THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

(COMMERCIAL DIVISION)

MISC. APPLICATION NO. 362 OF 2012

 (Arising from Nakawa Chief Magistrates Court Misc. Application No. 275 OF 2012 and Civil Suit No. 312 of 2012)

1. THE COMMISSIONER GENERAL

UGANDA REVENUE AUTHORITY

1. UGANDA REVENUE AUTHORITY:::::::::::::::::::::::::::::::::::::::                                                                                                                            APPLICANTS

VERSUS

1. KYOTERA VICTORIA FISHNET CO. LTD
2. KAGAMBO VINCENT::::::::::::::::::::::::::::::::::::::::::::::::::::::::                                                                                                                                :RESPONDENTS

RULING

This ruling arises from a preliminary objection raised by Mr. Benson Tusasirwe counsel for the respondent on the grounds that the application is an abuse of court process as it does not arise from any appeal, and therefore it is a nullity that cannot even be withdrawn.

The background to this application is that the respondents filed a civil suit in the Chief Magistrate’s Court at Nakawa seeking for a declaration that the applicants who were the respondents in that case were threatening to attach their goods situate in Shumuk Go Down Warehouse at Plot 551 Jinja Road, Banda Nakawa and a permanent injunction stopping the taking away of the goods from the respondents’ stores. The respondents also applied for a temporary injunction as well as a mandatory injunction.

The trial court issued a temporary injunction stopping the applicants and their agents from taking the goods from the respondents’ store and a mandatory injunction ordering the applicants to release the seized goods. The applicants were also ordered to vacate Shumuk store without the goods therein.

The applicants being aggrieved by the ruling and orders of the Chief Magistrate filed a notice of appeal in the Chief Magistrate’s Court at Nakawa. In the mean time the applicants also applied and obtained from this court an interim order staying the execution of the orders of the Chief Magistrate.

The applicants then filed this application seeking for stay of execution of the orders of the Chief Magistrate pending the hearing of the appeal to this court.

When this application came up for hearing, Mr. George Okello counsel for the applicant sought for an adjournment to sort out with the registry of this court whether the notice of appeal which was stated to have been lodged in this court on 2/07/2012 was properly given a file number so as to enable the applicants to properly proceed with this application.

Counsel for the applicant contended that the notice of appeal appears not to be properly lodged in the court in the absence of the file and allocation number for which he needed time to sort out. He conceded that a copy of the notice was filed in this court without having been signed and sealed by the Chief Magistrate, Nakawa Court. 

In response counsel for the respondent opposed the application on the grounds that the application sought to be adjourned was a nullity that presented a serious abuse of the court process. He argued that the applicant knowingly filed a notice of appeal which had not yet been signed and sealed by the court whose decision it was appealed against. He submitted that once the notice was not signed and sealed, there was nothing lodged in the court. For that reason he noted that the application was not arising from any appeal and hence an abuse of the court process.

The other ground of objection was that appeals from the Magistrate’s Courts to the High Court are governed by Order 43 of the Civil Procedure Rules (CPR) and stay of execution is provided for under rule 4 thereof. It was the submission of counsel for the respondent that by virtue of Order 43 rule 4 the court can only consider granting a stay of execution after an appeal has been lodged before it.

He cited Order 43 rule 1 to the effect that appeals to the High Court are preferred by way of memorandum and not notice of appeal. His view was that the application was a nullity ab initio because it was filed in this court when there was no pending appeal.

In rejoinder counsel for the applicant submitted that a notice of appeal was filed because it is envisaged by the courts as a matter of practice. He submitted that it is after a notice is given and a record of proceedings sought that an appeal can be competently lodged by filing a memorandum.

Basing on Order 43 rule 1 of the CPR counsel for the applicant conceded that there was no appeal as no memorandum of appeal was filed. The reason he gave for that state of affairs was that the record of appeal had not yet been availed to the applicant having applied for the same from the lower court.

Conversely, counsel for the applicant argued that for the purpose of staying execution, lodging a notice of appeal is sufficient to commence “a pending appeal.” He relied on the case of Alcon International Ltd vs Kasirye Byaruhanga & Co. Advocates [1996] HCB 61 for that position.

He submitted that the absence of the signature and seal of the lower court on the notice of appeal is an irregularity curable without causing injustice to the respondents. According to him the purpose of sealing of a court process is for proving that fees have been paid on the documents. He submitted that fees had been paid for the notice. He relied on the case of Wanume David Kitamirike vs URA Court of Appeal Civil Appeal No. 138 of 2010 where it was held that the absence of a seal was mere irregularity which was not fatal.

It was also his submission that the signature on the notice of appeal served the purpose of showing the origin of the notice which in this case was counsel for the applicant. His view was that the provision for a signature is merely to confirm payment of fees and that it was received by the lower court.

He concluded by submitting that the notice of appeal in issue was just a mere formality because the current applicant gave verbal notice of appeal to the lower court when the ruling was delivered on 29/06/2012.

I have carefully considered the arguments of both counsels and looked at the affidavits and the supporting documents and wish to note that appeals to the High Court are governed by the provisions of Order 43 of the CPR. Rule 1 of that Order provides that:

“Every appeal to the High Court shall be preferred in the form of a memorandum signed by the appellant or his or her advocate and presented to the court or to such officer as it shall appoint for that purpose”.

This position was emphasized in the case of The Board of Governors and the Headmaster Gulu S.S v Phinson E. Odong, High Court Civil Appeal No. MG2 of 1990, where a point of law was raised on the competence of the appeal because the notice of appeal was filed within 30 days of making the order by the Chief Magistrate but the memorandum of appeal was filed a year later. G.M. OKELLO, J (as he then was) held that the procedure of presenting a civil appeal to the High Court is covered under O.39 r 8 (now order 43) of the CPR. Court found this rule to be quite clear that a civil appeal is commenced in the High Court by lodging with its registry a memorandum of appeal but not a notice of appeal. Thus a notice of appeal is not at all a legal requirement in the procedure of commencing a civil appeal in the High Court.

Rule 4 (1) of Order 43 of the CPR provides that;

“An appeal to the High Court shall not operate as a stay of proceedings under a decree or order appealed from except so far as the High Court may order, nor shall execution of a decree be stayed by reason only of an appeal having been preferred from the decree; but the High Court may for sufficient cause order stay of execution of the decree.”

The import of this provision and rule 1also quoted above, in my view, is first of all that an appeal to the High Court must be preferred in the form of a memorandum and secondly that when that appeal is filed it shall not operate as a stay of proceedings and execution of the decree appealed from. However, the High Court has power to order a stay of execution if sufficient cause is shown.

It therefore follows that for this court to grant an order of stay of execution the precondition is that there must be an appeal before it. The issue before this court therefore is whether there is an appeal from which this application for stay of execution of orders of the Chief Magistrate arises.

It was strongly argued for the applicant that there is an appeal because a notice of appeal was filed in this court. Attempt was even made to blame the court registry for not processing the papers that were filed. Counsel for the applicant however, conceded that a copy of the notice of appeal he lodged in the registry of Nakawa Court was brought to this court before it was signed and sealed, but he still insisted that he had filed the same in this court. He could not even show this court a copy of the notice of appeal that was received in the registry of this court but argued that there was a competent appeal lodged from which this application arises. He kept referring to a copy of the notice of appeal annexed to the affidavit in support of this application as “A4”. It could clearly be discerned from his submission that he had not filed any notice of appeal in this court as alleged or if at all it was filed, at least this court was not given any proof of it.

I must observe that this court takes cognizance of the liberal approach adopted by our courts in the recent past in view of Article 126 (2) (e) of the Constitution on matters of procedure viz-a-viz the need to administer substantive justice. I have in mind the case of Tarlol Singh Saggu v Road Master Cycles (U) Ltd CACA No. 46 of 2000 where the Court of appeal held that court should not treat any incorrect act as a nullity with the consequence that everything founded thereon is itself a nullity unless the incorrect act is of the most fundamental nature. It was concluded that matters of procedure are not of a fundamental nature.

Similarly in Francis Wazarwahi Bwengye v Haki .W. Bonera Civil Appeal No.33 of 2009, the appellant/applicant had brought his application for leave to defend before a Magistrate Grade I Court under a wrong provision of the law and even used chamber summons instead of a notice of motion. The trial magistrate upheld the preliminary objection that it was filed using a wrong procedure and under a wrong law, dismissed the application and entered judgment for the respondent.

On appeal to the High Court, it was held by Bamwine, J (as he then was) that although the filing was by chamber summons instead of notice of motion and the applicant cited the wrong law under which it was being preferred, these were irregularities which were not fatal to the application. The court observed that if the trial magistrate had directed his mind to law and authorities on this point, he obviously would not have taken the course he did. He would have found that failure to cite the correct law was an error or lapse which would not necessarily debar the application from succeeding. Further that he would have also found, as regards whether the application should have been by notice of motion or chamber summons, that no action may be defeated by use of wrong procedural mode and the judge has the discretion to hear it either in open court or in chambers.

 In a much earlier case of Sulemani v Byekwaso High Court Civil Appeal No. 4 of 1986 that relates to procedure for preferring appeals to the High Court like in the instant case, the appeal was commenced by a notice of appeal which was filed within 30 days from the date of the decree appealed from. The memorandum of appeal was filed six months later. At the hearing, a preliminary point of law was raised for the respondent arguing that the appeal was fatally irregular it having been instituted by a notice of appeal instead of a memorandum of appeal.

For the appellant it was contended that the appeal was competent and that the procedure he adopted was the correct one. It was argued that if that procedure was irregularity, the rule of procedure being the handmaid of justice should not operate to defeat it. Bahigeine, J (as she then was) held in favour of the appellant that since courts have to be moved to get the records of the proceedings ready, the moving of the court may be done by way of notice of appeal or by ordinary letter. That in these circumstances the filing of notice of appeal does not render the subsequent memorandum of appeal a nullity.

Counsel for the applicant in the instant case conceded that for purposes of Order 43 rule 1 of the CPR there was no appeal in this court having filed no memorandum of appeal. However, basing on the case of Alcon International Ltd v Kasirye Byaruhanga & Co. Advocates (supra) he argued that for the purpose of staying execution, lodging a notice of appeal is sufficient to commence “a pending appeal.” In view of the above authorities and Article 126 (2) (e) of the Constitution, this court would ordinarily be convinced by that argument and hold that there is an appeal if at all it is proved that the notice of appeal was properly filed before this court.

However, from the records before court and the submission of counsel for the applicant, I do find that no such notice of appeal was filed in the registry of this court. What counsel for the applicant is referring to as having been filed was merely attached to the affidavit in support of this application to prove that a notice of appeal had been lodged at the Nakawa Court.

Surely, how liberal should a court of law be to accommodate defaulting litigants? Should all the rules of procedure be flouted with impunity and regarded as mere technicalities? For that matter would there still be any orderly way of conducting court business? To my mind each case should be determined on its own merits so that some degree of order as laid down in the rules of procedure for the conduct of court business could be preserved.

In this regard, I find very instructive the observation of the Supreme Court in Kasirye Byaruhanga & Co Advocates v UDB SCCA No. 2 of 1997 that “…a litigant who relies on Article 126 (2) (e) must satisfy the court that in the circumstances of the particular case before the court it was not desirable to have undue regard to a relevant technically. Article 126 (2) (e) is not a magic wand in the hands of defaulting litigants”.

In the absence of a memorandum and for reasons that no notice of appeal was even filed in this court, I am not at all convinced that there is a pending appeal before this court from which this application derives its validity. I find that there is none. I agree with counsel for the respondent that under Order 43 rule 4 the court can only consider granting a stay of execution when an appeal is pending before it. Since there is no appeal before this court I am unable to hear this application on its merit as it is a nullity.

Due to my finding that no notice of appeal was filed in this court, I will not bother to consider the argument on its validity for lack of signature and court seal as it would only serve academic purpose.

In the result, I uphold the preliminary objection and find this application incompetent. In the premises, I dismiss it with costs to the respondents. The interim order of stay of execution that was issued pending the determination of this application is accordingly vacated.

Before I take leave of this matter, I wish to observe that the applicant had the option to apply for a stay of execution before the court that made the order but it opted to run to this court in a very haphazard manner with the above unfortunate result.

Dated this 20^th day of September 2012.

Hellen Obura

JUDGE

Delivered in chambers at 4.00pm in the presence of Mr. Mbeta Haruna who was holding brief for Mr. George Okello for the applicant and Mr. Benson Tusasirwe for the respondents.

JUDGE

20/09/12