5 THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA

[COMMERCIAL DIVISION]

MISCELLANEOUS APPLICATION NO 29 OF 2017

[Arising From Misc. Application No. 632 of 2015]

10 [Arising From Civil Suit No. 221 of 2014]

1. EKISA GEORGE
2. OMUKENYO GEORGE COSMOS and 50,000 ors ::::
APPLICANTS

15 VERSUS
1. BANK OF AFRICA (U) LTD
2. BANK OF BARODA (U) LTD
3. BARCLAYS BANK (U) LTD
4. CAIRO INTERNATINAL BANK (U) LTD
20 5. CENTENARY BANL (U) LTD
6. CRANE BANK (U) LTD
7. DFCU BANK (U) LTD
8. DIAMOND TRUST BANK (U) LTD
9. ECO BANK (U) LTD
25 10. EQUITY BANK (U) LTD
11. UGANDA FINANCE TRUST BANK (U) LTD
12. HOUSING FINANCE BANK (U) LTD
13. KENYA COMMERCIAL BANK (KCB)
14. GLOBAL TRUST BANK (U) LTD
30 15. OPPORTUNITY BANK (U) LTD
16. ORIENT BANK (U) LTD
17. POSTAL BANK (U) LTD
18. STANBIC (U)NLTD
19. STANDARD CHARTERED BANK (U) LTD
35 20. TROPICAL BANK (U) LTD

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 21. UNITED BANK OF AFRICA (U) LTD ::::::::::::::::::::::::::
RESPODENT

BEFORE: HON. MR. JUSTICE B. KAINAMURA

5 RULING

This ruling arises from an application brought under Order 44

rules 3 and 4 and O.52 r.1 & 3 of the Civil Procedure Rules. The
applicants are seeking for orders of leave to appeal against the
ruling and orders of this Court made on 15 th December 2016 in
10 Misc. Application No. 632 of 2015(arising from Civil Suit No. 221
of 2014) be granted, proceedings in Civil Suit No. 221 of 2014 be
stayed pending the hearing and determination of the intended
appeal and costs be provided for. The application is supported
by the affidavit of Josephine Nalusimbi.

15 The brief facts of the case are that the applicants sued the
respondents for recovery of bank deposits charges being money
had and received over the years. When the matter came up for
hearing, Counsel for the applicants applied to court to enter
judgment on admission for the applicants. This court dismissed
20 the application on 19th December 2016 and the applicants being
dissatisfied with the ruling seek leave to appeal against it and
stay the proceedings in the main suit until the appeal is heard
and determined.

The grounds on which the application is based on are;

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 Firstly that the applicants are dissatisfied and aggrieved by the
ruling by which this court dismissed the applicant’s application
for judgment on admission, that the determination of the
application for judgment on admission had the effect of
5 conclusively determining the main suit; that the applications
have arguable points of law meriting an appeal so that the Court
of Appeal makes pronouncement on the matters on which the
high court dismissed the applicant’s application for judgment on
admission.

10 The applicants have strong arguable points of law with high

chances of success to be determined by the Court of Appeal
arising from the ruling and orders.

On behalf of the 20th respondent, Nasif Mubiru, the Senior Legal

Officer of the 20th respondent swore an affidavit in reply in which
15 she deponed that the appeal does not have strong arguable
points of law and it does not have a high chance of success on
the basis that the 20th respondent did not make an unequivocal
admission in the written statement of defence and the main suit
should proceed and the matter be finally determined; that the
20 application is an abuse of court process, it is misconceived and
should be stuck off and that the 20th respondent is prejudiced by
the delay of the proceeding in the main suit.

On behalf of the 1st to 11th , 18th and 21st respondents, David

Semakula Mukiibi an Advocate with MMAKS Advocates swore an
25 affidavit in reply to the application wherein he deponed that,

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 the application is a blatant abuse of court process as it aims to
cause inordinate delay in finalization of the H.C.C.S No. 221 of
2014 (the main suit), the respondents did not make admissions
and that the question of whether the bank charges are illegally
5 levied is the main issue in the main suit and was indeed
recorded as such in the joint scheduling memorandum filled on
the 28th September 2016; that under paragraph 6(iv) to (xv) of
the applicant’s affidavit in support, the applicants set out the
questions which they will seek the Court of Appeal to determine
10 and none of those questions were in issue and / or ruled upon in
Misc. Application No. 632 of 2015. The applicants cannot
accordingly seek to appeal matters that are yet to be tried by
this honorable court; that for the above reasons, the applicants
intended appeal has no likelihood of success and it does not
15 raise any question that merit serious judicial consideration; that
the main suit has been fixed for hearing. That the proceeding
should not be stayed as the hearing of the main suit will finally
determine all the matters in issue and that points the applicants
will if dissatisfied with the outcome have right to appeal against
20 the decision of this honorable court.

On behalf of the 17th respondent, Rebbeca Kasolo, the Legal

Manager of the 17th respondent swore an affidavit in reply where
she deponed that the intended appeal raises no question
whatsoever of a great and general importance; that the
25 averments contained in paragraph 6(i-iv) (x-xv) of the affidavit
are not appealable matters because this honorable court has not

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 yet pronounced itself in regard to them, that the applicants
seeks to introduce a fresh suit within an appeal which is totally
contrary to the law; that the application has no probability of
success whatsoever and the main suit shall be rendered
5 nugatory if the leave to appeal is granted, the respondents right
to a fair hearing shall be heavily clogged and prejudiced if the
application is granted.

On behalf of the 12th respondent, Ssenyonga Fred the Legal

Manager of the 12th respondent swore an affidavit in reply in
10 which he deponed that the purported grounds laid out by the
applicants to justify an appeal do not merit appellant jurisdiction
consideration given that this court merely rejected a premature
consideration of the issues in Civil Suit No. 221 of 2014 and in
effect laid down grounds for all the parties to adduce proper
15 evidence. He further deponed that the said grounds in
paragraph 6 of the affidavit in support are the same as those
which this court is ready and willing to try. That the application
is merely an attempt to have the Court of Appeal prematurely
assume jurisdiction over the same matter which is clear abuse of
20 court process.

Ruling

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 I have carefully considered the application together with the
respondent’s replies to the application submissions of respective
Counsel and the authorities cited.

The grounds for the application for leave to appeal on a

5 preliminary point were set out in the case of Sango Bay Vs
Dresdner Bank [1971] EA 17 where Spry V-P held that;

“As I understand it, leave to appeal from an order in

civil proceedings will normally be granted where prima
facie it appears that there are grounds of appeal
10 which merit serious judicial consideration but where,
as in the present case, the order from which it is
sought to appeal was made in the exercise of a
judicial discretion, a rather stronger case will have to
be made out.”

15 Further, in the case of Ayebazibwe Vs Barclays Bank

Uganda Ltd & 3 Ors (Miscellaneous Application No 292 of
2014 court held that;

“In order to determine whether there are grounds which

merit judicial consideration on appeal, the applicant has to
20 demonstrate the grounds of objection showing where the
court erred on the question or the issues raised by way of
an objection. It would therefore be necessary to set out
what the controversy before the court was and how it
determined that controversy. For leave to appeal to be
25 granted, the applicant must demonstrate that there are

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 arguable points of law or grounds of appeal which require
serious judicial consideration on appeal arising from the
decision of the court on the controversy. It is necessary to
set out the controversies upon which the court ruled and
5 the grounds of the application which dispute or contest the
correctness of the decision of the court on each
controversy. Such grounds should be capable of forming
the grounds of appeal deserving of serious consideration by
the appellate court”.

10 The initial application was for this court to give a judgment on

admission. Counsel for the applicants argued that the
respondents had admitted to charging and or continue to charge
bank charges against the applicants and the members of the
public under the pretext that the law does not prevent them. It
15 was my view that the respondents had not made any admissions
meriting a judgment on admission. There was a need to make
out a case regarding the illegality yet the law requires the
admissions to be sufficient requiring no further proof. Further the
admissions were not capable of disposing off the entire suit as
20 required by the law. I accordingly dismissed the application and
the suit was set down for hearing.

One of the grounds that the applicants based the present

application was that the applicants have arguable points of law
meriting an appeal.

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 Counsel for the applicants set out the points of law to be
determined by the Court of Appeal including; that the Court of
Appeal shall be requested to determine whether the admissions
were sufficient to warrant court to enter judgment on admission
5 to dispose off the suit pursuant to Order 13 of the Civil
Procedure Rules; that the Court of Appeal shall be requested to
determine that the respondents sufficiently and unequivocally
admitted charging the applicants and the general public bank
deposits charges and the Court of Appeal shall be requested to
10 determine that the admissions were sufficient for this court to
enter judgment on admission because there were no other facts
required to determine whether or not the admissions were
unequivocal.

It was my view that the respondents admissions must be in

15 regard to the claim and not a simple admission to a fact in the
pleadings. The respondents stated in their WSD that they indeed
charge the bank charge, it is a matter of public knowledge,
anyone who has ever banked is aware of the bank charges. This
admission was merely to a fact and not to the claim by the
20 plaintiff that the charge was illegal so as to merit a judgment on
admission. While the respondents agreed to the bank charge,
they did not agree to its illegality. They actually argued that it is
levied legally. No arguable point of law has been raised here
about whether I was wrong to conclude that the admissions were
25 not sufficient to merit a judgment on admission. The applicants

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 have not shown the point of controversy in the ruling that they
seek the Court of Appeal to determine.

In the case of Ayebazibwe Vs Barclays Bank Uganda Ltd &

3 Ors (Miscellaneous Application No. 292 of 2014) (supra)
5 court held that

“…arguable points should arise from the ruling of the court

and not on something which was not in controversy raised
before and which the court did not and could not have
10 determined”.

This therefore means that the application for leave to appeal

should raise arguable points of law from the ruling itself. In the
instant case, the applicants raise several points of law that are
not the points of controversy in the former application. For
15 instance, the applicants raised points of law like; whether the
appeal raises noval points of law of great importance that affect
the applicants and many citizens of Uganda and the economy
generally; whether its lawful to use a bank deposit slips (alleged
contracts) against the third party customers who are not only
20 privy to the respondents customer’s contracts; whether the
charging was unlawful; whether the alleged contracts are
contracts of adhesion.

Further the applicants raised points that they want the Court of
Appeal to consider; the appellant court shall be requested to
25 determine the lawfulness of the alleged contracts between the
respondent banks and the respective third party customers by

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 imposing mandatory financial obligations against third parties
who are not privy to their customers’ contract; the Court of
Appeal shall be asked to determine whether or not all these
admitted administrative impediments do not prevent the
5 applicant’s fundamental rights to education and other public
services; the appellate Court shall be requested to determine
whether the said admitted charges do not amount to double
charging from both the applicants and the respondents
customers hence illegal unjust enrichment; the Court of Appeal
10 shall be requested to determine whether the admissions were
sufficient to warrant court to enter judgment on admission to
dispose off the suit pursuant to Order 14 of the CPR; the Court of
Appeal shall be requested to determine that the respondents
sufficiently and unequivocally admitted charging the applicants
15 and the general public bank deposit charges; These are all
points of law that were not a center of controversy in the former
application and are yet to be determined in the suit. I
accordingly find no merit in them. The ruling was restricted to
issues of admission of the bank charges which was the point of
20 controversy.

None of these points that the applicants seek the Court of

Appeal to determine arise from the ruling in Misc. Application
No. 632 of 2015. The respondents cannot seek to appeal matters
that were not a point of controversy in the former ruling. The
25 applicant still has a hearing where he can raise all the points for
determination.

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 I have failed to find any arguable point of law being raised in the
application on the basis of my finding that the admissions were
not sufficient to merit a judgment on admission. I accordingly
find that the applicants have no strong points of law meriting
5 serious judicial consideration.

In conclusion therefore, I dismiss the application for leave to

appeal the ruling of this court in Miscellaneous Application No.
632 of 2015. The application to stay proceedings therefore does
not arise. The main suit should be set down for hearing.

10 Costs of this application shall be in the cause.

It is so ordered.

B. Kainamura
15 Judge
13.09.2017

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