Wapokra John Pascal v Esrom William Alenyo (Miscellaneous Application 13 of 2009) [2009] UGHC 254 (14 October 2009)

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## THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT ARUA HCT - ()8 - CV - NA - OO13 0F 2009 (Arising from Misc. Application OOOI of 2OO8 AND ELECTION PETITION NO. OOO2 of2006l

APOKRA JOHN PASCAL APPLICANT

=VERSUS=

ROM IVILLIAM ALENYO RESPONDENT

## RULING

## Before Justice J,W. Kwesiga

his Application has been brought by Notice of Motion made under Order 2 rr 7, 2 and 3 CPR, order 0.17 r 5 and S. 98 of the Civil Procedure ules, seeking this Courts orders:-

- a) That Miscellaneous Application Number 0OO1 of 2OO5 be dismissed for want of prosecution. - b) That an order for execution to proceed against the Respondent be issued. - c) That costs of this Application be granted to the Applicant.

e grounds of the application are that pursuant to dismissal of the espondent's Election petition Number 2 of 2O06, costs were taxed and llowed at Sh. 60,618,8OO/=.

he Respondent filed Misc. Application No. OOO1 of 2OOB contesting the ecree, Taxation and execution, which blockeC the Execution but has ever been prosecuted.

&?a!- # ffie

fore dealing 'a,ith the instant application, it is useful to give facts of its torical background. Sometime in 2006, the Respondent filecl an ction petition, to wit, Election petition Number OO2 of 2OO6 and after I hearing the petition was dismissal on 30m January 2OO7 and he was ered to pay costs. On the date of Judgment he wrote to the presiding ge that Judgment be delivered in his absence. The Counsel for the t and second Respondents drew the simple decree extracted from the gment and they both signed it and it was endorsed by the Registrar. ntained only the dismissal order of the petition and costs. It

petitioner and /or his Counsel did not approve the decree as vided for in order 21 rule 7 (2) CP Rules.

Respondent's costs were taxed and allowed at Shs. 60,618,800/= a taxation Certificate was issued dated l"t December 2O07. It is ortant to note that the Respondent did everything possible to resist ce of Taxation hearing Notice and service was made by substituted ce through the press. Despite this he refused to attend taxation eedings. 'n{ ,ad ltt

Respondent engaged in a protracted frling of multiple applications ing to block execution of the decree surprisingly, however, since none of the applications were pursued in Court to their final sal. I will set these out here below to portray the Respondent's uct of this matter which is a clear perversion due process of this t and Justice expected. I will deal with each application where ssary and where there is evidence dispose off the contested matters. ES are empowered to take full charge of proceedings from the ning to the end without descending into the arena where it is clear leaving matters in the hands of the parties and their respective sel, whose conduct is threatening perversion of Justice and abuse urt process. The parties must not be allowed to endlessly turn the

urt Registries into aware house of useless applications that are never rsued and cause uncalled for backlog of cases ',vhich lead to damage of image of the Judiciary.

25tr February, 2OOB the Respondent through his Advocates M/S ongole & Advocates wrote to this Court, seeking that the case file be rned to Hon. Justice Remmy Kasule, now sitting in Gulu Circuit, who nounced the Judgment to resolve the issue that "none approval of the ree by the petitioner pursuant to (order 18 rule 7 (2) CPR) which is order 2 1 rule 7 (2) CPR was fatal to the decree. He filed ellaneous Application No. 0Ol7 of 2O08 on 296 February 2OO8 ing an order to transfer the file which application has never been update. I have examined the grounds of the application and its paragraphed affidavit in support of the application. The application s not point out any substance or defect in the Decree that the licant seeks to be returned to Hon. Justice Kasule for hearing. I have ined the decree and read the Judgment of Justice Kasule in tion Petition No. OO02 of 2O06 and I have found the decree an te expression of the decision and decree of expressed in the gment. Considering and answering the Respondent's letter dated February 2O08 which is reproduced as grounds in miscellaneous ication 0017 of 2008 filed on 296 February 2008. I do hereby rule I have found the complaint flimsy and the grounds of the application technical and no defects in the decree are raised. No proposed dments of the decree are set out and therefore mere none approval e decree by the Respondent was a minor omission which will not er the Decree defective. It is clear that same terms in the decree will ached whether approved by the Respondent or directed by the . Pursuant to the provisions of Article 126 (2) (e) of the titution of the Republic of Uganda and section f9 (2) of the ature Act, the above miscellaneous application OO 17 of 2008 is are of be

uck off record for lack of merits. This decision has been reached to ent abuse of the due Court process and to curtail delays in thc ceedings and to ensure that substantive Justicc is administerecl hout undue regard to technicalities.

the 3.,r day of Apr1l, 2OO7 the Respondent file miscellaneous lication number OOl2 of 2007 seeking stay of execution of the decree sing from Election petition Number OOO2 of 2006.

the 5s day of Aprll, 2OO7 , the Respondent liled Miscellaneous lication Number O0l3 of 2O07 Seeking Courts Interim order of stay of tion of the above decree. These two applications were never fixed hearing up-to-date. I make reference to them as example of several lications filed by the Respondent in this matter but left to decay in rt which forms part of the series of the Respondents conduct of tracted applications that serve no purpose other than delays of tions.

29th February 2OO8, the Respondent filed miscellaneous Application ber OO18 of 20O8 seeking orders of this Court that the Decree dated Jarruary 2OOT lrorn Election Petition number OOO2 of 2006 be struck record because it had not been approved by the Respondent who lost petition. This application is supported by an uncommissioned avit and therefore it is incurably defective and shall be struck off rts record.

withstanding the incompetence of this application, the would be stantive ISSUC is already taken care of in my disposal of ellaneous application number O017 of 2008 which is on the same nds.

lSe January 20O8, Respondent filed Miscellaneous Application ber OOOI of2OO8 seeking this Courts orders:-

- a) That the Warrant of arrest dated l8th December 2OO7 be Revoked/set a side. - b) That the Responclent's Bill of Costs be set aside. - c) Costs of the Application.

e grounds of the application are that

- I. The warrant dated 18ft December 2OO7 was signed by a Grade I Magistrate who was not authorized to do so. - II. That ex-parte taxation was without knowledge of the applicant. - III. That the Court of Appeal had stayed taxation.

is application was never fixed for hearing, it has never been heard m the time it was filed for over one and half years. This led to the ng of miscellaneous Application Number 0Ot3 of 2OO9 which I now ceed to consider.

en this case came for hearing, Mr. Henry Rwaganika for the Applicant lied for Dismissal of miscellaneous application No. OOI of 2OO8 ause it had overstayed, it was not pursued by the Applicant now pondent a matter that has caused Injustice to the Applicant. Mr. hur Katongole opposed the Application without giving reasons except at is contained in the afhdavit of Mr. Alenyo dated 22^a May 2OO8 ch states: "THAT all mv applications before Court are subiect to <sup>b</sup> court accordi to Court availabili and I have never doned rosecution of these a lications"

the basis of this statement Mr. Katongole prayed that this application ismissed with costs. Before indulging in the instant application, <sup>I</sup> It a lot in the historical background which is characterized by several lications without merits and some which were never concluded or to precise which were abandoned by the Applicant now Respondent. statement above quoted from his affidavit in this very application is a reflection of his attitude and conduct of Court proceedings which led to a chain of applications that are a total abuse of the due be be

ocess of Law that pervert Justice that is supposed to be the final duct of the proceedings

the hearing of this application there was no expression of the desire to ve miscellaneous application 0001 of 2008 fixed or heard. The ntest of this application No. O0l3 of 2OO9 by the Respondent, to say plication. least, was very casual and provided nothing useful to disallow this

rial Judge, in a case of this nature cannot act as a mere umpire, he s the right and duty to step in where justice is being threatened. ile the Litigants are entitled to adequate opportunity to present their es before Court, It must not be unreasonable opportunity at the nse of Justice. The attitude depicted by Mr. Alenyo's affidavit is t it is up to the Court to make sure that his application are fixed, e his adversaries, and invite him to come to Court and prove his <sup>e</sup>. This would be a total pervertion of the Court process. It is the of a plaintiff or applicant to bring his suit to early trial and can not lve himself of this primary duty by saying that the delay was due to rt not fixing his case! As held in MUKISA BISCUIT CO. VS WEST DISTRIBUTORS 1969 EA 696. A

Court has unlimited Jurisdiction and inherent Jurisdiction to iss a suit to prevent injustice or abuse of the process of the Court. o see ALLEN \/S MACALPINE & SONS LTD l96a 2QB 2291 and NIA VS MUTEKANGA 1970 EA 429.

iew of the above, the applicant has made his case, the Respondent no Justification for the unreasonable delay in pursing miscellaneous ication Number OOO I of 20OB and up to the hearing of this ication, he exhibited no interests in pursuing the matter and in the mstances this Application is allowed in the following terms:- In

- a) Miscellaneous Application No. 00Ol of 2O08 is hereby dismissed for want of prosecution. - b) That the decree extracted from Election petition No. 0OO2 of <sup>2006</sup> is hereby approved as the accurate expression of this Courts Judgments and orders. - c) That the Applicant is hereby allowed to .proceed with recovery of the costs granted in election petition NO. OOO2 of 2Ci06 in the ordinary procedure allowed by the Law. - d) The Applicant shall recover costs of this Application from the Respondent.

d at Arua this 14ur day of October 2OO9

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