Sebukyu & Another v Zabasajja (Civil Appeal 45 of 2020) [2023] UGHC 401 (3 July 2023)

## **THE REPUBLIC OF UGANDA**

## **IN THE HIGH COURT OF UGANDA AT MASAKA**

## **CIVIL APPEAL NO. 45 OF 2020**

# **(ARISING FROM CIVIL SUIT NO. 138 OF 2028)**

## **1. SEBUKYU GODFREY**

**2. KAFEERO ALONI …………………………….…………………… APPELLANT**

#### **VERSUS**

**ZABASAJJA MATIA ………………………………………….…….. RESPONDENT**

## **RULING ON A PRELIMINARY OBJECTION**

*Hon. Lady Justice Victoria N. N. Katamba*

#### **BACKGROUND**

The Respondent instituted Civil Suit No. 138 of 2018 against the Appellants for trespass on the suit land at Buyanja village. The trial court agreed with the Respondent that the Appellants were trespassers on the suit land which forms part of the estate of the Late Leo Biriko.

The trial court gave the Appellants six months to harvest their crops from the suit land after which an eviction order would issue against them and a permanent injunction restraining them from further trespassing on the suit land.

The Appellants were dissatisfied with the findings of the trial court and instituted the instant appeal. In the memorandum of appeal filed on the record of this on the 7th December 2020, the Appellant raised one ground of appeal;

That the learned trial Magistrate erred in law and fact when she failed to properly evaluate the evidence of DW2 thereby reaching a wrong conclusion.

#### **Representation**

The Applicant was represented by **M/s Jojoma Advocates**.

The Respondent was on the other hand represented by **M/s Jawass Associated Advocates**.


#### *Determination by Court*.

I have read and critically analyzed the pleadings and submissions of the parties in this matter whose details are on the record of this court and below is my decision.

When this matter came up for hearing on the 6th March 2023, the parties were directed to file written submissions which they did and I commend them for the effort.

The Respondent raised a preliminary objection that the only ground of appeal raised by the Appellant offends the provisions of Order 43 rule 2 of the Civil Procedure Rules.

Order 43 rule 2 of the CPR provides that a Memorandum of Appeal shall set forth concisely and under distinct heads, without argument or narrative the grounds of objection to the decree appealed against. The Respondent submitted that the Appellant's only ground of appeal which is failure to evaluate evidence of DW2 did not point out any error of law or of fact to justify a complaint as expected in appeals.

The Respondent cited *CACA No. 79 of 2003 Attorney General versus Florence Baliraine in which the court struck out a similar ground of appeal on the alleged court's failure to evaluate evidence. The court of appeal in that decision held that the impugned ground offended Rule 86(1) of the rules of the court which is pari materia to Order 43 rule 2 of the CPR for amounting to a fishing expedition undertaken by a party with hope to get something (a reason to complain).*

I have not seen a rebuttal to the above submissions. This court is bound to follow the court of appeal decision of *Attorney General vs. Florence Baliraine* because the ground of appeal in the instant case is similar to that which was raised and dismissed in the above authority. See also, the earlier decision of this court in *Magezi Bruno versus Kiberu Richard, HCCA No. 8 of 2020.*

I therefore find no merit in the instant appeal, the ground of appeal is a fishing expedition that offends Order 43 rule 2 and the appeal is hereby dismissed with costs to the Respondent.

I so order.

Orders;

- 1. HCCA No. 45 of 2020 is dismissed. - 2. The Appellants shall pay the Respondents costs of defending this appeal.

Dated and delivered by e mail this 3rd day of July, 2023


# **HON. LADY JUSTICE VICTORIA NAKINTU NKWANGA KATAMBA**