Okwera v Okello (Miscellaneous Application 39 of 2023) [2024] UGHC 863 (20 September 2024)

### **THE REPUBLIC OF UGANDA**

### **IN THE HIGH COURT OF UGANDA HOLDEN AT KITGUM**

### **MISCELLANEOUS APPLICATION No. 039/2023**

### **(Formerly GULU HIGH COURT - MISC. APPLICATION No. 130/2023)**

### 5 **(Arising from MISC. APPLICATION No. 112/2022)**

**(Arising from GULU HIGH COURT - CIVIL APPEAL No. 096/2019)**

**(ARISING FROM CIVIL SUIT No. 09/2017: MAGISTRATE PADER)**

### **OKWERA CELESTINO APPLICANT**

### **Versus**

# 10 **OKELLO CHRISTOPHER BONG TACHI RESPONDENT RULING**

### **BEFORE HON. MR. JUSTICE PHILIP W. MWAKA.**

### **Introduction and Background.**

- [1]. The Applicant seeks Orders from this Court firstly, for the review and 15 setting aside of the Ruling and Orders of Deputy Registrar, His Worship Ntalo Nasulu Hussein, in a decision delivered on the 14th July, 2022 in respect of **Miscellaneous Application No. 112/2022** whereby the Deputy Registrar stayed execution of the Judgment and Orders of the Hon. Justice Alex Mackay Ajiji in **Civil Appeal No. 096/2019** delivered on the 10th March, 2022; and, 20 secondly, making provision for Costs of the Application. - [2]. The Application is instituted by Notice of Motion filed on the 4th July, 2023 citing **Section 33 of the Judicature Act, Cap. 13; Sections 98 and 82 of the Civil Procedure Act, Cap. 71; Order 46 and Order 52 Rules 1 and 3 of the Civil Procedure Rules, SI 71 - 1.**

25 [3]. 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** and are now cited as **Section 37 of the Judicature Act, Cap. 16** and the **Civil Procedure Act, Cap. 282**.

### **The Applicant's Case and Submissions.**

- [4]. The Applicant's grounds in the Motion are: firstly, there is an error apparent on the face of the record in as far as the Deputy Registrar allowed the Application for stay of execution yet there was no pending Appeal; secondly, 35 the Deputy Registrar wrongfully entertained the Application for stay of execution *vide* **Miscellaneous Application No. 112/2022** yet he was not clothed with the Jurisdiction to do so; and, thirdly and lastly, it is just and equitable that the Ruling is reviewed, set aside and, or vacated. - [5]. In the supporting Affidavit, the Applicant states that he instituted **Civil Suit** 40 **No. 09/2017** (as the Plaintiff) against the Respondent (as the Defendant) in the Chief Magistrate's Court of Kitgum holden at Pader, as it then was, in which the Trial Magistrate His Worship Akankwasa Edward Kabayo delivered Judgment in his favour. Decision: 12th September, 2019. - [6]. Being aggrieved and dissatisfied, the Respondent Appealed the decision to 45 the High Court, Gulu *vide* **Civil Appeal No. 096/2019**. The Appeal was subsequently dismissed by the Hon. Justice Alex Mackay Ajiji on the 10th March, 2022. This supposedly prompted the Respondent to file a Notice of Appeal on the 22nd March, 2022 lodging an Appeal against the decision of the Hon. Justice Alex Mackay Ajiji in the Court of Appeal. - 50 [7]. The Applicant, on the other hand, applied for execution wherein a Notice to Show Cause was issued against the Respondent with the costs taxed and allowed at UGX. 9,040,000/- (Uganda Shillings Nine Million Forty Thousand).

[8]. The Respondent proceeded to file an Application for stay of execution of the 55 Judgment and Orders (in effect the Decree) in **Civil Appeal No. 096/2019** *vide* **Miscellaneous Application No. 112/2022** which was considered, determined and granted by the Deputy Registrar on the 14th July, 2022 and the following impugned orders were issued –

**"(1). Execution of the Decree entered in High Court Civil Appeal No.** 60 **96 of 2019 against the Applicant be stayed pending hearing of the Appeal subject to paying the amount in (2) below. (2). The Applicant shall furnish Court with Security of UGX. 5,000,000/- to be deposited in the Court Account. (3). The Costs of this Application shall be in the main cause."**

- 65 [9]. The Applicant contended and prayed as follows (1). The Application for stay of execution was entertained, heard and determined by the Deputy Registrar in favour of the Respondent despite no pending Appeal which he argues was an abuse of the process of the Court. (2). The Deputy Registrar entertained, heard and determined the Application for stay of execution 70 without having the requisite Jurisdiction to do so. (3). The foregoing constitutes **"an error apparent on the face of the record"**. (4). The Court be pleased to review, set aside and, or vacate the Deputy Registrar's decision under the provisions of **Section 82 of the Civil Procedure Act** and **Order 46 of the Civil Procedure Rules**. (5). The Respondent, fortified by the grant 75 of the stay of execution, allegedly proceeded to **"cultivate all the land"** including the areas he was not in possession of denying the Applicant access to it. - [10]. The Applicant filed submissions on the 3rd November, 2023 and submitted that under **Order 46 Rule 1 of the Civil Procedure Rules**, the Court is 80 empowered to review its own decisions where there is **"an error apparent on the face of the record"**. The error or omission should be self-evident and should not require an elaborate argument to be established.

- [11]. Referenced is **SCCA No. 8/2004: The Attorney General Vs. James Mark Kamoga** in respect of which the Applicant submits that the powers of review 85 of a High Court Judge extend to orders of a Registrar. This is apparently in support of the procedure opted for to contest the Deputy Registrar's decision being a review, as opposed to an Appeal or other appropriate procedure. - [12]. The Court, however, observes that the basis of **SCCA No. 8/2004** was not grounded on similar arguments of error apparent on the face the Record but 90 on the discovery of new and important matters of evidence not previously known to the Applicant. This shall become increasingly significant as the Court proceeds to consider the procedural aspects of this Application. - [13]. The core issue arising and overriding all other contentions raised by the Applicant is - Whether the Deputy Registrar in entertaining, considering and 95 determining **Miscellaneous Application No. 112/2022** granted the order of stay of execution of the Judgment and Decree in **High Court Civil Appeal No. 096/2019** without Jurisdiction. - [14]. The Applicant submitted that (1). Jurisdiction is a matter of Law which must be prescribed and the conduct of proceedings without the requisite 100 jurisdiction is a nullity since no Court can confer Jurisdiction upon itself – as such, the **"lack of jurisdiction goes far beyond any error, omission or irregularity nor can it be regarded as a mere technicality"**. (2). Therefore, a High Court Registrar has primary auxiliary Jurisdiction to deal only with matters expressly prescribed by **Order 50 of the Civil Procedure Rules** 105 which powers and exercise of jurisdiction is neither original, appellate nor revisional. (3). The original, appellate, review and revision powers are reposed (vested) in the Judge. (4). As such, a Registrar in exercising the limited powers vested must act judiciously and cannot stay the Orders and Proceedings of a High Court Judge. (5). In the final result, there can be no intervention (of a 110 Registrar) between the final Decree of a High Court Judge and the Court of Appeal.

**See: Desai Vs. Warsama: 1967 (EA) 351; HCCA (Jinja) No. 29/2006: Gabula Vs. Wakidaka; Miscellaneous Application No. 096/2016: Florence Dawaru Vs. Angumale Albino & Anor**; and **Miscellaneous** 115 **Application No. 1/2023: Kaggwa John Vs. Apire John**.

- [15]. In concluding his arguments on lack of Jurisdiction, the Applicant prayed that the Court finds the actions of the Deputy Registrar amount to an error on the face of the record and the Court be pleased to exercise its **"revisory powers"**. - [16]. In regard to the second issue raised of Whether the Deputy Registrar erred 120 in allowing an Application for stay of execution yet there was no pending Appeal, the Applicant citing **Supreme Court Civil Application No. 24/2015: Gashumba Vs. Nkudiye** contended and submitted that – (1). An Applicant must show that he has lodged an Appeal under **"Rules 72 of the Rules of the Court"**. (2). Substantial loss may occur unless an order is made. 125 (3). The Application was made without delay. (4). The Respondent herein filed a Notice of Appeal on the 22nd March, 2022 and did not follow up with any further action. (5). The Respondent herein did not satisfy the conditions - for grant of a stay of execution. (6). The absence of an Appeal was an error overlooked by the Deputy Registrar. - 130 [17]. In concluding his submissions, the Applicant prayed that the Court reviews and sets aside the Ruling and Orders of the Deputy Registrar granting the stay of execution in **Miscellaneous Application No. 112/2022**.

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

[18]. The Respondent filed an Affidavit in Reply on the 11 135 th December, 2023 in which he states that – the instant Application has been brought in bad faith and the grounds presented therein do not constitute sufficient cause for grant of the Orders sought of review, setting aside and vacating the decision of the Deputy Registrar. The Issue addressed is – Whether the Application meets 140 the criteria for grant of Review.

- [19]. The Respondent contends that (1). **Civil Appeal No. 096/2022** was dismissed in bad faith without **"considering properly"** the grounds advanced by the him prompting him to **"revive the same"** and he filed a Notice of Appeal in **Civil Appeal No. 096/2019** on the 22nd March, 2022 145 instituting an Appeal in the Court of Appeal. (2). The grounds advanced by the Applicant do not constitute sufficient cause and the Orders of Stay of Execution granted by the Deputy Registrar in **Miscellaneous Application No. 112/2022 "still stands until the proper disposal of the Appeal on review"**. (3). The Court has the power to maintain the stay of execution 150 granted by the Deputy Registrar **and review** the Judgment in **Civil Appeal No. 096/2019** and he believes that it is just and equitable that the Ruling in **Miscellaneous Application No. 112/2022** for stay of execution be maintained. (4). The Application for stay of execution was neither an abuse of Court process, nor an error, as it was provided for by the Law and there 155 was a valid Appeal. (5). In regard to usage of the suit land, he was not barred from making use of it which he utilizes for production of food for his family. Clearly, the Affidavit was not professionally prepared and in any case it is indicated that it was prepared by the Respondent *Pro Se*. - [20]. The Respondent filed his submissions on the 3rd April, 2024 and submitted 160 that – (1). The Court is empowered to review Judgments under **Section 82 of the Civil Procedure Act** and **Order 46 Rules 1 and 2 of the Civil Procedure Rules** - where there is a mistake or error apparent on the face of the record which is in essence a reconsideration of the subject matter by the same Court in order to remove them. (2). There are no new and important 165 matters of evidence discovered as a result of which the Applicant cannot rely on the ground. (3). If a Court proceeds on an incorrect exposition of the Law and reaches an erroneous decision or if another Judge would have taken a different view or where a Statute was misconstrued the remedy would not be review but an Appeal. (4). The Application lacks requisite grounds for Review.

## 170 **See: Miscellaneous Application No. 9/2005: FX Mubuuke Vs. UEB** and **Nyamogo & Nyamogo Advocates Vs. Kago [2001] 2 EA 173**.

- [21]. The Respondent further submitted that (1). He lodged a Notice of Appeal and a Memorandum of Appeal. Therefore, the decision of the Deputy Registrar granting the stay of execution was not in error as there was an 175 Appeal pending in the Court of Appeal. (The Court observed that the Memorandum of Appeal presented is not in respect of an Appeal to the Court of Appeal but rather was in respect of and instituted the concluded **Civil Appeal No. 096/2019** from the Lower Court to the High Court). (2). The Court should take Judicial Notice under **Section 56 of the Evidence Act** that 180 some Judges authorize Registrars to determine and hear Interlocutory Applications. (3). The Applicant did not (at the impugned proceedings) object to the Jurisdiction of the Deputy Registrar which in his view amounted to a concession and is effectively *estopped* from contesting the decision or outcome. - [22]. In concluding his Submissions, the Respondent contended that sufficient 185 reason does not exist for grant of the Application for Review, the Application lacks merit and should be dismissed with costs and as such the decision of the Deputy Registrar granting stay of execution must be upheld. - [23]. There was no Affidavit or Submissions filed in Rejoinder.

### **Representation.**

- 190 [24]. Counsel, Roselyne Kunihira, represented the Applicant. The Applicant was present in Court. - [25]. The Respondent was present and represented himself *Pro Se*.

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

- [26]. The matter came before the Court on the 1st November, 2023; the 3rd November, 2023; the 20th March, 2024; and, the 25 195 th April, 2024. - [27]. Directions were issued for filing submissions which were largely complied with. ## **Issues for Consideration.**

- 200 [28]. The Issues for consideration to be addressed by this Court are - **i. Whether in Miscellaneous Application No. 112/2022 the Deputy Registrar granted the Order of Stay of Execution of the Judgment and Decree in Civil Appeal No. 096/2029 without Jurisdiction.** - **ii. Whether sufficient cause has been provided for review of the** 205 **decision of the Deputy Registrar on the basis of an error apparent on the face of the Record.**

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

- [29]. The scope of matters which may be considered, determined and disposed of by Registrars sitting as a Civil Court are stipulated in **Order 50 Rule 6 of the** - 210 **Civil Procedure Rules** and were expanded by the **Civil Procedure (Amendment) Rules, 2019.** - [30]. This provision confers on Registrars specific powers. It is apparent that the nature and character of the powers stipulated are for the most part in respect of preliminary matters and proceedings which precede the determination of 215 any litigation by a Judge presiding over a Trial. **Order 48 of the Civil Procedure Rules** is also instructive for reference purposes. - [31]. In the instant case, the impugned action is that the Deputy Registrar considered and determined **Misc. Application No. 122/2022** for stay of execution of the Judgment and Orders of the Hon. Justice Alex Mackay Ajiji - 220 in **Civil Appeal No. 096/2022** and in so doing granted and stayed the execution of the Judgment and Orders (Decree) issued by the Judge. This was on the said basis that there was a pending Appeal to the Court of Appeal and the Order also included provision of security in respect of the Appeal. - [32]. The cited issues raised herein-above shall be considered by the Court 225 together, as they are generally not mutually exclusive, in as far as the due consideration of the former informs the resolution of the latter.

- [33]. In the consideration of the Court, the issues which immediately arise are on the one hand fundamentally Jurisdictional - in as far as the **mandate** of the Registrar sitting as a Civil Court with specified powers under **Order 50 of the** - 230 **Civil Procedure Rules (As Amended)** staying the Judgment and Orders issued by the Judge and on the other hand procedural - in as far as the propriety of this Application filed under **Section 82 of the Civil Procedure Act** and **Order 46 of the Civil Procedure Rules** seeking **review** of the Ruling of the Registrar on the basis that his decision amounts to an **"error** 235 **apparent on the face of the record"**. - [34]. The issue of Whether a Registrar may stay the Judgment and Orders of a Judge be it in respect of a Trial or as in this case upon exercising a designated Appellate function of the High Court has been determined in numerous Authorities which have determined that there can be no intervention by a 240 Registrar purportedly invoking powers conferred between the final Decree of a High Court Judge and the Court of Appeal. - [35]. Therefore, in the circumstances of the instant case, this would lead to the conclusion that the authority of the Deputy Registrar did not extend to staying the decision of the Hon. Justice Alex Mackay Ajiji of the High Court following 245 his consideration and determination of **Civil Appeal No. 096/2019**. - **See: Civil Reference No. 139/2013 (Court of Appeal): Mohamed Kalisa Vs. Gladys Nyangire Karumu & 3 Others and Miscellaneous Application No. 1/2023 (Gulu): Kaggwa John Vs. Apire John (Hon. Justice George Okello).** - 250 [36]. The case cited with approval in most decisions cited by the Parties and considered by the Court on decisions reached without Jurisdiction is **Desai Vs. Warsama: 1967 (EA) 351 – High Court, Tanzania: Civil Appeal No. 51/1966 (Hamlyn, J.).** It was filed as an **"Appeal"** from the Lower Courts - Primary Court to the District Court and in turn **Appealed** to the High Court 255 - all in consideration of the Primary Court's Jurisdiction, or the lack thereof.

[37]. The holding is instructive in as far as it pronounces that –

**"A Judgment of a Court without Jurisdiction is a nullity … … lack of jurisdiction goes far beyond any error, omission or irregularity nor can it be regarded as a mere technicality. There is in Law nothing to be** 260 **reversed or altered and there is a complete absence of any material from which an Appeal can be had."**.

- [38]. Notwithstanding, the Court resolved the **"Appeal"** by quashing the proceedings of the Primary Court for being a nullity. - [39]. In **Macfoy Vs. United Africa Co. Ltd (1961) 3 All E. R. 1169 at 1172, Lord** 265 **Denning, MR** in considering similar circumstances involving a decision reached without Jurisdiction stated –

**"… if an act is void, then it is in Law a nullity. It is not only bad but incurably bad. There is no need for an Order of the Court to set it aside. It is automatically null and void without much ado, though it is** 270 **sometimes convenient to have the Court to declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse".**

- [40]. In view of the position of the Courts outlined herein-above, the second and 275 remaining Issue, becomes outstanding and in resolving the Application the Court is required to resolve – Whether an action by a Registrar without Jurisdiction amounts to **"an error apparent on the face of the Record"** subject to **Review** by this Court. Does this amount to **"sufficient cause"** for **Review**, or should the decision have an Appealed to this Court? - 280 [41]. The Application is filed for **Review** of the decision of the Deputy Registrar under **Section 82 of the Civil Procedure Act** and **Order 46 of the Civil Procedure Rules** on the basis that the impugned actions of the Deputy Registrar entertaining, hearing and granting the stay of execution of the decision of the Judge was **"an error apparent on the face of the Record"**.

- 285 [42]. It is not an **Appeal** in respect of the decision of the Registrar as would generally be filed under **Order 50 Rule 8 of the Civil Procedure Rules**. - [43]. A review of the Authorities cited reveals the distinctions in procedure applied in determining the proper course in challenging decisions made by Registrars sitting as Civil Courts but without the requisite Jurisdiction and outside their 290 stipulated powers - with the point of departure being whether an **Appeal** should be preferred or whether a **Review** would suffice. - [44]. The Court observes that a number of the High Court decisions cited by the Parties challenging the absence of Registrar's Jurisdiction on the basis of an error apparent on the face of the Record were instituted by way of **"Review"** 295 and others by **"Appeal"** and granted with the decisions set aside or quashed. - [45]. In **SCCA No. 8/2004: The Attorney General Vs. James Mark Kamoga** cited, the Supreme Court held that the powers of review of a High Court Judge extend to Orders of a Registrar. However, the basis of that decision was a review by the High Court Judge of a Consent Judgment (entered by a 300 Deputy Registrar) based on the discovery of a new and important matter of evidence said to have not previously been within the Applicants knowledge. - [46]. Upon due consideration, the much cited **Desai Vs. Warsama: 1967 (EA) 351** stands out in resolving the question of whether a decision without Jurisdiction is amenable to **Review** and its holding to the effect that – - 305 **"… … lack of jurisdiction goes far beyond any error, omission or irregularity nor can it be regarded as a mere technicality … …".** - [47]. It would therefore follow that a decision reached without Jurisdiction is not merely **"an error apparent on the face of the Record"** but goes to the very root of the exercise of the Courts powers. It consequently would not fall 310 under the limited scope of **Review** under **Section 82 of the Civil Procedure Act** and **Order 46 of the Civil Procedure Rules.** It is trite that the power of a Court in Review is specific and circumscribed – and not inherent.

11 | P a g e

- [48]. Rather, the impugned decision of the Registrar reached without the requisite Jurisdiction should have been subject of an Appeal. Much as has been 315 previously held, a decision without Jurisdiction is deemed a nullity in Law, the Appeal would be instituted for purposes of pronouncement as was conceded in **Macfoy Vs. United Africa Co. Ltd (1961) 3 All E. R. 1169 at 1172** and **Desai Vs. Warsama: 1967 (EA) 351.** - [49]. The rationale is quite clear in as far as any affected Court acting without the 320 requisite general or specific Jurisdiction, most especially similar to these circumstances (Civil Court) or in respect of a Lower Court, should not presume to exercise unfettered **Review** of its own such decisions which decisions in any case are a nullity and of which there is nothing to review. This would often be tantamount to presiding over a disguised Appeal and would 325 exacerbate as well as compound the nullities. The clear and consistent remedy would be for the decision to be appealed by the affected and aggrieved Party. - [50]. In the circumstances of this case, it would have been incumbent on the Deputy Registrar upon realizing that he was not vested with Jurisdiction to stay execution of the decision of the Trial Judge to follow the proper avenue 330 and refer the Application to the same Docket and the Judge that presided over the matter it in accordance with **Order 50 Rule 7 of the Civil Procedure Rules**. - [51]. Inevitably, for the reasons outlined herein-above, this Application instituted for **Review** is misconceived and must fail on procedural grounds. - 335 [52]. Having carefully given due consideration to the Application with its supporting Affidavit(s) and Annextures, the responsive Affidavit(s) and Annextures, the Written Submissions filed by the respective Parties and the entire circumstances of this Application for Review, the Court finds that the Application for review is misconceived and procedurally untenable. It is 340 therefore dismissed. - [53]. Each Party shall meet its own costs.

## **Orders of the Court.**

[54]. Accordingly, the Court makes the following Orders: -

- 1. **Miscellaneous Application No. 039/2023** is hereby dismissed. - 345 2. Each Party shall meet its own costs of the Application.

It is so Ordered.

**Signed and Dated on the 20th day of September, 2024 at Kitgum High Court Circuit.**

350 **Philip W. Mwaka**

**Acting Judge of the High Court.**

# **Delivery and Attendance.**

This signed and dated Ruling shall on the Directions of the Presiding Judge be delivered to the Parties electronically on **Monday, 23rd day of September, 2024 at**

355 **10:00am** by the Deputy Registrar, Kitgum High Court Circuit.

1. Deputy Registrar,

Kitgum High Court Circuit: – Her Worship Suzanne Aisia Musooli.

- 2. Counsel for the Applicant: Ms. Roselyne Kunihira. - 3. The Applicant: Mr. Okwera Celestino. - 360 4. The Respondent: Mr. Okello Christopher Bong Tachi, *Pro Se*. - 5. Court Clerk at the Hearing: Mr. Atube Michael.

**Philip W. Mwaka**

**Acting Judge of the High Court.**

365 **Kitgum High Court Circuit.**

**20th day of September, 2024.**