Muholi v Wanyonyi (Civil Appeal 5 of 1990) [1991] UGHC 40 (25 January 1991)

T;'N REPUBLIC GF UGANDA IN THE HIGH COURT OF UGANDA AT KAR1PALA CIVIL APPEAL NO. .5 OF 1990 ORIGINAL MISC. APPLICATION NO. MH 28 OF 1939 ORIGINAL CIVIL SUIT NO, MH 11 OF 19.89 SAMUEL MUHOLI APPLICANT V E R S U S

SIMON WANYONYI ........................... RESPONDENT BEFORE: The Honourable Mr. Justice J. W. N. Tsekooko.

## ORDER

The hearing of this matter proceeded exparte because there was no good cause shown for absence of the Respondent and his counsel.

The judgment of Ag. Chief Magistrate, Liasindi dated 26th February. 1990 from which this purported appeal arose concerned an appeal from the judgment of Magistrate Grade 11 of niryandongo Court. The A.ppeal before me is therefore a second appeal and is governed by the provisions of Section 2J2(1)(c) of the Magistrate1<sup>s</sup> Court'<sup>s</sup> Act, 1970.

As the appeal is governed by Section 2J2(1)(c) of the Magistrates Courts Act, 1970, I asked Mr. Muhwezi Counsel for the applicant to satisfy me whether the appeal was compentent as there was no evidence on the court record to show that leave to appeal had been obtained. He couldn't satisfy court about this. Later he asked for adjournment to consider the matter. I had perused the whole Court record including that of the trial court and was satisfied there was no evidence that leave to append 'as either

sought and or granted. I therefore refused to grant the adjournment as" it would serve no useful purpose.

Section 232(1)(c) reads: "subject to the provisions of any-written law and, save as provided in this Section, an appeal shall'lie, (c) from decrees and orders passed or made in appeal by a Chief Magistrate, with the leave of the Chief Magistrate or of the High Court, to the High Court."

Clearly the purported appeal is incompentent and I would strike out the appeal since it is not properly before this Court.

There are many disturbing features of this matter beginning right from the trial court. In fact the record appears t^ me to be a perfect example of muddle up of judicial proceedings.

First of all at some stage the original Civil Suit MH 11/89 was purportedly fixed for hearing on 3rd October, 1989. The hearing notice Which purported to have been issued for hearing shows that it was dated 25th October, 1989 which means it was issued after the hearing date<sup>o</sup> There is another date (25th September, 1989) at the bottom of the same hearing notice. The endorsement of the process server would have cured 'that defect in dates but the handwriting of the endorsement defers from that of affidavit of service yet the two documents purported to have been written by the same process server. It may very well be that defen- dant (now appellant) was not actually served hence the hearing of the suit in bis absence.

*Worse* still according to handwritten record of the trial magistrate the bearing of the suit was heard in absence of

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defendant on 26th September, 1989 instead of 3rd October, 1989 as the hearing notice had stipulated. That means hearing date was changed without knowledge of defendant.

After the defendant learnt of the exparte judgment he on 13th December, 1989 filed notice of motion in the Chief Magistate's Court seeking leave to appeal out of time. I am very surprised that the Ag. Chief Magistrate entertained this application instead of advising the defendant to seek to set aside the exparte judgment of the trial court in the first instance. The learned Ag. Chief Magistrate all the same heard the motion on 27th December, 1989 and purportedly allowed appeal out of time.

The learned Ag. Chief Magistate heard the consequential appeal and dismissed it on 26th February, 1990 and this gave rise to the appeal to the High Court which I have held to be incompetent. Even the conduct of the appeal before the Chief Magistrate leaves a let to be desired. I don't need to go into that now.

Thereafter the learned Ag. Chief Magistate on 14th March. 1990 awarded the respondent taxed costs at a monstrously astrononical figure of shs.150,000/= which included special damages of shs. $60,000/$ = which appears to have come out of the blue. Those special damages were never claimed in the plaint in the trial court. Why were they incorporated in costs?

In his complaint to the Chief Magistrate defendant (new appellant) had complained that the case was first taken before RCs costs and that it was opened in Magistrates Courts / before proceedings in RC's Courts terminated. Besides the respondent claiming refunds of dowry was not the man who married appellant's daughter. That husband did not testify.

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The parties before Magistrate Grade II and the Ag. Chief Magistrate were not represented by counsel. Indeed even the appeal to the High Court v/as wi'ongly initiated by the so called appellant by notice of appeal though this was corrected by his counsel who subsequently took over an incompentent appeal, apparently without thought about it.

Because of the illegal decisions and steps perpetuated by courts below, I consider that this is not a matter which Not I should conclude by merely striking out the appeal. /Correcting the situation is likely uo cause hardships to the appellant at even greater costs. That would make him suffer substantial injustice because of a case whose handling is defective all the way from the court of first instance. It is the court of trial and of the Chief Magistrate that are mainly responsible for the mess.

Section 101 of the Civil Procedure Court providers. "Nothing in this Act shall be deemed to limit or otherwise affect the inherent power ?f the court to make such orders nd of Justice or to prevent as may be necessary for the/abuse of the process of the Court."

I can see no better situation where this court should exercise its inherent powers so as to ensure that ends of justice are met than the facts of this appeal. I have to correct the injustice even if the appeal is incompentent.

The Court of Appeal for Uganda in its Civil Appeal No. A of 1981, Mukula International Ltd. Vs. His Emminance Cardinal Nsubuga & Rev. Dr. Fr. Kyeyune /H9827 HCB Id corrected an illegality although the appeal was considered incompentent. At page 20 of its judgment the Court of Appeal stated:-

nThe last question is whether this court can interfere with the taxing officers Order in view of the fact that the appeal is incompentent. We think this court has power to intervene following the precedent laid dpv/n in Elmondry Vs. Salam /7T9567 25 EACJ5 513\* Secondly there is no doubt that the award (of costs) contravenes schedule VI, and as such it is illegal. A court of law cannot sanction that which is illegal. As Donaldson, J., pointed out in Belvoir Finance company Ltd. Vs. Harold G. Cole Ltd. /T9697 2 All E. R. 904 at page 908 illegality, once brought to the attention of the court, overrides all questions of pleading, including any admission made thereon.

And in Phillips vs. Copping /19357 IKB. 15 Scrutton L. J. said at page 21;

''But it is the duty of the court when asKed to give a judgment which is contrary to a statute to take the point although the litigants may not take it."

An award of shs.1,900,000/= which is manifestly excessive and contary to law amounts to an injustice to the appellant and must be interfered with. The court is enjoined by Section 101 of the Civil Procedure Act in the exercise of its inherent I powers to prevent abuse of its process. It is an abuse of the process of court to makc orders which.ape contrary to law. We would accordingly set aside the taxing officers award of shs.1,900,000/=." I respectfully agreed with this view.

This passage supports my view that it is in the interest of justice that the ■•rders of the Ag. Chief Magistrate and of the Magistrate Grade 11 which are illegal must be set aside. Not to set Jlem aside would be doing utter injustice to the <sup>n</sup>app<ella'r.t."

Accordingly the judgment and all orders of the Ag. Chief Magistrate are hereby set aside. Also the judgment and orders of the trial Magistrate Grade 11 of Kiryandongo Court are all set aside.

forces I direct that in all fairness there shall be a retrial of the suit before another Magistrate of competent jurisdiction. That trial Magistrate must ascertain whether or not litigation on the same subject matter between the appellant<br>instituted in Resistance Committee court. If the matter hadbeen and respondent herein had been/properly filed in RC's Court before the suit in Kiryandongo was instituted, then RC's Court must proceed with the hearing of the matter. But if the suit in Kiryandongo was instituted before the matter was instituted in RC's court then the Magistrate's Court should proceed with the hearing and disposal of the suit according to law.

The costs of the annual before the Chief Magistrate (Masindi) and the trial Court shall abide the conclusion of the retrial so that whoever succeeds at the retrial he shall get those costs.

However the costs if any of the appeal to this court will be paid to the respondent in any event.

I direct that a copy of this order be given to the Chief Magistrate Masindi for study. He must ensure that the orders contained herein are carried out properly..

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$\mathbb{W}^{\bullet} \mathbb{W}^{\bullet}$ TSEKOOKO JUDGE

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25/1/1991.

## $25/1/1991$ at 9.50a.m.:

Mr. Muhwezi for appellant.

Appellant present.

Mr. Bakeihahoki-Interpreter.

Order delivered.

Exclose J. W. M. TSEKOOKO

JUDGE $25/1/1991.$

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