Sage v Balimunsi and Another (Civil Appeal 31 of 2023) [2023] UGHCFD 142 (27 July 2023)

#### **THE REPUBLIC OF UGANDA**

### **IN THE HIGH COURT OF UGANDA AT KAMPALA FAMILY DIVISION**

### **CIVIL APPEAL NO. 31 OF 2023**

### **(ARISING FROM MISC. CAUSE NO.049 OF 2022) (THE CHIEF MAGISTRATE'S COURT OF KAJJANSI AT KAJJANSI)**

**SAGE JEREMY WALLINGTON ::::::::::::::::::::::::::::::::::::::::::::::: APPELLANT**

#### **VERSUS**

#### **1. BALIMUNSI SAGE CATHERINE RUTH**

### **2. DENIS LUGYA :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENTS**

## **JUDGEMENTBEFORE: HON. LADY JUSTICE CELIA NAGAWA**

### **1.0 Introduction.**

- 1.1 This is an appeal against the ruling and orders of the Chief Magistrate Court of Kajjansi at Kajjansi delivered on 15th November, 2022 by the Ag. Chief Magistrate H/W Karungi Doreen Olga in Miscellaneous Cause No. 049 of 2022. - 1.2 The Appellant filed Miscellaneous Cause No. 049 of 2022 against the Respondents restraining them from any threats/acts of physical, emotional, physiological abuse or any abuse for that matter interalia. - 1.3 Judgment was entered in favor of the respondent and the appellant being dissatisfied with the judgment and orders of the trial court, appealed to this Honorable Court.

## **2.0 Grounds of the Appeal.**

*1. That the Trial Chief Magistrate erred in law and fact when she held that the Application was wrongly filed for lack of Jurisdiction without*


*considering the fact that the Appellant is a resident of Kajjansi in Wakiso District.*

*2. That the learned Trial Magistrate erred in law and fact when she penalized the Appellant with costs.*

# **3.0 Duty of the first Appellate Court**

- 3.1 It is the duty of the first appellate Court is to appreciate the evidence adduced in the trial Court, subject it to an exhaustive scrutiny and reevaluate evidence in order to reach its own conclusion. In the case of **Kifamunte Henry V Uganda, S. C Criminal Appeal No. 10 of 1997** court held that; - 3.2 "*The first appellate court has a duty to review the evidence of the case, to reconsider the materials before the trial judge and make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it".* This Court therefore has a duty to re-evaluate the evidence to avoid a miscarriage of Justice as it mindfully arrives at its own conclusion. - 3.3 I will therefore bear these principles in mind as I resolve the grounds of appeal considering ground 1 and finally ground 2.

## **4.0 Representation.**

- 4.1 The appellant was represented by Counsel Jotham Assimwe of M/S Tumusiime, Irumba & Company Advocates, Kampala. - 4.2 The Respondents were represented by Counsel Kibuuka Rashid of M/S Kibuuka Rashid & Company Advocates, Kampala.

# **5.0 Preliminary Objection.**

**The Respondent raised a Preliminary Objection to the effect that the Instant Appeal was filed without leave of court and yet it is an appeal against an order of the Chief Magistrate.**


- 5.1 An appeal is a creature of statute and the right of appeal cannot be implied or inferred as held in the case of **Baku Raphael Vs Attorney General Supreme Court Civil Appeal No. 1 of 2005 and Attorney General Vs. Shah (No. 4) [1971] EA 50,** that, the right of appeal is a creature of statute and must be given expressly by Statute. Except as otherwise expressly provided, no appeal lies from any order made by a Court in the exercise of its original or appellate jurisdiction (See Section 76(1) and 77 (1) of the Civil Procedure Act). Save interlocutory decisions specifically under Order 44 of the Civil Procedure Rules and from no other orders there is no right of appeal to this Court originating from interlocutory orders. - 5.2 A Preliminary Objection is in substance an objection in point of law. The nature of a preliminary objection was discussed in the Court of Appeal decision of **Mukisa Biscuit Manufacturing Co. Ltd Versus West End Distributors Ltd [1969] EA 696**, where Sir Charles Newbold (President of the Court *as he then was*) at P. 701, held that; *"... A Preliminary Objection is in the nature of what used to be called a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or what is sought is the exercise of judicial discretion ..."* - 5.3 In the case of **Attorney General Versus Major General David Tinyefuza, Constitutional Appeal No. 1/1997,** elaborate guidelines on the procedure for preliminary objections were given whereby, **Justice J. N. Mulenga (JSC)** while referring to **Order 6 rule 28 of The Civil Procedure Rules SI 71-1** held that "Clearly under these provisions, the Court has options. It may or may not hear the point of law before the hearing. It may dispose of the point before, at or after the hearing and it may or may not dismiss the suit or make any order it deems just. I would therefore not hold a Court to be in error, which opts to hear a preliminary


objection but postpones its decision to be incorporated in its final judgment, unless it is shown that material prejudice was thereby caused to either party, or that the decision was reached at un-judicially."

- 5.4 Section 76 (1) of the Civil Procedure Act, Cap. 71 provides for a statutory right of appeal in matters relating to arbitration, compensation from arrest, attachment or injunction on insufficient grounds, and orders imposing a fine or directing the arrest or detention of any person except where the arrest or detention is in execution of a decree. - 5.5 **Order 44 of the Civil Procedure Rules SI 71-1** operationalizes the provisions of **Section 76 (1) (h) of the Civil Procedure Act Cap. 71** by detailing the orders from which there is a direct right of appeal not necessitating an application for leave to appeal. **Order 44 Rule 1 subrule 1** spells out circumstances under which there is a right of appeal from specific orders without the requirement of seeking leave of court. - 5.6 **Order 44 Rule 2** provides that "an appeal under the Civil Procedure Rules shall not lie from any other order except with leave of court making the order or the court to which an appeal would lie if leave were given." In the instant Appeal, leave of court was not obtained as required by **Order 44 Rule 1 sub-rule 2** of the Civil Procedure Rules. **Order 44 Rule 1 sub-rule 3** goes on to provide that applications for leave to appeal have to first be made in court making the order sought to be appealed from. - 5.7 The orders passed by the Chief Magistrate Court at Kajjansi do not fall within the provisions of **Section 76 (1) of the Civil Procedure Act**, hence the Appellant did not have an automatic right of appeal under the Civil Procedure Act.


- 5.8 There was no application for leave to appeal made in the Magistrate's Court of Kajjansi. The Appellant just filed a Memorandum of Appeal without leave of court. Failure to obtain leave to appeal makes this appeal incompetent and it cannot be heard since the provisions of **Section 76 (1) of the Civil Procedure Act Cap 71 and Order 44 Rule 1 sub-rule 2 of the Civil Procedure Rules SI 71-1** have not been complied with. - 5.9 Rules of court and procedure are made to be adhered to, where the provisions are clearly stipulated then they should be followed to the letter. - 5.10 I therefore find that, the Appeal before this court is incurably procedurally defective, and the Respondents' preliminary objection has merit and therefore succeeds.

## **6.0 Conclusion.**

6.1 With the above considerations, the preliminary objection hereby succeeds. The Appeal stands dismissed with Costs to the Respondents.

# *Dated, signed and Delivered by email this 27th day of July, 2023*.