Onyango & 3 Others v Wasswa & Another (Civil Appeal 37 of 1985) [1991] UGHC 69 (2 August 1991)

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

CIVIL APPEAL NO. 37 OF 1985

And Albert States of Albert Albert Albert Albert Albert Albert Albert Albert Albert Albert Albert Albert Albert Albert Albert Albert Albert Albert Albert Albert Albert Albert Albert Albert Albert Albert Albert

(From Mengo Court Civil Suit No. 1459 of 1971).

1. MARIA ONYANGO OCHOLA Ø

2. CHARLES OCHOLA

MARTIN ONDOWA

$\sim l\,e^{j\,m} \qquad \qquad \dots \qquad \qquad \cdots$

$\mathcal{A} = \mathcal{A}$

4. FRANCIS K. MALAWA.

VERSUS

APPELLANTS.

$...$ / $...$ /2

J. HANNINGTON WASSWA

$\epsilon_{\lambda} \bar{\epsilon}$ 2. SSEMUKUTO & CO., LTD. .................................. RESPONDENTS. BEFORE:- The Honourable Mr. Justice J. W. N. Tsekooko

ORDER

$\cdots \qquad \cdots$

The appeal before me has had a chequered and sorry history. Considering that the suit that has engendered this appeal was instituted in Mengo Magistrates Court in early, 1971, the litigation in its different names had remained undetermined for now 20 years which is itself not a complement to our legal procedures considering the apparently simple nature of the origin of the suit.

I don't consider it, therefore, out of place to give a resume of the background to the matter.

The original Civil Suit No. 1459 of 1971 was instituted by Nagji Textile Ltd. against the late J. S. M. Ochola, the husband of the first appellant and father of the other appellants to recover a debt of a sum of money for which a consent judgment was recorded by the Chief Magistrate on 16th Frbruary, 1972. $\Lambda$ portion of the amount adjudged was paid. Execution proceedings were instituted to recover the balance of about 17,000/=. Somehow a house of the then judgment debtor was on 14th December, 1972 sold by the first respondent as court broker to the 2nd Respondent. Attempts to prevent the sale failed.

Judgment debtor had disappeared presumably he was killed by Amin's agents. Subsequently the appellants got Letters of Administration to the estate of the judgment debtor. They then unsuccessfully attempted to recover the house by instituting High Court Civil Suit No. 981 of 1978 against the appellants. The High Court struck $\cdots$ $\mathcal{L}_{\mathcal{A}}(x) = \mathcal{L}_{\mathcal{A}}(x)$ out that suit for incompetence.

Thereafter and because of that High Court Order the appellants filed two notices of motion in Mengo Court of Chief Magistrate. The $\mathcal{L}$ we start the $\mathcal{L}$ first was withdrawn on 1st August, 1985. The second was eventually $\mathbf{m} = \mathbf{m} \mathbf{m} \mathbf{m} \mathbf{m} \mathbf{m} \mathbf{m} \mathbf{m} \mathbf{m} \mathbf{m} \mathbf{m} \mathbf{m} \mathbf{m} \mathbf{m} \mathbf{m} \mathbf{m} \mathbf{m} \mathbf{m} \mathbf{m} \mathbf{m} \mathbf{m} \mathbf{m} \mathbf{m} \mathbf{m} \mathbf{m} \mathbf{m} \mathbf{m} \mathbf{m} \mathbf{m} \mathbf{m} \mathbf{m} \mathbf{m} \mathbf{m} \mathbf{m} \mathbf{m} \mathbf{m} \mathbf$ heard by the then Chief Nagistrate of Mengo who gave her ruling with the price and against the appellants on 29th November, 1985.

$\gamma^{\mu} \sigma = \gamma^{\mu} \sigma^{\mu} \qquad \gamma = \gamma^{\mu} \gamma^{\mu} \qquad \gamma = \gamma^{\mu} \gamma^{\mu} \qquad \gamma = \gamma^{\mu} \gamma^{\mu} \qquad \gamma = \gamma^{\mu} \gamma^{\mu} \qquad \gamma = \gamma^{\mu} \gamma^{\mu} \qquad \gamma = \gamma^{\mu} \gamma^{\mu} \qquad \gamma = \gamma^{\mu} \gamma^{\mu} \qquad \gamma = \gamma^{\mu} \gamma^{\mu} \qquad \gamma = \gamma^{\mu} \gamma^{\mu} \qquad \gamma = \gamma^{\mu} \gamma^{\mu} \qquad \gamma = \gamma^{\mu} \gamma^{\mu} \$ On the same day Counsel who appeared for the appellants sought $\mathcal{L}^{\mathcal{A}} = \mathcal{L}$ $\mathcal{L}$ and $\mathcal{L}$ and $\mathcal{L}$ and $\mathcal{L}$ and $\mathcal{L}$ leave from the learned Chief Magistrate to Appeal to this Court against her ruling. Leave was granted on the same day. Though not stated I am sure that leave was necessary under 0.40 Rule 1 (1) (h) of Civil Procedure Rules. Hence the present appeal.

$\{(\mu)\}$

The present appeal was actually reinstated for hearing by $\mathcal{L} = \mathcal{L} \times \mathcal{L}$ $\bullet \quad \bullet \quad \bullet \quad \bullet \quad \bullet \quad \bullet \quad \bullet \quad \bullet \quad \bullet \quad \bullet \quad$ this court following a successful appeal to the Supreme Court against orders of my brother judges emanating from an earlier exparte hearing and judgment by Mukanza J. $...$ /3

$2 -$

12 When the appeal came up for hearing on 11th July, 1991 I was not certain that the appeal was competent. This was because after Wither learned Chief Magistrate delivered her ruling and at the same time granted leave to appeal against her ruling on 29th November, 1985, a Notice of Appeal was on 11th December, 1985 filed in the High Court by Akona Adoko's Chambers acting as appellant's advocates. It appears that the High Court assigned that notice of appeal Civil Appeal No. 37 of 1985. From inter alia, the affidavit of Augustine L. Matovu one of the previous Advocates for the appellants which he swore on 31st March, 1988 and the judgment of the Supreme Court in Supreme Court Civil Appeal No. 5 of 1990, apart from the said notice of appeal nothing took place by way of originating the appeal in the High Court as provided by law: 0.39 Rule 1 of Civil Procedure Rules. I have taken trouble to examine the High Court Appeals register. It shows that the appeal was registered on 11th December, 1985. within the memorandum of appeal was lodged in Court but it must have been lodged on or after 27th May, 1987 because that is the date when it was apparently signed by counsel for the appellants. There is no other previous memorandum of appeal on the record.

Taking up the matter Dr. Byamugisha learned counsel for the respondents submitted that the appeal is incompetent. That there is no evidence justifying belated filing of memorandum of appeal on grounds that the period of delay between the filing of the notice of appeal and the filing of memorandum of appeal was necessary to obtain typed copy of proceedings. Further he stated

$\cdots \cdots$

that after both counsel were granted adjournment by me for perusal of court record there was nothing on the record showing that the appellants were granted leave to appeal out of time. He therefore submitted that the appeal is incompetent and should be struck out. Mr. Kateeba, learned counsel for the appellants submitted in effect that the appeal in competent. That notice to the High Court was sufficient since it requested for proceedings.

It is a matter of regret that the attention of both the High Court and the Supreme Court was not drawn to the apparent defect $\mathbb{R}$ in this appeal. The High Court had to deal with the appeal in two different aspects on at least three occasions. So did the Supreme Court on two occasions.

Clearly when the notice of appeal was filed in the High Court, everybody erroneously treated-the notice as instituting the appeal. That may explain why it was assigned appeal No. 37 of 1985. And yet an appeal in the High Court chall, to quote the words of the law, "be preferred in the form of a memorandum signed by the appellant or his advocate and presented to the court or to such officer as it shall appoint in that behalf". See Order 39 Rule 1 (1) of the Civil Procedure Rules. Sub rule 2 thereof sets out the form which the memorandum of appeal is to take.

by assigning the memorandum of appeal filed in 1987 the same Civil Appeal No. 37 of 1985 which had been assigned to the purported notice of appeal it is clear that this appeal was instituted in 1985. Therefore the memorandum of appeal would merely be a supplimentary document to the Notice of Appeal. It would not validate the appeal.

$...$ /5

If the Notice of Appeal were to be treated as a request for a copy of proceedings receipt of which proceedings would enable the appellants to institute an appeal then the memorandum of appeal would have been assigned an appeal number of 1987 but not of 1985 as is the case presently. Even then there would have to be attached, as submitted by Dr. Byamugisha, supporting evidence justifying

filing the appeal late, i.e., by virtue of Section 80 (2) of the Civil Procedure Act. There is nothing to this effect.

Moreover, it should be noted that the notice of appeal filed on 11th December, 1985 did not specifically say that appellants desired to get a copy of proceedings before instituting an appeal or filing memorandum of appeal. Nor did the memorandum of appeal state that delayed filing of it was caused by nonavailability of copy of the proceedings of the Chief Magistrate. In my view these omissions are fatal errors in this sad case.

Mr. Kateeba for the appellants stated that some papers such as an application for a typed copy of the proceedings are missing. He was himself unable to say when the record of proceedings was available. If the application for proceedings is missing from the Court file, there ought to be, as is expected to be the practice, a copy of that application on his own file or the file of his predecessor advocate. In any case in view of the fact that the appeal was instituted by notice of appeal rather than a memorandum of appeal, I don't think availability of such an application would help the appellants. It may be of helf if the appellants chose to seek leave to appeal out of time. This appeal is not like Francisco Di Julio Vs. Stirling Astaldi (E. A.) Ltd. /19547 21 EACA 142.

. . . . . . . . /6

I have anxiously perused the judgment of the Supreme Court in Civil Appeal No. 5 of 1990 mentioned earlier, but I have not found anything in the judgment suggesting that the Supreme Court required this Court to entertain this appeal with its (appeal's) obvious incompetence since the incompetence of the appeal doesn't appear to have been drawn to the attention of the Supreme Court.

In the circumstances and for the reason I have endeavoured to give I regretfully hold that the appeal is incompetent and I order that the same be and is hereby struck out. The Respondents shall have the costs.

J. J. N. TSEKOOKO JUDCE $2/8/1991.$

$\frac{1}{2}$ /8/1991 at 10.00 a.m.

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. Dr. Byamugisha for Respondents.

1st Respondent representative present.

Katgeba for Appellants.

Appellants present.

Gulemye interpreter.

Italyan and an

$n$ aoni $n$ -1

Ruling delivered.

$1.1$ mit march $-1$ $J. W. N.$ TSEKOOKO IRUE $2/8/1991.$

き間MS PATE 1.6/8/9/ Hormanyor N. CHIEF SHIPSZEOD