Ovungiu & Another v Klelia & 4 Others (Civil Miscellaneous Application 70 of 2022) [2023] UGHC 495 (10 October 2023)

## THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA HOLDEN AT ARUA

# CIVIL MISC. APPLICATION NO.0070 OF 2022

(ARISING OUT OF HIGH COURT MISC. APPLICATION NO. 076 OF 2021)

(ARISING OUT OF MISC. APPLICATION NO.002 OF 2015 AND HIGH **COURT CIVIL APPEAL NO.002 OF 2015)**

1. OVUNGIU QUIRINIUS T/A M/S SELECT AUCTIONEERS AND COURT **BAILIFFS**

2. OVURU STEPHANO======================APPLICANTS

**VERSUS**

$\mathbb{A}$

- 1. KLELIA OBAYA - 2. DEKTHO PASKINALI - 3. OYOMA NEREO - 4. ONGIERA WALTER - 5. RUPINY WILLIAM $\Rightarrow$ $\Rightarrow$ $\Rightarrow$ $\Rightarrow$ $\Rightarrow$ $\Rightarrow$ $\Rightarrow$ $\Rightarrow$

#### **RULING**

# BEFORE HON. MR. JUSTICE COLLINS ACELLAM

#### **Brief Introduction**

This is an application brought by way of notice of motion, brought under Order 44 Rules 2 & 4 of the Civil Procedure Rules SI 71-1) for orders that:

- a) Leave be granted to the Applicants to appeal against the decision and orders of the learned Deputy Registrar in Civil Miscellaneous Application NO.0076 of 2021. - b) Costs of this Application be provided for.

#### **Background**

On 23<sup>rd</sup> December 2021, the Respondents filed Miscellaneous Application No.0076 of 2021 claiming that the 1<sup>st</sup> Applicant attached 178 goats belonging to the them and that the 1<sup>st</sup> Applicant under declared the goats attached. On the 25<sup>th</sup> day of August 2022, the Deputy Registrar High Court Arua ordered the 1<sup>st</sup> Applicant to account for the property attached in execution. Dissatisfied with the decision of the learned trial Registrar, the 1<sup>st</sup> and 2<sup>nd</sup> Applicants filed this application seeking leave to appeal against the said decision thus this Application.

#### **Grounds On Which This Application is Based**

The grounds for the application are briefly stated in the application but are further expounded in the affidavit in support of the applicant sworn by Mr. OVONGIU QUIRINIUS. In summary the grounds are that the Applicant are dissatisfied and aggrieved by the orders of the

ANA

Deputy Registrar High Court Arua in Civil Miscellaneous Application No.0076 of 2021 made on the 25<sup>th</sup> day of August 2022 and that the intended appeal involves serious questions of law and fact as the applicants cannot be held liable for property that did not ever come into their possession nor did the 1st Applicant attach in execution of the Decree.

### **Grounds of Opposition**

Vide Affidavit in reply deponed by **RUPINY WILLIAM on** the 17<sup>th</sup> day of October 2022, he contends that the application is misconceived, superfluous, frivolous and vexatious which warrants a dismissal with costs.

On perusal of the file, I have noticed there is no submission of the Applicant filed on court record; I am only presented with that of the Respondent filed on record which I have duly put into consideration to come up with this ruling.

I have pursuant to Order 15 CPR, framed the following issues which were deemed crucial in the determination of the Application to wit;

#### <u>Issue</u>

- 1. Whether this Appeal is proper before Court - 2. Whether the applicant has adduced sufficient reasons to justify the grant of the remedy sought.

### **Analysis / determination**

**Preliminary Point of law**

Counsel for the Respondents raised a preliminary objection that the instant application seeking leave to appeal against the order of the Deputy Registrar of the Court in M. A No.076 of 2021 on 23/08/2022 is misconceived, superfluous, frivolous and vexatious and should be dismissed with costs as a party aggrieved by an order made by the Registrar of the Court does not require leave of the Court to appeal against such an order.

In support of his arguments, Counsel cited Order 50 rule 8 of the Civil Procedure Rules which provides that any person aggrieved by any order of a registrar may appeal from the order to the High Court and the appeal shall be by motion on notice.

I note that the Applicant made no response neither did they file their submissions despite court directive.

## **Decision of court**

Section 79 (1) of the Civil Procedure Rules on the other hand provides thus:

Limitation for Appeals

- 1) Except as otherwise specifically provided in any other law, every appeal shall be entered - a) Within thirty days of the date of the decree or order of the court or - b) Within seven days of the date of the order of a registrar, as the case may be, appealed against; but the appellate

court may for good cause admit an appeal though the period of limitation prescribed by this section has elapsed.

An appeal is a creature of statute. By virtue of Order 50 rule 8, a party aggrieved by the decision of the Registrar has an automatic right of appeal to the judge. However, by virtue of 79(1) (b) of the civil procedure Act, such appeal must be filed within Seven (7) days from the date the decision is made.

In the instant case, the decision appealed against was made by the Deputy Registrar on the 25<sup>th</sup> day of August ,2022. The Appeal against the decision should have been filed within 7 days after 25<sup>th</sup> August, 2022. The current application for leave to appeal against the decision and orders of the learned Deputy Registrar was filed in this court on the 31<sup>st</sup> August 2022 after six days (6 days).

I wish to note that the Applicant did not attach to the Application a copy of the said decision /ruling of the learned Deputy Registrar.

I find that this application was not properly before the court because there was no need to seek leave since the Applicant was still within the confines of the 7 days and ought to have filed the **APPEAL** instead of this Application. This Application is hereby struck out with orders as to costs.

#### I SO ORDER


# **JUDGE** 10/10/2023