Lawino v Akuru (Miscellaneous Application No. 141 of 2021) [2023] UGHCCD 33 (27 February 2023)

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT GULU **MISCELLANEOUS APPLICATION NO. 141 OF 2021**

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(ARISING FROM CIVIL APPEAL NO. 47 OF 2021)

LAWINO CHRISTINE KIJANGE....................................

#### **VERSUS**

.......... RESPONDENT **AKURU DAVID...................................** 15

#### BEFORE: HON. MR. JUSTICE GEORGE OKELLO

#### **RULING**

This is Application seeking to strike out Civil Appeal No. 141 of 2021, plus costs of the Application. The facts giving rise to the Application are that, the applicant had successfully sued the Respondent in the Chief Magistrates Court of Gulu Holden at Gulu, vide Civil Suit No.40 of 2018, for breach of contract of 25 sale of good will in property comprised in Block 141 A, Upper Railway Quarters, plot 19 Atwal Road, Layibi Division. The Respondent received full payment of the purchase price, but thereafter sought to refund the money, contending that there was lack of consent by his spouse, whom it was alleged, had 30 objected to the sale. After full trial, the trial Court (Her Worship Christine Turibamwe) in a Judgment given on 5<sup>th</sup> October,

Harodu

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2020, decreed that the Respondent did not require spousal $\mathsf{S}$ consent to perform his part of the contract. Court awarded the Applicant general damages of Ugx 8,000,000, with interest at Court rate. Court also ordered the Respondent to vacate the property and awarded costs of the suit to the Applicant.

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Aggrieved and dissatisfied, two days later, the Respondent lodged a Notice of Appeal on 7<sup>th</sup> October, 2020. The Notice of Appeal did not quote the civil suit number, but is titled as Civil Appeal No. 47 of 2020. The heading bears the name of the Appellate Court. The parties are indicated as 'Akuru David.... Respondent Vs. Lawino Christine Kijange (Appellant). The document was lodged in the High Court. It is endorsed by someone who signed for the Deputy Registrar of Court. The document is shown as having been drawn by the 'Appellant' who signed it. I will comment on this document later in this Ruling.

#### Grounds of the Application

In the strike out Application, the Applicant avers that the Application is springing from Civil Appeal No. 47 of 2020, which understandably, is the Notice of Appeal quoted before. In the 25 grounds of the Application, supported by an affidavit sworn by the Applicant's Advocate, a one Muhiirwa Fednand of Jambo & Co. Advocates, the deponent, in summary deposed that, the Respondent having not been successful in the trial court, lodged a Notice of Appeal. The deponent stated that he perused the 30

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record of the trial Court and discovered that the Respondent did $\mathsf{S}$ not lodge a Memorandum of Appeal. The deponent further stated that he informed the Registrar of this Court about the absence of the Memorandum of Appeal, vide a letter dated 26<sup>th</sup> May, 2021, received by Court on 31<sup>st</sup> May, 2021. The deponent deposed that, as at 20<sup>th</sup> October, 2021 (date of deposing to the $10$ affidavit), the Respondent had not taken any steps to lodge a Memorandum of Appeal. The deponent further stated that the Respondent's lodgment of the Notice of Appeal and seeking the case file movement from the Magistrate Court to the High Court was a trick to circumvent execution proceedings that had been $15$ commenced by the Applicant. It was further deposed that the Respondent's actions are an afterthought and constitute abuse of court process. It was prayed on behalf of the Applicant that the purported Appeal be struck out with costs for not conforming to the law. 20

### **Replying affidavit**

In his affidavit in reply, the Respondent deposed that his advocates, $M/s$ Odongo & Co. Advocates advised him that the Application is brought in bad faith and that the grounds in 25 support does not constitute sufficient cause for the High Court to strike out 'Civil Appeal No. 47 of 2020'. The Respondent also deposed that he lodged a Notice of Appeal on 7<sup>th</sup> October, 2020, and the Deputy Registrar High Court directed the trial Court to forward the original case file with certified copies of proceedings 30

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and Judgment. The Respondent refers to the annexed copy of $\mathsf{S}$ the Notice of Appeal and the letter by the Deputy Registrar. As regards the contention that the Respondent has not lodged a Memorandum of Appeal and therefore circumventing the execution process and abusing the Court process, the Respondent deposed that he has never been given certified $10$ proceedings and Judgment of the trial Court and therefore, cannot formulate grounds of appeal. The Respondent also deposed that on 10<sup>th</sup> December, 2021, he further requested for certified proceedings and Judgment from the High Court but received none. He finally deposed that, the Application is 15 misconceived, frivolous and tantamount to an abuse of court process and should be struck out with costs. The Respondent asserted that no injustice would be suffered if the Application is dismissed.

#### **Representation**

At the Application hearing, the Applicant was represented by Learned Counsel Mr. Rwalinda Jambo Godfrey while the Respondent was represented by Learned Counsel Mr. David Kinyera. The Applicant was absent but her son Oketta William Kijange attended Court. The Respondent was absent. Court directed the parties to file written submission. The Applicant filed his on 19<sup>th</sup> December, 2022. There is none for the Respondent.

Herto Dum

#### **Issues** $\mathsf{S}$

The Applicant's Learned Counsel raised two issues for Court determination, namely,

## 1) Whether there is a competent appeal in this Court

2) If not, what remedy is available to the Applicant

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#### Determination

In arguing the first issue, Learned Counsel submitted that an appeal from the decree and Order of the Magistrate Grade One and Chief Magistrate goes to the High Court by way of a Memorandum of Appeal. Learned Counsel cited section 220 (1) (a) of the Magistrates Court Act Cap 16, and Order 43 rule 1 (1) and (2) of the CPR. I agree with Learned Counsel for the Applicant.

Counsel then argued that, filing an appeal other than by way of 20 a Memorandum of Appeal is improper and as such, the purported appeal by way of Notice of Appeal is incompetent. Again I agree with Learned Counsel, especially with regard to the mode of filing Civil Appeals from Magistrates Court to the High Court. I must however add that, in special legislations, $25$ such as under the Tax Appeals Tribunal Act, Cap. 345 (as amended), an appeal to this Court from the decision of the Tax Appeals Tribunal is by way of a Notice of Appeal, and restricted to questions of law only. The Notice of Appeal, which itself is the Appeal, must state the question (s) of law that will be raised on 30

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appeal. See section 27 (1) and (2) of the Tax Appeals Tribunal $\mathsf{S}$ Act. Similarly, further appeals to the Court of Appeal in tax matters must also be way of Notice of Appeal under section 27A $(1)$ and $(2)$ of the Tax Appeals Tribunal Act. This is the same case with regard to the appeal to the Supreme Court of Uganda, which would be a third appeal, therefore requiring a certificate $10$ of the Court of Appeal that the intended appeal raises questions of law of great public importance, or if denied, then the certificate of the Supreme Court that it ought to see that justice is done and therefore, grants a certificate of importance. See section 27B of the Tax Appeals Tribunal Act. 15

In the present matter, it is clear that unlike in special legislations specifying for appeals to the High Court by other mode, appeals from Magistrates Courts to the High court must be preferred by way of a Memorandum of Appeal under 0.43 rule 1 of the CPR. In this case, the Respondent agree that there is no Appeal but contends that, that is so because he is yet to obtain certified record of the proceedings and Judgment from the trial Court.

In light of the above concession by the Respondent, I hold that the purported Civil Appeal No. 47 of 2021 does not exist in law. I hasten to add that whichever Court Registry staff received the purported Notice of Appeal which Notice is crafted with a title appearing as if it were an appeal, complete with provision for an

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appeal number, did so in error. I think the Registry Officers and $\mathsf{S}$ persons in charge of the overall Court Registry should pay keener interest in documents lodged at the Registry of Court. It is a little surprising that the incompetent Notice of Appeal was endorsed by a person who signed for the Deputy Registrar of Court and sealed with Court seal. Had the person addressed $10$ his/her mind to the document, he/she would not have endorsed it.

Given that the Notice of Appeal is incompetent, I strike it out. I would have declared that there is no competent notice of appeal $15$ in this Court, which in my Ruling, is not a requirement before appealing the decision of the Magistrates Court. However, for the reason that the Respondent lodged the impugned Notice of Appeal as a lay person, I would declare that the incompetent Notice of Appeal should still serve the purpose he wished to $20$ serve, if any. I do so to do substantive justice and avoid a technicality that could result, if I were to hold that he never lodged a Notice of Appeal. See article 126(2)(e) of the Constitution, 1995, Tarlol Singh Saggu Vs. Road Master Cycles (U) Ltd, Court of Appeal Civil Appeal No. 46 of 2000. $25$ I am also fortified by the decision in **Kasirye Byaruhanga & Co.** Advocates Vs. Uganda Development Bank, SCCA No. 2 of 1997.

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HADDun.

I further pay deference to the persuasive decision by G. M. $\mathsf{S}$ Okello, J., (as he then was) in The Board of Governors and the Headmaster Gulu Secondary School Vs. Phinson E. Odong, High Court Civil Appeal No. MG 2 of 1990, where the then Learned Judge held that the procedure of presenting a civil appeal to the High Court is covered under Order 43 rule 8 CPR $10$ (at the time Order 39 rule 8 CPR), by lodging with the Registry a Memorandum of Appeal and not a notice of appeal. There, Court concluded that a notice of appeal is not a legal requirement in the procedure of commencing a civil appeal in the High Court. $15$

I note that the practice of filing Notice of Appeal in Civil Appeals from decisions of Magistrates Courts appear to have grown in this Country so much that it has now become a rule of practice yet our procedural and substantive laws are silent about it. A notice of Appeal seems to have been adopted in Magistrates Courts to serve the simple role which a letter could do, of enabling an intending appellant to request and obtain record of the proceedings from the Magistrates Court. See: **Suleiman Vs.**

## Byekwaso, High Court Civil Appeal No. 4 of 1986 (Behigeine, 25 J., as she then was).

It, therefore, seems to me that the impugned Notice of Appeal was filed due to the erroneous belief that Civil Appeals lodged 30 in the High Court from decisions of Magistrates Courts should

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be commenced by way of a Notice of Appeal. Whereas the $\mathsf{S}$ Magistrates Courts Act, the Civil Procedure Act, and the Civil Procedure Rules are silent on the aspect of lodgment of Notice of Appeal for purposes of commencing appeals to the High Court, litigants seem to mix up and apply the mandatory Rules of the Court of Appeal under rule 76, and the Supreme Court $10$ under rule 72, where a Notice of Appeal is a requirement for everyone desirous of Appealing to those Courts.

It also seems to me that some practitioners mix-up and apply to civil appeals, the aspect of criminal Appeals to the High $15$ Court, under section 28 of the Criminal Procedure Code Act Cap. 116 which is instituted by Notice of Appeal. This is so because no Memorandum of Appeal is envisaged in this Court in Criminal Appeals from the Magistrates Court. This is unlike the Court of Appeal and the Supreme Court where a 20 Memorandum of Appeal is a requirement in Criminal Appeals. It, therefore, seems to me that the varied ways for accessing Courts on appeal will one day need to be harmonized in all Courts in order to reduce confusion and uncertainty.

Turning back to the instant matter, the Application is misconceived in so far as it seeks to strike out a non-existing appeal. The course taken of course is understandable, as the Applicant appear to have been frustrated by the transfer of the case file from the trial Court to this Court, for the purported

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processing of the Appeal, thereby frustrating the execution $\mathsf{S}$ process which had been commenced in the trial Court. I think this course would have been averted if the Judge of this Court was consulted by the Deputy Registrar of Court for guidance, in case of doubt.

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Given the above state of affairs, the Application lacks merit and is dismissed. Given the circumstances of the matter, I make no order as to costs.

- In the exercise of Court's powers under section 98 of the CPA $15$ and for the avoidance of doubt, I, therefore, Order as follows; - 1. Misc. Application No. 141 of 2021 is dismissed for lack of merit, with no order as to costs.

2. The purported Civil Appeal No. 47 of 2020: Akuru David Vs. Lawino Christine Kijange is declared invalid and nonexistent at law.

3. The Deputy Registrar of this Court is directed to cancel and de register the purported Civil Appeal No. 47 of 2020: Akuru David Vs. Lawino Christine Kijange, from the Register of Appeals, if it had been so entered.

HatoQue.

4. The case file in Civil Suit No. 040 of 2018 is hereby remitted to the Magistrate Grade One Court to continue the execution process which had commenced, given that there is no stay of execution of the Decree of that Court by any competent Court, in the absence of a competent appeal under $0.43$ rule 4 (1) and (2) of the CPR.

I so order.

Delivered, dated and signed in Court this 27<sup>th</sup> day of February, 2023. $15$

> Harrow 27/2/2023 George Okello **JUDGE HIGH COURT**

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

# 10:50am

27<sup>th</sup> February, 2023

#### **Attendance** $10$

Ms. Avola Grace, Court Clerk.

Mr. Rwalinda Jambo Godfrey Counsel for the Applicant.

The parties are present in Court.

There is no Counsel for the Respondent.

Mr. Rwalinda Jambo: The matter is for Ruling. We are ready to receive the Ruling.

The Respondent: Give me time to look for my Lawyer.

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Ruling is stood over for 20mins. Court:

Harolm 27/2/2023

George Okello

## **JUDGE HIGH COURT**

### Later at 11:40am

My Lawyer is absent. I am ready to receive the **Respondent:** Ruling of Court.

Court: Ruling read in open Court.

> Harolan 27/2/2023 George Okello JUDGE HIGH COURT