Ndiwalana v Namutete (Civil Appeal No. 72 of 2022) [2023] UGHCLD 106 (18 April 2023)

#### THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT KAMPALA

#### (LAND DIVISION)

## CIVIL APPEAL NO.72 OF 2022

#### (Arising from The Chief Magistrates Court of Kajansi Miscellaneous $\mathsf{S}$ Application No.104 of 2020)

(All arising out of the Chief Magistrates Court of Kajansi Civil Suit No.32 of 2020)

NDIWALANA GEORGE WILLIAM::::::::::::::::::::::::::::::::::

#### **VERSUS**

<table>

NAMUTETE HENRY::::::::::::::::::::::::::::::::::::

#### Before: Justice Alexandra Nkonge Rugadya.

#### **Judgement**

This an appeal from the ruling and orders of **His Worship Gimugu K. K, the**

Magistrate Grade 1 at the Chief Magistrates Court of Kajansi at Kajansi 15 delivered on 11<sup>th</sup> March 2021 in *Miscellaneous Application No.104 of 2020* wherein the trial Magistrate dismissed the application and awarded costs to the respondent herein.

#### Background.

- 20 The background of this appeal is that sometime in 2020, the respondent herein filed **Civil Suit No.32 of 2022** against the appellant in the Chief Magistrates Court of Kajjansi seeking among others, a declaration that the appellant who was the defendant is a trespasser on approximately 0.68 decimals on land comprised in **Block 52 plots 24 & 25 land at Bukwe,** a - 25 permanent injunction, an eviction order, general damages, mesne profits and costs of the suit.

Unlos

The matter proceeded ex-parte against the appellant who according to the court record was served with court process but did not lile a defence. The trial court presided over by Her Worshlp Nantege Christlne in its judgment dated 3.d December, 2O2O found that the appellant was a trespasser on the suit land.

Court then issued a permanent injunction against the appellant, an eviction order, and the respondent was awarded general damages of Ug.x 7,OOO,OOO/= (Uganda Shllllngs one mllllon onlg) as well as costs of the suit.

The appellant then filed Mlscellaneous Appllcatlon No. O4 of 2O2O seeking to set aside the judgment and decree in the main suit on grounds that there was non-service on the appellant. He also sought an order permitting him to file a written statement of defence. 10

The trial court presided over by Hls Worshlp Glmugu . I(. .t( held that the appellant was properly served, and that evidence of service was uncontroverted, credible, believable and completely disproved the appellant's denial that he was never served. The application was dismissed. 15

The appellant being dissatisfied with the decision of the trial court, filed this appeal against the same. He listed 5 grounds to wit;

- 7. That the learned trlal Maglstrate erred ln laut and Jact uthen he ruled that the appettant uas ejjectlvelg serued uhereos not thus arrlulng at a urong concluslon; 20 - 2. That the learned trlal Maglstrate erred ln laut and fact uthen falled to eoaluate the ealdence o;f llllteracg on the appellant leadlng to a mlscarrlage of Justlce; - 3. That the learned trlal Maglstrate erred ln laut and Jact when he fatled to notlce that the appellant uras unrepresented leadlng to a mlscanlage oJ Justlce;

- 4. That the leorned trlal Maglstrate erred ln laut and Jact uhen he Jalled to notlce that appellant dtd not depone the aJfldault tn support of the appltcatlon leadlng to a mlscarrlage of Justlce; - 5 5. That the learned trlal Maglstrate erred ln law and fact when he Jalled to notlce that uhole appllcatlon utas a sharn lntended to mlslead coutt leadlng to a mlscanlage of Justlce.

The appellant then prayed that this appeal be allowed with costs and that the ruiing and orders of the trial Magistrate in Mlscellaneous Appllcatlon No.7O4 of 2O2O as well as tl:e ex-parte judgement in Ciuil Sutt No,32 of 2O2O be set aside and the suit be referred back to the Magistrates Court for re-trial and that he is allowed to file a written statement of defence.

In addition, the appellant sought further orders that the execution orders in Mlscellaneous Appllcatlon No.7O4 of 2O2O be set aside, the warrants of attachment, arrest and detention in civil prison in Executlon Mlscellaneous Appllcatlon No.lO of2O2f be set aside, and Ms. Nagingo Prossy be released from civil prison, and that the contempt proceedings in Jlliscelldneous Appllcatlon No.754 of 2O21be terminated. 15

The appellant further prayed that the taxation proceedings in Mlscellaneous Appllcatlon 37 of 2O22 be terminated, and the proceedings in Crlmlnal Case No. O66 of 2022 with charges of disobeying lawful orders at the Chief Magistrates Court of Entebbe at Entebbe be terminated. 20

## Representatlon.

The appellant was represented by M/s SebanJa & Co. Aduoccrtes while the respondent was represented by John F. Ssengooba & Co. Aduocates. Both counsel filed written submissions in support of their respective clients'cases as directed by this court. 25

<sup>30</sup> b,,bry

## Conslderatlon of the appeal blt Court.

The duty of this court as a ltrst Appellate Court was stated in the case of K{amunte Henry V Uganda, S,C crlmlnal Appeal No. 70 oJ 7997 where court held that;

nThe tlrst appellate court has o dutg to revleu the evldence of the case, to reconslder the materlals before the trlal Judge and make up lts oun mlnd not dlsregardlng the Judgment appealed Jrom but carefallg uelghlng and consldering lt."

This court therefore has a duty to re-evaluate the evidence to avoid <sup>a</sup> miscarriage of Justice as it mindfully arrives at its own conclusion. 10

# Polnts of laut.

Counsel for the respondent in his submissions raised a point of law to the effect that the appeal is incompetent. This point of law emanated from Mlscellaneous Appllcatlon No,7777 oJ 2022 which was filed by the respondent who sought orders that this appeal offends the provisions of Sectlon 76 of the Chil Procedure Act Cap.77 & order 44 rules 1 & 3 of the Ctril Procedure Ru les Sf 77-7; and it is not only incompetent, barred in law, but also an abuse of court process.

The respondent further sought orders that the memorandum of appeal on record offends Order 5 ntle 2 of the Cfuil Procedure Rules having been served when expired.

# Detennlnatlorr of the polnts af la ut.

I have carefully perused the pleadings and submissions made either side. An appeal to the High Court is preferred in the form of a memorandum of appeal.

(ReJ. Order 43 ntle 1). 25

> Sectlon 79 of the Clvll Procedure Act Cap,7I provides that an appeal shall be entered within thirty days of the date of the decree or order of court. Once the period as prescribed lapses, and good cause is shown, the appellate court has the power to admit the appeal.

u,/"d

Sectlon 79 (2) of the said Act states that in computing the period, the ttme taken by the court in making the decree appealed against and of the proceedings upon which it is founded is to be excluded.

In this instance, the record indicates that the order of court which the appellant seeks to appeal against was made on 11tr' March, 2O2l.lt was not however until 7ft April, 2022 that he lied MC No. O29 of 2022 for leave to appeal out of time the ruling and orders of the trial magistrate.

The order to file the appeal out of time was granted to him by HW Simon Kintu Zirintuusa on lst September, 2022. He then filed a memorandum of appeal on 28h September, 2022.

In his objection to the competence of the appeal counsel for the respondent cited Order 44 Rule 7 sub-rule 2 of the Clull Procedure Rules. Going by that rule, prior leave of court is required for a party seeking to appeal against any orders which are not listed under that rule.

15 Order 44 Rule 2 specifically provides that

uan appeal under the Cldl Procedure Rules shall not lle from ang other order except wlth leu)e of coura maklng the order or the court to urhlch an appeal uould lle { lea ue uere glven."

The order by the trial court was made under order 9 ntle 72 of the CPR which is not among the orders as listed thereunder, from which an appeal lies as of right.

The appellant liled lflscellaneous Cause No.29 oJ 2022 before this court and obtained an order to file an appeal out of time against an order that falls outside the ambit of order 44 or in respect of which prior leave of court had not been sought.

The order was made presumably under the belief that he had an automatic right of appeal, whereas not. This is implies therefore th,at Dllscellaneous Cause No.29 of 2O22 which was filed on 7th April 2022, heard and determined by the registrar was not properly before court.

<sup>5</sup> M4

In such a case where leave is required to file an appeal against an order which is not among those as listed in **order 44 of the CPR** and the same party is also intending to apply for leave to file the appeal out of time, it would make a lot of sense if the two prayers are made in a single application (as opposed to separate applications).

It also goes without saying that the matter ought to be heard by or before a court/judicial officer who has the power to hear both applications. The reason, as noted earlier is that **section 79 of the CPA** sets a time limit within which every appeal, without exception, has to be entered. That way the matter

would be dealt with expeditiously. 10

> In this case however, under **MA No. 029 of 2022**, the Registrar could only deal with uncontested matters or formal interlocutory applications falling under Order 50 rules 2 and 3 of the CPR and, in the opinion of this court, an order falling under **Order 44 of the CPR** would not have been among them.

$\mathsf{S}$

Since therefore the appellant did not make any attempt to seek prior leave of this court to file the appeal against the trial court's orders, this appeal struck out with costs as it is incompetently before this court.

I so order.

Alexandra Nkonge Rugadya Judge 18<sup>th</sup> April 2023.

Delivered by enail<br>Abberg<br>18/4/2023