Omare & 7 Others v Imalingat (Civil Appeal 94 of 2023) [2025] UGCA 51 (14 February 2025)

Full Case Text

# THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT I{AMPALA

(Coram: Cheborion Barishaki, Moses Kazlbwe Kawumi, Asa Mugenyi, JJA)

#### CIVIL APPEAL OO94 OF 20.23

# OMARE JOHN AND 7 OTHERS, ======================== APPELLANTS

IMALIN GAT LA\*REN eB == = = = = ==:= :l: == = = = = = = = = = = = = = REspo N DENT

(Arising from High Court Soroti Appeal 0026 of 2O23 uthich u)as an appeal from of a decision of the Magistrate's Court Bukedea Ciuil Suit 009 of 2009)

#### JUDGMENT OF DR. ASA MUGENYI

# 1. INTRODUCTION

This is a second appeal arising from the judgment of High Court by Dr. Henry Peter Adonyo J., delivered on 1"t June 2022 setting aside the judgement and orders of the trial Magistrate Grade 1. The High Court declared the appellants as trespassers to the suit land and ordered them to vacate.

# 2. BACKGROUND

- 2.1 The respondent claimed he is the customary heir, and who together with his brothers are the beneliciaries of the estate of the late Ingorojoj which is situated at Akakaat village, Kamutur Parish, Kolir sub county, Bukedea district. It was alleged that suit land was part of the estate. The appellants claimed that they inherited the suit land from their grandfather, one Isemo. - 2.2 The respondent filed Civil Suit OO9 of 2OO9 against the appellants before the Chief Magistrate Court at Bukedea. The Magistrate's Court decided in favour of the

appellants. The respondent being aggrieved by the decision of the Magistrate Court appealed to the High Court in Civil Appeal 26 of 2OL7 where he was declared the lawful owner of the suit land. The High Court ordered the appellants to vacate the suit land. The appellants being aggrieved by the decision of the High Court have appealed to this court.

# 3. GROUNDS OF APPEAL

The appellants raised the following grounds of appeal.

- 1) The learned judge erred in law and fact when he failed to evaluate, appreciate and differentiate the evidence on record as there being two estates of Isemo and Ingorojoj both sons of Aripany hence arrived at a wrong decision. - 2) The learned trial judge erred in law and fact when he based himself on deceitful, wrongful, misdirected and hearsay evidence of the respondent and ignored the appellants'submissions thus arriving at a wrong decision which has occasioned a miscarriage of justice to the appellants.

# 4. ISSUES RAISED

The following issues were agreed for determination;

- 1) Whether the appeal is competent before this court? - 2) If so, whether the judge erred in law and fact when he failed to evaluate, appreciate and differentiate the evidence on record of there being two estates of Isemo and Ingorojoj both sons of Aripany hence arriving at a wrong decision? - 3) Whether the judge erred in law and fact when he based himself on deceitful, wrongful, misdirected and hearsay evidence of the respondent and ignored the appellants' submissions thus arriving at a wrong decision which occasioned a miscarriage of ju stice?

#### Representation

When the matter came up for hearing, the court ascertained that all the parties were served. The appellants and their counsel did not attend court. However, the court will consider their submission which has been filed. The respondent was represented by Mr. Justine Semuyaba who was holding brief for Mr. Alaka Caleb.

#### PARTIES SUBMISSIONS

# 5. APPLELLANTS' SUBMISSIONS

- 5.1 The appellants submitted that the trial judge erroneously found that the disputed land constituting 50 acres was the estate of Ingorojo. They submitted that the disputing parties are grandchildren of Aripany. Aripany divided the suit land with shares to his children. ln 1924,Isemo left his brother Oron and others in search of greener pastures. In 1953, Ingorojoj William son of Oron followed Isemo where he got unoccupied free land next to Isemo. Hence there are two estates of the said persons. However, the judge found that land in dispute constituted the estate of Ingorojoj. The judgment of Ikomo Llomuno clan stated that the estate of Isemo belongs to Omare John and his brothers. The appellant submitted that the trial judge failed to differentiate the two different families of Isemo and Oron. The appellants submitted on the history of the family of the late Isemo. They submitted that the family trees of Isemo and Oron are different. - 5.2 The appellants submitted that the trial judge erred in law and fact when he based his decision on deceitful, wrongful and hearsay evidence. He stated that the respondent lied to court that he built a permanent house at Akakaar-Kamutur which was not there during the locus visit by the lower court. One witness Aripany Misaki lied about his age. There were other contradictions in respect of the family tree. There were misconceptions on who lived on the disputed land. The appellant submitted that the misconceptions played a part

in the trial judge making an erroneous decision.

5.1 The appellants submitted that respondent failed to adduce the land sale/purchase agreement of the land to the father of the appellant who sold it to Adengo Nakalet.

#### RESPONDENT'S SUBMISSIONS IN REPLY

- 6.0 The respondent raised preliminary objections and addressed the court on the merit of the appeal. He submitted that the appeal is incompetent on three grounds. - 6.1 First, the respondent submitted that the record of appeal was amended without leave of court contrary to Rule 45 of the Rules of this Court. He stated that the appellants filed their record of appeal and an amended record of appeal on 17th March 2023 and 5th April 2023 respectively. - 6.2 Secondly, the respondent argued that this appeal being a second appeal, is governed by SectionsT2(1) and 74 of the Civil Procedure Act. The said Sections require an appellant to raise grounds on questions of law in a second appeal and not questions of mixed law and facts. The respondent argued that an appeal being a creature of statute, the appellants ought to comply with the enabling law. He contended that the appellants'grounds of appeal are in contravention of Sections 72(ll and 74 of the Civil Procedure Act. He cited Celtel Uganda Limited t/a Zain Uganda u Karungi Suzan Civil Appeal 73 of 2023 where the Court of Appeal struck out an appeal which did not comply with Sections 72 and 74 of the Civil Procedure Act. He also cited Lubanga u Ddumba Civil Appeal 10 of 2Ol1 where the Court of Appeal struck out a second appeal as incompetent for raising matters of fact and mixed law and fact. He also cited John Kafeero Sentongo u Peterson Sozi Clil Appeal 173 of 2OL2 where the Court of Appeal held that the effect of Section 72 of the Civil Procedure Act is to bar second appeal from being

pg.4

filed on matters of fact or matters of mixed fact and law. The respondent submitted that on reading the grounds of appeal, they are on points of mixed law and fact and contravene Sections 72 and 74 of the Civil Procedure Act and prayed that court finds the entire appeal incompetent.

- 6.3 Thirdly, the respondent submitted that the appellants did not take the necessaqr steps to prosecute the appeal in time. The appellants filed their appeal and served it out of time. The appellants filed a notice of appeal on 13th June 2022 and served it on the respondent on 22"d June 2022 outside the mandatory 7 days prescribed by Rule 78(1) of the Court of Appeal Rules. He referred to the affidavit of service on record. On 25th November 2022, the appellants filed a letter requesting for certified record of proceedings. This was six months after lodging the notice of appeal and was outside the time prescribed by the law. The letter was not served on the respondent or his lawyers. The respondent cited Kasirye Byaruhanga and Co. Aduocates u Uganda Deuelopment Bank SCCA 2 of 1997 where an attempt by the appellant to rely on Article 126(2ll(3) of the Constitution to justify serving a letter outside the prescribed time was futile. He also cited Andrew Mauiri u Jomayi Property Consultants Ltd, CA Application 274 of 2Ol4 where it was stated that if an action is not performed as per the law prescribed then whatever legal process has been done becomes a nullity as against the party who has a duty to perform the act. The respondent submitted that the appellants tailed or did not at all take the right and essential steps in the prosecution of this appeal. He prayed that it is struck out with costs. - 6.4 On the merits, the respondent submitted that this being a second appeal, the duty of the court is to examine whether the principles which a first appellant count should have applied were properly applied. - 6.5 The respondent submitted that the law requires a first appellate court to reevaluate the evidence on court record and make up its mind without disregarding the judgment appealed but carefully weighing and considering it. He cited

Kifamunte Henry u UgandaCriminal Appeal 10 of 1997 and FredickJ. K. Zaabute u Orient Bank Ltd. and 5 others Supreme Court Civil Appeal 4 of 2006 where it was stated that on second appeal, the Court of Appeal is precluded from questioning the findings of fact of the trial court provided there is evidence to support those findings. The respondent submitted that the evaluation of evidence is a duty of the first appellate court and the second appellate court can only re-evaluate the evidence if it finds that the first court did not discharge that duty. The respondent submitted that all the evidence from the trial magistrate's court was fully and thoroughly evaluated by the first appellate court, the High Court before reaching its conclusion.

6.6 On the second issue, the respondent reiterated that the appellate judge evaluated the evidence of the trial magistrate and properly reached his decision. The judge was not misguided in finding that the respondent had homes at Abaliyep and Akaakat villages. The respondent submitted further that the appellate Judge properly evaluated the evidence and concluded that the disputed land belonged to the respondent in accordance with lineage of Isemo son of Aripany his grandfather. The respondent also submitted that the appellate judge was correct to ignore the conjecture and fanciful theories that there existed a relationship between his families and that of the appellants. He cited Aduocates Coalition for Deuelopment and Enuironment and 4 others u Attorney General and another Constitutional Petition 14 of 20ll where it is stated that "it is trite law that courts of law act on credible evidence adduced before them and not indulge in conjecture, speculation reasoning or fanciful theories."

# 7. DETERMINATION OF COURT

7.1 The respondent in his submissions raised three issues three preliminary objections which this Court has to dispose of before going to the merits. In the event, the points of law are found to be valid, it may not be necessary to delve into the merit. A perusal of the record shows that even though the appellants were served, they did not attend court. They were not able to respond to the preliminary objection.

## 7.2 Resolution of tssue 7; Whether the appeal is properlg beJore this court?

- 7.2.1The respondent raised three preliminary objections. The preliminary objection I shall address first, is whether the appellants filed this appeal out of time. A perusal of the record of proceeding shows that the decision of the appellate court by Dr. Henry Adonyo J., was made on l"t June 2022. On 15th June 2022, the appellants lodged a notice of appeal. On 25th November 2022, the appellants through their lawyers, Lulecera and Company Advocates filed a request to the Deputy Registrar High Court, Soroti for the record of proceedings and judgment. On 24th November 2022, the Deputy Registrar availed the record of proceedings. On Sth April 2023, the appellants lodged the memorandum of appeal, 5 months after receiving the record of appeal. The respondent submitted that the appeal was filed and served out of the time prescribed by the Judicature (Court of Appeal Rules) Directions SI 13-10. - 7.2.2. Time limits are set out in the Judicature (Court of Appeal Rules) Directions. Rule 76 of the said Rules reads:

### "76. Notice of appeal in clvll appeals

- (1) Any person who desires to appeal to the court shall give notice in writing, which shall be lodged in duplicate with the registrar of the High Court. - (2) Every notice under subrule (1) of this rule, shall subject to rules 83 and 95 of these Ru1es, be lodged within fourteen days after the date of the decision against which it is desired to appeal."

Rule 83 of the Rules gives the time frame within which suits can be instituted. It reads.

### "83. Institution of appeals.

(1) Subject to rule 113 of these rules, an appeal shall be instituted in the court by lodging in the registry, within sixty days after the date when the notice of appeal was lodged -

- (a) a memorandum of appeal, in six copies, or as the registrar shall direct. - (b) the record of appeal, in six copies, or as the registrar shall direct; - (c) the prescribed fee; and - (d) security of costs of the appeal. - (2) Where an application for a copy of the proceeding in the High Court has been made within thirty days after the date of the decision against which it is desired to appeal, there shall, in computing the time within which the appeal is to be instituted, be excluded such time as may be certified by the registrar of the High Court as having been required for the preparation and delivery to the appellant of that copy. - (3) An appellant shall not be entitled to rely on sub rule (2) of this rule, unless his or her application for the copy was in writing and copy of it was served on the respondent, and the appellant has retained proof of that service." - 7.2.3 It is not in contention that the decision of the appellate court was made of lst June 2022. The letter requesting for the record was lodged in the court on 24th November 2022. This was more than the 30 days prescribed by the law. The memorandum of appeal was lodged on Sth April 2023 despite the fact that the record was ready on 24th November 2022. This was beyond the 60 days prescribed by the law to lile an appeal. There was no extension of time obtained from this court. There is therefore no appeal instituted in this court. - 7.2.4 Rule 84 of the Rules of this Court give the effect of default of notice in instituting an appeal it states

### "84 Effect of default in instituting appeal

If a party who has lodged a notice of appeal fails to institute an appeal within the prescribed time-

- (a) he or she shall be taken to have withdrawn his or her notice of appeal and shall, unless the court otherwise orders, be liable to pay the costs arising from it of any persons on whom the notice of appeal was served; and - b) any person on whom the notice of appeal was served shall be entitled to give notice of appeal notwithstanding that the prescribed time has expired, if he or she does so within fourteen days after the date by which the party who lodged

pg.8

the previous notice of appeal should have instituted his or her appeal. 85. Death of party to intended appeal."

The respondents rightly cited Andreut Mauiiri u Jomagi Propertg Consultants Ltd, (supra) where these provisions were evaluated by the Justices of the Court of Appeal. The Court stated that:

"It is clear from the above provisions that rule 83 (1) provides that appeals must be filed within 60 days of the date of the initial decision. On the other hand, Rule 83(2) and B3(3) permit an appellant to exclude from the computation of the 60-day limit, the time taken by the Registrar to prepare and deliver copies of typed proceedings to the appellant, provided the application for the proceedings was in writing and that a copy of the said letter/ application was served upon the respondent."

In this appeal, the letter requesting for certified record of proceedings was filed beyond the 30 days prescribed by the law above. The record was ready on 24th November 2022 and the appellants lodged their letter requesting it the next day on 25th November 2022. The appellants instituted their appeal by filing a memorandum of appeal on 5th April 2023 over 3 months later, in contravention of Rule 83 of the Rules of these court.

7.2.5 ln Andrew Mauiiri u Jomagi Property Consultants Ltd, (supra/, while citing Bakaluba Mukasa Peter & another u Nalugo Mary Margaret Sekiziyiuu, Court of Appeal Election Petition Application 24 of 2OI1, it was held inter alia,

> "That taking no essential step is the performance of an act by a party whose duty is to perform that fundamentally necessary action demanded by the legal process, so that subject to the permission by court, if the action is not performed as by law prescribed, then whatever legal process has been done before that act."

It was further held in that case that delay in taking the right time hinders the successful parties from enjoying the fruit of their judgement which was obtained in their favour. The judges further held that, 'we are of the firm view that allowing litigants to circumvent the rules would set a dangerous precedent in this court as it would lead to abuse of the process.' Time limits are matters of substantive law and not mere technicalities. Where a party fails to comply within the time

prescribed by the law, he puts himself outside the ambit of the law. In this case it seems the appellants failed not only to serve the respondent the notice of appeal in time, but also to request for the record of proceeding in time and further to lodge the memorandum of appeal in time. Such actions can set a bad precedent and lead to abuse of court process, which this court cannot entertain.

7.2.6 In the premises I find that the appellants did not take essential steps in the proceedings within the prescribed time. The appeal was not lodged within the 60 days from the receipt of the record from the High Court. Having found the first preliminary objection in the affirmative, it is neither necessary to address the other preliminary issues nor go to the merit. This appeal is not properly before this court it is therefore struck out with costs to the respondent. The costs of the lower court are also awarded to the respondent.

Dated at Kampala \f day or RL 2o2s. . Asa Mugenyi

JUSTICE OF APPEAL

#### THE REPUBLIC OF UGANDA

### IN THE COURT OF APPEAL OF UGANDA AT I{AMPALA

(Coram: Cheboion Baishak| Moses Kazibwe Kawumi & Asa Mugenyi, JJA)

Civil Appeal No.0094 of 2023

#### BETWEEN

10 Omare John andT Others::::::::::::::::::::::::::::::::::::::::::::::::::::::Appellants

#### AND

Imalingat Lawrence:: Respondent

### JUDGMENT OF CHEBORION BARISHAKI, JA

I have had the benefit of reading in draft the judgment of my learned brother Asa

15 Mugenyi, JA and I agree that this appeal ought to be struck out with costs for the reasons he has set out therein.

Since Justice Moses Kazibwe Kawr.rmi, JA also agrees, this appeal is struck out with costs to the respondent in this Court and in the lower Court.

Dated at Kampala this .day of.. 2025

Cheborion Barishaki

JUSTICE OF APPEAL

## THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

## CIVIL APPEAL NO. OO94 OF 2023

OMARE JOHN AND 7 OTHERS APPELLANTS

## VERSUS

IMALINGAT LAWRENCE RESPOT\DE,{T

CORAM: HON. JUSTICE CHEBORION BARISHAKI, JA HON. JUSTTCE MOSES KAZTBWE KAWUM|, JA HON. JUSTTCE DR. ASA MUGENY!, JA

# JUDGMENT OF MOSES KAZIBWE KAWUMI. JA

I have had the benefit of reading in draft the Judgment prepared my learned brother the Hon. Justice Dr. Asa Mugenyi, JA. I agree with the reasoning and orders he has proposed. I have nothing useful to add.

Dated and delivered at Kampala this ...]-l\*hay of 2025.

Moses Kazibwe Kawumi JUSTICE OF APPEAL