Alfonsio v Aool & 2 Others (Miscellaneous Application 169 of 2023) [2024] UGHC 865 (20 September 2024)

### **THE REPUBLIC OF UGANDA**

### **IN THE HIGH COURT OF UGANDA HOLDEN AT KITGUM**

#### **MISCELLANEOUS APPLICATION No. 169 OF 2023**

# **(ARISING FROM CIVIL SUIT No. 051/2018: MAGISTRATE PATONGO)**

5 **ALFONSIO ANGWERI APPLICANT**

**Versus**

- **1. AOOL CATHERINE** - **2. OJERA JOE** - **3. OKELLO PATRICK RESPONDENTS**

## 10 **BEFORE HON. MR. JUSTICE PHILIP W. MWAKA.**

#### **Introduction and Background.**

- [1]. The Applicant, in his first prayer, seeks Orders from this Court granting leave to file an Appeal out of time in respect of the Judgment and Orders of His Worship Alioni Emmanuel Drajole, Magistrate Grade I at the Chief 15 Magistrate's Court of Pader at Patongo in Civil Suit No. 051/2018 delivered on the 8th day of June, 2023 (Hereinafter the "Appeal"). - [2]. The Applicant, in his second prayer, seeks Orders that the Court stays execution of the Judgment and Orders in Civil Suit No. 051/2018 cited herein-above. - 20 [3]. Thirdly, an Order that it is just and equitable for the prayers to be granted. - [4]. Fourth and lastly, an Order making provision for Costs of the Application - [5]. The Motion instituting the Application was filed on the 27 th September, 2023 – more than Three (3) months after the decision of the Trial Court. - [6]. The Application is instituted by way of Notice of Motion under **Section 98**

# 25 **of the Civil Procedure Act, Cap. 71 (now Cap. 282); Order 51 Rule 6 and Order 22 Rule 23 of the Civil Procedure Rules, SI 71 - 1.**

[7]. An Affidavit filed together with and supporting the Application is attached deponed by Alfonsio Angweri, the Applicant who is the Intended Appellant and was the Defendant at the Trial in the Lower Court – variously referred to 30 as Okello Alfonso Angweri, supposedly one and the same.

#### **The Applicant's Case.**

- [8]. The Applicant's grounds in the Motion are: firstly, that on the 8th June, 2023 the he attended the delivery of the decision of the Trial Court with which he 35 was dissatisfied and he instructed his then Advocates Messrs. Oyet & Co. Advocates (on an unspecified date) to institute an Appeal of which he was confident that the Appeal had been filed in time; secondly, that on the 21st September, 2023 he came to the *"rude realization"* that the Appeal was not filed in time when he sent his son Lagen Ray Denis to get a copy of the Appeal 40 and the Application for stay of execution of the Orders of the Judgment and the Court in the main suit Civil Suit No. 051/2018; thirdly, that there is a likelihood of the Appeal succeeding; the fourth ground is that there would be a miscarriage of justice if this Application is not granted; and, the fifth and final ground is that it is in the interests of justice that the Application is 45 granted. - [9]. The supporting Affidavit expounds on the grounds cited herein-above stating in substance that following the Judgment of the Trial Magistrate His Worship Alioni Emmanuel Drajole on the 8th June, 2023 in favour of the Respondents herein he instructed his then Attorneys Messrs. Silver Oyet & Co. Advocates 50 to Appeal the Judgment and Orders issued by the Trial Court pursuant to which on the 7th July, 2023 his Advocates filed a Notice of Appeal and a letter requesting the typed and certified proceedings as well as later an Application of an Interim Order for Stay of Execution in the Trial Court presented and referred to as **Annextures "A", "B" and "C"**.

- 55 [10]. The Applicant has now instructed Messrs. Oroma & Co. Advocates to prosecute the Appeal on his behalf – hence the instant Application before the Court. - [11]. The Applicant states that he learnt through a telephone call from Patongo Court that the Respondents herein are in the process of executing the warrant 60 for vacant possession of the land and a Notice to show cause has been issued against him in regard to which if execution is implemented before hearing of this Application a miscarriage of justice will be occasioned and he will suffer irreparable damages. He insists that this Application has been brought without delay citing both Orders sought within the Application for leave to 65 Appeal out of time and for Stay of Execution with the belief that the Appeal has a likelihood of success. - [12]. Significantly, the Applicant does not depone on oath in his supporting Affidavit as to the ground to the effect that he allegedly learnt that the Appeal had not been filed when his son Lagen Ray Denis went to collect copies of 70 the *"Appeal and Application"*. - [13]. Neither does he disclose his source of information in regard to being informed about purported execution proceedings against him supposedly by telephone call from the Patongo Court. - [14]. The Court observes that on the Record of the Court attached to the Motion 75 is a Notice of Appeal drawn and filed by Messrs. Silver Oyet & Co. Advocates - strangely dated the 6 th June, 2023 being before the date of the Judgment lodged in the Magistrate's Court and issued by the Magistrate on the 7th July, 2023.

[15]. There is also a letter from Messrs. Silver Oyet & Co. Advocates similarly dated 6 th June, 2023 filed in the Magistrate's Court on the 7th 80 July, 2023 requesting the typed and certified Record of Proceedings of the Magistrate's Court for purposes of prosecuting the Intended Appeal.

- [16]. Other documents attached to the Motion and the Affidavit include; an Application by Motion for Interim Orders of Stay of Execution with a 85 supporting Affidavit of Okello Alfonso Angweri filed in the Magistrate's Court on the 25th August, 2023 cited as Miscellaneous Application No. 013/2023 arising from Miscellaneous Application No. 012/2023 issued by the Magistrate on the same day – though without a hearing date fixed. This is not within the purview of this Court. - 90 [17]. The Court further observes that neither the certified Judgment nor the Certified Record of Proceedings of the Trial (Lower) Court are on the Record of this Court. The file of the Lower court has not been availed to this Court for scrutiny to determine whether the Record of Appeal has been prepared. - [18]. Also, there is no evidence produced to indicate that execution of the 95 Judgment and Orders of the Lower Court has commenced beyond the statements of the Applicant.

#### **The Respondent's Case.**

- [19]. The Respondents did not file an Affidavit in Reply responding to the Applicants allegations and neither did they appear before the Court on the various dates on which the matter was fixed including; - the 1 100 st November, 2023; 23rd January, 2024; 22nd February, 2024; and, the 20th March, 2024. - [20]. There were no Written Submissions filed by the Respondents in response to the Applicant's Written Submissions. - [21]. The Applicant filed on the Record of the Court Affidavit(s) of Service with the Returns of Service of the 23rd 105 January, 2024 with the Motion issued by the Registrar attached and of the 27th March, 2024 with the Applicant's Written Submissions attached notifying the Respondents of the ongoing proceedings and presenting the Applicant's Submissions respectively. The Court is satisfied that the service was effective and was sufficient to prompt the 110 Respondents to respond to the litigation should they have been interested. - [22]. No Affidavit in Rejoinder was filed.

#### **Representation.**

[23]. Counsel, Ms. Naiga Zakia, and later Counsel, Mr. Ojok Michael, represented 115 the Applicant. The Applicant attended some of the Court proceedings.

[24]. The Respondents were absent and unrepresented.

#### **Proceedings of the Court.**

- [25]. At the proceedings on the 20th March, 2024, the Court issued directions for 120 service of the Applicant's Written Submissions on the Respondent which had been filed on the 14th March, 2024. - [26]. The Respondent did not file any Written Submissions. - [27]. The Court proceeded with the material on Record.

#### 125 **The Applicant's Submissions.**

- [28]. The Applicant contended in his submissions that the Application was brought under **Section 33 (now Section 37) of the Judicature Act, Cap. 16** – which was not cited in the Application; **Section 98 of the Civil Procedure Act**; **Order 51 Rule 6** and **Order 52 Rules 1 and 3 of the Civil Procedure Rules** 130 seeking leave to Appeal out of time and for stay of execution of the Judgment and Orders of the Lower Court – re-iterating the grounds already cited. - [29]. The Applicant's core argument is that Messrs. Silver Oyet & Co. Advocates though instructed timely did not *"file"* the Appeal in time which they only realised when the Applicant through his son Lagan Ray Denis sought to 135 obtain copies of the Appeal documents. - [30]. As a preliminary matter, the Applicant contends that whereas the Respondent was served with the Motion and other Pleadings and Annextures they did not file responsive Pleadings and therefore the Application stands uncontested and unchallenged and as such should therefore succeed.

- 140 See: **Miscellaneous Application No. 333/2010: Stop & See (U) Ltd Vs. Tropical Bank Africa Limited & Hon. Remy Kasule Vs. Jack Sabiti HCCS No. 230 / 2006.** - [31]. In regard to the powers of the Court under the Law, the Applicant submits that the Court is empowered and has the Jurisdiction to grant the remedies 145 sought with each case determined on its merits. - [32]. Substantively, the Applicant citing **Civil Miscellaneous Application No. 126/2019: Abel Balemesa Vs. Mugenyi Yesero** *inter alia* submitted that the Courts should be slow to turn away litigants without hearing them, unless there is good reason, and it would be a denial of justice to shut out Applicants 150 since the Courts have inherent powers to administer substantial justice. - [33]. Concerning the timeliness of filing the Appeal, the Applicant citing **Section 79(1) of the Civil Procedure Act, Cap. 71** and **High Court Miscellaneous Application No. 8/2014: Tight Security Ltd Vs. Chartis Uganda Insurance Co. Limited & Anor** concedes that Appeals are to be filed within 155 thirty (30) days and where an intended Appellant fails to file an Appeal within thirty (30) days it is incumbent on them to show *"good reason"* or *"good cause"* or for that matter *"sufficient cause"* relating to inability or failure or delay in taking a particular step in time in order to justify the grant of the Application. [34]. As such, it is his case that the mistakes of Counsel in the present 160 circumstances should not be visited on him as the litigant. Also, where there are serious issues to be tried, the Application should be granted. See: **SCCA No. 9/1993: Nicholas Roussous Vs. Gulam Hussein Habib Virani** and

**Sango Bay Estates Ltd Et Al Vs. Dresdner Bank AG [1971] EA 17.**

- [35]. In his Submissions, the Applicant introduced an additional ground not raised 165 in his Pleadings contending that he is a peasant farmer ignorant of the procedure to file an Appeal. This would amount to Submission from the bar. - [36]. In conclusion, the Applicant submits that he has demonstrated sufficient cause and prays that the Application is granted. ## **Issues for Consideration.**

170 [37]. The Issue for consideration to be addressed by the Court is - **Whether the Application has shown or demonstrated sufficient cause for grant of leave to Appeal the decision of the Lower Court in Civil Suit No. 51/2018 out of time (enlargement of time).**

### 175 **Considerations and Determination of the Court.**

- [38]. It is trite that an Appeal is a *"creature of statute"* and therefore the right of Appeal and the stipulated period provided within which to institute an Appeal is specified by Statute. The relevant provision in the instant case is **Section 79(1)(a) of the Civil Procedure Act, Cap. 71** which provides for the period 180 within which to institute an Appeal to the High Court from the Judgment of a Magistrate's Court as thirty (30) days and other considerations in computing limitation. - [39]. The provision states as follows **Section 79 – Limitation for Appeals.** - 185 **(1) "Except as otherwise specifically provided in any other Law, every Appeal shall be entered –** - **(a)Within thirty days of the date of the Decree or Order of the Court … … as the case may be, appealed against; but the Appellate Court may for good cause admit an Appeal though the period of** 190 **limitation prescribed by this section has lapsed … …** - **(2)In computing the period of limitation prescribed by this section, the time taken by the Court or the Registrar in making a copy of the Decree or Order appealed against and of the proceedings upon which it is founded shall be excluded."** - 195 [40]. The manner of instituting the Appeal is provided for in **Order 43 Rule 1 of the Civil Procedure Rules, SI 71-1** as follows –

#### **Order 43 Rule 1 – Form of Appeal.**

- **(1) "Every Appeal to the High Court shall be preferred in the form of a Memorandum signed by the Appellant or his or her Advocate and** 200 **presented to the Court or to such Officer as it shall appoint for that purpose."** - [41]. Having that in mind, the Court has had the opportunity to scrutinize the Application, supporting Affidavit, Annextures and Attachments and at the same time consider the chronology of events relevant to filing an Appeal in 205 the circumstances of this case and observes that – - i. It is not disputed that the Magistrate's Court issued its Judgment on the 8th June, 2023 – though a copy has not been availed to this Court. - ii. The issuance of the Judgment of the Magistrate's Court triggered limitation within which the unsuccessful and aggrieved party could 210 institute an Appeal which is stipulated as thirty (30) days. - iii. It is not in dispute that on the 7th July, 2023 the Appellant filed a Notice of Appeal together with a letter requesting the typed and certified proceedings of the Trial Court. - iv. There is, however, no indication that the Notice of Appeal and, or the 215 letter requesting the typed and certified proceedings were served on the Respondent – or for that matter followed up. - v. A manual count would indicate that the thirty days (30) within which to institute the Appeal by filing a Memorandum of Appeal lapsed on the 8th July, 2023. - 220 vi. The Appellant has not filed a Memorandum of Appeal preferring an Appeal in this matter therefore an Appeal has not been duly instituted. - vii. Significantly, there is no indication that the Record of Appeal constituting the typed and certified proceedings of the Lower (Trial) Court were availed to the Applicant to enable him formulate grounds 225 of Appeal. See **Order 43 Rule 1(2) of the Civil Procedure Rules**.

[42]. Therefore, in the circumstances, it would be necessary to exclude or offset the time required by the Registrar in preparation of the documents constituting the Record of Appeal being the certified Judgment and Record of Proceedings of the Lower (Trial) Court in the calculation of the time 230 required by the Applicant to file an Appeal. The rationale is simply that it is the Court that is responsible for preparing the Record for the Appeal – much as it is incumbent of Counsel to pursue the same Record. The Court finds that the Applicant is not barred from filing the Memorandum of Appeal upon being served with the Record required for the Appeal.

# 235 **See: Section 79(2) of the Civil Procedure Act; SCCA No. 1/2001: Crane Finance Co. Ltd Vs. Makerere Properties Ltd; Supreme Court Civil Application No. 3/2012: Tropical Africa Bank Ltd Vs. Grace Were Muhwana.**

[43]. The Court has given due consideration to the other ground laying blame on 240 previous Counsel for supposedly dilatory conduct in not filing the Appeal in time. It would seem odd that the Applicant would seek to lay blame at the doorstep of his previous Counsel for not filing the Memorandum of Appeal timely while at the same time purporting to exonerate himself and current Counsel by arguing that they themselves are even up to now inhibited from 245 filing the Memorandum of Appeal owing to the same reason - absence of the Record of the Lower (Trial) Court. This argument is simply derogatively opportunistic, untenable and at best redundant. It is rejected.

[44]. Having carefully given due consideration to the Application by Motion, the supporting Affidavit and Annextures, highlighting the letter requesting the 250 typed and certified Record of the Lower (Trial) Court and the entirety of this matter, the Application is granted in respect of time within which to Appeal.

[45]. The Deputy Registrar, Kitgum High Court Circuit shall obtain and provide the Applicant/Intended Appellant and other Parties affected the Record of the Lower (Trial) Court in **Civil Suit No. 51/2018** within thirty (30) days.

- 255 [46]. The Applicant/Intended Appellant may prefer an Appeal by filing a Memorandum of Appeal within thirty (30) days of receiving the Record of the Lower (Trial) Court and give due notice to the Respondents. - [47]. Regarding stay of execution sought omnibus, grant of such order is denied with no grounds established. - 260 [48]. Each party shall meet their own costs.

# **Order(s) of the Court.**

- [49]. Accordingly, the Court makes the following Orders: - - 1. The Application is hereby granted in respect of time within which to 265 Appeal. - 2. The Deputy Registrar, Kitgum High Court Circuit shall obtain and provide the Applicant/Intended Appellant and other affected Parties with the Record of the Lower (Trial) Court constituting the typed and certified proceedings in **Civil Suit No. 51/2018** within thirty (30) days 270 from the delivery of this Ruling. - 3. The Applicant/Intended Appellant may prefer an Appeal by filing a Memorandum of Appeal within thirty (30) days of receiving the Record of the Lower (Trial) Court and give due notice to the Respondents. - 4. The Application for Stay of execution is not granted. - 275 5. Each Party shall bear their own costs.

It is so Ordered.

**Signed and Dated on the 20 th day of September, 2024 at Kitgum High Court Circuit.**

280 **Philip W. Mwaka**

**Acting Judge of the High Court.**

**10 |** P a g e

# **Delivery and Attendance.**

This signed and dated Ruling shall on the Directions of the Presiding Judge be delivered to the Parties electronically on **Monday, 23 rdSeptember, 2024 at 10:00am** 285 by the Deputy Registrar, Kitgum High Court Circuit.

1. Counsel for the Applicant: - Ms. Naiga Zakia and Mr. Ojok Michael.

2. The Applicant: - Mr. Alfonsio Angweri (Okello).

3. Counsel for the Respondents: - Absent.

4. The Respondents: - Absent.

290 5. Court Clerk present at the Hearing: - Mr. Atube Michael.

**Philip W. Mwaka**

**Acting Judge of the High Court.**

**Kitgum High Court Circuit.**

**20 th** 295 **day of September, 2024.**