Makumbi Banalya Yawe v Mawejje Yawe (MISCELLANEOUS APPLICATION NO. O341 OF 2023) [2024] UGHC 1215 (23 January 2024)

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (LAND DIVISION)

# **MISCELLANEOUS APPLICATION NO.0341 OF 2023**

# (ARISING FROM MISC. CAUSE NO. 15 OF 2022)

MOSES MAKUMBI BANALYA YAWE ::::::::::::::::::::::::::::::::::::

### **VERSUS**

# FREDRICK MAWEJJE YAWE ::::::::::::::::::::::::::::::::::::

### **BEFORE: HON LADY JUSTICE NABAKOOZA FLAVIA. K**

# **RULING**

- 1. This application was brought by way of notice of motion under the provisions of Section 33 of the Judicature Act, Section 98 of the Civil Procedure Act, Order 44 rule 2, 3 and 4 of the Civil Procedure Rules seeking the following orders; - a. That the Applicant be granted leave to appeal against the ruling of High Court in Misc. Cause No. 15 of 2022 Moses Makumbi Banalya Yawe Vs Fredrick Mawajje Yawe. - b. Costs of the Application be provided for. - 2. The grounds upon which the Application is premised as set out in the Notice of Motion and are that: - - The Applicant is dissatisfied with part of the ruling at Land Division i. presided over by Hon. Lady Justice Olive Kazaarwe Mukwaya which was delivered on $1/12/2022$ . - The ruling raises serious points of fact and law that require judicial ii. determination by a superior court. - That Her Lordship erred in law and fact when she held that the Applicant iii. could not notify the caveator (Respondent) of his legal burden under Section 140 and 142 of RTA Cap 230 using notice of motion, thus condemning him to costs. - The learned trial judge erred in law and fact when she held that the iv. Applicant was responsible for filing the case under notice of motion instead of ordinary suit thereby condemning him to costs.

Page 1 of 5

- v. The learned trial judge erred in law and fact when she condemned the Applicant to costs even when she held that the Respondent had to prove under ordinary suit that he had unregistered interests on the Applicant's land at Mengo. - 3. The Application is supported by the Affidavit of Moses Makumbi Banalya Yawe. - 4. The Respondent opposed the application in his affidavit in reply wherein he stated that the application was filed out of time and it does not raise serious questions of law and fact for consideration in the intended appeal. That the Applicant claims to have filed an ordinary suit in this Honourable Court, but he has not been served with the same nor has a copy been attached as proof of such filing. The Respondent as a successful party was rightfully awarded costs of the application. That the Applicant has not demonstrated how the intended appeal has a high likelihood of success. That the application is frivolous and wastage of court's time, he prayed that it is dismissed with costs. - 5. The Applicant's rejoinder is on record.

# Representation

o

o

- 6. At the hearing of the application, the Applicant represented himself while the Respondent and counsel were absent. The Respondent filed their pleadings through M/S Musiime Muhebwe & Co. Advocates. Both parties filed written submissions which shall be considered in determining the application. - 7. Counsel for the Respondent raised a preliminary objection, which I shall address before delving into the merits of the application. The objection is to the effect that the application cannot stand, having been filed out of time since the ruling sought to be appealed from was delivered on 1't December 2022 and this application was filed on 23'd January 2023, 53 days later instead of the 14 days prescribed by law. - B. Further, that the time for filing an application for leave to appeal an order of <sup>a</sup> Judge of the High Court is prescribed under Rule 4O(1Xa) of The Judicature (Court of Appeal Rules) Directions S. I 13-10 of 2000 which states that:

In Civil matters, where an appea/ /ies if the High Couft certifies that a question or questions of great public importance arise, app/tcation to the High Court sha/l be made informally at the time when the decision of the High Court is given against which the intended appeal is to be taken; fai/ing which, a formal application by notice of motion may be /odged in the High Court within fourteen days after the decision, the costs of which shall lie in the discretion of the High Court.


- 9. Counsel further relied on the case of in the Matter of Ranch On the Lake Limited (In Receivership) M. A No. 0537 Of 2005, where Mr. Justice Egonda-Ntende dismissed an application for leave to appeal under the provisions of Rule 39(1)(a) of The Judicature (Court of Appeal Rules) Directions S. I 13-10 which are similar to those under **Rule** $40(1)(a)$ of the same Rules. - 10. In his rejoinder, the Applicant submitted that the application was filed within reasonable time as required by the law. He also relied on Rule 40 (1) of the Judicature (Court of Appeal Rules) Directions S. I 13-10 and submitted that time for filing on an application for leave to appeal against orders of a Judge of the High Court, is prescribed in Rule 40 (2) of the Judicature (Court of Appeal Rules) Direction S. I 73-70 of 2000 which states that where formerly an appeal lay from High Court to the Supreme Court with leave of either the High Court or Supreme Court, the same Rules shall apply to appeals to the Court of Appeal (a) where an appeal lies with leave of the High Court, an application for the leave shall be made informally at the time when the decision against which is desired to appeal is given; or filing that application or if the Court so orders, by notice of motion within fourteen days of the Decision. - 11. That after the Judge delivering her judgement in Misc. Cause No. 15/2022, she never ordered that leave to appeal, if need arises, must be done within 14 days; that she left the issue open implying that the leave must be done within reasonable time. He submitted further that the judgement in the Matter of Ranch on the Lake Limited (In Receivership) M. A O537of 2005 by his Lordship Justice Ntende Egoda, is flawed and needs to be c by court. That Justice Ntende Egoda based his ruling on Rule 39 (2)(a) of the Court of Appeal Rules which are non-existent because **Rule 39 (2)** of the Court of Appeal Rules is for criminal Procedure and provides that leave to appeal to the Court of Appeal may be made by notice of motion within reasonable time. That the Applicant is not applying for extension of time, and that the preliminary objection should be overruled. - 12. It is undisputed that the ruling in Misc. Cause No. 15 of 2022 against which the Applicant wishes to appeal was delivered on 1<sup>st</sup> December 2022. Order 51 rule 2 of the Civil Procedure Rules provides for computation of time in a calendar month by excluding Sundays, public holidays or other days for which the offices are closed. The instant application was filed in this court electronically on 23/01/2023 at 11:51 am; from the computation of time, these were 33 days from the date of the delivery of the ruling, hence more than 14 days since the decision intended to be appealed against was made. Although counsel for the Respondent mentions 53 days in his submissions in reply.

Page 3 of 5

13. I have already reproduced the provisions of Rule 40(1) (a) of The Judicature (Court of Appeal Rules) Directions S. I 13-10 above, the said provision applies to applications for a certificate of importance or seeking leave to appeal to the Court of Appeal. The essence of the said provisions was dealt with in the Matter of Ranch on the Lake Limited (In Receivership), supra. In that case, a preliminary objection was raised by the Respondent basing on provisions of Rule 39(1)(a), similar to Rule 40(1)(a), of The Judicature (Court of Appeal Rules) Directions S. I 13-10, just like it is in this application. In dealing with the objection, my Senior Learned Brother, Engonda-Ntede J. observed as follows:

The applicable rule here is Rule 39(2)(a) of the Court of Appeal Rules. It requires that application for leave to appeal should be made within 14 days of the decision intended to be appealed from. In this case the decision intended to be appealed against was made on the 5<sup>th</sup> June 2005. This application was lodged into this court on 11<sup>th</sup> July 2005, more than 14 days since the decision intended to be appealed against was made. This application is time barred.

14. Similarly, the Applicant in that case also disputed the application of the Court of Appeal Rules to the preliminary objection but the learned Justice properly observed as follows:

Mr. Kabatsi submitted that I should disregard this rule suggesting that there are numerous cases where courts have done so. Unfortunately, he did not refer me to a particular case. I am not sure that it would be prudent for the High Court not to follow the rules of the Court of Appeal. I can only say I am not persuaded that this is a viable option for this court. Accordingly, I find that this application was made out of time and it is accordingly dismissed with costs (In the Matter of Ranch on the Lake Limited (In Receivership)).

15. I am influenced by the above observations of my senior learned brother. Therefore, in this case, I am constrained to find that the application is time barred having been made after the lapse of 14 days since the decision intended to be appealed against was made. I am mindful of all the Applicant's submissions disputing the application of Rule 40(1)(a), of the Judicature (Court of Appeal Rules) Directions S. I 13-10. That said, I do not think it would be prudent for this court not to follow the rules of the Court of Appeal which are very clear on the timeline within which to file applications of this nature.


16. It suffices to mention that in Sbeity & Anor vs Akello (MISCELLANEOUS APPLICATION NO. 249 OF 2018), in which my learned brother Ssekaana J.pointed out that, the Applicants were prudent enough in that they first "filed an application to extend the time within which to file an application for leave to Appeal against the ruling of court delivered on the 17<sup>th</sup> day of April 2015'. The Applicant should have chosen the same course, or at least filed an omnibus application for extension of time within which to file the instant application and an application for leave to appeal. Having not done so, the court has no choice but to decline the instant application.

In conclusion, the preliminary objection is sustained. Consequently, the application is dismissed, with no orders to costs. Let each party bear their own costs.

.2024 Signed, dated and delivered at Kampala this. $\dots$ day of $\dots$

Nabakooza Flavia. K Judge