Matanda and 2 others v Nabutsale (Civil Appeal 20 of 2023) [2024] UGHC 603 (30 May 2024)

# THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA HOLDEN AT MBALE

# CIVIL APPEAL NO. 20 OF 2023

## (ARISING FROM CIVIL SUIT NO.28 OF 2020)

1. MATANDA FRED::::::::::::::::::::::::::::::::::::

2. MASABA RICHARD

3. NANDELENGA BEATRICE alias Nabutsale Irene Racheal

### **VERSUS**

NABUTSALE IRENE RACHEAL::::::::::::::::::::::::::::::::::::

BEFORE: HON. LADY JUSTICE MARGARET APINY 15

### **RULING**

## Background

The appellants lodged an appeal against the judgment and Orders of Her Worship Esther Nalungi, the Learned Chief Magistrate of Bubulo Chief Magistrates Court dated 6<sup>th</sup> February 2023 on the following grounds;-

- 1. That the Learned trial Chief Magistrate erred in law and fact when she concluded that the family house was solely constructed by the plaintiff. - 2. That the learned trial Chief Magistrate erred in law and in fact when she handled a matter which was beyond her jurisdiction. - 3. That the learned trial Chief Magistrate erred in law and fact when she disregarded the 25 receipts presented by the defendants in their names.

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- 4. That the learned trial Chief Magistrate erred in law and fact when she dwelt on disqualification of the defence academic papers thus diverting from major issues. - 5. That the learned trial Chief Magistrates erred in law and fact when she declared the defendant's trespassers on the suit land. - 6. That the Learned Trial Chief Magistrates erred in law and fact when she declared the defendants trespassers on the suit land. - 7. That the learned trial Chief Magistrate erred in law and fact when she ordered for vacant possession against the defendants who are not in possession of the suit land but the parties' mother. - 8. That the learned Chief Magistrate erred in law and fact when she ordered general damages of Ugx 30 million against the defendants. - 9. That the learned Chief Magistrate erred in law and fact when she concluded that the defendants were not financially stable by the time of construction of the house on the suit land. - 10. That the learned Chief Magistrate erred in law and fact when she held that the parties' father never stayed on the suit land. - 11. That the learned Chief Magistrate erred in law and fact when she misinterpreted and deliberately ignored the outcome of the locus visit. - The appellants prayed that the appeal be allowed, the judgment of the lower court set aside 45 and order for costs in the lower and the appellate court be granted to the appellants.

### Representation

At the hearing, the appellants were represented by Ms Luchivya Faith while the respondent was represented by Timothy Isiko Jonathan.

When the appeal came up for hearing on the 21st of February 2024, counsel for the respondent intimated to court that he had two preliminary objections to raise which might dispose of the appeal. He informed court that the appeal has no copies of the certified judgment and record of proceedings.

With leave of court, parties proceeded by way of written submission which have accordingly 55 been considered by this court.

#### Submission

In his submissions on the preliminary objection, counsel for the respondent contended that the respondent was never served with copies of certified records of proceedings and the judgment of the trial court from which this appeal emanates, save for the memorandum of appeal which was served on 21<sup>st</sup> March 2023. He cited Article 28(1) of the Constitution and Order 49 of the Civil Procedure Rules to support his proposition.

Counsel submitted that order 49 rule 1 of the Civil Procedure Rules requires that every process required to be served under the Act must be served at the expense of the party on whose behalf it is issued unless the court directs otherwise and that such service ought to be effected in the manner provided for under order 5 rule 2 of the Civil Procedure Rules. He relied on the authority of Emma Ssemakula (Ssekabira) vs Sarah Mugerwa & Anor, HCCA No. 218 of 2018 and further on National Housing and Construction Co. Limited vs Solome TB Kyomukama, CACA No. 133 of 2009, wherein the Court of Appeal struck out an appeal on grounds that the record of proceedings was never served on the respondent which in turn made the notice of appeal null and void.

According to counsel service of record of proceedings and judgment is an essential step in prosecuting appeals since it forms the bedrock of the proceedings where the appellate court is duty-bound to appraise the evidence on record. He contended that failure to do so makes

# the appeal incompetent. He relied on the case of James Bahinguza and 622 others vs 75 Attorney General. CAMA No. 269 of 2013.

It was his submission that he only learnt that counsel for the appellants by her own admission during the hearing of 24<sup>th</sup> February 2024 had picked the record of proceedings from the Chief Magistrates Court of Bubulo in March 2023, but failed to serve the same on the respondent. He contended the non-service offended Articles 28 and 44 of the Constitution, order 49 Rules 1 and 2 and Order 5 rule 2 of the Civil Procedure Rules.

He argued that for court to appraise the evidence effectively, both parties ought to be heard and this can only be achieved if service of the certified record of proceedings and judgment is effected on the respondent. He prayed that the appeal be dismissed with costs to the respondent both in this court and the lower court.

For the appellants, counsel submitted that there are no provisions in the Civil Procedure Rules that enjoins an appellant in the High Court to effect service of record of proceedings and judgment on the respondent hence the same should not be forced on the appellants.

Counsel contended that the case of National Housing & Construction Limited vs Salome T. B Kyomkama CACA No. 133 of 2009 relied on by counsel for the respondent is distinguishable from the case at hand as the same was before the Court of Appeal whose rules provide specifically for service of record of proceedings on the opposite respondent, unlike the Civil Procedure Rules which is silent on the same.

In her view, what is clear from the provisions of Order 49 Rule 1 of the Civil Procedure Rules is that service of memorandum of appeal is in line with service of summons under Order 5 95 Rule 2 of the Civil Procedure Rules and that the Notice of appeal and the memorandum of appeal was duly served on the respondent's counsel on 21st March 2023 and duly acknowledged by Bloom Advocates. Counsel cited the case of Katsigazi v Musanyusa,

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Miscellaneous Application No. 21 of 2021 [2022] UGHCLD 40(3 March 2022), wherein Kazibwe J, held to the effect that the implication of order 49 rule 2 is that a memorandum of 100 appeal has to be served within 21 days following the dictates of order 5 rule 2 of the Civil Procedure Rules.

Counsel submitted further that service of records of proceedings and judgment on the respondent in the high court is a matter of prudent practice and the same whereas availed to counsel for the respondent who made photocopies sometime in 2023.

She contended that order 43 rule 29 of the Civil Procedure Rules provides that the certified copies of the record of proceedings are only availed to the parties upon application to the High Court subject to payments of requisites fees. According to counsel, the duty is on the parties to apply to the High Court to obtain copies of the certified records of proceedings.

On the submission on failure to take an essential step, counsel submitted that the authority 110 of James Bahinguza & 622 others vs Attorney General, Court of Appeal Civil Application No. 269 of 2013 relied on by counsel for the respondent, only applies to rule 83 of the Court of Appeal rules. Counsel submitted in conclusion that the point of law is misguided and only intended to defeat the ends of justice and in any case, no prejudice would be suffered by the respondent and that counsel was a part of the proceedings in the lower court as counsel for 115

She prayed that the preliminary objection be dismissed with costs and the appeal heard on its merit.

### Consideration of Court

the plaintiff.

Article 28 of the Constitution of the Republic of Uganda requires that parties to a proceeding 120 before court are afforded adequate notice of what they should expect at judicial proceedings

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so that they can prepare sufficiently. This is the very essence of why pleadings are exchanged between parties. (See Vallery Alia Vs Alionzi John HCCS No. 157 of 2010)

Whereas I acknowledge the authorities cited by counsel for the respondent to the effect that service of record of proceedings and judgment ought to be effected on the respondent to an 125 appeal, it is evident that the authorities cited in the respondent's submissions clearly relate to practice at the Court of Appeal and the Supreme Court which have specific Rules that provide for such service.

Whereas the Court of Appeal Rules expressly provide for service of appeal processes, the Civil Procedure Rules which are applicable in the High Court do not expressly and specifically 130 provide for service of appeal processes. It is therefore evident that failure to serve a record of proceedings and judgment on the opposite party is not fatal.

Order 49 Rule 2 of the Civil Procedure Rules is to the effect that all orders, notices and documents required by the Act to be given to or served on any person shall be served in the manner provided for the service of summons.

Whereas the rules do not expressly provide for service of appeal processes, it would seem to me that recourse ought to be made to order 49 rule 2 of the Civil Procedure Rules. From the above provision, it is settled law that the Memorandum of Appeal must be served in the manner provided for under Order 5 of the Civil Procedure Rules. (See Sekyali James vs

Charles Godfrey Kyakwambala HCCA No. 7 of 2024). 140

> It is clear that the preliminary objection for determination is not hinged on the non-service of the memorandum of appeal, which was filed in this court on 24<sup>th</sup> February 2023 against a judgment delivered on 6<sup>th</sup> February 2023. What is in contention, however, is whether an appellant is duty-bound to effect service of the record of proceedings on the respondent.

Whereas Order 49 Rule 2 enumerates specific items to be served in the manner provided for 145 the service of summons, the Civil Procedure Act and the Magistrates Court Act do not provide that records of proceedings must be served in an appeal from the Magistrates Court to the High Court. (Sekyali James vs Charles Godfrey Kyakwambala( supra).

It is further evident that order 43 rule 11 of the Civil Procedure Rules, only provides for the appellant to serve a hearing notice on the respondent, which in this case was effected on 150 counsel for the respondent as evidenced by a copy of the hearing notice filed on 18<sup>th</sup> July 2023.

Order 43 rule 10(3) of the Civil Procedure Rules provides;

"Either party may apply in writing to the court from whose decree the appeal is preferred, specifying any of the papers of the court of which he or she requires copies to be made, and 155 copies shall be made at the expense of and given to the applicant on payment of the requisite fees"

What can be discerned from the above provisions Order 43 rule 10(3) is that a party who is desirous of a copy of the judgment and record of proceeding may apply for the same from the court upon payment of prerequisite fees.

In my view, it follows that service of both the certified copies of judgment and record of proceedings is not mandatory but prudent practice on the part of an appellant who desires to have his or her appeal dealt with expeditiously. The preliminary objection is evidently based on procedure applicable to the Court of Appeal and not for purposes of appeals in the High Court.

For those reasons, I find no merit in the preliminary objection and accordingly dismiss it. The appeal shall be heard on its merit. Costs to be in the cause.

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I so order.

Dated this .......... $30^{th}$ ....................................

Dimm

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Margaret Apiny **JUDGE**

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