Abwongoto and 4 Others v Atiang (Civil Appeal 7 of 2023) [2024] UGHC 342 (8 May 2024)

The Republic of Uganda

In the High Court of Uganda Holden at Soroti

Civil Appeal No. 7 of 2023

## (Arising Civil Suit No. 004 of 2020 of the Chief Magistrate's Court of Kumi at Kumi)

$\mathsf{S}$

- 1. Abwongoto Vincent - 2. Okoboi Denis - 3. Oumo Denis - 4. Ikwalangat Barbra - 5. Abwongoto Charles 15

## Versus

**.....................................**

Atiang Christine ::::::::::::::::::::::::::::::::::::

## Before: <u>Hon. Justice Dr Henry Peter Adonyo</u>

## Ruling on Non prosecuted Appeal

This appeal arises from the judgment and orders of the Grade One Magistrate stationed at the Chief Magistrate's Court of Kumi at Kumi delivered by HW Maloba Ivan.

The background of this appeal is on record. I have opted not delve into them on $\mathsf{S}$ the grounds that this appeal has not been argued. I will only consider procedural inequities in this appeal and then make appropriate determination.

This appeal was filed on 6<sup>th</sup> January 2023 by M/s Legal Aid Project on behalf of the appellants.

The record show that multiple adjournments and directions were made so as to 10 enable the appellants get the occasion to either argue or file written submissions in regard to their appeal in vain.

On 24<sup>th</sup> August 2023 in which the court directed the parties to file and serve their written submissions as follows; -

- The appellants by $25/09/2023$ 15 - The respondent by 10/10/2023 and; - Any rejoinder by 24/10/2023.

Further directions were given on 10/01/2024 to the parties to file and serve their written submissions with the appellants required were to file and serve their submissions by 24/01/2024, the respondent by 14/02/2024, and a rejoinder, if

any, by 21/02/2024.

On 21/02/2024, Counsel Ajum for the appellants prayed for an adjournment, which was granted till 14/03/2024.

On 14/03/2024, the Deputy Registrar noted that the parties had not complied with the directives to file their final written submissions, even though the appeal 25 had been filed in court since January 2023.

Upon noting such failure, the Deputy Registrar forwarded the file for my action.

- From the sequence of events above, it is evident to me that the appellants after $\mathsf{S}$ having filed this appeal on 6<sup>th</sup> January 2023 and even after being given schedules to have filed their written submissions on two different occasions so that the appeal is argued, failed to do so signifying that they were no longer interested in prosecuting their appeal. - It should be noted that an appeal can only be determined upon parties arguing 10 the grounds framed for the appeal by pointing out a party's disagreement with the decision of the lower trial court before the appellate court.

Order 43, rule 13 of the Civil Procedure Rules, provides for the right to begin as it states thus;

(1) On the day fixed, or on any other day to which the hearing may be adjourned, 15 the appellant shall be heard in support of the appeal.

(2) The court shall then, if it does not dismiss the appeal at once, hear the respondent against the appeal, and in that case, the appellant shall be entitled to reply.

The above provision of the law necessitates the hearing of the appellants with 20 the practice of this Honourable Court being that the hearing of an appeal is presented by parties either through oral or written submissions.

In this appeal, parties were directed to file written submissions. The appellants did not do so and since it is the appellants who have the right to begin, the respondent presumably waited for and thus could not make any response to a non-starter appeal.

An appeal is considered non-prosecuted as there would be no arguments substantiating the grounds raised.

- Since an appellate court thus court cannot, on its motion, assume what $\mathsf{S}$ arguments an appellant would intend to raise in support of an appeal so as to consequently determine the appeal before it as such submissions give the court the basis of the appellants' case while stating the issues the appellant is aggrieved with. - Through submissions, the appellant concisely identifies the error(s) he/she would 10 want the appellate court to examine while stating their legal or factual proposition.

From that then the appellate court would then proceed to determine the appeal based on the grounds raised and argued, while taking into account the evidence presented in the lower and any relevant law.

Where the grounds of appeal are not argued, they are taken to be abandoned just like in the instant case.

The position of the law is very clear. Order 43 Rule 14 (1) of the Civil Procedure Rules provides for the dismissal of an appeal where an appellant default to prosecute his/her appeal. It provides that;

(1) Where on the day fixed, or on any other day to which the hearing may be adjourned, the appellant does not appear when the appeal is called on for hearing, the court may make an order that the appeal be dismissed.

In this appeal, the appellants have failed to prosecute their appeal by filing their written submissions and no reasons have been given for not doing so.

Such failure to file written submissions without any lawful reasons signifies lack of further interest in pursuing the appeal and as such they appellants are taken to have abandoned their appeal. That being the case, then this Honourable court

is left with no option but to dismiss Civil Appeal No. 07 of 2023 for want of $\mathsf{S}$ prosecution.

Accordingly, Civil Appeal No. 07 of 2023 is dismissed with costs awarded to the respondent.

I so order.

$10$

Hon. Justice Dr Henry Peter Adonyo

Judge

8<sup>th</sup> May 2024