Okello v Ocaya (Miscellaneous Application 155 of 2023) [2024] UGHC 741 (16 August 2024)

#### **THE REPUBLIC OF UGANDA**

## **IN THE HIGH COURT OF UGANDA HOLDEN AT KITGUM MISCELLANEOUS APPLICATION No. 155/2023 (Arising from KITGUM HIGH COURT - CIVIL APPEAL No. 035/2023)** 5 **(Formerly GULU HIGH COURT - CIVIL APPEAL No. 077/2023) (ARISING FROM CIVIL SUIT No. 08/2016: MAGISTRATE PATONGO)**

**OKELLO ENSIO APPLICANT**

**Versus**

#### **OCAYA ANTHONY**

# 10 **(Suing Through ODONG JOLLY JOE) RESPONDENT BEFORE HON. MR. JUSTICE PHILIP W. MWAKA.**

### **RULING.**

#### **Introduction and Background.**

- [1]. The Applicant seeks Orders from this Court firstly, for leave to file a Notice 15 of Appeal and a Memorandum of Appeal out of time (enlargement of time) and thereby instituting an Appeal in respect of the Judgment and Orders of His Worship Alioni Emmanuel Drajole, Magistrate Grade I at the Chief Magistrate's Court of Pader at Patongo in **Civil Suit No. 008/2016** delivered on the 21st day of April, 2022; secondly, (and alternatively), that the Court 20 validates a Memorandum of Appeal *"to be filed"* in the respect of the same suit; third and lastly, an Order making provision for Costs of the Application - [2]. The Motion instituting the Application was filed on the 28 th August, 2023 one (1) year and four (4) months after the decision of the Trial Court and bearing in mind that the period within which to institute such an Appeal is thirty (30) days which would have expired on the 21st 25 day of May, 2023.

- [3]. The Application is instituted by way of Notice of Motion under **Section 33 (now S. 37) of the Judicature Act, Cap. 13 (now Cap. 16); Section 98 of the Civil Procedure Act, Cap. 71 (now Cap. 282); Order 51 Rule 6 and Order 52 Rules 1, 2 and 3 of the Civil Procedure Rules, SI 71 - 1.** - 30 [4]. These citations were revised by the **Law Revision Act, Cap. 3 and Statutory Instrument No. 049/2024: The Law Revision (Commencement of the 7 th Revised Edition) (Principal Laws) Instrument, 2024.** - [5]. An Affidavit supporting the Application is attached deponed by the Applicant whom is the Intended Appellant and was the Defendant at the Trial in the 35 Lower Court, Mr. Okello Ensio.

**The Applicant's Case.**

[6]. The Applicant's grounds in the Motion are: - firstly, that he was prevented from filing a Memorandum of Appeal because of delays in accessing the 40 Record of Proceedings of the Lower Court as he was not aware of Legal and procedural aspects of filing Appeals; secondly, that he was unrepresented in the Lower Court and as such he could not understand the Legal and procedural aspects of the Trial owing to his illiteracy; thirdly, that unless the time within which to file and serve the Notice of Appeal and the 45 Memorandum of Appeal is extended and, or enlarged he will be prejudiced as the Respondent has commenced execution of the Orders (of the Lower Court) against him and they are *"lumbering"* on a large scale on the suit land with the Applicant worried that they may dispose of the suit land; the fourth *"ground"* (which is already framed as an Order sought) is that the 50 Memorandum of Appeal to be filed by the Applicant is validated; the fifth ground is that the Respondent will not be prejudiced in any way if the Application is allowed; and, the sixth and final ground is that it is just and equitable that the Application is granted.

- [7]. The Court observes that there is in fact already filed a Notice of Appeal and a Memorandum of Appeal on the Record of this Court both filed on the 28th 55 August, 2023 – being the same date as the Application was filed. The Applicant therefore clearly filed the Memorandum of Appeal without the benefit of the Record of Proceedings of the Lower Court and is therefore not altogether forthright in stating that he was *"… prevented from filing the* 60 *Memorandum of Appeal … … because of the delay in accessing the record of proceedings of the Lower Court"*. - [8]. The Court further observes that neither the certified Judgment nor the Certified Record of Proceedings of the Trial (Lower) Court are on the Record of this Court and on the file there is no correspondence (Letter requesting 65 Certified Judgment and Proceedings) or indication of pursuit by the Applicant of the Record required for an Appeal from the Lower Court whatsoever. - [9]. The Application is supported by the Applicant's Affidavit in which he states that Judgment was entered against him by the Magistrate Grade I at the Chief Magistrate's Court of Pader holden at Patongo His Worship Alioni 70 Emmanuel Drajole in respect of approximately Six Hundred (600) acres of land situate at Kamanding Village, Labwar Parish, Adilang Sub County in Agago District. The Decree is attached as *Annexture "A"*. - [10]. The Applicant complains that he was unrepresented in the Trial Court and he could not understand the Legal and procedural aspects as far as an Appeal to 75 the High Court is concerned – at least that was not until he consulted his current Attorneys – whereupon he realized that his Constitutional right to appear and defend in the main suit was violated with the case having been heard *Ex Parte* and insists that he was not served with any hearing notice. - [11]. Additionally, he was not given the opportunity to call any witnesses to testify 80 in his favour with the Court hearing date not availed to him to enable him prepare to appear before the Court and respond to the allegations in his defence. No mention is made of whether he made any enquiry from Court.

- [12]. In regard to execution of Court Orders against him, the Applicant states that on the 10th November, 2017 he was arrested for using the suit land and imprisoned for one (1) year whereupon he was released on the 10th 85 November, 2018. He avers that he had not been aware of any injunction issued in respect of the use and enjoyment of the suit land as he had not been served with any Application in that regard. - [13]. Later, a warrant was issued on the 23rd November, 2022 for his arrest for 90 disobedience of lawful orders contrary to then **Section 117 of the Penal Code Act, Cap. 120 (now Cap. 128)** though he was not arrested or charged - because in his words – *"… I hide away from the Respondents …"*, which the Court understands to mean the Applicant is in hiding from the Authorities in order to evade being arrested and charged with disobedience of lawful orders. - 95 [14]. The Court observes that attached to the Application as *Annexture "B"* is a Notice to show cause why a warrant of arrest and imprisonment should not be issued directing the Applicant to appear before the Chief Magistrate's Court of Pader holden at Patongo on the 23rd November, 2023 in respect of the total sum of Ushs. 11,140,000/- (Uganda Shillings Eleven Million One 100 Hundred Forty Thousand) and also attached as *Annexture "C"* is a certificate of taxation issued on the 13th September, 2022 with the Bill of Costs taxed and allowed at Ushs. 4,140,000/- (Uganda Shillings Four Million One Hundred Forty Thousand). - [15]. As regards other substantive matters raised by the Applicant concerning the 105 proceedings of the Trial Court, in Paragraph 9 of his Affidavit he contends that the Judgment was delivered without a proper visit to the *Locus in Quo* as he was not informed of the *Locus* visit.

[16]. In conclusion, the Applicant re-iterates the grounds already stated; - including that it would be just and equitable to grant the Application and no prejudice 110 would be occasioned to the Respondent by the grant of the Application.

#### **The Respondent's Case.**

- [17]. The Respondent through one Odong Jolly Joe being the holder of a Power of Attorney issued by him - filed an Affidavit in Reply on the 21st February, 115 2024 denying the Applicant's allegations - [18]. The Respondent contends: firstly, that the Application is an abuse of Court process and was served out of the time prescribed by the Civil Procedure Rules; secondly, that ignorance of the Law does not exonerate a Party from following prescribed legal procedures; and thirdly, he highlights that the 120 Applicant was represented by an Advocate conversant with the Law at the filing of the Memorandum of Appeal (without leave of the Court) together with the Application; and, fourth and last, sufficient cause is not shown. - [19]. It is contended that the Appeal was filed out of time being one (1) year and four (4) months after the Judgment with the execution process ongoing and 125 without leave of Court. - [20]. The Respondent further contends that the Applicant does not explain the delay or show sufficient cause or reason for grant of the Application or justify the delay in filing the Application. - [21]. In regard to the proceedings in the Lower Court, the Respondent contends 130 that the Applicant was served with numerous hearing notices but chose not to attend Court. None of these was provided in evidence. - [22]. In conclusion, the Respondent contends that the Application is an abuse of Court process which should be dismissed with costs. - [23]. There is no Affidavit in Rejoinder filed on the Record of the Court. - 135

#### **Representation.**

- [24]. Counsel, Mr. Onyuka Emmanuel, represented the Applicant. The Applicant was present in Court. - [25]. Counsel, Mr. Openy Samuel, represented the Respondent. The Respondent 140 was absent.

**5 |** P a g e

#### **Proceedings of the Court.**

- [26]. At the proceedings on the 20th March, 2024, based on the representations of both Counsel, the Court scheduled the filing of Written Submissions on a Preliminary Point of Law Raised by the Respondent. - 145 [27]. The Court issued Directions for the Respondent to file and serve his Written Submissions on or before close of business on the 27th March, 2024; the Appellant to file and serve his Written Submissions on or before close of business on the 3rd April, 2024 and any Written Submissions in Rejoinder to be filed and served on or before close of business on the 9th April, 2024. - 150

#### **The Respondent's Submissions on a Preliminary Point of Law.**

- [28]. The Respondent contended in its submissions on the preliminary point of Law that the Applicant had filed the Application on the 28th August, 2023 which was issued by the Registrar on the 1st September, 2023 and they were only served on the 25th 155 January, 2024 – stated as a period of almost five (5) months later. - [29]. It was the Respondents case citing **SCCA No. 16/2014: Bitamisi Vs. Rwabugunda** and **SCCA No. 7/2005: Gatete & Anor Vs. William Kyobe** that the delay in service was in violation of **Order 5 Rule 1(2) of the Civil** - 160 **Procedure Rules** which requires service of suits to be effected within Twenty-One (21) days from the date of issuance by the Registrar and since the period had lapsed and leave had not been sought to extend the time for service then the Application was rendered defective. - [30]. The Respondent prayed that the Application is dismissed *"without notice"* as 165 provided for by **Order 5 Rule 1(3) of the Civil Procedure Rules** with costs. - [31]. In conclusion, the Respondent also cited the discretionary powers of the Court to prevent abuse of the process of the Court under **Section 98 of the Civil Procedure Rules** and thereby prayed that the Application is found invalid and dismissed with costs. #### 170 **The Applicant's Submissions on the Preliminary Point of Law.**

- [32]. The Applicant submitted that he diligently filed the Application on the 28th August, 2023 in the Gulu High Court Circuit Registry. He then cites operationalization of the Kitgum High Court Circuit in his view by a Circular of 30th August, 2023 and subsequent transfer of files before the Deputy 175 Registrar of the Kitgum High Court Circuit during which transfer he alleges the relevant files – including the instant file - were misplaced until the 25th January, 2024 when it was located at the Gulu High Court Circuit Registry. - [33]. The Applicant disclaims any fault, insists he was diligent and contends that he should not be condemned for purported lapses in the handling of the file. - 180 [34]. The Applicant further contends that the anomaly in serving late can be cured by the powers granted to the Court under **Section 98 of the Civil Procedures Act** in order to achieve the ends of Justice also citing **Section 96 of the Civil Procedure Act** which empowers the Court to enlarge time as well as **Article 126(2) (e) of the 1995 Constitution** together with **SCCA No.** 185 **2/2007: Byaruhanga & Co. Advocates Vs. Uganda Development Bank & Misc. Cause No. 07/2016: Dr. Sam Lagoro Vs. Muni** University in

regards to substantive justice without undue regard to technicalities.

- [35]. The Applicant invited the Court to administer substantive justice without undue regard to technicalities and to overrule the preliminary point of Law. - 190

#### **The Respondent's Rejoinder on the Preliminary Point of Law.**

[36]. In Rejoinder, the Respondent submitted that the Applicants submissions were not supported by evidence. The Respondent avers that the Application together with the Notice of Appeal and the Memorandum of Appeal were filed on the same day 28 195 th August, 2023 and endorsed by the Registrar on the same day the 1st September, 2023 which the Applicant chose to abandon and had the Civil Appeal file fixed and it was only because the Respondent raised the preliminary point of Law that the Applicant pursued the Application.

- [37]. In their view, the Applicants conduct was without diligence and tantamount 200 to an abuse of Court process which the Court should reject. - [38]. In regard to **Section 98 of the Civil Procedure Act** and related Authorities cited, the Respondent submitted that the Court can only exercise its discretion for *"sufficient reason"* which has not been provided. - [39]. The Respondent re-iterated the prayer that the Application should be 205 dismissed with costs.

### **Issues for Consideration.**

[40]. The Issue for consideration to be addressed by the Court in regard to the preliminary point of Law is - **Whether the Application is defective and, or incompetent and should be dismissed under Order 5 Rules 1(2) and** 210 **1(3) of the Civil Procedure Rules for not being served within Twenty-One (21) days of issuance by the Registrar.**

#### **Considerations and Determination of the Court.**

- [41]. At the outset, the Court observes that it has previously dealt with and determined a similar objection albeit in varying circumstances with the case - 215 in point being **Miscellaneous Application No. 140/2023 (Kitgum): Obonyo Peter Vs. Otto Alex Atik & 2 Others.** - [42]. In the instant suit, the averments of the Applicant (Intended Appellant) who was the Defendant in the Trial (Lower) Court are characterized by a litany of complaints of unutilized, unpursued and altogether missed opportunities in 220 the litigation - apparently self-inflicted – commencing with failure to attend the Lower Court Trial proceedings which apparently proceeded *Ex Parte*, followed by his stated failure to attend the *Locus in Quo* proceedings, then his stated arrest and incarceration for a year for violation of an injunction, more recently failure to institute the intended Appeal in time and presently the 225 failure to serve the instant Application timely within Twenty-One (21) days in accordance with **Order 5 Rule 1(2) of the Civil Procedure Rules**.

- [43]. The timelines for the filing of the Motion and its issuance by the Registrar are not disputed. The Application by Motion together with the Notice of Appeal and Memorandum of Appeal were all filed on the 28th August, 2023 and issued and, or endorsed by the Registrar on the 1st 230 September, 2023. - [44]. Regarding service of the Motion on the Respondent, there is an affidavit of service on the Record of the Court filed on the 7 th February, 2024 with a return of service attached in which the deponent, Mr. Okinyo Innocent Emmanuel, confirms that service of the Motion was effected on the Respondent's Counsel on the 25th 235 January, 2024. The return of service is a copy of the Motion attached. - [45]. Similarly, regarding service of the Notice of Appeal and Memorandum of Appeal on the Respondent – as well as the certified Judgment and Proceedings of the Lower (Trial) Court, there is an affidavit of service of Mr. Olweny Denish on the Record of the Court filed on 24 240 th November, 2023 with copies of the Notice and Memorandum attached as return(s) of service confirming that service of the Notice of Appeal, Memorandum of Appeal as well as a hearing notice fixing the hearing of the Appeal for the 28th November, 2023 was effected on the Respondent himself on the 20th November, 2023. The hearing notice was issued by the Registrar on the 27th 245 October, 2023 and hearing set for the 28th November, 2023. - [46]. Conspicuously absent is a return indicating service of the certified Judgment and Record of Proceedings of the Lower (Trial) Court. - [47]. A review of the cited documents on the Record of the Court does not lend 250 any credibility to the explanation provided by the Applicant to the effect that the Court file(s) were purportedly temporarily misplaced in or about August, 2023 to January, 2024 when they were purportedly located. The documents cited, as already pointed out, were all simultaneously issued by the Registrar on the 1st September, 2023 save for the hearing notice which was issued on the 27 255 th October, 2023.

- [48]. The file progression and handling by Judicial Officers (including the Presiding Judge) in September, October and November when it was purportedly missing render the averments of the Applicant deliberately untrue. - [49]. The Record of the Court's proceedings of the 28th November, 2023 confirms 260 that Counsel for the Applicant addressed Court stating that the matter was coming before it for the first time and the certified Judgment and Certified Record of Proceedings of the Lower (Trial) Court had been obtained albeit with defects in as far as the *Locus in Quo* proceedings were incomplete. - [50]. In as far as the Applicant (Appellant) was concerned the impression given (to 265 this Court) was that but for the missing part of the *Locus in Quo* proceedings, he was prepared to proceed with prosecuting the Appeal itself. No reference was made to any file having gone missing – moreso, the file comprising the instant Application which may have had the effect of validating the belatedly filed Appeal or otherwise enlarging the time within which to Appeal. - 270 [51]. The Court finds the Applicants averments regarding the file(s) going missing to be deliberately and entirely false. - [52]. It is not lost on the Court that these comprise submissions from the Bar. - [53]. This would accordingly eliminate any basis for discretionary intervention by the Court in the interests of justice under **Section 98 of the Civil Procedure** - 275 **Act** even if it were tenable in the instant case, or at all. This Court has previously determined that the inherent power of a Court cannot be invoked based on untruths and falsehoods nor should it be triggered by underhand manipulation or similar machinations – with this being a case in point. It must also be pointed out that the Kitgum High Court Circuit was not established until the 24 280 th November, 2023 when it was duly Gazetted. - [54]. It is significant that the Applicant was represented by Counsel who filed the Application by Motion as well as the Notice of Appeal and the Memorandum of Appeal. The effecting of service would therefore have been under the advisement of Counsel.

285 [55]. Therefore, as a consequence of the failure of the Applicant to effect service on the Respondent within twenty-one (21) days from issuance of the Motion as required by **Order 5 Rule 1(2) of the Civil Procedure Rules** and in the event of default his failure to obtain extension of time to effect service fifteen (15) days thereof under the same Rule, inevitably the Application is dismissed 290 as required by **Order 5 Rule 1(3) of the Civil Procedure Rules** - which the Court in any case considers mandatory.

**See: HCMA No. 0827/2006: Yudaya International Ltd Vs. The Attorney General. (Hon. Justice Egonda-Ntende), High Court Civil Suit No. 130/2017: Nankabirwa Eva Walusimbi Vs. Mariam Namugenyi Sozi.** 295 **(Hon. Justice Alexandra Nkonge Rugadya).**

- [56]. Having carefully given due consideration to the preliminary point of Law raised and the response(s) in the submissions filed by the respective Parties, the Court finds that the Motion was not duly served on the Respondent within twenty-one (21) days required in **Order 5 Rule 1(2) of the Civil Procedure** 300 **Rules.** The Application is defective and incompetent and therefore dismissed under the specific provisions of **Order 5 Rule 1(3) of the Civil Procedure Rules**. - [57]. Each Party shall meet its own costs of the Application.

## **Orders of the Court.**

- 305 [58]. Accordingly, the Court makes the following Orders: - 1. **Miscellaneous Application No. 155/2023** is defective and incompetent and hereby dismissed under **Order 5 Rule 1(3) of the Civil Procedure Rules**. - 2. Each Party shall meet its own costs of this Application. - 310 It is so Ordered.

**Signed and Dated on the 16th day of August, 2024 at Kitgum High Court Circuit.**

**Philip W. Mwaka**

**Acting Judge of the High Court.**

# **Delivery and Attendance.**

- 320 This signed and dated Ruling has on the directions of the Presiding Judge been delivered to the Parties electronically on **Friday, 16th day of August, 2024** by the Deputy Registrar, Kitgum High Court Circuit. - 1. Deputy Registrar, Kitgum High Court Circuit: Mrs. Suzanne Aisia Musooli. - 2. Counsel for the Applicant: Mr. Emmanuel Onyuka. - 325 3. Counsel for the Respondent: Mr. Openy Samuel. - 4. Court Clerk and Interpreter: Mr. Atube Michael. - 5. Interested and Affected Persons and Entities.


**Philip W. Mwaka**

330 **Acting Judge of the High Court.**

**Kitgum High Court Circuit.**

**16th day of August, 2024.**