Ayena & 20 Others v Ondia & 6 Others (Miscellaneous Application 21 of 2017) [2023] UGHC 425 (22 November 2023)

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT LIRA **MISCELLANEOUS APPLICATION NO. 021 OF 2017**

(Arising from Misc Cause No. 08 of 2016) (Arising from HCCS No. 006 of 2011)

KRISPUS AYENA ODONGO & 20 OTHERS :::::::::::::::::::::::::::::::::::: **VERSUS**

JOHN FRANCIS ONDIA & 6 OTHERS ::::::::::::::::::::::::::::::::::::

## **BEFORE HON. JUSTICE ALEX MACKAY AJIJI**

#### **RULING**

#### **Back ground**

The background of this Application is that in 2011 a representative suit was filed by the 3<sup>rd</sup> and 4<sup>th</sup> Applicants on behalf of 69,000 claimants who sought compensation for their livestock and a judgment was delivered. However, the representative plaintiffs and lawyers refused to pay all the compensation due to the beneficiaries, changed instructions and used Respondents who were alien to the suit to apply to court to restrain the Applicants from talking about the case saying they were interfering with the execution of the case. When the Application came up for hearing, the Applicants now raised serious matters of law which were ignored by the learned trial judge hence the Application for leave to Appeal.

- 1. This Application was brought by way of Notice of motion under O. 44 of the Civil Procedure Rules, S. 98 of the CPA for orders that; - (a) Leave to Appeal against the ruling of Her Lordship Winfred Nabisinde in Misc Cause No.008 of 2016 be granted.

2. The Application is supported by an affidavit sworn by the 1<sup>st</sup> Applicant and briefly the grounds are;

$\left\vert \mathbf{x}\right\vert$

- (a) That the ruling against the appeal intended involves substantial question of law which ought to be decided upon on merit; such as: - That fact that the learned trial judge erred in law and fact when she failed $i.$ to properly evaluate the evidence on record thereby reaching a wrong conclusion in the ruling/judgment. - That the ruling against which the appeal is intended occasioned a ii. substantial miscarriage of justice - That the ruling against which the appeal is intended is not appealable as a iii. right - There was a manifest bias which clearly obfuscated the mind of the learned iv. trial judge when she delivered the ruling - That the Applicant is dissatisfied with the ruling or orders of this court as $V$ . lodged above in the application seeking for an order for leave to appear to be granted by this court. - That in the interest of justice, leave should be granted vi.

In the affidavit in reply sworn by the Respondent he averred that the Applicant's application for leave to appeal is fundamentally baseless and is of no merit and that it should be dismissed with costs to the Respondents

The Respondent averred that the instant Application and the affidavit in support do not raise any possible grounds of Appeal and should be dismissed.

The Respondent contended that the Application is not based and does not raise any question of law to merit an Appeal and that the Application is an afterthought brought with inordinate delay which is an abuse of court process.

The Respondent further averred that the Applicant's Application for recusal of the learned judge was heard and a ruling on the same was delivered in open court by this honorable court after the Applicant making wild and baseless accusation.

He contended that the learned judge judiciously executed her duties in Misc. Cause No.008 of 2016 and determined the matter on its merit. The Respondent added that the ruling was delivered in Misc. Cause No. 008 of 2016 by this Honorable court free of injustice alleged by the Applicant and it addresses rights of several beneficiaries in HCCS No. 006 of 2011 who are not parties herein

The Respondent further averred that the Applicant's Application is nothing more than a waste of this honorable court's time and that it should be dismissed with costs.

### 3. Legal Representation

M/s Ayena Odongo & Co. Advocates represented the Applicant whereas the Respondents were represented M/s Bashasha&Co. Advocates.

#### 4. Determination of Court

#### Submissions by counsel for the Applicant

- 5. Counsel for the Applicant framed one issue for this court's resolution and it is that; - Whether there are matters of law in the ruling to be considered by an $\dot{1}$ . Appellate Court? - 6. Counsel submitted that an Application of this nature would normally be granted where it appears that prima facie, there grounds of appeal which merit serious judicial consideration. He cited the case of Nabossa Aisha & another V. Binyerere Emmanuel Commercial Court Civil Application No.13 of 2015, where it was held thus "...... what should be considered is whether there are arguable grounds of an appeal. An arguable point must relate to the ruling of the Court showing that there is a possibility that the court erred in law and there is a chance to have it over turned on appeal." - 7. Counsel alluded that had the trial judge scrutinized the Application and affidavits of the 1<sup>st</sup> and 9<sup>th</sup> Applicants, she would have arrived at the conclusion that the same were scandalous, riddled with falsehood, Illegality and with incurable defects both in form and content and that the Application should have been dismissed. Counsel submitted that this is a matter of law, which must further be canvassed before an Appellate Court.

8. On the issue of fraudulent intent and professional misconduct of Alex Bashasha, Counsel submitted that an advocate of this court was seriously raised in all the affidavits in support of Misc. Application No. 8 of 2016. He argued that there was the inclusion of the name of another Akello Betty as the 8<sup>th</sup> Applicant and the other Applicants in the case whose addition to the case was not notified to the Applicant herein which clearly confirmed that the Advocate was trying to circumvent the issue of his fraudulent withdrawal of the 3<sup>rd</sup> Applicant from the case by duress and the withdrawal of instruction from him by the 4<sup>th</sup> Applicant who appeared and testified as a witness in the case. He contended that this is a serious matter of law which was ignored by the learned trial judge and must be considered on appeal.

Counsel argued that the collusion between Alex Bashasha and Ongia John Francis and that of Odongo Isaac shown in the exhibits/ annexures attached marked H to the affidavit of Ogia John Francis and that of Odongo Isaac was eminently highlighted showing that both of them apart from being of the same parentage, from the same villages was born on 10<sup>th</sup> May 1984, and when the properties being compensated under the case were stolen or destroyed between 1987 and 1988 he was only 4 years and is not capable of being an interested party in the suit. Counsel submitted that this is a serious matter of law concerning the possibility of collusion by brothers and their Advocate which was ignored by the learned trial judge and needs to be placed before an appellate court for consideration.

Counsel further submitted that Okello Alyana, an Applicant and many others, some as young as less than 30 years according to his peers is only in his early thirties, and

was only a few years old when the properties being compensated under the case were stolen /destroyed between 1987 and 1988 and is not capable of being an interested party in the suit and cannot be heard to say that he is representing his father who only died in 2016. He contended that the question as to whether or not under age could have had interest in the case when it was instituted is a matter of law which should be referred to an Appellate Court.

Counsel submitted that the failure of the court to investigate the serious allegations leveled against Alex Bashasha and Rogers, a person working in his law firm, Gillian Akullo, the RDC of Oyam District and others implicated in unlawful acts against the 3<sup>rd</sup> Applicant and other Respondents, by ordering them to appear and testify and answer to the allegations directly against them before court is a matter of law.

Counsel contended that the question as to whether or not Applicants were aliens or strangers to the original suit and could only have fraudulently inched themselves in the case at the behest and as a result of the unprofessional conduct of Alex Bashasha, by way of touting and for the sole purpose of defeating the withdrawal of instructions from him by the $4^{th}$ Respondent, is a matter of law.

Submissions by counsel for the Respondent.

The Respondents in their submissions challenged the fact that the Applicants did not file their submissions within the period directed by court. However, in the interest of justice this court will consider them. On the substance of the Application, counsel for the Respondent submitted that the instant Application does not raise any possible grounds of Appeal to merit any serious judicial consideration. He cited the case of Sango Bay Estates Ltd & Others Vs. Dresdner Bank [1971] EA 17 where it was held that; "Leave to appeal an order in Civil Proceedings will normally be granted where prima facie it appears that there are grounds of appeal that merit serious judicial consideration but where as in the present case, the order from which it is sought to appeal was made in exercise of a judicial discretion, a rather strong case will have to be made out."

Counsel further cited the case of Wanzala Enterprises Ltd V. Barclays Bank of Uganda Ltd HCMA No.946 of 2016 where Christopher Madrama Izama. J ruled that granting leave to appeal is dependent on the question of whether there are arguable points of law which merit judicial consideration by the Appellate Court."

Counsel also cited the case of Nabossa & another vs. Binyerere HCCA No. 13 of 2015 where Christopher Madrama Izama. J ruled that; "The fact that the Applicant is aggrieved is not an arguable point of law that merits consideration by the Court of Appeal. What should be considered is whether there are arguable grounds of an appeal. An arguable point must relate to the ruling of the court showing that there is a possibility that the court erred in law and there is a chance to have it overturned on appeal. When no arguable point has been submitted or raised, the Court of Appeal is already overburdened with several appeals and only arguable points of law ought to be forwarded for the consideration."

Relying on the above authorities counsel submitted that the Applicants herein have not raised any arguable point of law as required by the above stated authorities to merit leave from this honorable court to appeal the ruling in H. C. M. A No. 008 of 2016. He contended that the instant Application is riddled with speculations and is nothing more than a waste of this honorable court's time and it will be unnecessary burden to the Court of Appeal if the Applicant's frivolous grievances are allowed further audience in courts of law.

Counsel further submitted that the Applicant's concern about the learned judge were addressed in his Application for recusal of the learned judge and a ruling on the same was attached and delivered in open court by this honorable court after the 1<sup>st</sup> Applicant had made wild and baseless accusations. Counsel argued that the same ruling has neither been challenged by the 1<sup>st</sup> Applicant nor set aside by any court of law hence, the $1^{st}$ Applicant remains legally bound by the same ruling.

Counsel submitted that the learned judge judiciously executed her duties in H. C. M. A No.008 of 2016 and that the ruling by this honorable court is free of the injustices alleged by the $1^{st}$ Applicant and it addresses the rights of several beneficiaries in HCCS No. 006 of 2011 who are not parties herein.

## **Analysis of Court**

This case will answer this application as it was argued by both counsel

## **Issue No.1:**

Whether there are matters of law in the ruling to be considered by an Appellate Court?

In the case of Herbert Sekandi t/a Land Order Developers v Crane Bank Ltd HCMA No 44 of 2007 noted that an applicant for leave to appeal to the Court of Appeal must show that the application for leave to appeal bore substantial questions of law to be decided by the appellant court and that the intended appellant has a bonafide and arguable case on appeal with what amounting to a question of law is that the issue raised or involved one of general principle which is to be decided for the first time or where the question is one upon which further argument and a decision of the superior court would be to the public advantage.

And in Sango Bay Estate Ltd vs Dresdner Bank & Attorney General [1971] EA 17 Spry V. P cited by both parties stated that the principle upon which an application for leave to appeal may be granted as follows: "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 which merit serious judicial consideration...."

My understanding of the above authorities is that an application for leave to appeal to be granted, the Applicant is under a duty to show that the Application bears substantial questions of law to be decided by the Appellate Court and has a bonafide and arguable case on appeal.

Counsel for the Applicant submitted that there were a question of use of aliens to the original suit to file the Application, the question of fraud, illegality, duress and collusion which the learned trial judge did not consider which are serious matters of law and can only be dealt with by an Appellate Court.

Counsel for the Respondents on the other hand submitted that the instant application has not raised any arguable point of law and that the application is riddled with speculations and is nothing more than a waste of court's time.

In the case of Swain v Hillman [2001] 1 All ER 91 Lord Woolf, MR noted;

"That a real prospect of success means that the prospect for the success must be realistic rather that fanciful. The court considering a prospect for permission is not required to analyse whether the grounds of the proposed appeal will succeed, but merely whether there is real prospect of success"

I have observed that this application should have been lodged immediately before Justice Dr. Nabisende Winfred. However, the Applicant filed another application before me for Judicial Review which was dismissed. This was an attempt to trick this court into legal confusion.

From the submissions of both counsel, it is clear that there are no arguable grounds of an appeal. An arguable point must relate to the ruling of the court showing that there is a possibility that the court erred in law and there is a chance to have it overturned on appeal which the applicant has failed to prove to this Honorable court. Also the grounds raised by the Applicant of appeal do not merit serious judicial consideration. An order granting leave to appeal to the court of Appeal is discretional and it is in very exceptional one and therefore an interlocutory appeal there from cannot succeed simply because the trial court might have reached a different conclusion. Therefore, the Applicant ought to know that at one moment litigation comes to an end. An appellance court can only interfere with the exercise of that discretion in very exceptional circumstance to prevent miscarriage of justice. In case 5 where the question relates to only exercise of discretion (not law) just like in this

Application leave should be generally refused. Therefore, allowing such a litigant to go to court of Appeal would be promoting abuse of court process. Given the fact that court cannot facilitate an illegality once the same has been brought to its eyes this application is hereby dismissed with costs to the respondents for lack of merit.

Accordingly, the Applicant is not granted leave to appeal against the ruling in Misc. Cause No. 008 of 2016.

Costs of this Application shall be in the cause.

Dated at Lira this $22^{\frac{1}{2}}$ day of November 2023

asson

**ALEX MACKAY AJIJI**

**JUDGE**