Oyat v Okiya and 3 Others (Miscellaneous Application 293 of 2022) [2023] UGHCCD 225 (13 July 2023)

# THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA HOLDEN AT GULU

**MISCELLANEOUS APPLICATION NO. 293 OF 2022** (ARISING FROM MISC. APPLICATION NO. 234 OF 2022) ITSELF ARISING FROM CIVIL APPEAL NO. 43 OF 2022

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OYAT TOO-LIT....................................

#### VERSUS

1. OKIYA GEORGE 20 2. ONEN RICHARD 3. ONONO 4. ATON (OLOYA ANTHONY)....................................

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$\mathsf{S}$

$10$

## BEFORE: HON. MR. JUSTICE GEORGE OKELLO

### **RULING**

The Applicant by Motion seeks for the setting aside of the Ruling of the Deputy Registrar of this Court, given on 10<sup>th</sup> November, 2022, in which it 35 is claimed that, the Deputy Registrar granted an order of stay of execution of the order of the Magistrate Grade One, pending appeal to the High Court. The lower court order was given in Misc. Application No. 009 of 2022. The Applicant prays for costs of this application. The Respondents apparently sought, vide Miscellaneous Application No. 234 of 2022, and 40 obtained from the Deputy Registrar of Court, an order of stay of execution

HLADDu.

- $\mathsf{S}$ of the Orders of the lower court. The Order of the lower court which was stayed has since been appealed to this court vide Civil Appeal No. 43 of 2022. The Applicant's grievance is that the Deputy Registrar entertained a stay of execution application when no appeal was lodged in this court and therefore, the Respondents had no right to seek a stay of execution of the $10$ lower court order. That, in any case, there was no threat of execution of the lower court order as no notice to show cause had been issued against the Respondents. The Applicant also avers that Civil Appeal No. 43 of 2022 lodged by the Respondents in the High Court was lodged without leave of the lower court, so the Deputy Registrar was wrong to entertain a stay of 15 execution application. The Applicant also alleges that the Affidavit in support of the stay of execution application was defective as the deponent lacked the requisite authority by the other respondents. He also averred that, one of the Respondents was deceased at the time the stay of execution application was entertained. That, the Deputy Registrar ignored several preliminary objections raised by the Applicant. That, the Deputy 20 Registrar erred in not ordering for deposit of security for costs, and that, the stay of execution order was open ended, and therefore, ought to be set aside or reviewed, with costs. - The Application was opposed by the 1<sup>st</sup> Respondent. In his affidavit, he 25 claimed the Motion was served late, and thus incurably defective. He responded that he sought leave to appeal the orders and ruling of the lower

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Herodu

$\mathsf{S}$ court from the High Court, the lower court having declined leave. That, leave from the High Court was combined with the application for stay, and the Deputy Registrar granted both. That, the Deputy Registrar did not err in law but complied with the law to grant stay of execution, and duly entertained it since there is a pending appeal. That, his initial leave to $10$ appeal and the initial application for stay of execution was refused by the lower court, hence the Respondents had to pursue them in the High Court, which were entertained by the Deputy Registrar. The Respondent deposed that he swore affidavit in support of the stay of execution application in his own right and not on behalf of the co-respondents, and that, at the time the Respondents filed their defence in the lower court, the fourth 15 respondent was still living. That, the Deputy Registrar exercised his discretion not to order for security for costs.

When the application came before me for hearing on 5<sup>th</sup> May, 2023, Mr. Nicholas Atuhairwe appeared for the Respondents, while no advocate 20 appeared for the Applicant. The Applicant was also absent, however, the $1<sup>st</sup>$ and $2<sup>nd</sup>$ Respondents were in court. It was reported that the $3<sup>rd</sup>$ Respondent is deceased, while the 4<sup>th</sup> Respondent was absent.

Court noted that the Application was drawn by M/s Kunihira & Co. 25 Advocates. Court, therefore, directed the Respondents' counsel to serve the Applicant's advocates with the order regarding the filing of submissions.

HADDIN

$\mathsf{S}$ The order was extracted by the Respondents' counsel and I believe it was served. The Applicant was to lodge submission and serve by 19<sup>th</sup> May, 2023, while the Respondents would file and serve by $2^{nd}$ June, 2023. Rejoinder, if any, would be lodged and served by the Applicant by 9<sup>th</sup> June, 2023. The Ruling was fixed for $13<sup>th</sup>$ July, 2023.

$10$

The Applicant's counsel did not comply. I think because of their inaction, the Respondents' counsel also saw no point in filing submissions. Conduct such as these, with respect, are unacceptable in our noble profession.

$15$ Be that as it may, I have perused the Motion and the affidavit in support, and the affidavit in reply. I must express my disappointment with the manner in which the Motion and its supporting affidavit was prepared. The court documents contain several errors and contradictory depositions. For instance, the order of the Magistrate Court which was stayed, is stated to have been issued in Misc. Application No. 009 of 2022. Elsewhere, it is 20 claimed that, the order was issued in Misc. Application No. 009 of 2020. Unfortunately, a copy of the order of the lower court was not attached to the affidavit. Turning to the impugned order of the Deputy Registrar, neither it nor the ruling, were attached to the affidavit in support of this 25 application. The Applicant also makes reference to Civil Suit No. 060 of 2014 in the Chief Magistrates Court, and deposed that, there was no appeal against a ruling in that suit. The Applicant thus created more

HaroDen

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- $\mathsf{S}$ confusion in the mind of this court, as to the relevance of some information contained in its pleading which remained incomplete. The Applicant also claims that the Respondents never appealed to the High Court. However, a copy of the memorandum of appeal in civil appeal no. 43 of 2022 is attached to the $1^{st}$ Respondent's affidavit in reply. - $10$

It seems to me that, whereas some of the Applicant's grievances would have been meritorious had the case been well packaged, this court, with respect, has been deprived of supporting documents, to back the complaints. As noted, the impugned Ruling and Order of the Deputy 15 Registrar are not attached to the Motion. This court cannot, therefore, purport to determine an appeal against the decision of the Deputy Registrar when it has been deprived of relevant information by the Applicant. It is possible that the Applicant expected court to trace for the case file completed by the Deputy Registrar, and interrogate and fill the 20 gaps in the Applicant's case. I am afraid, that is not the duty of this court. The proceedings of this nature does not require this court to take that course. This is not revision proceeding in which court would call for the record, if it were dealing with decision of a Magistrate court. On the contrary, the appeal is against the decision of the Deputy Registrar of 25 court, under Order 50 rule 8 of the CPR. The onus was thus on the Applicant to supply the impugned ruling and order, and all necessary

Hurodin

$\mathsf{S}$

$\mathsf{S}$ material, such as the pleadings lodged before the Deputy Registrar, which informed the impugned order, among others.

The foregoing aside, I have also noted that, the present Motion was lodged on 28<sup>th</sup> November, 2022, yet the Applicant pleaded that the impugned $10$ Ruling and Order was given on 10<sup>th</sup> November, 2022. The Motion was therefore, lodged outside the seven days provided for appealing the Registrar's order, under 79 (1) (b) of the Civil Procedure Act Cap. 71. It has not been shown here that, a bit of time was taken by the Deputy Registrar in making a copy of the Order and proceedings. As observed, the impugned 15 order is not attached, and neither is the Ruling or any proceedings on which this application is predicated. There is no certificate or any document whatsoever, showing that, about eighteen days had to be excluded, for the purposes of computing the seven days within which the Motion ought to have been lodged. In this case, the Motion ought to have 20 been filed not later than 17<sup>th</sup> November, 2022 but it was lodged on 28<sup>th</sup> November, 2022.

Given that this court is deprived of the material upon which to proceed to determine the merit of the Application, and owing to the fact that the 25 Application was lodged late, and no valid explanation was proffered, the Application is accordingly struck out under section 98 of the Civil Procedure Act, for being incompetent. The Respondent is awarded costs of

HhADOm.

the Application. To avoid potential abuse of the process of court, I order $\mathsf{S}$ that Civil Appeal No. 43 of 2022 between the parties be fixed for hearing immediately after this court vacation.

It is so ordered.

$10$

Delivered, dated and signed in Court this 13th day of July, 2023

Hasalm 18/7/2023

George Okello **JUDGE HIGH COURT**

$20$

$15$

$\mathsf{S}$ Ruling delivered in open Court

12:02pm

13<sup>th</sup> July, 2023

$10$

# **Attendance**

Ms. Grace Avola, Court Clerk.

Mr. Nicholas Atuhuairwe, Counsel for the Respondents.

$1^{\rm st}$ and $3^{\rm rd}$ Respondents in Court.

$15$ Mr. Okot Douglas Odyek, Counsel for the Applicant.

The Applicant in Court.

The 2<sup>nd</sup> Respondent absent.

The 4<sup>th</sup> Respondent is deceased.

$20$

HADDIN: 13/7/2023 George Okello **JUDGE HIGH COURT**