Bitego Posiano v Rurenzо Celestine and Others (Civil Appeal 29 of 2020) [2025] UGHC 352 (10 April 2025)

## 5 **THE REPUBLIC OF UGANDA**

## **IN THE HIGH COURT OF UGANDA AT KABALE**

# **CIVIL APPEAL NO. 0029 OF 2020 (Arising from Civil Suit No. 0355 of 2012)**

10 **BIJEGO POSIANO**::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::**APPELLANT**

## **VERSUS**

- **1. RURENZO CELESTINE** - **2. KAMUTERA VELERIANO** - **3. TURYATEMBA TARASISIO**

15 4. **TUMWESIGYE MICHAEL**::::::::::::::::::::::::::::::::::::::::**RESPONDENTS**

**BEFORE: HON. JUSTICE SAMUEL EMOKOR**

#### **RULING**

The Appellant brings the instant Appeal against the Judgment of the Magistrate Grade one at Kabale Chief Magistrates Court delivered on 21/07/2020.

20 The Appellant filed his Memorandum of Appeal on the 20/08/2020 and the Registrar of this Court by letter dated 14/10/2020 called for the lower Court record that was received by this Court on the 25/11/2020.

The Respondents' lawyers Messrs Bikangiso & Co. Advocates on the 23/11/2022 filed what I can best refer to as submissions objecting to the competence of the

- 25 Appeal. Counsel for the Respondents submits that **Order 5 Rule 1 (2)** of the **Civil Procedure Rules** provides for service of summons within 21 days from the date of issue and that under **Sub Rule (3)** of the said **Order** where there is no application for extension of time or where the application has been dismissed the Suit shall be dismissed without notice. It is the contention of Counsel that a - 30 Memorandum of Appeal should be served in the same manner as summons within

5 21 days and that with the Memorandum of Appeal being filed on the 20/08/2020 it is about two years and three months in which the Respondents have remained unserved and that this ground alone makes the appeal incompetent.

Counsel also takes issue with the fact that the Appellant proceeded to file his written submissions in this appeal without a schedule being provided by this 10 Court and without the lower Court record being served upon the Respondents.

Counsel also makes the observation that there is no affidavit of service of any of the above documents upon the Respondents on the Court record.

It is therefore the prayer of the Respondents' Counsel that the secret documents placed on the Court record in form of submissions be struck out for being placed 15 on record unlawfully and that the Appeal be dismissed for non-service of the Memorandum of Appeal to the Respondents with costs.

The Appellant on the 23/01/2024 in person filed a reply to the submissions of Counsel in which he contends that he is being blamed for the mistakes of his former lawyer Namara Alice who failed to serve the Memorandum of appeal 20 within 21 days after filing and Court endorsing the same. That he is just learning now that documents should be filed and served within 21 days and that it should have been his lawyers who he had instructed to do so.

The Appellant raises the argument that the mistake, negligence, oversight or error on the part of Counsel should not be visited on the litigant and that such a 25 mistake constitutes just cause entitling the trial Judge to use his discretion so that

the matter is considered on its merits and relies on the decision in **Banco Arabe Espanol versus Bank of Uganda SCCA No. 0008** of **1998.**

5 The Appellant therefore prays that the mistakes/negligence of his previous lawyer who has since withdrawn from the conduct of his case should not be visited upon him as a lay person.

He prays that this Court exercises its discretion under **Section 98** of the **Civil Procedure Act** to hear his appeal on merit.

10 **Determination.**

I would entirely agree with the submissions of Counsel for the Respondents that the provisions of **Order 5** of the **Civil Procedure Rules** on service of summons apply to service of Memorandums of Appeal and that the same should be effected within 21 days.

15 In the instant case the Appellant filed his Memorandum of appeal on the 20/08/2020 months before receiving the lower Court record on 25/11/2020 and neither was served upon the Respondents.

The claim of the Appellant that at the time he was represented by a lawyer one Namara Alice is borne out by the record as the Memorandum of Appeal and all

20 other correspondences or record are drawn and filed by Messrs Alice Namara & Co. Advocates.

The record however does not contain any Notice of withdrawal of instructions by the said law firm.

Be that as it may I am inclined to accept the submissions of the Appellant that his 25 lawyers were duty bound to effect service of the Memorandum of Appeal and the lower record upon the Respondents as part of their instructions.

5 It remains unclear why the lawyers were unable to carry out this function since they are not party to these proceedings.

The Courts have generally in the interest of justice and equity been accommodative of lay litigants over matters which fall squarely within the province of professional lawyers who possess the necessary training and 10 experience to handle them.

In **Godfrey Magezi and Another versus Sudir Rupaleria [2004] UGSC 25** while considering the matter of the effect of mistakes of Counsel on appeals of litigants Karokora JSC stated'

"*It is now settled that omission or mistake or inadvertence of Counsel ought not*

15 *to be visited on to the litigant leading to the striking out of his appeal thereby denying him justice…"*

The instant Appellant cannot be accused of sitting back but misguided as he proceeded on his own to file his written submissions on 27/04/2022 without the authorization of this Court.

20 I find this to be a fit and proper case in which the omission or mistake of Counsel should not be visited upon the litigant.

For the above reasons the following Orders are hereby issued;

**a) The Appellant is hereby granted 5 days within which to effect service of the Memorandum of Appeal and the record of the lower Court upon** 25 **the Respondents' Counsel.**

- 5 **b) The written submissions filed by the Appellant on the 27/04/2022 are hereby struck out for being filed without authorization.** - **c) The costs of these Proceedings shall abide the outcome of the Appeal.**

**It is so ordered.**

**Before me,**

…………………………………..

**Samuel Emokor Judge 10/04/2025.**