Steven Bujara v Polly Bujara (Civil Application No. 11 of 2004) [2004] UGCA 39 (12 January 2004)

## THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA

#### AT KAMPALA

5 CORAM:

H ON. LAD Y JUST IC E A. E. MPAG I. BAH IG E I N E,JA HoN. MR,IUSTICE S. G. ENGIl/AU,JA HON. I,ADY JUSTICE C. K,BYAMUGISHA,JA

#### CIVIL APPLICATION NO.lI OF 2OO4 [Arising from Civil Appeal Mt81 of 2002J

#### BETWEEN

APPLICANT STEVEN BUJARA...

#### AND

POLLY TWEGYE BUJARA RESPONDENT

t5

l0

#### RULING OF THE COURT

The applicant herein, Steven Bujara, filed the instant application under

Rules 1(3),42,43 of the Court of Appeal Rules and Article 126 of the

Constitution seeking orders that:

<sup>20</sup> l. The applicant/appellant be granted leave to argue an additional ground in the appeal to wit,

"that tlte learned Judge erred in law and misdirected himself when he failed to appreciate the fact that there was mistrial in Divorce Cause No.03 of 1998 thereby basing hisjudgment on biused and prejudicial

I

co,tclusiotts a,rd rtndirtgs of the tiol Magistrote to the cletriment of the oppellunt".

### 2. the costs ofthe application be provided for.

The application was based on the following grounds

- 5 l. JLrdgrnent was entered against the applicant in Divorce Cause No. MKA 3/98 by learned Magistrate Grade l, Kabale on 28th August <sup>I</sup>998 whereby the petition was granted and a decree nl.ri for the dissolution of the rnarriage was pronounced - 2. The applicant/appellant lodged an appeal to the High Court at Mbarara - l0 which was heard and later dismissed with costs on 5th Septernber 2002 - 3. The applicant on appeal to the High Court raised a complaint of rnistrial that ensued in the lower court, but the learned Judge in his ludgment did not consider and or allude to it which prejudiced the

#### l5 applicant/appellant's case

- 4. The applicant/appellant lodged civil appeal No 8l/02 to the Court of Appeal which is still pending - 5. While drafting/preparing the memorandum of appeal, counsel Mwene-Kahima Esq. Of IWs Mwebesa. Mwene- Kahirna & Co. Advocates - inadvertently/negligently omitted to include therein this additional 20 ground ofappeal

- 6 The additional ground sought to be argued will have an important influence on the result ofthe appeal and will not prejudice the respondent as she will have arnple opportunity to contest it on rnerit - 7. There is sufficient cause for this Honourable Court to be pleased to - 5 exercise its discretion to allow the applicant/appellant to argue the additional ground on appeal.

The above grounds were supported by the affidavits of Mwesigye Mwene- Kahima an advocate of Courts of Judicature and the applicant

l0 himself. The respondent opposed the application by deponing an affidavit dated 6s February '04.

When the matter came before us, both counsel made general submissions on the application.

# ts Rule l0l of the Rules of this Court states that no pafty "slmll, witltout leave of the Courl, argue that lhe decision of the High Court should be reversed or varied except on o ground specitied in lhe memorandum of appeal or in a notice of cross-appesl..... "

We think that the provisions of this rule is clear. A party who desires to

challenge a decision of the High Court has to do so by filing a memorandum of appeal or notice of cross-appeal specifying the grivances 20 he/she/it has against the decision. Failure to so, the party will not be

permitted to argue any ground except with the leave of this Court. The applicant clairned in his affidavits that when the rnenrorandutn of appeal was filed, his counsel inadvertently ornitted to include the ground that he desires to be included in the mernorandurn of appeal now. In opposing the

s application, counsel for the respondent appears to have taken a position that there is no merit in the application because the issue of rnistrial was not raised in the High Court

In this application we are not concerned whether the issue was raised or l0 not or whether there is merit in the proposed ground. What the applicant is seeking is leave ofthis court to add an additional ground ofappeal Rule l(3) under which the application was filed saves the inherent powers of this Court to make such orders as may be necessary for attaining the ends ofjustice etc It has not been pointed out to us what

l5 injustice the respondent is likely to suffer ifan additional ground of appeal is added to the rnemorandurn of appeal

On the facts before r-rs, we are satisfied that the applicant has made out a case on which this court can exercise its discretion and grant the

necessary leave being sought. We allow the application Costs will be in the catrse l0

Dated at Kampala fl,is...('ihy or. 004.

l

Zeelefenl

A. E. Mpagi-Bahigeine<br>Justice of Appeal

S. G. Engwau **Justice of Appeal**

C. K. Byamugisha **Justice of Appeal**

$\mathsf{S}$

$10$