Kayigwa v Prof. Eleanor (Miscellaneous Application No. 542 of 2022) [2022] UGHCLD 204 (17 October 2022)

### THE REPUBLIC OF UGANDA

#### IN THE HIGH COURT OF UGANDA AT KAMPALA

### **LAND DIVISION**

### **MISCELLANEOUS APPLICATION NO. 0542 OF 2022**

(Arising out of Civil Appeal No. 054 of 2019).

(Arising from M/A NO. 80 OF 2018 of Chief Magistrate Court of Entebbe at Entebbe).

(Arising from CRB 819 OF 2018: Uganda vs Robert Kayigwa and others before the Chief Magistrate Court, Entebbe).

10 KAYIGWA ROBERT ....................................

**VERSUS**

PROF. ELEANOR MAXINE ANKRAH ....................................

$\mathsf{S}$

#### **RULING**

#### Before: Lady Justice Alexandra Nkonge Nkonge

#### Introduction:

This application seeks under section 33 of the Judicature Act, Cap. 13 and section 98 of

20 the CPA, Order 44, rules 2,-4; order 52 rules 1 and 3 of the Civil Procedure Rules, for orders that the respondent's appeal in this court: CA No. 054 of 2019 be struck off on the court record; and costs of this application.

#### Grounds of the application:

The grounds of this application are laid out in the affidavit in support of the application, but 25 briefly that the respondent, Professor Eleanor Maxine Ankrah did not seek leave of court to file the appeal as required by law; that no dilatory conduct in bringing this application and that it is in the interest of justice that this application is granted.

The appeal which is the subject of this application, ariscs from the orders made against thc respondent in an application that was filed by thc Robcrt Kayigwa (the applicant) against Professor Eleanor Ma;<inc Ankrah and othcrs, in thc chicf Magistrate court at l,lntebbc vidc: Ifrlscellaneous Appllcatlon No, 80 of2O7B.

## 5 EepLese,atot4ertj

Thc appticant Kayigwa Robcrt was rcpresentcd by M/s Kabega, Bogezl & Bukenga Co. Adt ocates. Professor llleanor Majxine Ankrah as thc intendcd appcllant, also the rcspondcnt in this application, was rcprcsentcd by M/s Tutklt tze & Co. Ad.eocqtes.

In rcspcct to this application, thc rcspondcnt's submission wcrc lllcd by M/s Masereka, Mangenl

& co. Adaocqtes. Thc samc firm had rcprescnted thc rcspondent during the trial and had secured the record of proccedings in preparation for thc appcal. 10

## Backoround to the aD. Dllcation/o,ooeal:

The main prayer in this application is for an order to strikc off thc appeal filed by the respondent herein vide: ctvll appeal No. o54 ol 2079. The grounds as laid out in the affidavit in support are that the appellant/respondcnt did not seek lcavc of court to file the appeal, as rcquircd by law.

secondly, that givcn thc fact that the lowcr court in MA No. Bo of 2o7a had issued ordcrs against the appellant for contcmpt of court which shc had disobeyed, and on account of the unpurged contempt, shc therefore had no audiencc bcfore this court in relation to both the appca.l and in relation to this application.

The decision which is the subjcct of the appcal was filcd in thc trial court under sectlo^s 7l (2) ol the MCA and 64 of the CPA by Mr. Kayigwa Robcrt on Zrh December, 201g, vide: Ifrlscello.neous Appllcatlon No. 80 oJ 2OlB.

He sought therein an award of compensation and an ordcr for him to bc restorcd in his home where he claimed to have becn unlawfully evicted by thc appcllant, prof Eleanor Maxinc Ankrah and others. 25

The said homc was located in thc land comprised in Buslro Block 42g ptot 792 forrnally, plot 22 at Bwgtri Bukasa, Klsubt Po,rlsh, Ko.tabl sub-county. Kayigwa further sought contcmpt of court orders that were issucd on 28rh Septembcr, 20 1U.

The trial court rcferring to thc ordcrs made in thc criminal proccedings vide CrtrrL case lvo. oa19 ol 2o18 bctween thc statc on the one hand and Robcrt Kayiglva and othcrs on thc other 30

hand, made cxplicit orders binding thc parties to maintain peace and do nothing to spark violence

court found that in total disregard of that ordcr Ankrah and hcr agents, in thc company of her counsel, other respondents in that application and l)olicc officcrs relied on a forgcd order 14th

october, 2018, invaded and evicted the applicant from his land/home destroying several valuables, contrary to the court ordcr.

It is also worth noting at this stage that both partics filcd written submissions as directed by court in relation to this application. Ilowcvcr thcy ncver filcd any submissions in relation to the appeal and, as a matter of fact, the appellant never followcd up the appeal.

## 10 Ana. s of the lq.w:

counsel for the applicant cited thc principle as highlightcd in Ko.bo.le (I^luersltg ps Henry Rutoganlka & Anor: cA No. oo7 of 2076lhat a party in contcmpt of an cxisting order of court cannot be heard in a different but rclatcd causc or motion unlcss and until such a person has purged himself/herself of the contcmpt.

- <sup>15</sup> That the principle is meant to dctcr parties from contcmpt and scnd strong mcssages that <sup>a</sup> court order should bc obeycd; and that thcrc arc conscqucnccs for disobcdicncc of court ordcrs. It is also trite that a court of law ncvcr acts in vain and as such issues touching on thc contempt take precedencc over any other casc of invocation of thc jurisdiction of court: (Wtldl{e Lodges Ltd ls Countg Couacll of Narok & Anor [2OOS] EA 944 (HCK)). - <sup>20</sup> The party has a right to challengc an offcnding ordcr and may in addition also apply to court for a stay of execution of that order pending its rcview, variation or appeal. without a stay ordcr, any failure by the party intending to seek a review or lodgc an appeal to comply vrith the order would attract sanctions against such party. - 25 In the present case, thc appellant l)rofessor Ankrah who was thc 1sr respondcnt in the application before the trial magistrate was rcprescntcd by thc firm of M/s Mo.sereka, Illq.ngenl And. co. aduocdtes. The trial court found that they never filcd a rcsponsc to that application.

The court having satisfied itself that thc rcspondents in that application had been duly served therefore rejected the submissions in rcpry by her on thc basis that shc had not seen it fit to reply to the application in the first place and therefore had excluded hersclf from the court

30 proceedings. she thercupon filed an appcal whcre shc among othcrs sought to challenge the exparte proceedings against her.

### Conslderqtlon bu court:

The issues to bc rcsolved in this application wcrc:

- 7. Whether the respo^dent ha,d to seek leave before qppealtng/uhether the qppeql ls lncornpetent? - 5

- 2. Vlhether the Tespondent ts gwiltg oJ dllatory conduct ln pursulng the appeal? - 3. Whether the respondent should first purge contenqrt beJore appeallng?

## 4. Whether the respond.ent Jalled to lollow essentlq.l steps of court process?

## Issue lvo. 7: Whether the respo4d,ett hqd to seek leque before appeallns/whether the ap p e al Ls l\ c cl4pele!!?

It was the applicant's claim that the appcal was lllcd out of time and ncithcr was an application filed for leavc to filc out of time nor was therc any rcasonable cause shown as to why it was not lodged within the prescribed timc. Counsel rclicd on thc case of Alsangl Vs MuJunl (1975) EA. I79, to support his position.

The bedrock ofthe respondent's reply howcvcr was that her appcal was lodgcd in timc and thcrc was no need to seek for leavc first before lodging thc appeal and that it is properly lodged in this court and the application was therefore basclcss as it was only intcndcd to mislead court and waste valuable timc.

The first qucstion is thercforc whcthcr or not thc appcllant was compctcnt but spccifically, whether or not she needed to seek prior leavc of court to cxtcnd timc for lodging the appeal. ln their reply, the appellant/ respondent claimcd that thc appcal camc up for hearing on Lhc 2Z1n day of September,2O2O before IIis krdship Musa Ssekana for mcntion, the lcarncd judge

directed that the appeal be placed bcforc thc Rcgistrar to bc handlcd by thc Land Division of the High Court sincc it was a land rclatcd mattcr. 25

The process of transferring the filc from the Civil Division to Land l)ivision of the High Court of Ugarda had affected the fixing of the matter for hearing as it took long for it to be assigned to a judge, to handle the appeal. That such fault/delay on part ofthe court system cannot be imputcd

on our client who is arl innocent litigant, 30

> Further that one of the issues that affectcd thc progrcss of the appeal wcre the restrictions imposed throughout the country duc to Cor,,rd I9 bctween 2O2O and, 2021. Counsel therefore submitted that the appellant/rcspondent was eager and very much intcrested in thc progress of the appeal and to have it detcrmined on its mcrits; and was not guilty of dilatory conduct having

undertaken all the necessary stcps and measurcs to havc it fixed for hcaring, 35

\J,^ <sup>4</sup>

An appeal is preferred in the form of a memorandum of appeal signed by the appellant or his or her advocate. tsy virtue of sectlon 79(11 ol the cpA the intcnded appellant is required to filc <sup>a</sup> memorandum of appeal within 30 days from thc datc of the dccree or order of court; or within seven days of the order of a registrar.

5 Ilowever under sectlon 79 (2) oJ the cpA in computing the period of limitation, which in this casc was 30 days, the time takcn by the court in making a copy of the dccrec or ordcr appealcd against and the proccedings upon which thc appcal is foundcd is to be excluded.

This court noted that the ruling sought to be challenged was delivered on 24rh May, 20lg. The court forwarded the record of proceedings to thc civil division of the High court on lgrh Junc, 2018, where the appeal was originally filcd. Thc rccord of procecdings was obtained on 7rh Junc, 2019 and a mcmorandum of appeal filcd same day.

Under those circumstances, taking into account thc fact that the record of proceedings was availed about a year after the ruling was delivered and that immediately thereafter the memorandum of appeal was filed, this court rcjects the argument that the appeal was filed outside the time as stipulated by law.

Accordingly and in response to lsslle ilo. r, thc appellant did not to seek prior leave ofcourt before lodging the appeal.

## Issu,e No. 2: Whether the resDondent ls atllltu of d.llatoru conduct ln pursulno the appea.l?

The respondent refuted the applicant's claim that in procccding with the appeal, she was guilty of dilatory conduct. That on the contrary that the appcllant/respondent has diligently prosecuted the appeal which carne up for hearing on the 22.,rday ofscptember, 2O2O before thc civil divrsron bcfore it was transferred to the l-and Division of the I ligh Court. 20

That the process of transferring the file from the Civil Division to the tand Division of the High court of uganda affected the matter as it took long for the filc to be assigned a judge to handlc

the appeal. 25

t0

Furthermore, that on the 24u d,ay of August, 2021, this court issued directions in which the respondent was required to file submissions by 3d Scptembcr, 202I . The assertion thercfore that failure to adhere to court directions was a manifcstation of lack of interest was refutcd by thc respondent who argued that such fault and delays blamed partly on the court system could not

be imputcd on the innocent litigant. 30

> counsel also partly attributed the delay to thc restricl.ions imposed throughout the country duc <sup>10</sup>covid-19, between 2o2o a..d,202r, which he rcqucstcd court to take judicial notice of.

This court duly noted that indeed on 24<sup>th</sup> August, 2021, and upon request by the counsel for the applicant herein directives were issued for the parties to file written submissions: the appellant by 3<sup>rd</sup> September, 2021; the respondent by 17<sup>th</sup> September, 2021; and a rejoinder by 20<sup>th</sup> September, 2021.

$\mathsf{S}$ The submissions were never filed however. The respondent/appellant whose duty it was to ensure that the appeal was heard and concluded took no action from the time of filing the appeal until after the applicant's counsel had alerted them through the filing of this application.

It had taken the initiative of the respondent's counsel to seek and secure the directives of court for the hearing of the appeal, on 18<sup>th</sup> and 24<sup>th</sup> August, 2021 respectively. Court indeed takes judicial notice of the fact that even before the time the Covid restrictions were gradually relaxed in August, 2021, courts were open and soon thereafter had continued their normal operations.

The applicant was on his part vigilant in securing dates for an appeal which the respondent were responsible for and expected to follow up. The directives of court were never complied with. It was on 10<sup>th</sup> September, 2021 when the firm representing the appellant wrote to this court about the mediation meetings, purportedly held between the parties.

These meetings were intended to amicably resolve the matters raised in the appeal and according to counsel, they were in their final stages. This however could not be verified. But even if that had been the case, counsel's excuse that *Covid* restrictions had caused the delay would be selfdefeating. For if meetings were taking place between the parties then from such interactions the

20 appellant would have taken the trouble to update court of any such developments between them, including a possible prayer to be made for a stay of execution of the court orders, withdraw the appeal, and also avail court with an explanation as to why within that period submissions on the appeal could not be filed in court.

Order 43 rule 4 (1) of the CPR besides makes it absolutely clear that an appeal does not operate as an automatic stay of execution which provision equally applied to the orders made during the 25 criminal proceedings just as it did in respect to the orders made by the trial court.

Deduced from that same communication by which he requested for more time for the purpose of enabling the parties to finalize the settlement, the learned counsel could not deny having received the directives to file submissions for the intended appeal.

30 But that request came only came after the timelines given by court had expired. It is also significant to note that this was almost a month after counsel for the applicant had written to request for the hearing date, after the appellant had failed to cause any movement of the file.

Julorg

Counsel for the respondent/appellant neither sought leave thereafter to file the submissions for the appeal out of time, nor did he attempt thereafter to file them at least to show that the respondent was still interested in pursuing the appeal.

$\mathsf{S}$

The fact therefore that no further action was taken by the respondent side to follow up on the appeal or the proposed settlement showed that the appellant had subsequently lost interest in pursuing the appeal.

In response to **issue No. 2** therefore, the respondent was guilty of dilatory conduct.

# Issue No. 3: Whether the respondent should first purge contempt before appealing?

It was pointed out by the counsel for the applicant in submissions that the lower court in *Misc*. Appl. No. 80 of 2018 issued orders against the respondent after her in contempt of court. By 10 court order, she therefore had to pay compensation of *Ugx 17,000,000/*- to the applicant and vacate the applicant's suit land/kibanja.

Through her counsel's submission, the respondent however denied the claim that she was guilty of contempt of court, as the orders the applicant was basing on were the subject of the pending appeal. That to condemn her on the allegation that she was in contempt of court which she was not aware of, would be denying her access to justice in violation of her right to a fair hearing.

Counsel in pursuing that argument however ignored the fact that the subject of the application during the trial was on non-compliance of orders made earlier by a competent court during the criminal proceedings, orders which she had been made fully aware of, and which were never

20 discharged by that criminal court or any other competent court by the time the trial court was conducted.

The respondent's further argument was that they were alive to the general principle that no application to the court by such person in contempt can be entertained until the contemnor has purged himself of the contempt.

- However that there were exceptions to that rule which were made in the case of **Nakitende** 25 Scovia & Anor vs John Kigozi Ssebaggala & Anor, HCMA No. 495 of 2016 arising from Civil Suit No. 128/2009, where court held that a person found to be in contempt can apply to court to purge his contempt. He/she can alternatively appeal with a view of setting aside the order which he is alleged to be in contempt, as the respondent in the present case had done. - In addition that in the case of Kotokyo Wilber William vs John Kaggwa and Anor, No. 278 30 of 2019 court held that the contemptuous conduct in another matter court should not be used against a party not to access justice in different matters. The party may be denied access to

Julos 8

court in similar matter and in the same court but not in all courts due to one incident of being contemptuous.

In relation to this application, it was thereforc thcir contcntion that thc aPPlicant did not dcmonstrate that the respondent was in contcmpt of any court order. Lly prosecuting this appeal 5 therefore, she had taken the requisite steps to challcngc thc impugned civil orders and awands

that were irregularly granted in the applicant's favour in ltrlsc. Appl. No. aO oJ 2O7a, arising from a criminal case and therefore cannot be said to be in contempt ofany court orders.

That the applicant did not dcmonstratc that he will suffcr any injuries if this application is not grantcd. on thc othcr hand howcvcr, thc appcllant/ rcspondent would suffcr injuslice if the appeal is not determincd on its merit as shc will bc condcmned unhcard.

With a.ll due respcct however, the argumcnts showed the veiled attempt by thc respondent to smuggle in this application some arguments that would havc been raiscd if thc appeal were to be heard on its merits.

The respondent also failed to appreciate that the findings by the trial court were based on the violation of an existing order by the crimina.l court which was never challenged when the respondent had the chance to do so, 15

I.)vident from the rccord ilsclf, thc rcspondcnt could not dcny that an cviction was donc relying on a forged order, which act no court in its right framc of mind could condonc. (Maktla Interlna:tlornal as Hls Ernlnence Ccrdlnol Nsubuga (1982) HCB).

- Thc principle that a party who knows of an ordcr, rcgardlcss of whether in thc view of the pa-rty thc order is null and void, rcgular or irrcgular cannot bc pcrmitted to disobcy it, by rcason of what that party rcgards as thc ordcr of court. IIc/shc must provide an cxplanation for non compliance to thc issuing courl. Eef: Houslng F'lq.nance Bank Ltd Vs Edud"d Muslsl M. A No. 1s8 ol 201o.) 20 - The cases supplied by the rcspondent's counscl cited wherc cxccptions wcrc madc to the general may with respect, apply only on a case to casc basis. They would not apply in the peculiar circumstances of this casc whcrc criminal procccdings wcrc institutcd, ordcrs issued remained undischarged and wherc a party to a pending suit is evicted in contravcntion of those orders morcso relying on a forged order. - I am inclined to agrcc with thc authority rn Ko.bale llnlversltg us Henry Rtllrrgo'nlkrr & Anor (stap,.a,t thal a party in contempt by disobcying an cxisting ordcr cannot bc hcard in a related cause of action until such a pcrson has purged himsclf or hcrself of thc contcmpt. 30


ln those circumstanccs the appcllant had to pay thc compcnsatory award sct by the trial court to purge thc order issued by thc criminal court which she had been fully aware ot Given all the above, the rcspondent in this application did not thercfore comc to this court with clcan hands.

### Concluslon,.

- 5 <sup>I</sup>could not agree more therefore also that by virtue of ord.er 43 rure ol of the clvll procedule Rules, a court that is faccd with an appcal that has rcmained unprosecutcd for a long time, may either dismiss the appeal for want of prosecution or make any other ordcr as court may deem fit, court thinks as I do, that thc parties havc bcen notified in accordance wil.h order 4a Rule gl (2) oJ the C'lvll Procedure Rules. - 10 I"ailure to takc an esscntial stcp in the procccdings was considcrcd in Andrew lllaulri. vs Jomagl Propertg consultcats Ltd, cA clvll appltco,tto,- No. 224 oJ 2014. Thc court of appeal cting thc case of Bakalubo. Mukasa peter o.nd lrnor vs Nalugo IlIary lfiargret seklztyirru cA Dlectlo^ Petltlon Appllcatlon No. 24 o! 2O77 statcd that an csscntial stcp is thc pcrfgrmancc of an act by a party whosc duty it is to pcrform that fundamcntally nccessary action dcmandcd - by thc lcgal process. 15

Delay in taking the right time hinders successful parties from enjoying the fruits of their judgments. Thus if the action is not performed as by law prescribcd, then whatever legal process has been done before becomes a nullity as against the party/ who has the duty to pcrform that act. I am grateful for the authority cited to me by counscl.

20 ln essence therefore in the instant case, the appeal was lodged with the sole purpose of delaying justice.

For the abovc reasons, thc application thcrcforc succccds. Conscqucntly, thc appcal, CA No. 54 oJ 2079 is s dismissed, with costs to thc applicant.

)

The orders of the trial court must be complied with by the respondent.

0uL,.+, Alexqadra Nkonge Ru\$lUa

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77n October, 2022

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