Spear Motors Ltd Vs Attorney General & 2 Others

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

(COMMERCIAL DIVISION)

HCT-00-CC-CS-0692-2007

SPEAR MOTORS LTD. :::::::::::::::::::::::::::::::::::::::::::::::::PLAINTIFF

VERSUS

1. ATTORNEY GENERAL
2. MOTOR CARE (U) LTD    ::::::::::::::::::::::::::::::DEFENDANTS
3. INTERCAR (U) LTD

BEFORE: HON. LADY JUSTICE IRENE MULYAGONJA KAKOOZA

RULING

After the ruling on the Attorney General’s objections to the production of certain documents in this suit was delivered in this court on 19/03/2012, Ms. Margaret Nabakooza (PSA) applied for leave to appeal against it under the provisions of Order 44 rule 3 of the CPR. She also prayed for an adjournment to enable her to obtain further instructions as to whether to appeal the decision or not.

In reply, Mr. Christopher Bwanika for the plaintiff opposed the application. He said that the application was incompetent because no grounds were advanced for the need to appeal as is required by law. Mr. Bwanika also complained that the plaintiff’s case is constantly being delayed by the defendants. That the matter had already been to the Court of Appeal on another objection that was raised by the defendants and it had just come back to this court. That the court was on a roadmap to have the matter disposed of but now counsel for the Attorney General has again raised objections on preliminary matters and wishes to appeal against the decision on them against him.

Mr. Bwanika pointed out that the plaintiff’s right to a fair and speedy hearing, under Article 28 of the Constitution, are constantly being violated by the defendants. He also stated that this is the Commercial Court and matters before it should be disposed of expeditiously. He further submitted that the application for leave to appeal should not be granted just as a matter of course but the court has the discretion to refuse the application because no grounds to justify the appeal were adduced. He prayed that the application be denied.

Mr. Andrew Kibaya for the plaintiff submitted that this was another attempt by the defendants to waste the court’s time. That since the dispute has not been determined on its merits the 1^st defendant would have an opportunity to raise the grounds on which he challenges the decision after the suit is determined on its merits, if the decision goes against him. He prayed that the application be denied.

In rejoinder Ms. Nabakooza submitted that there are authorities to the effect that an application for leave to appeal under the provisions of Order 44 can be made orally. She also stated that they were not able to state all the grounds why they need to appeal the decision but if given time, they would file a formal application and state the grounds. She pointed out that the objections that were the subject of the previous appeal were not raised by the Attorney General but by the other defendants. She asserted that the Attorney General has a right to appeal against the decision here and so he ought to be given an opportunity to do so or in the alternative, that the court grants sufficient time within which to file a formal application for leave to appeal against the decision. She again stated that she needed to obtain further instructions whether to appeal the decision or not and therefore applied for an adjournment to enable her to seek such instructions.

There are two questions for the consideration of court on this application, i.e. the manner in which it has been brought and then the reasons for it. I shall dispose of the procedural issue first.

First of all, the right to appeal is not absolute. There is no automatic right to appeal against orders made in preliminary hearings. The right to appeal is a creature of statute and in this case, for a party to be allowed to appeal they must follow the law on the subject. Order 44 rule 1 (4) provides that applications for leave to appeal shall be by notice of motion. Ms. Nabakooza said that she had authority for the proposition that such application can be made orally but she did not cite it. This again brings up the level of unpreparedness of State’s counsel in the conduct of this matter. If counsel was indeed given instructions to apply for leave to appeal if the objections were overruled, then they should have prepared adequately for such application. In the absence of such preparation, the application cannot be perceived otherwise than as a tactic to delay the hearing of this suit, especially because counsel was also ambivalent as to whether the Attorney General will appeal the decision or not.

However, it was incorrect for the plaintiff’s counsel to state that the application is incompetent for not complying with the provisions of Order 44 rule 1 (4) of the CPR. In Sango Bay Estates Ltd & Others v. Dresdner Bank[1972]EA 17, the East Africa Court of Appeal held that applications for leave to appeal may be made informally. The application was therefore properly brought orally and it must be considered.

Going on to the 2^nd question, which is whether it ought to be allowed without any grounds being stated, the court in the Sango Bay case referred to above, ruled that leave would normally be granted where prima facie it appears that there are grounds of appeal which merit serious judicial consideration. And in Degeya Trading Stores (U) Ltd v. Uganda Revenue Authority, C/A Civil Application No. 16 of 1996, their Lordships of the Court of Appeal of Uganda observed that,

“An applicant seeking leave to appeal must show either that his intended appeal has reasonable chance of success or that he has arguable grounds of appeal and has not been guilty of dilatory conduct.”

I therefore agree with the submissions of Mr. Bwanika that the application now before court is incompetent for it did not raise any grounds for seeking leave to appeal, save that counsel had instructions to appeal and it cannot be entertained.

I must next consider the prayer by counsel for the Attorney General that time be given within which a formal application stating the ground upon which leave to appeal is sought should be filed. The ruling which State’s counsel seeks leave to appeal against is on an interlocutory matter to do with which documents ought to be relied on in the hearing of the main suit, a matter that should be solely within the discretion of the trial judge. I am constrained to state that applications of this nature with regard to purely technical matters of evidence and procedure should not be encouraged for they only lead to delay in the disposal of matters and to a waste of the judge’s time. In Ashmore Corporation v. Lloyd’s [1992] 2 All E.R 486, the House of Lords (Lord Roskil) observed that:

“In the Commercial Court and indeed in any trial court it is the trial judge who has control of the proceedings. It is part of his duty to identify the crucial issues and to see (that) they are tried as expeditiously and as inexpensively as possible. It is the duty of the advisers of the parties to assist the trial judge in carrying out his duty. Litigants are not entitled to the uncontrolled use of a trial judge’s time. Other litigants await their turn. Litigants are only entitled to so much of the trial judge’s time as is necessary for the proper determination of the relevant issues.”

I entirely agree with the observations above and add that the same sentiments were expressed in this jurisdiction and they were laid out in the Commercial Court (Practice) Directions (SI-Constitution 6) where rule 5 provides that the procedure in and progress of a commercial action shall beunder the direct control of the commercial judge who will, to the extent possible , be proactive.

I am mindful of counsel for the plaintiff’s submission that the plaintiff’s rights to a fair and expeditious trial are being compromised by the objections raised by the defendants. But I am also mindful of the fact that the Attorney General is desirous of seeing that the best is shown to have been done to defend this suit given the large amounts of money claimed by the plaintiff. He must therefore be allowed to explore all options to achieve that end.

But as far as this court is concerned, there are a multitude of other litigants that await their turn to have their matters disposed of expeditiously. It is therefore not possible for me to wait for and entertain a formal application for leave to appeal when it is eventually filed by the Attorney General. Counsel for the Attorney General should therefore consider when the Attorney General makes a decision whether to appeal my decision or not, taking the application for leave to appeal under the provisions Order 44 rule 2 CPR to the Court of Appeal as was envisaged when leave to appeal is denied by this court. The Honourable Justices of the Court of Appeal will then be able to determine for themselves whether, in spite of the provisions of Order 10 rule 14 CPR, they wish to wade through the volume of documents that were filed in this case and enter upon an appeal on whether particular documents admitted in evidence should be expunged from the record or not before this court concludes the hearing of the main suit.

The application for leave to appeal and the one that this court do appoint a period of time within which the Attorney General should file a formal application for its consideration are both hereby denied. Costs for the application shall be in the cause.

Irene Mulyagonja Kakooza

JUDGE

19/03/2012