Yumaru v Arijole (Civil Appeal 31 of 2021) [2024] UGHC 997 (3 October 2024)

## THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA HOLDEN AT ARUA

## CIVIL APPEAL NO. 0031 OF 2021

## (Arising out of Civil Suit No. 0005 of 2015)

YUMARU FLORENCE ...................................

#### VERSUS

ARIJOLE NASON ADALA :::::::::::::::::::::::::::::::::

## BEFORE: HON. JUSTICE COLLINS ACELLAM

### **JUDGEMENT**

#### 15 **Introduction and Background**

This is an Appeal that sprang from the decision of His Worship Kedi Paul the Magistrate Grade one of Arua vide Civil Suit No. 0005 of 2015 wherein the Plaintiff /Respondent herein filed a suit against the Appellant herein for trespass to land situate in Ajono Yivu village, Eruba parish, vurra sub- county in Arua District, a declaration that the Respondent is the lawful owner of the

suit land, a permanent injunction restraining the Appellant and her agents and servants from 20 interfering with the said land, general damages and costs. In the lower court, judgement was entered for the Respondent against the Appellant in the following terms;

- a) A declaration that the Plaintiff is the owner of the suit land - b) A declaration that the defendant is a trespasser on the suit land - c) An order of vacant possession is hereby granted in favour of the Plaintiff against the defendant and or her agents including those to whom she sold the suit land to and in case they resist they shall be lawfully evicted. - d) A permanent injunction hereby issues restraining the defendant, her agents, workers, assignees, successors in title and all those claiming ownership from cultivating, clearing, cutting down trees, constructing, hiring out, selling and / or dealing with the suit land in any way against the interests of the Plaintiff. - e) Plaintiff is awarded Ugx 5,000,000 as general damages. - $f$ Plaintiff is awarded costs of the suit.

The Appellant being dissatisfied with the decision of the lower court, filed and lodged a notice 35 of appeal and provisional memorandum of appeal disputing and challenging the findings of the lower court.

## **Representation and hearing**

The Appellant herein was represented by Ajio Patrick of M/s Odama & Co. Advocates while the Respondent was represented by Counsel Daisy Pearl Bandaru of M/s Bandaru &Co. Advocates.

$\mathcal{N}$

The Parties were instructed by this court to file submissions on 16th June 2023 for the Appellant $\mathsf{S}$ and 14th July 2023 for the Respondent and Rejoinders by the Appellant on 21st July 2023 but up to date non of the Parties has filed its submissions.

## **Determination of Court**

On 27th March 2023, the Appellant's counsel filed a letter dated 27th March 2023written by them detailing the fact that they had written to the lower court requesting for the typed and 10 certified copies of the record of proceedings but that they had not yet received the same which had delayed the proceedings in this appeal.

The said record of proceedings in the lower court was consequently availed, the court record does not show when the same was availed to the Appellant given the fact that there is no certificate to that effect. However, the copy on court record shows that the same was certified on 8th February 2023.

During the court proceedings of this court in the matter herein on 27th April 2024, this court gave clear instructions to both parties to file their submissions. That is the Appellant to file her written submissions and Record of Appeal by 16th of June 2023, the Respondent file his written submissions by 21st July 2023 and the Appellant files her Rejoinders by 21st July 2023.

In a letter dated 12th July 2023, the Respondent through his Counsel wrote to this court complaining that despite this court giving both parties dates to file their written submissions, that the Respondent and his Counsel had not been served with the Record of Appeal and written submissions and that instead the Appellants and her agents, servants and those claiming under

25 her have taken massive alienation of the suit land which was adjudged by the trial Court to belong to the Respondent. That very many new developments had been taking place on the suit land.

I have perused the court record and indeed the Appellant has never filed the record of appeal and neither has she filed her written submissions up to date. The only document on record is

30 the Provisional Memorandum of Appeal and other court documents. The Appellant filed a provisional memorandum on 22nd June 2021. Unfortunately for the Appellant, a provisional memorandum of appeal is not a document capable of commencing a civil appeal since its un known to the law. See Mayanja Grace vs Yusuf Luboyera (1977) HCB 133

Under Order 43 Rule 31 of the Civil Procedure Rules, the High Court has power to dismiss an Appeal for want of prosecution;

"31. Dismissal for want of prosecution

(1) Where there has been undue delay in the hearing of an appeal,

the registrar may obtain the directions of a judge for the listing of

the appeal at the next ensuing sessions of the high court.

(2) Notice of the listing shall be served in such manner as judge

may think fit upon the appellant and respondent or their advocates,

$\mathcal{M}$

and upon the hearing thereof the court may order the dismissal

of the appeal for want of prosecution or may make such other

as may seem just."

The appellant has not taken any reasonable steps to prosecute the Appeal. She has failed to take necessary and required actions in respect to the appeal within the required period of time. In my opinion the Appellant is dragging the proceedings in this appeal and using the appeal as a tactic to frustrate and prevent the Respondent from enjoying the fruits of his judgement in Civil Suit No. 0005 of 2015.

Accordingly, by virtue of the powers of this court under Order 43 Rule 31, Section 33 of the Judicature Act and Section 98 of the Civil Procedure Act, the Appeal is dismissed for want of prosecution and judgement and orders in Civil Suit No. 0005 of 2015 are accordingly upheld.

The Appellant shall pay the costs of the Appeal.

I so order 3 rh<br>B............day of .. Stober Dated this ....

**Collins Acellam JUDGE**

15