Okot v Omara and 2 Others (Miscellaneous Application No. 3 of 2023) [2023] UGHCCD 36 (28 February 2023)

THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT GULU MISCELLANEOUS APPLICATION NO. 003 OF 2023 (ARISING FROM LAND CIVIL SUIT NO. 012 OF 2018)

**OKOT JOVINE......** ....... APPLICANT $10$

#### **VERSUS**

1. OMARA BAPTIST ODOK

2. ODONG ALFRED AREK

3. NADIOPE CARLO................. ............. RESPONDENTS

#### BEFORE: HON. MR. JUSTICE GEORGE OKELLO

$15$

$\mathsf{S}$

#### <table><tbody>ResearchRULING</tbody>

The Applicant applied for extension of time within which to appeal to this Court against the Judgment and Decree of His Worship Alioni Emmanuel Drajole, Magistrate Grade One of Chief Magistrates Court of Pader Holden at Patongo, given in Land Suit Number 012 of 2018. The Judgment was delivered on 5<sup>th</sup> October, 2022, in the presence of the parties, but in the absence of their respective Counsel.

HADQu

In the Judgment, it was decreed that the suit land, also known $\mathsf{S}$ as Olet Dog Lurok, measuring approximately 80 acres at Anyena Central village, Agago Central Ward, Agago Town Council, Agago District, is Community grazing land belonging to the people of Ajali, Kiteny, Oyarotonge and Pampara; that the Plaintiff is a trespasser on the suit land; An order of vacant $10$ possession was issued; a permanent injunction; and taxed costs with interest of 6% thereon.

In the present application which is anchored on section 33 of the Judicature Act, section 98 of the CPA, and O.52 rules 1, 2 $15$ and 3 of the CPR, the Applicant avers that when the Judgment was read on 5<sup>th</sup> October, 2022, he made oral application for documents to enable him appeal the Judgment of Court. He further averred that subsequently, his lawyers, Awino, Openy, Nyafono Advocates and Legal Consultants were instructed to $20$ handle the appeal process. The Lawyers requested for typed proceedings, Judgment and Decree, but did not file a Notice of Appeal. He contended that the trial Court failed to avail the requested documents. He avers that time for appealing has run out and seeks enlargement of time. He swore a supporting $25$ affidavit, reiterating the above grounds.

The Application was opposed by the Respondents. Odong Alfred Arek deposed an affidavit on his own behalf and on behalf of the rest of the Respondents. The chief ground of the opposition is 30

HLADQue

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that there is nothing to show that the Applicant was prevented $\mathsf{S}$ from lodging an appeal in time. It was further deposed that the Judgment was read in the Applicant's presence and the Applicant never indicated that he wished to appeal, much as the right of appeal was explained to him by the trial Court.

$10$

$15$

### **Representation**

At the hearing, the Applicant was represented by Mr. Lobo-Akera Stephen, while the Respondents were represented by Mr. Walter Okidi Ladwar. The Applicant was in Court, while the 2<sup>nd</sup> and the 3<sup>rd</sup> Respondents were also present. Before the matter could be heard, both Learned Counsel informed Court that the parties, as advised by Counsel, were in agreement that the Application be allowed by consent; that the Applicant files the Appeal within 14 days from today $(28/02/2023)$ and that costs of the Application is paid by the Applicant. That, the quantum 20 of costs would also be agreed on, and failing of which, bill of costs would be lodged and taxed interparties.

Court drew the attention of both learned Counsel to the provision of section 79 (2) of the CPA, in which time required or taken for the preparation of the record of the trial Court, order appealed, and Judgment, is excluded from the computation of 30 days within which an intending appellant ought to appeal to this Court. Court also brought to Counsel's attention the fact

Haro Qu.

that a letter requesting for the record of the proceedings was $\mathsf{S}$ filed in time, within 30 days required for appealing to this Court.

Given the above state of affairs, this Court's view is that the application was lodged under the erroneous belief that the Applicant had run out of time for appealing. Once the request for the record was made in time, and copied to the opposite party, and the lower Court has not yet availed the record, time cannot run against the intending appellant. In this case, it is not strongly argued that the request was not communicated to the opposite party or that the opposite party did not know about it.

$10$

It has been held that once a record has been sought and not yet availed, the requestor need not do anything, although that legal position seem unfair to the successful party. See: Wanume 20 David Kitamirike Vs. Uganda Revenue Authority, Civil Application No. 138 of 2010 (COA), in which the Court of Appeal considered the aspect of non-supply of the record of proceedings to the intending appellant, and held to the effect that, the application seeking to strike out the Appeal was 25 incompetent since the intending appellant had requested for the record of the trial court and copied the opposite party. Court underscored the duty of the trial court to avail record to an intending appellant and that the requestor need not do anything. 30

Husselw

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$\mathsf{S}$ There is no need for an intending appellant from a Magistrate Court to lodge a Notice of Appeal, a practice which has grown in our Magistrate Courts. See: Lawino Christine Kijange Vs. Akuru David, Misc. Application No. 141 of 2021. See also the decision of GM Okello, J., (as he then was) in **The Board of** Governors and the Headmaster Gulu Secondary School Vs. $10$

# Phinson E. Odong, High Court Civil Appeal No. MG 2 of 1990,

Given the foregoing, the Application is incompetent before Court, as the Applicant is still within time to appeal. The $15$ Consent the parties wished to enter into to extend time, with respect, is misconceived. Accordingly, the Application stands dismissed with costs to the Respondents.

It is so ordered. 20

Delivered, dated and signed in court this 28<sup>th</sup> February, 2023.

Hudolan 28/2/2023 George Okello JUDGE HIGH COURT

$5$

#### 10:05am $\mathsf{S}$

## **Appearances**

Ms. Grace Avola, Court Clerk

Mr. Lobo-Akera Stephen, Counsel for the Applicant.

- Mr. Walter Okidi Ladwar, Counsel for the Respondents. $10$ The Applicant in Court. The $2^{nd}$ and $3^{rd}$ Respondent in Court The 1<sup>st</sup> Respondent is absent. - Ruling delivered. $15$

HutoQu. 28/2/2023 George Okello **JUDGE HIGH COURT**

$20$

$25$