THE REPUBLIC OF UGANDA
IN THE COURT OF APPEAL OF UGANDA (COA) AT
KAMPALA
CIVIL APPLICATION NUMBER 0130 OF 2012
1
. ASIIMWE DIANA JACKLINE }
2. HENRY MUGENYI
3. STEVEN SERWADDA
APPLICANTS
Vs.
DR AGGREY KIYINGI·
.·.·..·.·.·.·.·.·..·.·.·.·.·.·.·..·.·.·.·.·.·..·.·.·.·.·.·.·••·•·•·····RESPONDENT
BEFORE:
HON. MR. JUSTICE. KENNETH KAKURU, JA
Date: 31
st July 2013
RULING:
This is an appeal by way of reference from a decision of The learne
d
Assistan
t Registrar of this court to a single Justice of Appeal. There is no
i
ndication as under what law this appeal or reference has been brought. I
presume it was brought under Rule 110 of the Rules of this court.
The app
licants in this matter were all the material time represented by Mr.
Eric Muhwezi and Mr
. Latigo was for the respondent. Mr. Muhwezi
p
ractices in the name and style of MIS Muhanguzi, Muhwezi & Co.
1
Advocate
s whose address is NIC building 2nd floor9 (Annex) Pilkington
Road P.
O. Box 7456 Kampala.
At the he
aring of this application, Mr. Muhwezi was absent. However one of
his client
s, the 3rd applicant Mr. Steven Serwadda was present in court. Mr.
Serwadd
a informed court that his counsel Mr. Eric Muhwezi was
indispos
ed and applied for an adjournment on that account.
Court de
clined to grant the adjournment as no sufficient cause had been
shown.
Mr. Ser
wadda himself an advocate was asked to proceed with the
applicati
on as a party.
Mr
. Serwadda urgued grounds 1 & 2 of the Memorandum of Appeal
together
.
Basically
that the bill of costs was drawn and filed against 5 applicants
whereas
the case was at all material times against only 3 persons namely;
1. As
iimwe Diana Jackline
2. He
nry Mugenyi
3. St
even Serwadda
He urgu
ed that Steven Karangwa and the Commissioner for Land
Registrat
ion where not parties to the case and should not have been
included i
n the taxation proceedings.
On the
second ground, he argued that the respondent had committed
contemp
t of this court when they refused to obey the court order in
Miscell
aneous Application Number
135 of 2009
to deposit certificates of
2
title in co
urt but instead sold the two titles to avoid execution in High Court
Civil Su
it No.266
of 2009
from which the taxation proceedings on appeal
in this co
urt eventually arose.
At the h
earing of this application, court brought to the attention of Mr.
Serwadd
a the fact that the order of the Assistant Registrar of this court
which di
rected the respondent in this matter Dr. Aggrey Kiyingi to deposit
the said
land titles was signed on 23rd day of November 2009. The
applicati
on itself was heard on 20th October 2009.This was ascertained
from the r
ecord filed in this court by the applicants.
Court al
so brought to the attention of Mr. Serwadda the fact that his own
Record
of Reference at pages 37 and 40 contains copies of the said land
titles, tw
o of them. The record indicates that the said titles had been
transferr
ed from the names of Dr. Aggrey Kiyingi the respondent herein to
those of
one Mohammed Ssekatawa on 14th October 2009. Accordingly
there is n
o way Dr. Kiyingi could have deposited titles in court which were
no longer
his property at the time when the order was made.
Upon re
alizing the above, Mr. Serwadda withdrew ground 2 of the
Memora
ndum of Reference.
In reply
Mr. Latigo learned counsel for the respondent urgued that the
learned
Assistant Registrar correctly dismissed the preliminary objection
raised at
the taxation hearing. The objection that the proceedings were in
respect
of 5 applicants yet the parties to the case were only 3, he urgued
was ma
de without any basis. He contended that at all material times the
parties t
o the application and appeal were five and not three.
3
He produ
ced a notice of appeal in this matter to the Supreme Court that
was pre
pared, drawn and filed by MIS Muhanguzi, Muhwezi & Co.
Advocates
.
It indeed
indicates all the five applicants.
He also
brought to the attention of court the order of this court from which
the taxa
tion proceedings emanated. The order is in respect of five
applicant
s, this order was also drawn and filed by MIS Muhanguzi and
Muhwezi
Advocates of the same address. Both the order and the notice of
appeal a
bove mentioned were signed by Mr. Eric Muhwezi himself.
He praye
d for the dismissal of the application.
Since the
2nd ground of appeal was withdrawn, I will not dwell on It. suffice
to say
that had the advocate been more deligent he would have
ascertain
ed that Dr. Kiyingi had transferred the property to the third party
before th
e application was heard and before the order was made. This kind
of laxity
by an advocate is unacceptable at this court
Ground
one of memorandum of Reference as already noted is also
untenabl
e. Counsel for the applicant himself drew the order from which the
taxation
proceedings arose. The order named as applicants, 5 applicants
and not
3.
In his ow
n notice of appeal the advocate names five intended appellants.
I do not u
nderstand how the same person could then insist that the matter
was only
in respect of three applicants. The Assistant Registrar in this
matter w
as justified when she dismissed the preliminary objection.
4
I find this
application frivolous, a waste of court's time and abuse of court
process.
This is a
matter in which costs should have been awarded against the
Advocate
in person. I will not do so now.
This appli
cation must therefore be dismissed, and it's hereby dismissed
with costs.
HON. MR.JUSTICE KENNETH KAKURU
, JA
31
sT JULY 2013
5