Attorney General v Okello (Civil Appeal 92 of 2022) [2024] UGHC 600 (9 July 2024)

## **THE REPUBLIC OF UGANDA**

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

### **CIVIL APPEAL NO. 92 OF 2022**

**(Arising from Misc. Application No. 224 of 2022)**

**(Arising from Civil Suit No. 038 of 2006)**

**ATTORNEY GENERAL ===================================APPELLANT**

## **VERSUS**

**GALDINO MORO OKELLO AND 21,283 OTHERS ============RESPONDENTS**

# **BEFORE: HON. MR. JUSTICE PHILLIP ODOKI RULING**

### **Introduction:**

[1] This appeal was filed by Notice of Motion under Section 98 of the Civil Procedure Act, Cap 71; Section 33 of the Judicature Act, Cap 13; and Order 44 rule 1(1) (u) & Order 50 rule 3 of the Civil Procedure Rules SI 71 -1. The appeal seeks for orders that the ruling and orders of the Deputy Registrar of this Court, His Worship Ntalo Nasulu Hussein, dated 20th October 2022, in High Court Misc. Application No. 224 of 2022 be set aside; a declaration that the Applicants in High Court Misc. Application No. 224 of 2022 are not claimants/plaintiffs in High Court Civil Suit No. 038 of 2006; and the costs of this application be provided for.

## **Background:**

[2] In 2006 Adyera Nobert and 7 others filed High Court Misc. Application No. 0037 of 2006. They sought for the leave of the Court to file a representative suit on their own behalf and on behalf of 1700 others against the Attorney General. On the 23rd November 2006 the Registrar of this Court granted the application and an issued a representative order to the applicants. Pursuant to the representative order, High Court Civil Suit No. 038 of 2006 was filed against the Attorney General seeking for, inter alia, compensation for livestock of the plaintiffs which were allegedly confiscated by government soldiers between 1986 and 1996. On the 11th of September 2008 the plaintiffs and the Attorney General entered into a consent settlement which was recorded by Justice Remmy Kasule, Judge of the High Court (as he then was) in which the Government of Uganda agreed to compensate the plaintiffs. In order to realize the compensation, the parties were to carry out verification of the claims of some claimants, assess the value of the livestock, agree on general damages, agree on lawyers' fees and to furnish the Court with periodic reports as to the execution of the settlement so as to enable Court supervise and ensure its smooth execution to completion.

[3] In 2022, an application was filed before this Court vide Miscellaneous Application No. 224 of 2022 by M/s Reeve Advocates & Solicitors. The applicants were stated to be Adyera Nobert and 16 others versus Attorney General. It was alleged in the application that since the recording of the consent settlement, so many matters regarding the execution of the settlement had arisen and yet none of parties had applied to the Court for direction on those matters. It was also alleged that in 2016 a verification exercise was conducted of the claimants and the Attorney General made a report which had 16,946 claimants. After display of the report in the notice boards of all sub counties in Acholi sub region, multiple defects were discovered in the report including names of ghost claimants, removal/ omission of genuine claimants and understatement of the number of animals claimed. The defects discovered necessitated the formation of a compensation committee of an association called Acholi War Debt Claimants Association, which association was stated to be representing the interest of all the claimants/plaintiffs. The compensation committee was chaired by Hon. Justice Galdino Moro Okello, a retired justice of the Supreme Court. The committee carried out the exercise and made a report having a total of 21,266 claimants. However, the Attorney General refused to harmonize the 2016 report and the report of the committee. It was further alleged that the Attorney General, in connivance with some of the original 17 plaintiffs, without notice to the rest of the persons on whose behalf or for whose benefit the suit was instituted and without the harmonization, had started paying suspected ghost claimants whose names do not even appear on the 2016 report. The applicants prayed that all the persons on whose behalf or for whose benefit the suit was filed should be added as plaintiffs to the suit and that the Court should give direction regarding the execution of the consent settlement.

[4] On the 22nd September 2022 an amended application was filed in which the Respondents in this appeal (Galdino Moro Okello together with 34 named applicants and 21,249 unnamed persons) were stated to be the applicants.

[5] On 20th October 2022, the Deputy Registrar of this Court gave his ruling in the application. He allowed the application. He ordered that the Appelant should sit with the Respondents and their lawyers for the purpose of, harmonizing the 2016 report with the due diligence report; verifying of the various categories of claimants and determining the value of the livestock; agreeing on the amount of general damages or refer the matter to Court for decision on it; and ageing on the lawyer's fees or refer the matter to Court for taxation. The Deputy Registrar further ordered that a private audit firm should be appointed by the Court to carry out a forensic audit of all payments so far made under the auspices of the consent settlement. The directives were to be complied with within 4 months from the date of the ruling.

[6] The Attorney General being dissatisfied with the ruling and orders of the Deputy Registrar filed the instant appeal. 8 grounds of the appeal were formulated.

### **Legal representation and submissions:**

[7] The Appellant was represented by Mr. Wanyama Kodoli and Ms Susan Apita from the Attorney General's Chambers. The Respondents were represented by Mr. Crispus Ayena Odongo of M/s Reeve Advocates & Solicitors. The Court gave directives to counsel to file written submission, which directives were complied with.

[8] In his written submissions, counsel for the Respondents raised two preliminary objections. First, that the procedure for appealing against the decision of a district registrar is by way of endorsement upon the record at the request of any party under Order 48 rule 7 of the Civil Procedure Rules and not by Notice of Motion under Order 50 rule 3 of the Civil Procedure Act. Secondly, that this appeal was filed out of time. Counsel argued that under Order 48 rule 6(3) of the Civil Procedure Rules, the appeal has to be filed within 14 days from the making of the order or decision and yet in the instant case it was made after the prescribed 14 days.

[9] In reply to the preliminary objections, counsel for the Appellants submitted that this appeal is not governed by Order 48 of the Civil Procedure Act but rather Order 50 of the Civil Procedure Rules and Section 76 (1) (h) of the Civil Procedure Act. Counsel argued that the appeal was commenced in time by a Notice of Appeal filed on the 25th October 2022. In support of their submission, counsel relied on the case of *Attorney General of the Republic of Uganda versus The East African Law Society and another East African Court of Justice Application No. 1 of 3013*.

## **Analysis and determination of the Court:**

[10] On the first objection which was that the procedure for appealing against the decision of a district registrar is by way of endorsement upon the record, it is very clear from the submission of counsel for the Respondents that he was under the misapprehension that the Deputy Registrar of this Court who gave the decision in High Court Misc. Application No. 224 of 2022 was a district registrar whereas not. There is a clear distinction between a district registrar and a deputy registrar of a High Court Circuit. District registries and district registrars are established under Order 48 rule 2 of the Civil procedure Rules. It is the Chief Justice who may from time to time, by statutory order, appoint for any area a district registry and a district registrar. There is nothing to show that High Court Registry at Gulu is a district registry and that the Deputy Registrar who entertained High Court Misc. Application No. 224 of 2022 is a district registrar. At the time of filing High Court Misc. Application No. 224 of 2022, the High Court registry at Gulu was for Gulu High Court Circuit covering the areas of Kitgum, Omoro, Pader, Amuru, Gulu and Patongo as provided for in *The Judicature (Designation of High Court Circuits) Instrument, 2016, No. 55 of 2016*. In addition, Section 2 (s) of the Civil Procedure Act defines a "registrar" to includes a district and deputy registrar. A district registrar is therefore different from a deputy registrar.

[11] Therefore, the procedure for appealing against the decision of a district registrar, by way of endorsement upon the record under Order 48 rule 7 of the Civil Procedure Rules is not applicable when appealing against the decision of a deputy registrar. Order 44 rule 1(u) of the Civil procedure Rules provides that an appeal shall lie as of right from an order made in interlocutory matter by a registrar. Under Order 50 rule 8 of the Civil Procedure Rules, any person aggrieved by any order of a registrar may appeal from the order to the High Court. The appeal is by motion on notice and not by an endorsement upon the record. I therefore find that the preliminary objection that this appeal should have been filed by way of endorsement upon the record is without any merit. It is accordingly overruled.

[12] On the second objection was that this appeal was filed out of time, Order 50 of the Civil procedure Act does not provide the time within which an appeal against the decision of the registrar has to be filed. Therefore, the general limitation of time for filing appeals as provided for by Section 79 of the Civil Procedure Act applies. Section 79(1) thereof provides that:

*"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; or*

*(b) within seven days of the date of the order of a registrar,*

*as the case may be, appealed against; but the appellate court may for good cause admit an appeal though the period of limitation prescribed by this section has elapsed."* Underlined for emphasis.

[13] The above provision is emphatic. An appeal must be filed within seven (7) days from the date of the order of the registrar. See: *Wilson Milton were and another versus Lawrence Katende High Court Misc. Application No.074 of 2020*; *Murangwa Bruno & Anor versus Luyimbazi James High Court Misc. Appeal No. 0016 of 2019*; and *Birihariirwee Eryeza versus Bright Tom Amooti High Court Civil Appeal No. 0042 of 2022*. Where an appeal is not filed within 7 days as provided for under Section 79 (1) (b) of the Civil Procedure Act, leave must be sought to appeal out of time. Without obtaining such leave, the appeal would be incompetent.

[14] In this case, the decision of the Deputy Registrar was made on the 20th October 2022. The appeal was instituted by Notice of Motion which was filed on the 7th November 2022. This was after 17 days from the date when the order of the Deputy Registrar being appeal against was made. Although this court has the discretion to admit the appeal out of time, the extension cannot be as a matter of course. The Appellant had the onus of proving sufficient cause by explaining what prevented the filing of the appeal in time. In this case no application was filed giving any good cause why this Court should admit the appeal out of time.

[15] In *Uganda Revenue Authority Versus Uganda Consolidated Properties Ltd Court of Appeal Civil Appeal No. 37 of 2000* Twinomujuni JA stated that:

*"Time limits set by statutes are matters of substantive law and not mere technicalities and must be strictly complied with."*

[16] In *Re Application by Mustapha Ramathan for order of orders of Certiorari, prohibition and injunction, Court of Appeal Civil Appeal No.25 of 1996* Barko, JA underscored the nature, purpose and effect of statutes of limitation when he stated:

*'Statutes of limitations are in their nature strict and inflexible enactments. Their overriding purpose is interest reipublicae ut sit finis litum, meaning that litigation shall be automatically stifled after fixed length of time, irrespective of merits of the particular case. A good illustration can be found in the following statement of Lord Greene M. R in Hilton Vs Stton Steam Laundry [1946] 1 page 81 where he said-*

*"But the statute of limitations is not concerned with merits. Once the axe falls, it falls, and a defendant who is fortunate enough to have acquired the benefit of the statute of limitation is entitled, of course, to insist on his strict rights."'*

[17] I have not found any merit in the submission of counsel for the Appellant that the appeal was filed by way of Notice of Appeal. First, there is no law which provides that an appeal from the orders of the registrar can be preferred by a notice of appeal. Secondly, the decision of the East African Court of Justice in *Attorney General of the Republic of Uganda versus The East African Law Society and another* which was relied upon by counsel for the Appellants was cited out of context. In that case, an application was filed for stay of execution pending appeal. The applicant had filed a notice of appeal and requested for proceedings for purposes of filing the record of appeal. In the instant appeal, the Appellant did not file the notice of appeal pending being given the record of proceedings in High Court Misc. Application No. 224 of 2022. This is discernable from the fact that no request was made for the record of proceedings. The notice of appeal itself did not indicate that the Attorney General intended to file the Notice of Motion after being availed with the record of proceedings in High Court Misc. Application No. 224 of 2022. The authority is not in any way helpful to the Appellant.

[18] In the end, I find that this appeal is not properly before this Court having been filed out of time without obtaining leave of court. I do not find it gainful to determine the merits of the appeal. The appeal is accordingly struck out with costs to the Respondents.

I so order.

Dated and delivered by email this 9th day of July 2024

Phillip Odoki

**Judge.**