Adam v Akwanhai & 2 Others (Civil Appeal 13 of 2019) [2024] UGHC 1006 (3 October 2024)

Full Case Text

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT ARUA CIVIL APPEAL NO. 0013 OF 2019

# (ARISING FROM CIVIL SUIT NO. 0009 OF 2015)

ADAM MUSLIM:::::::::::::::::::::::::::::::::::: **VERSUS**

## 1. AKWANHAI RAMATHAN DAFALA

#### 15 2. MANSUR DAFALA 3. ABUBAKAR DAFALA..................................

### BEFORE HON. JUSTICE COLLINS ACELLAM

### (Appeal from the judgement and orders of His Worship Kedi Paul, Magistrate Grade 20 1 at the Chief Magistrates Court of Arua at Arua dated 13th May 2019 in Civil Suit No. 0009/2015)

### **JUDGEMENT OF THE COURT:**

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### **Brief introduction**

This appeal is lodged by a Notice of Appeal and Memorandum of Appeal for orders that; a) The judgement and orders of the Learned Trial Magistrate in Land Civil Suit No. 0009

of 2015 are set aside. 30

> b) The Appeal succeeds and the Appellant/Plaintiff is declared as the lawful owner of the suit land.

c) The Respondents pay the costs of this Appeal and that of the lower court.

#### **Grounds of Appeal** 35

The grounds of Appeal as seen in the Memorandum of Appeal state;

- The Learned Trial Magistrate erred both in law and fact when he failed to properly evaluate all the evidence on court record judiciously on ownership of the suit land - and failed to find that the Appellant/Plaintiff is the lawful owner of the suit land which he inherited from his late father and grandfather. - 2. The Learned Trial Magistrate erred both in law and fact when he found that the Respondents/Defendants have possessory rights of ownership and interest in the suit land yet there is clear and unchallenged evidence on court record that the - Appellant/Plaintiff's late father has a big permanent building on the land where the 45 $1^{st}$ & $3^{rd}$ Respondents reside in to date and the $2^{nd}$ Defendant stayed in this same building and broke parts of it and without consent of Appellant and his family and built a semi-permanent building on the suit land without authority. - 50 Grounds in Opposition

In opposition to the Appeal, the Respondents filed written submissions wherein they $\mathsf{S}$ state that the appellant's father never personally inherited any land from the late Hajji Ramathan Abia but rather that the late Adam Ramathan, the appellant's father was an administrator to the estate of the late Hajji Ramathan Abia who was the defendants' uncle and guardian as the defendants were his dependent relatives. Therefore, the appellant's father only had authority over the land as an administrator of the estate of 10 the deceased.

The Respondents submit that the Learned Trial Magistrate properly evaluated the evidence on ownership of land, the grant of letters of administration only confers a duty upon the grantee to hold the estate of the deceased for the beneficiaries as it does not confer ownership of the estate upon grantee as asserted by the appellant. The Learned Trial Magistrate also rightly stated that the defendants/respondents were born and raised on the suit land, in tandem with the testimonies of DW1, DW2 and DW3 including the admission by the appellant and his witnesses and the acknowledgement of the right of the respondents to live on the suit land by the appellant's late father is sufficient evidence to prove that the respondents' father had an interest in the suit land. The Respondent concludes that the appeal as a whole lacks merit and ought to be dismissed with costs.

### Representation

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During the trial, the Appellant was represented by M/S Alaka & Co. Advocates whereas the Respondents were represented by M/S Legal Aid Project of the Uganda Law Society.

I have had the opportunity to peruse through the file inclusive of all pleadings and their Annextures. Both Counsel for the Appellant and Respondents filed their submissions 30 which I have duly put into consideration to come up with this decision. I shall now proceed to enlist the grounds of appeal in contention. The Respondents in their written submissions raised a preliminary objection which I shall consider first.

- Counsel for the Respondents relied on Order 43 rule 1(2) of the CPR that requires a 35 Memorandum of Appeal to set forth concisely the grounds of objection of the decision appealed against. "Every memorandum is required to set forth, concisely and under distinct heads, the ground of objection to the decree appealed against without any argument or narrative". Counsel submitted that upon perusal of the Memorandum of - Appeal, grounds 1 and 2 are argumentative/verbose, provide narrations, offend the law 40 and should be struck out with costs for lack of merit. Counsel relied on the case of; Migadde Richard Lubinga & 2 others v Nakibuule Sandra & 2 Ors, HC CA No.53 of 2019; National Insurance Corporation v Pelican Air Services, CA No.15 of 2003, Kizito Mpumpi vs Seruga Frank Civil Appeal No. 68 of 2010 wherein Justice Tuhaise - held that, the words "Yet there was unanimous agreement by the said vendor's family 45 who all endorsed and witnessed the transaction" are clearly argumentative offending the above cited law and struck off this ground of appeal as incompetent. Counsel concluded that it was therefore his submission that all the grounds of Appeal be struck off the record with costs for offending the rules of procedure as by law established. - In Reply to the Preliminary Objection, it was submitted by Counsel for the Appellant 50 that the grounds of Appeal are specific not general, concise and under distinct heads without any arguments and narration of what trial court stated in her judgement. The

**ABA**

grounds of appeal gives this court proper direction as regarded by law and litigants $\mathsf{S}$ matters in issue. Counsel for the Appellant directed the court to refer to the cases of Nyakecho Annet vs Ekanya Geofrey & Anor CACA No. 14 of 2021, Sietco vs Noble Builders U Ltd SCCA No. 31 of 1995, Attorney General vs Florence Baliaraince CACA No. 79 of 2003 and Katumba Byaruhanga vs Edward Kwewalabye Musoke **CACA No. 2 of 1998.** Counsel prayed that the appeal be heard and disposed off on its 10 merits.

I have carefully analyzed both Counsel's arguments on the preliminary point of law and found that indeed the appellant' grounds of Appeal are not in tandem with the provisions of Order 43 Rule 1(2) of the Civil Procedure Rules that provides for the form of Appeal.

Order 43 rule 1 (2) of the Civil Procedure Rules states that; "The memorandum shall set forth, concisely and under distinct heads, the grounds of objection to the decree appealed from without any argument or narrative; and the grounds shall be numbered 20 consecutively."

In the case of Lukakamwa John vs Kagoya Sarah HC CA No. 0063 of 2020, Court noted that; "In the case of National Insurance Corporation vs. Pelican Air services, Civil

Appeal No. 15 of 2003 the Court of Appeal held that a ground which offended the rules of court $25$ in as far as how grounds of appeal shall be framed should be struck off. Also in the case of Kizito Mpumpi vs Seruga Frank Civil Appeal No. 68 of 2010 where Justice Tuhaise held that, the words "Yet there was unanimous agreement by the said vendor's family who all endorsed and witnessed the transaction" are clearly argumentative offending the above cited rule. Black's Law

Dictionary, 8th Edition at Page 1191 defines an argumentative pleading as; 'A pleading that 30 states allegations rather than facts and thus forces the court to infer or hunt for supporting facts'."

I have analyzed the grounds of appeal alluded to, in respect of ground one the words "... and failed to find that the appellant/plaintiff is the lawful owner of the suit land which

he inherited from his late father and grandfather; ground two the words "... yet there is 35 clear and unchallenged evidence on court record that the appellant/plaintiffs late father has a big permanent building on the land where the 1st and 3rd respondents reside in to date and the 2nd defendant stayed in this same building and broke parts of it and without consent of appellant and his family and built a semi-permanent building on the suit land without authority". 40

These words indeed form an argument and are narrative in nature, these are words which should have been used in the submissions and not the grounds of appeal, they are argumentative and provide a narration which are prohibited by Order 43 rule 1 (2) of the Civil Procedure Rules. Grounds 1 & 2 are therefore struck off the record for offending the Civil Procedure Rules.

While I'm alive to the fact that Order 43 Rule 1(2) of the CPR guides on the procedure and is not a substantive section in the Civil Procedure Act, in this particular case, I have not found any ground to base on that would persuade me to exercise my discretion and 50 invoke Article 126 (2) (e) of the Constitution of the Republic of Uganda, 1995 (as amended) or Section 33 of the Judicature Act Cap 13, to handle this appeal on its merits.

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Accordingly, it is my finding and decision that in this particular Appeal, I cannot bend the rules of natural justice and equity to give an opportunity to have this appeal heard on its merits. The position of the law is clear that parties must succeed on their own pleadings and court is not obliged to create a case for any side. (See Lukakamwa John vs Kagoya Sarah supra)

For the reasons given above, I order as follows:-

1. That Civil Appeal No. 0013 of 2019 is dismissed for offending the provisions of Order 43 Rule 1 (2) of the Civil Procedure Rules with such impunity.

2. The Judgment and Orders of the trial Magistrate Grade 1 in Civil Suit No. 0009 of 2015 remain valid.

3. The costs of this Appeal are awarded to the Respondents.

I so order 20

Dated at Arua this. Aday of Oafolew2024

$25$ Collins Acellam **JUDGE**

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