the Civil Procedure Rules. The learned trial Judge on his part stated -

> "...... In view of my findings, it is not necessary to establish whether $0.42$ CPR applies. In any case would have to be applied subject to the Parliamentar Mections (Election Petitions) Rules, 1996, by virtu of Rule 17 thereof"

Since the Judge's decision was not predicated upon 0.42 of the Civil Procedure Rules, this appeal cannot be said to be arising out of the exercise of an independent right of review, if available, under section 83 of the Civil Procedure Act and Order 42 of the Civil Procedure Rules.

$.../4$

It is trite law that an interlocutory order in the life of a suit is such an order made by the court that does not dispose of the action before the court. It is an order incidental to or arising from the action before the court. [See Total Oil Products E. A v NUAUTO, Ltd and others. 1986 E. A. 611 at 613].

The order, appealed from vacated the order for a stay of the hearing of the election petition. Its effect was to propel the hearing of the petition forward. It did not finally determine the petition before the court. It was, indeed, an interlocutory order. We agreed with Mr. John Matovu that the order appealed from is an interlocutory order from which no appeal lies at this stage.

We accordingly dismissed the appeal.

Deted at Kampela this $\cdots$ 5th February, Deted at Kampela this $\cdots$ 5th February,

. . . . . . . . . . . . . . . . . . . . S. T. MANYIIIDO, D. C. J.

. . . . . . . . . . . . . . . . . . . . S. G. INGWAU, J.

F. M. S. ECONDA-NTENDE, J.

I CERTIFY THAT THIS IS A TRUE COPY OF THE ORIGINAL.

JOSEPH MURANGIRA

REGISTRAR COURT OF APPEAL. for