Nima v Tamirawo (Civil Appeal 97 of 2014) [2025] UGHC 253 (5 May 2025)

### THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA HOLDEN AT MBALE

### CIVIL APPEAL NO. 97 OF 2014

## (ARISING FROM PALLISA CIVIL SUIT NO. 28 OF 2008)

#### NIMA BERNICE SOIGI

*(Administrator Ad-litem of the estate* of late Nima Gamaliel Kairania Mukono *Nima Kubonaku)* **::::::::::::::::::::::::::::::::::::** VERSUS

## <table> TAMIRAWO EMILY GRACE MBULAITEYE ::::::::::::::::::::::::::::::::::::

### BEFORE HON. JUSTICE LUBEGA FAROUQ

#### JUDGMENT

#### 1. Introduction

- 2. The Respondent/plaintiff instituted Civil Suit No. 28 of 2008 against the late Nima Gamaliel Kubonaku and Warid Telecom Ltd for breach of contract, for recovery of the suit land, general damages, interest and costs which was heard inter-parties and judgment was delivered on 30<sup>th</sup> May 2014, in favor of the Respondent. - 3. Warid Telecom Ltd/ $2^{nd}$ defendant is not party to this appeal because at the time of filing this appeal, it had already been de-registered.

#### 4. Background

5. The Respondent claimed that on 27<sup>th</sup> December 2001, the late Nima Gamaliel Kubonaku sold the suit land to her at a price of Ugx. $4,500,000/$ = and on completion of the purchase price, the late Nima Gamaliel Kubonaku handed vacant possession and surrendered the original certificate of title to the Respondent.


- 6. The Respondent further claims that she took possession and fenced off the suit land and asked the late Nima Gamaliel Kubonaku to facilitate transfer of the property to her which he refused or neglected to do. - 7. The Appellant on the other hand claimed that the suit in the lower court did not disclose a cause of action and averred that the sale transaction was not finalized because the Respondent behaved as though she had no serious interest in the transaction because she lived in the United Kingdom leading to her disappearance for over 7 years after negotiations but never came back to sign the agreement. - 8. The Appellant further stated that even the purported agreement of sale was never signed by the buyer or LCs and when the Respondent finally returned, she was asked to either take another plot or a refund but the Respondent never had interest in any of those options. - 9. The Appellant also denies receipt of full price and also denies that the Respondent ever took possession of the land or fenced it off.

## 10. Issues for determination before the trial court

- 11. The following issues were framed for the determination of court - a. Whether the plaintiff purchased the suit land from the $1$ <sup>st</sup> defendant? - b. Whether the $1^{st}$ defendant had a right to lease the suit land to the $2^{nd}$ defendant? - c. Whether the $2^{nd}$ defendant is a bonafide purchaser for value? - d. What remedies are available to the parties? - 12. After hearing the evidence of all parties and visiting locus in quo, the trial court found that suit land measuring 50ft X 100ft, 20ft X 20ft of which was leased to Warid Telecom Ltd, is the property of the Respondent and that she was at liberty to occupy and/or use the reminder of 30ft X 100ft, awarded compensation of the purchase price Ugx. $45,000,000/$ = in alternative to vacant possession in respect of the part that was then occupied by Warid Telecom Ltd. - 13. The trial magistrate also ordered that upon the expiration of the lease, the part occupied by Warid Telecom Ltd should revert back to the Respondent

and Warid Telecom Ltd would be at liberty to enter into fresh transactions with the Respondent, granted a permanent injunction, awarded general damages of Ugx. 20,000,000/=, awarded punitive damages of Ugx. $5,000,000/$ = and costs of the suit to the Respondent.

14. The Appellant was dissatisfied with the above decision, hence this appeal.

## 15. Grounds of appeal in the amended memorandum of appeal

- a. The trial magistrate erred in law and fact when he entertained Civil Suit No. 28 of 2008 without pecuniary jurisdiction hence occasioning a *miscarriage of justice;* - b. The trial magistrate erred in law and fact when he granted/issued the final orders in Civil Suit No. 28 of 2008 beyond his jurisdiction; - c. The trial magistrate erred in law and fact when he failed to evaluate evidence pertaining non completion of payment of the purchase price thus arriving at a wrong decision hence occasioning a miscarriage of justice; - d. The trial magistrate erred in law and fact when he awarded/granted the reliefs not prayed for by the Respondent hence occasioning a miscarriage of justice. - 16. The Appellant prays to this court to allow this appeal, set aside the orders of the lower court, Appellant be declared the rightful owner of suit land and costs of this appeal and the lower court be awarded to the Appellant.

### 17. Legal representation

- 18. Counsel Wetete Ronald appeared for the Appellant while counsel Were Safiyu appeared for the Respondent. - 19. At the hearing of this appeal, counsel for both parties were given schedules within which to file their respective submissions. They both complied and the same have been considered. - 20. Duty of the first appellate court

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21. The duty of this court in this matter is to re-evaluate all the evidence on record and come up with its own findings. (See Father Nanensio Begumisa and 3 Others V. Eric Tiberaga SCCA No. 17 of 2000 [2004] KALR 236)

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end is there we that filterage that it has to at 1000 particular at N 1300.

## 22. Preliminary objections

## 23. The 1<sup>st</sup> preliminary objection

- 24. That the memorandum of appeal was filed out of time without leave of court. - 25. Counsel for the Respondent submitted that judgment in the trial court was delivered on 30<sup>th</sup> May 2014, and the memorandum of appeal was filed on 14<sup>th</sup> August 2014, which is a period of over 3 months as per the book where they write or record new cases but the Appellant connived with the registry staff to backdate the memorandum of appeal by giving it an earlier date of 16<sup>th</sup> June 2014. - 26. Counsel submitted that section 79 (1) (a) of the Civil Procedure Act, states that every appeal from the Magistrate's court to the High Court is supposed to be entered within 30 days from the date of the decree or order of the court. He referred to Luzinda George V. Edward Wasswa HCCA No. 39/2009 to support his case. - 27. In reply, counsel for the Appellant submitted that the memorandum of appeal was filed in the registry on 16<sup>th</sup> June 2014, when the period of 30 days had not expired and Respondent's submissions that the Appellant connived with the registry staff holds no merit. He argued that the Appellant cannot be blamed for the late registration of the present appeal in the court system since the Appellant had no control and administration powers over the court staff working in the registry and the mistake of the said staff cannot be vested on the innocent Appellant.

## 28. Determination of court

- 29. On perusal of the record, it is manifest that the original memorandum of appeal in this matter is dated 12<sup>th</sup> June 2014 and was received by this court on 16<sup>th</sup> June 2014 and registered on 24<sup>th</sup> June 2014. - 30. Counsel for the Respondent alleged backdating of the memorandum of appeal by the registry staff of this court but he did not attach evidence inform of extracts from the said registry book to prove the alleged illegality. - 31. It should be noted that court relies on proof as required under section 101 of the Evidence Act Cap 8 but not on speculation. Counsel for the

Respondent having alleged the issue of backdating, he was under a duty to prove the same which he did not.

- 32. I am therefore inclined to believe that this appeal was brought within the prescribed time because by 16<sup>th</sup> June 2014, when it was received by this court, the prescribed 30 days had not yet lapsed. - 33. The 1<sup>st</sup> preliminary objection is overruled.

### 34. The 2<sup>nd</sup> preliminary objection

- 35. That the memorandum of appeal was never served on to the Respondent. - 36. Counsel for the Respondent submitted that it is evident from the memorandum of appeal that it was endorsed by the court but the same was never served on the Respondent or her lawyers which explains why the appeal has delayed in court. - 37. Counsel submitted that there is no affidavit of service on record to confirm that the impugned memorandum of appeal was dully served onto the Respondent within 21 days and there is no application for extension of time within which to serve the memorandum of appeal which makes this appeal a nullity. He cited Order 5 of the Civil Procedure Rules and Michael Mulo Mulaggusi V. Peter Katabaro HCMA No. 006/2016 to support his submission - 38. In reply, counsel for the Appellant submitted that it is not a statutory requirement for the Appellant to serve the memorandum of appeal on the Respondent within 21 days from the date of endorsement of the same by court because the law only imposes an obligation on the Appellant to undertake service of the hearing notice only and not memorandum of appeal, thus, failure to serve the same within 21 days is not fatal. He relied on Saturday Musolho V. Baryanga Richard Misc. Application No. 13 of 2024

## 39. Determination of court

from any about the constraints

40. Order 49 rule.2 of the Civil Procedure Rules provides 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"

41. Order 5 rule 2 of the Civil Procedure Rules provides that:

"service of summons issued.... shall be effected within 21 days from the date of issue"

- 42. In the case of Simon Tendo Kabenge V. Barclays Bank SCCA No. 17 of 2017, it was held that it is not enough to place court documents on the file, service of the same to the opposite party is essential to complete the process of filing. - 43. In this case, counsel for the Appellant submitted that service of the memorandum of appeal is not a mandatory requirement. I did not agree with counsel. - 44. Although I am alive to the fact that Order 43 of the Civil Procedure Rules on appeals is silent on service of the memorandum of appeal, the Constitution of Uganda emphasizes a right to a fair hearing and a right to be heard. - 45. The purpose of service of the memorandum of appeal or summons to file defence or notice of motion is to enable the opposite party to prepare his or her defence and to ensure that he or she is not taken by surprise at the court hearing. It would therefore be un just if courts ignore the fundamental principles of fair hearing. - 46. It follows therefore that the procedure governing service under Order 5 of the Civil Procedure Rules applies to service of the memorandum of appeal as well. The failure to include the same under Order 43 of the Civil Procedure Rules, in my view, is a lacuna in the law which the makers, should consider to include in the laws of this country. - 47. In Simon Tendo Kabenge V. Barclays Bank (Supra), the Supreme emphasized that the process of filing documents in court is completed upon service of the said documents to the opposite party. I am bound by that position. - 48. This court while relying on the above authority dismissed Civil Appeal No. 0035 of 2022 Muzaire James and Others V. Elton Trustees Uganda Limited. The same reasoning applies to this case. - 49. In light of the above analysis, this appeal is incompetent before this court.

50. Having held as above, I will not delve into determination of the other preliminary objections as well as the main appeal.

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51. This appeal is accordingly dismissed.

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52. Costs are awarded to the Respondent.

I so order

$\cdots\cdots$

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ugo nya a Nazara

LUBEGA FAROUQ

$$

Judgment delivered via the emails of the Advocates of the parties of $5<sup>th</sup>$ day of May, 2025

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