Echelu Engwau v Elelu and 3 Others (Miscellaneous Application 197 of 2019) [2019] UGCA 2109 (21 October 2019)


THE REPUBLIC OF UGANDA

### IN THE COURT OF APPEAL OF UGANDA

### AT KAMPALA

## Miscellaneous Application No. 197 of 2019

Echelu Engwau Joseph Richard :::::::::::::::::::::::::::::::::::: 15

#### versus

- 1. Joseph Elelu - 2. Charles Okwalinga - 3. Augustine Okurut - 4. Departed Asians Property Custodian Board ::::::Respondents

Before Hon. Justice Remmy Kasule, Ag. Justice, Coram: Sitting as a Single Justice

# **Ruling**

The applicant seeks an order of this Court to extend the time within which to appeal against the Judgment of the High Court at Kampala Civil Suit No. 1435 of 2000 and a further order to validate the Notice of Appeal and Civil Appeal No. 178 of 2019.

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30 The application is made pursuant to Rules 2121, 5 and 43( 1) of the Rules of this Court.

An aflidavit in support of the application is deponed to by the applicant and attached to the Notice of Motion.

35 The respondents oppose the application and the second respondent, Charles Okwa-linga deponed to and filed an affidavit in reply to that effect.

Learned Counsel Priscilla Agoe represented the applicant while Byamugisha Gabriel was for the respondent.

This application arises out of the original High Court at Kampala

40 Civil Suit No. 1435 of 2OOO in which Judgment was delivered (J. P. M. Tabaro, J. as he then was) on 28th August, 2003. The suit, which concerned a dispute over ownership of an abandoned Asian property comprised in Plot 21 Gweri Road, LRV, 43 Folio 7 Soroti Town Council, was decided against the applicant in favour of the respondents.

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Dissatisfied, the applicant lodged a Notice of Appeal intending to appeal against the High Court Judgment on 4th September, 2OO3.

The Court of Appeal through Civil Application No. 2 of 2o,o6, brought by the respondents against the present applicant, struck

50 out the Notice of Appeal on 19th May, 2OO9 on the ground that there was inordinate delay on the part of the applicant in prosecuting the intended appeal.

The applicant thereafter sought to review the order striking out the Notice of Appeal through another Civil Application No. 87 of

55 2OO9. He also sought to get an order of interim stay through Civil Application No. 93 of 2OO9.

The Registrar, Court of Appeal dismissed Civil Application No. 82 of 2OO9 as being without merit on 16th March, 2OlO. The Applicant made a Reference No. 18 of 2O1O to a Justice of the Court of Appeal (Nshimye, JA, as he then was) who too dismissed the Reference against the applicant on 25th October, 2O1O.

65 The applicant then lodged Civil Application No. 182 of 2OlO applying that the Court of Appeal extends the time for him to appeal out of time against the Judgment in High Court Civil Suit No 1435 of 2OOO. This application was dismissed by the Registrar, Court of Appeal, ort2"d March, 201 1. The applicant then filed Civil Reference No. 16 of 2O11 on 17th March, 2O11 seeking a review by the Justice of the Court of Appeal, the decision of the Registrar, Court of Appeal, dismissing the application to appeal out of time. This Civil Reference is still pending disposal by the Court of Appeal.

However, on 6th Augurst, 2O19, the applicant, instead of pursuing the Civil Reference No. 16 of 2OLL, opted to lodge Miscellaneous Application No. 197 of 2Ol9 applying for extension of time to appeal High Court Civil Suit No. 1435 of 2OOO and that the Notice of Appeal and Civil appeal No. 178 of 2OL9 be validated.

The holding of this Court is that, to the extent that the decision of the Registrar of this Court in Civil Application No. 182 of 2O1O dated 2"d March, 2OOl, refusing to extend the time to enable the applicant appeal out of time, has not been in any way varied through the set procedure of a Reference, then that decision

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remains the valid decision of the Court of Appeal. It is accordingly wrong of the applicant to now lodge afresh this Miscellaneous Application NO. 197 of 201.9 praying for the same reliefs that the same Court has already adjudicated upon through its Court Registrar in Civil Application No. 187 of 2O10. By not pursuing prosecution of the Civil Reference No. 16 of 2O11 and now resorting to lodge and pursue Miscellaneous Application No. 197 of 2o-19, the applicant is committing abuse of Court process.

90 This Court accordingly dismisses this application with costs to the respondents.

Dated at Kampala is 21"t day of October, 2OL9.

7 Remmy Kasule

Ag. Justice of App al

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