Blaine v Singing (Civil Application No. 15/2001) [2001] UGHC 127 (14 August 2001)

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

CORAM: $\mathfrak{S}$ HON. LADY JUSTICE L. E. M. MUKASA-KIKONYOGO, DCJ. HON. MR JUSTICE S. G. ENGWAU, JA. HON. LADY JUSTICE C. K. BYAMUGISHA, JA.

CIVIL APPLICATION No.103/03

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In the matter of an intended appeal

BETWEEN

CHARLES SEMPEWO &134 OTHERS:::::::::::::::::::::::::::::::::::: $15$

AND

SILVER SPRINGS HOTEL (1969) LTD:::::::::::::::::::::::::::::::::::: 20 Appeal from the ruling and orders of the High Court of Uganda sitting at Kampala (Ntabgoba PJ) dated

RULING OF THE COURT

$25^th$ July 2003 in HCSC No.335/03

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The applicants herein filed the instant application by way of Notice of Motion

under the provisions of rules $40(2)$ (b) and $41(1)$ of the *Judicature (Court of*

*Appeal Rules) Directions S. I No.13-10* seeking two orders from this court

namely:

1. Leave be granted to the applicants to appeal against the ruling and orders 30 of the High Court in Civil Suit No.335/03.

2. Costs of the application be provided for.

The motion is based on the following grounds:-

1. The intended appeal raises serious question of law and fact that

warrant serious judicial consideration namely:

- a) Whether it was necessary for the plaintiffs/applicants to file an affidavit with the plaint to show that they were occupants of the suit land in 1971. - b) Whether contrary to order VI rule 1(a) of the Civil Procedure Rules, the plaintiffs failed to plead a material fact that they were on the suit land in 1971 and therefore qualified as bonafide occupants. - c) Whether the period 1971-1999 is not available to the applicants for the purpose of calculating the period of 12 years necessary to constitute them as bonafide occupants of the suit land in terms of the - Land Act.

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- d) Whether the Expropriated Properties Act affords the respondent a plea of disability in assessing the 12 year period of occupation under the Land Act, - e) Whether the applicants connived with various authorities to deprive the respondent of its land contrary to Article $26(2)$ of the Constitution. - 2. It is just and equitable that the applicants' claims in the plaint be investigated in a fair hearing. - The grounds were supported by the affidavit of Mr Charles Sempewo dated 14^th 20 August 2003. The respondent opposed the application. Mr Godfrey Lule, an

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advocate of Courts of Judicature who represented the respondent in the High Court deponed an affidavit dated 12^th December 2003.

The background to the application before us is as follows. On $11^{th}$ March the applicants filed HCCS No.68/03 against the respondent seeking the following $\mathfrak{S}$ reliefs:

- 1. A declaration that they are owners and bonafide occupants of the suit land. - 2. A permanent injunction restraining the defendant by its officers, servants or agents from trespassing on the suit land or otherwise interfering with their possession of the suit land. - 3. General damages for inconvenience. - 4. An order direction the Chief Registrar of Titles not to issue to the respondent a certificate in respect of the suit land. - 5. Interest on general damages at 25% p.a. from the date of filing the suit till payment in full. - 6. Costs of the suit.

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- 7. Any other or better relief. - The applicants claimed that the suit land was leased to the respondent in 1971 $20$ when the applicants and or their predecessors occupied the suit land and they were never compensated.

The respondent filed a written statement of defence denying the averments in the plaint. In particular it averred that the plaint discloses no cause of action, the applicants had no *locus standi* to file the suit and that the suit was time barred.

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The suit came for hearing before the Principal Judge. Mr Lule learned counsel for the respondent raised preliminary objections to the suit. The objections were mainly based on the interpretation of the Expropriated Properties Act, the current Land Act, the repealed Public Land Act and the Land Transfer Act.

- In his ruling dated 25^th August 2003 the learned Principal Judge upheld the $10$ preliminary objections. He held that the plaint discloses no cause of action against the respondent and that the applicants had no *locus standi* to bring the suit. Consequently he dismissed the suit with costs. - The applicants made an oral application seeking leave to appeal against the $15$ ruling. The application was rejected on $5^th$ August 2003 –hence the instant application.

When the application came before us for final disposal, Mr Walubiri, learned

$20$ counsel for the applicants submitted that the intended appeal raises serious questions of law and fact that warrant judicial consideration. He pointed out that the test that was set and used in the case of *Sango Bay Estates Ltd v Dresner*

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Bank [1971] EA 17 is that leave should be granted if there is an arguable case. He asserted that the grounds in the motion set out matters for serious consideration by the appellate court.

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He claimed that there was serious error on the part of the learned Principal

- Judge when he held that the applicants should have attached documentary $\mathfrak{S}$ evidence of their occupation of the suit land on the plaint. Other areas of criticism that learned counsel pointed out that need consideration by the appellate court are the interpretation of the Expropriated Properties Act, and Article $26(2)$ of the Constitution. - He prayed that leave be granted and costs of the application abide the outcome $10$ of the appeal.

Mr Balikudembe, learned counsel for the respondent, in reply submitted that the application does not show grounds that will be canvassed on appeal for serious

- judicial consideration. He, too, cited to us the case of *Sango Bay* (supra) and $15$ relied on the affidavit of Mr Lule sworn on 12^th December 2003. He stated that there was no affidavit in rejoinder. On the grounds in the Notice of Motion, Mr Balikudembe submitted that they should be read together with paragraphs 2-7 of Mr Sempewo's affidavit sworn in support of the motion. - He supported the ruling of the lower court in that the applicants failed to show $20$ that they were in lawful occupation of the suit land in 1971 or between 1972 to

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1999 when the certificate of repossession was issued to the respondent by the Minister of Finance. He invited us to dismiss the application with costs.

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The right of appeal is a statutory one. Some appeals lie to the appellate as of

right and some with leave of the trial court. Where the trial court rejects the $\overline{5}$ application for leave as it did in the matter now before us, the application is lodged in the appellate court.

In order to succeed in an application of this nature, the application has to show *prima facie* that there are serious issues of law or fact or both that merit judicial

consideration by an appellate court. This legal principle was set out in the case $10$ of *Sango Bay Estate v Dresdner Bank Ltd* which was cited to us by both counsel. We agree with that principle.

The applicants in the notice of motion have set out grounds which they contend merit serious judicial consideration on appeal. The respondent in opposing the

- application submitted *inter alia* that the applicants failed to show on the face of $15$ the pleadings that they were in lawful occupation of the suit land in 1971 when the same was leased to the respondent and or from 1972 after the expulsion of Asians by the Government of the day and 1999 when the respondent was issued with a certificate of repossession. In order to consider whether the applicants - 20 were in lawful occupation of the suit land in the stated period, the court needed evidence oral or documentary. Furthermore the interpretation given to the Expropriated Properties Act and other legislations by the learned Principal

Judge need judicial consideration by an appellate court. In application of this nature, it is not necessary to consider the merits of the intended appeal or the chances of success on appeal.

We are satisfied on the facts and affidavit evidence before us that the applicants $\mathfrak{S}$ have made out a case on which this Court can exercise its discretion and grant the orders prayed for. We accordingly allow the application. Leave to appeal is granted. Costs of the application will abide the results of the appeal.

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Dated at Kampala this 18th day of May ..... 2007

L. E. M. Mukas: Deputy Chief Justice

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giran S. G. Engwau Justice of Appeal

$C. K.$ Byamugish Justice of Appeal

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