Cengenge v Langoya (Misc Cause No. 2 of 2005) [2023] UGHCCD 37 (28 February 2023)

THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT GULU **MISCELLANEOUS CAUSE NO. 02 OF 2023** (ARISING FROM CIVIL APPEAL NO. 14 OF 2005 FROM THE DISTRICT LAND TRIBUNAL OF GULU)

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CENGENGE CHARLES ....................................

## **VERSUS**

LANGOYA FESTO.................................... 15

## BEFORE: HON. MR. JUSTICE GEORGE OKELLO

## **RULING**

This is an Application seeking to set aside the Judgment of the then District Land Tribunal of Gulu given in Civil Appeal No. 14 of 2005, dated 31<sup>st</sup> August, 2005. There, the Tribunal had received an appeal from the decision of the LCIII Court, Kitgum 25 Town Council, in which the Respondent was successful. The Tribunal over turned that Judgment and held for the present Applicant. Upon the impugned Judgment of the Tribunal, the Respondent who was aggrieved and dissatisfied sued in the Chief Magistrates Court. The Magistrates Court held in favour 30 of the Respondent, prompting the Applicant to appeal to the High Court which decided in favour of the Applicant. On a

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further appeal to the Court of Appeal by the Respondent, the $\mathsf{S}$ Court nullified all the proceedings subsequent to the Judgment of the LCIII Court. The Court of Appeal never mentioned the Judgment of the District Land Tribunal in its Judgment as having been nullified because it had not been brought to its attention. $10$

In this Application, principally anchored on section 33 of the Judicature Act and section 98 of the CPA, the Applicant averred that the District Land Tribunal lacked jurisdiction to hear an appeal from the LCIII Court Judgment. The Applicant lodged an affidavit in support. The Respondent did not, having been served late.

- Both parties agreed that the Land Tribunal lacked jurisdiction in the matter, and urged this Court to set aside the Judgment, 20 given that the Court of appeal did not expressly anul it. What therefore remained contentious was the issue of costs of the Application. - Submitting for the Respondent, Learned Counsel Mr. Okello 25 Oryem Alfred pressed for costs, while the Applicant's counsel, Mr. Komakech Stephen argued that each party bears its own costs since neither party was to blame for the Tribunal purporting to sit in appeal from the LCIII Court Judgment. Learned Counsel argued that his client was unrepresented 30 before the Land Tribunal and therefore proceeded as a lay

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person. Mr. Okello Oryem disagreed, contending that the $\mathsf{S}$ Applicant was to blame for moving the Land Tribunal and should bear costs of this application.

I have considered the rival arguments, and need not repeat wholly. $10$

The default position of the law is that costs of evey matter follow the event, that is, the outcome of the matter, unless court for good reason, orders otherwise. See section 27 of the CPA.

In the present matter, both parties agree that the Tribunal lacked jurisdiction in the matter before it. However, the Court of Appeal did not annul the proceedings before the Tribunal, because neither party drew its attention to it. In a matter such as the present, case law offer good guidance.

It has been held by the apex Court in this country that where a fault in a particular proceeding lies squarely with the court, no party should be penalized in costs and that the correct thing to do in such a case is that each party bears its own costs. See: Mohammed Mohammed Vs. Roko Construction Ltd, Civil Appeal No. 01 of 2013, where the Supreme Court, after holding that the Coram of the court of appeal that delivered the final Judgment in the appeal had a 'stranger'/ member who never participated in the hearing of the appeal and hence the

HUADON

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Judgment could not stand, being illegal, Court set aside the $\mathsf{S}$ orders of the court of appeal, ordered for return of the matter to the Court of Appeal for the Court to constitute "a suitable different Coram to hear and decide the appeal in accordance with the established procedures."

On the issue of costs, the Supreme Court stated thus, "In the circumstances of this Appeal where the Court of Appeal is to blame, we order that each party should bear their own **costs.**" (Underlining is for emphasis.)

The same approach was taken by the Supreme Court in the case of Komakech Geoffrey & M/s Victoria Advocates Vs. Rose Akol Okullo, Electoral Commission and Among Annet Anita, **Civil Appeal No. 21 of 2021**, where after holding that the Court of Appeal was not duly constituted when only two members of 20 the Court had heard the matter regarding why the appellants (lawyers) should not personally bear costs of the High Court election petition, and an application for striking out the appeal of their client (Annet Anita Among). There, the Supreme Court held (inter alia) that the application for striking out the 25 appeal had been decided by the Court of Appeal without **Coram**, and thus the order that costs be personally borne by the Appellants would also be set aside. The Court also ordered that the Motion (seeking to strike out the election appeal) be heard afresh by the Court of Appeal before a proper Coram. On 30

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the issue of costs before the Supreme Court, it held, "We make $\mathsf{S}$ no order as to costs because the appeal arises partly from Court of Appeal error to which the Appellants contributed by failing to object to the hearing of the Motion (by Court of Appeal) for lack of Coram."

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The above decisions therefore show the consistent approach of the Superior court on costs where neither party is to blame for illegality in the decision of a court.

For the foregoing reasons, and given the special circumstances 15 of this application, it is only fair and just that each party bears its own costs of this Application. Accordingly, the Judgment of Gulu District Land Tribunal given in Civil Appeal No. 14 of 2005 is set aside, in the exercise of this Court's powers under section 33 of the Judicature Act and section 98 of the CPA, with an 20 order that each party bears its own costs. I so Order.

Delivered, dated and signed in open court this 28<sup>th</sup> February, 2023.

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HudoQu 28/2/2023 George Okello JUDGE HIGH COURT

Ruling read in Court in the presence of; $\mathsf{S}$

Mr. Okello Oryem Alfred, Counsel for the Respondent. Mr. Komakech Stephen, Counsel for the Applicant. The Applicant in court.

$10$ Ms. Grace Avola, Court Clerk.

> Hut Our 28/2/2023<br>George Okello **JUDGE HIGH COURT**

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