S v Niyontore (civil appeal 13/2001) [2001] UGCA 57 (13 March 2001)

## THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

#### CORAM: HON. LADY JUSTICE L. E. M. MUKASA-KIKONYOGO, DCJ. HON. MR. JUSTICE G. M. OKELLO, JA. HON. LADY JUSTICE C. N. B. KITUMBA, JA.

# **CIVIL APPEAL NO. 58 OF 2000**

$10$

# UGANDA ELECTRICITY BOARD....................................

## **VERSUS**

CHARLES KABAGAMBE....................................

$13/3/2003$

## PROCEEDINGS OF HON. LADY JUSTICE C. N. B. KITUMBA, JA.

$20$

Mr. Dennis Wamala for the appellant.

Mr. Davis Ndyomugabe for the respondent.

Mr. Willy Kibabu - Court Clerk.

Mr. Wamala states: -I pray that I be allowed to withdraw the appeal. My instructions were to have the appeal withdrawn if the appellant would not suffer costs. I however seek for an adjournment for a shot time to consult the appellant for firm instructions whether he is willing to suffer costs.

Mr. Davis Ndvomugabe: -Since the appellant is inclined to withdraw I $30$ do not oppose the application for adjournment. But we need costs for today.

$\lceil$

This appeal is adjourned to 3.00p.m. $Court: -$

# C. N. B. Kitumba **Justice of Appeal.** $13/3/2003$ . $12.20p.m.$

$Court: -$ Court resumes at 3.20p.m. Appearances as before.

$1()$

Mr. Wamala states: -

I have consulted with officers of the appellant. I have been advised that the costs of this appeal if withdrawn should abide the outcome of the intended appeal against the substantive ruling Misc. cause 928/99. In the event that this compromise is not acceptable to my learned friend we proceed with the hearing. We have filed a notice of appeal in the substantive ruling.

$20$

Counsel is not acting in good faith. He is perusing Mr. Ndvomugabe: his withdraw on the basis on an intended appeal which is not before this Court. He knows that if we proceed with this appeal we have a preliminary objection which he is aware of. The withdraw of the appeal is on attempt not to have it dismissed. Let counsel withdraw and let court deal with the issue of costs. The court knows what to do. If he is withdrawing the appeal we do not oppose it. We are praying for costs.

Wamala reply: - I am accused of having bad motive. Then let the appeal proceed. I was only withdrawing so as to save courts time.

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$\blacksquare$

Court: -Let us proceed with the appeal.

I am ready to proceed. $Mr.$ Wamala: -

This appeal is against the ruling of the High Court in Misc. Cause No. 1074/99 delivered 24/8/2000 Magezi J.

The brief back ground that the respondent is a former staff of the appellant who was disbursed from the appellants employment on $6/5/1999$ . During his period of service the respondent was allocated the appellants property Plot 8 Windsor Cresent Kololo. On the day he was dismissed the respondent $(6/5/99)$ was given 60 days to hand over vacant possession of the premises. On $26/8/99$ the respondent was given a further seven days to vacate the house. Before he elapse of seven days he filed an application for injunction under Misc. 1074/99 restraining the appellant to remove him from the property. The application was granted on $24/8/2000$ . The appellant was aggrieved and thus this appeal.

There are 8 grounds of appeal we are abandoning 4 and 7.

Mr. Ndvomugabe: -The respondent is objecting to the appeal on $20$ preliminary point of law.

The respondent was seeking an order for temporary.

This appeal has been overtaken by the ruling of the High Court in Miscellaneous Cause No. 928/1999. After his disposal he filed Misc. 928/1999 he was complaining of violation of his rights by the employer. In the same cause he filed Misc. Cause 1074/99 seeking for a temporary

$10$

injunction to restrain the appellant from evicting him from the Plot at Windsor Cresent until the disposal of the main Cause 928/99 in the High On $24/8/2000$ a temporary order of injunction restraining the Court. appellant was granted pending the disposal of 928/1999. The gist of the opposition to the appeal is that the temporary injunction order of $24/8/2000$ was to last until the deposit of 928/99. This 928/1999 was disposed of on $9/12/2002$ . The order of temporary injunction also ended. In the premises there is no temporary injunction against which appeal is lying. The purpose of the appeal has been rendered nugatory by the disposal of 928/99. If there are any grounds of appeal they should come from 928/99 which has been completed if there is any pending appeal as we have been told by counsel. The dispute between the appellant and the respondent was disposed of on 9/12/2002 in Misc. No. 928/99. I pray that this appeal be struck out.

Mr. Wamala: -

The intended appeal has no connection with the matter before you now. I oppose the preliminary objection on the ground that this appeal is to have the ruling in Misc. Cause No. 1074/99. Reversed are appealing against the whole of the ruling and that this ruling sets a legal precedent. It is the ruling of the appellant that this ruling set bad precedent. It is for the first time in the history of this country that an employee is given an injunction on his master's/employer's property. We are seeking for a declaration that the ruling is bad in law. It is a contention that this is very bad legal precedent in a number of holding's therein.

In Misc. Appl. No. 928/99 the ruling does not vacate the injunction. The ruling says the respondent is entitled to his entitlements. There is no law and none has been cited by counsel to the effect that if judgment has been given

$20$

$10$

ı in a substantive matter any appeal emanating there from and should be struck out. I appreciate your concern that this may be an academic exercise but I have a duty to leave bad precedent on record.

I submit that the appeal is not nugatory. I pray that this preliminary objection be dismissed with costs and the appeal be determined on merit.

Mr. Ndyomugabe replies: -I reiterate that this appeal has been rendered by the judgment/ruling on 19/12/2002. Counsel for the appellant has given the ruling showing that case No. 928/99 was finally concluded. The key words in Misc. App. No. 1074/99 at p. 7 - seeking a temporary injunction until the disposal of the main case.

I pray that this court should not be persuaded for the purposes of academics entertain the appeal.

I reiterate my earlier submissions and prayers.

This ruling is reserved on notice. Court: -

$20$

$10$

ı

C. N. B. Kitumba **Justice of Appeal.** $13/3/2003$ .

### THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

#### CORAM: HON. LADY JUSTICE L. E. M. MUKASA-KIKONYOGO, DCJ. HON. MR. JUSTICE G. M. OKELLO, JA. HON. LADY JUSTICE C. N. B. KITUMBA, JA.

# **CIVIL APPEAL NO. 58 OF 2000**

$10$

# UGANDA ELECTRICITY BOARD....................................

#### **VERSUS**

CHARLES KABAGAMBE....................................

$13/3/2003$

#### PROCEEDINGS OF HON. LADY JUSTICE C. N. B. KITUMBA, JA.

$20$

Mr. Dennis Wamala for the appellant.

Mr. Davis Ndyomugabe for the respondent.

Mr. Willy Kibabu - Court Clerk.

I pray that I be allowed to withdraw the appeal. Mr. Wamala states: -My instructions were to have the appeal withdrawn if the appellant would not suffer costs. I however seek for an adjournment for a shot time to consult the appellant for firm instructions whether he is willing to suffer costs.

Mr. Davis Ndvomugabe: -Since the appellant is inclined to withdraw I $30$ do not oppose the application for adjournment. But we need costs for today.

This appeal is adjourned to 3.00p.m. $Court$ -

# C. N. B. Kitumba **Justice of Appeal.** $13/3/2003$ . $12.20$ p.m.

Court resumes at 3.20p.m. $Court: -$ Appearances as before.

$10$

Mr. Wamala states: -

I have consulted with officers of the appellant. I have been advised that the costs of this appeal if withdrawn should abide the outcome of the intended appeal against the substantive ruling Misc. cause 928/99. In the event that this compromise is not acceptable to my learned friend we proceed with the hearing. We have filed a notice of appeal in the substantive ruling.

$20$

Counsel is not acting in good faith. He is perusing Mr. Ndyomugabe: his withdraw on the basis on an intended appeal which is not before this Court. He knows that if we proceed with this appeal we have a preliminary objection which he is aware of. The withdraw of the appeal is on attempt not to have it dismissed. Let counsel withdraw and let court deal with the issue of costs. The court knows what to do. If he is withdrawing the appeal we do not oppose it. We are praying for costs.

Wamala reply: - I am accused of having bad motive. Then let the appeal proceed. I was only withdrawing so as to save courts time.

$\mathcal{L}$

Let us proceed with the appeal. $Count: -$

I am ready to proceed. $Mr.$ Wamala: -

This appeal is against the ruling of the High Court in Misc. Cause No. 1074/99 delivered 24/8/2000 Magezi J.

The brief back ground that the respondent is a former staff of the appellant who was disbursed from the appellants employment on $6/5/1999$ . During his period of service the respondent was allocated the appellants property Plot 8 Windsor Cresent Kololo. On the day he was dismissed the respondent $(6/5/99)$ was given 60 days to hand over vacant possession of the premises. On $26/8/99$ the respondent was given a further seven days to vacate the house. Before he elapse of seven days he filed an application for injunction under Misc. 1074/99 restraining the appellant to remove him from the property. The application was granted on $24/8/2000$ . The appellant was aggrieved and thus this appeal.

There are 8 grounds of appeal we are abandoning 4 and 7.

The respondent is objecting to the appeal on Mr. Ndyomugabe: - $20$ preliminary point of law.

The respondent was seeking an order for temporary.

This appeal has been overtaken by the ruling of the High Court in Miscellaneous Cause No. 928/1999. After his disposal he filed Misc. 928/1999 he was complaining of violation of his rights by the employer. In the same cause he filed Misc. Cause 1074/99 seeking for a temporary

$10$

injunction to restrain the appellant from evicting him from the Plot at Windsor Cresent until the disposal of the main Cause 928/99 in the High On $24/8/2000$ a temporary order of injunction restraining the Court. appellant was granted pending the disposal of 928/1999. The gist of the opposition to the appeal is that the temporary injunction order of $24/8/2000$ was to last until the deposit of 928/99. This 928/1999 was disposed of on $9/12/2002$ . The order of temporary injunction also ended. In the premises there is no temporary injunction against which appeal is lying. The purpose of the appeal has been rendered nugatory by the disposal of 928/99. If there are any grounds of appeal they should come from 928/99 which has been completed if there is any pending appeal as we have been told by counsel. The dispute between the appellant and the respondent was disposed of on 9/12/2002 in Misc. No. 928/99. I pray that this appeal be struck out.

Mr. Wamala: -

The intended appeal has no connection with the matter before you now. I oppose the preliminary objection on the ground that this appeal is to have the ruling in Misc. Cause No. 1074/99. Reversed are appealing against the whole of the ruling and that this ruling sets a legal precedent. It is the ruling of the appellant that this ruling set bad precedent. It is for the first time in the history of this country that an employee is given an injunction on his master's/employer's property. We are seeking for a declaration that the ruling is bad in law. It is a contention that this is very bad legal precedent in a number of holding's therein.

In Misc. Appl. No. 928/99 the ruling does not vacate the injunction. The ruling says the respondent is entitled to his entitlements. There is no law and none has been cited by counsel to the effect that if judgment has been given

$10$

in a substantive matter any appeal emanating there from and should be struck out. I appreciate your concern that this may be an academic exercise but I have a duty to leave bad precedent on record.

I submit that the appeal is not nugatory. I pray that this preliminary objection be dismissed with costs and the appeal be determined on merit.

Mr. Ndyomugabe replies: -I reiterate that this appeal has been rendered by the judgment/ruling on 19/12/2002. Counsel for the appellant has given the ruling showing that case No. 928/99 was finally concluded. The key words in Misc. App. No. 1074/99 at p. 7 - seeking a temporary injunction until the disposal of the main case.

I pray that this court should not be persuaded for the purposes of academics entertain the appeal.

I reiterate my earlier submissions and prayers.

This ruling is reserved on notice. $Court: -$

$20$

$10$

C. N. B. Kitumba **Justice of Appeal.** $13/3/2003$ .