Erachu and Another v Emenyu (Civil Appeal 5 of 2022) [2024] UGHC 757 (13 August 2024)

## The Republic of Uganda

# In the High Court of Uganda Holden at Soroti

### Civil Appeal No. 05 of 2022

# (Arising Civil Suit No. 006 of 2018 of the Chief Magistrate's Court of Kaberamaido at Kaberamaido)

- 1. Erachu Moses - 2. Anyomu Richard ::::::::::::::::::::::::::::::::::::

#### Versus

Emenyu John Peter :::::::::::::::::::::::::::::::::::

# Before: Hon. Justice Dr Henry Peter Adonyo

### Judgement on Non-Starter Appeal

## 1. Background

This appeal arises from the judgment and orders of HW Emmanuel Pirimba -Grade One Magistrate, then stationed at the Chief Magistrate's Court of Kaberamaido at Kaberamaido vide Civil Suit No. 006 of 2018.

The background of this appeal is on the record. It is not considered because this appeal has not been argued.

I will deal only with the procedural lapses and make the appropriate determination made. 25

2. Procedural:

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The appellants filed the appeal on 17<sup>th</sup> February 2022 personally. Subsequently, $\mathsf{S}$ they appear to have been represented by a one counsel Agnes on 23<sup>rd</sup> June 2022, but there is no record of instructions while Counsel Timothy Erabu continuously represented the respondent.

The record shows that multiple adjournments and directions were made by court to enable and in a bid to have the appellants to either argue orally the appeal or 10 file written submissions thereto in vain.

I note that counsel for the respondent by letter received on record on 3<sup>rd</sup> May 2022 prayed that the file be dismissed for want of prosecution because the appellants had taken no step in prosecuting the appeal.

On 6<sup>th</sup> June 2023, the respondent's counsel reiterated this prayer to the Deputy 15 Registrar of this court, stating that since the appeal was filed in 2022, the appellants had not taken any step and it had become a burden for the respondent, who was not even in possession of the land.

Counsel thus prayed that the file be forwarded to me for disposal of the matter with costs to the respondent.

Subsequently, after several adjournments, the last of which was on 13<sup>th</sup> June 2024, the Deputy Registrar of this court did send the file to me on 13/06/2024 for my judicial action and upon my perusal of the file I noted the several adjournments with the appellants continuously being shown as absent. I also noted that the respondent, without being prompted or by being agile had filed on record submissions praying for the dismissal of the appeal for want of prosecution.

From the sequence of events above, it is very clear to me that the appellants, after filing this appeal on 17<sup>th</sup> February 2022 and even after receiving schedules

including one which was issued as late as on 20<sup>th</sup> February 2024 to file their $\mathsf{S}$ written submissions so that they could argue the appeal still failed to do so, signifying that they were no longer interested in prosecuting his appeal.

It should be noted that an appeal can only be considered and determined upon parties arguing the grounds framed which constitutes the reasons for the appeal

which points out a party's disagreement with the decision of the lower trial court $10$ before the appellate court.

Further, Rule 13 Order 43, of the Civil Procedure Rules, provides as to who moves the court with the right to begin as it states thus:

(1) On the day fixed, or on any other day to which the hearing may be adjourned, the appellant shall be heard in support of the appeal. 15

(2) The court shall then, if it does not dismiss the appeal at once, hear the respondent against the appeal, and in that case, the appellant shall be entitled to reply.

In unpacking the above law, it is clear to me it is the appellant who has the right to first move court to be heard in an appeal. That right to be heard is exercised 20 by the parties either through oral or written submissions.

In this appeal, the parties were given schedules on several occasions to file written submissions. The appellants did not do so and since it is the appellants who have the right to begin, the respondent presumably waited for and just filed written submissions, though not in response to the appeal but seeking the appeal to be dismissed for want of prosecution.

The appellants were not bothered yet an appeal is considered non-prosecuted where no arguments are offered substantiating the grounds raised in the memorandum of appeal.

The legal challenge is that an appellate court cannot, on its motion, assume or $\mathsf{S}$ look further than what a raises in support an appeal by way of an argument so as to consequently determine the appeal as submissions give the court the basis of the appellant's case while stating the issues the appellant is aggrieved with.

Also through submissions, the appellant concisely identifies the error(s) he/she is aggrieved with and would want the appellate court to examine while stating their 10 legal or factual proposition.

From that then the appellate court would then proceed to determine the appeal based on the grounds raised and argued, while taking into account the evidence presented in the lower court and any relevant law.

Thus where the grounds of appeal are not argued, they are considered to be 15 abandoned, just like in the instant case and the appeal may be dismissed. This is the position of the law provided in very clear legal terms by Order 43 Rule 14 (1) of the Civil Procedure Rules which provides thus;

(1) Where on the day fixed, or on any other day to which the hearing may be adjourned, the appellant does not appear when the appeal is called on for hearing, 20 the court may make an order that the appeal be dismissed.

In this appeal, the appellants have neglected on several occasion to prosecute their as the record shows that since the filing of the appeal in 2022, the appellants have failed to file their written submissions or indicate to the court whether they preferred to make oral submissions. Further no other reasons have been offered for not proceeding to argue the appeal.

Such failure to file written submissions without giving any lawful reasons for failing to do so signifies lack of further interest in pursuing the appeal and as such the appellants are taken to have abandoned their appeal.

That being the case, this Honourable Court is left with no option but to dismiss $\mathsf{S}$ Civil Appeal No. 05 of 2022 for want of prosecution.

Accordingly, Civil Appeal No. 05 of 2022 is dismissed with costs awarded to the respondent.

I so order.

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Hon. Justice Dr Henry Peter Adonyo

# Judge

14<sup>th</sup> August 2024