Yakobo Aryat v Dan Okello (Civil Appeal 15 of 1996) [1997] UGCA 22 (5 February 1997)

Full Case Text

### IN THE COURT OF APPEAL OF UGANDA

#### HOLDEN AT KAMPALA

# (CORAM I MANYINDO - DCJ, OKELLO - J, • ENGWAU - *J.*)

## CIVIL APPEAL NO\* 15 OF 1996

# BETWEEN

**VS**

### YAKOBO ARYAT APPELLANT

DAN OKELLO RESPONDENT • . *,* •( • \*

.......

**%**

(An Appeal arising'from\* HLgii Court Mlsc. Application No.175 of 1994 (Hon. Mr. Justice Lugayizij^dated— 7-12-94).

### . JUDGMENT OF THE COURT

In Gulu Chief Magistrate's Court, the learned Ag. Chief Magistrate, Richard Aboku-Eryenyu, passed judgment in the original Civil Suit-No. MG. 47/92 in favour of the present Respondent/flaintiff• The dispute before the trial Court was over a disc harrow of a tractor allegedly borrowed by the appellant/defendant who converted the same indefinitely into his use against repeated demands by the respondent\*

Consequently, Civil Appeal No. 65 of 1993, was filed in the High Court, against the whole judgment and order of the trial Court. On the day that appeal came up for hearing, neither the parties nor their Counsel appeared in Court. The learned Ag. Judge prosecution. Lugayizi as then -he was, dismissed the appeal for want of

The learned Counsel for the appellant, Mr. Kinyora P'Lodi, filed in the High Court, Miscellaneous Application No. 175 of 1994, to have the appeal re-instated on the ground that Counsel for the appellant had been held up by rain on the material day. The application was refused on the ground that the applicant/Appellant's Counsel had not shown sufficient cause '-for not coming to Court on the day in question. Hence this appeal, on six grounds. When the appeal came up for hearing Counsel for the appellant abandoned grounds 1, 3, 4, 5 end 6 and argued ground *2* which reads as follows

• ••/2

"2. The learned Ag, Judge erred and misdirected himself in holding''that' "the kind of rain that fell in the morning of the day in issue, could " not have prevented anyone diligent from turning up for his case'"that-4gY«

Counsel for the respondent strongly disagreed with that submission and contended that the fact that it rained in the or at all. an excuse • However, there may be occasions when rain may offer For example if the road becomes impassable due to rain. Mr\* KLnyera P\*Lodi the learned Counsel for the appellant. adopted his argument in High Court to the effect that he was prevented by rain from appearing in Court on the hearing day and that was sufficient cause for justification, Mr\* Enesu learned morning in issue, was in itself not a good reason for not attending Court, We agree\* In our 'view, rain per se is not good reason for parties or their Advocates not to attend Court in time

• - 2

Accordingly, this appeal is dismissed with costs to the respondent.

DATED at Kampala this 5th day of February, 1997\*

# S. MANYWDO

DEPUTY CHIEF JUSTICE,

G. M< OKELLO JUD G E

S, G. ENGWAU J~ U D G E.

xT&JISTrjH COURT of APPEAL.

*SEPH'i^nhbinji* h *-*

I CERTIFY THAT THIS IS A TRUE COPY OF THS ORIGINAL\*

J®

for

**L**