THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT NAKAWA

CIVIL APPEAL NO. 53 OF 2013

1. ARTHUR NIWAGABA
2. VIDA TINZAARA
3. LEON MAIKU
4. JOSEPH TURYAHIKAYO
5. ROSE TIMBIGAMBA:::::::::::::::::::::::::::::::::::::                                                                                                                                              APPELLANTS

           V E R S U S

THE OWNERS, CONDOMINIUM PLAN

 NOS. 0026 AND 0029 :::::::::::::::::::::::::::::::::::::::                                                                                                                                              RESPONDENTS

BEFORE: HON. LADY JUSTICE ELIZABETH IBANDA NAHAMYA

JUDGMENT

This Appeal arises from the Ruling of Her Worship Mugala Jane, the Magistrate Grade 1 delivered at Nakawa on the 8^th of May, 2013. The Appeal seeks Orders that the Appeal be allowed, The Ruling and the Orders of the Lower Court be quashed and consequential Orders be made on Miscellaneous Application No. 589 of 2009 and Civil Case No. 287 of 2009.

The background of this suit is that the Respondents’ instituted a suit against the Appellants’ on a Specially Endorsed Plaint under Order 36 of the Civil Procedure Rules, S.I 71-1 seeking recovery of land and for Orders that a Declaration be made that the Respondent is entitled to exclusive and quiet possession of land comprised in the common property of the condominium plan No. 26 and 29 and an Order of Eviction against the Appellants.’

At Trial, the Appellants’ filed an Application No 589 of 2009 seeking for Leave to defend the suit. However, the Appellants’ failed to enter appearance which led to its dismissal of the Application on the 13^th March, 2012 for want of Prosecution. Subsequently, the Trial Magistrate entered a Summary Judgment for the Respondent. The Appellant then filed Miscellaneous Application No. 21 of 2013 under Order 9 Rule 27 and Order 22 Rule 23 of the civil procedure Rules S.I 71-1 in which he sought Orders to set aside the Summary Judgment which was dismissed by the Court. The Appellants aggrieved with the decision of the Trial Magistrate, preferred this Appeal against the dismissal of Miscellaneous Application No. 21 of 2013.

GROUNDS OF THE APPEAL

The grounds of Appeal as set out in the Memorandum are;-

1. That the Learned Trial Chief Magistrate failed to consider properly the evidence before her;

2. The Trial Magistrate erred in fact and law when she concluded that the Appellants’ did not repeatedly go to Court following their application in Miscellaneous Application No. 589 of 2009, thereby concluding that no sufficient cause was shown to merit the grant of Miscellaneous Application No. 21 of 2013.

The Appellants’ were represented by Counsel Dalton Opwonya of M/s Opwonya & Co. Advocates whereas the Respondents’ were represented by Counsel Didas Nkuruziza of M/s Didas Nkuruziza & Co. Advocates.

SUBMISSIONS OF THE PARTIES

The Appellants’ submissions

The Learned Counsel Opwonya argued that the Appellants’ were sitting tenants of the suit property. Counsel for the Appellants’ contended that the Appellants’ were entitled to be given the first priority to buy land before the sale as was conducted by the National Housing and Construction Corporation. In his submissions, Counsel Opwonya pointed out that Miscellaneous Application No. 21 of 2013 was supported by an Affidavit of Rose Timbigamba (the 5^th Appellant) who in her supplementary Affidavit deponed that the Appellants’ were sitting tenants entitled to buy the individual shops that they were renting. Counsel Opwonya relied on the case of Kampala Distributors Land Board and Chemical Distributors vs. National Housing and Construction Corporation S.C.C.A No. 2 of 2004, where the Honorable Court of Appeal held that the sitting tenants should be given the first priority to buy land if it is being sold.

It was Counsel Opwonya’s submission that the Appellants’ had disclosed earlier that the Court file in the main Civil Suit No. 287 of 2009 was lost and all the efforts of retrieving the same were futile, a fact which was not disputed by the Respondents’. It was therefore his contention that the Trial Magistrate should have held otherwise instead of relying on the Respondents’ evidence.

On the issue of seeking leave of Court before preferring the Appeal, the Learned Counsel for the Appellants’ submitted that the Appeal lies against the decision in Miscellaneous Application  No. 21 of 2013. He further submitted that since Miscellaneous Application No. 589 of 2009 was dismissed, the application to remedy the dismissal cannot be made under Order 39, Rule 11 of the Civil Procedure Rules S.I 71-1.

Counsel Opwonya stated that the Appeal is for orders to restore Miscellaneous Application No. 589 of 2009 which was dismissed under Order 9, Rule 22 of the Civil Procedure Rules S.I 71-1 for failure to prosecute. It was Counsel Opwonya’s contention that leave of Court may be sought after the event like an extension of time or leave to Appeal.

In his closing submissions, Counsel Opwonya prayed to Court to grant the Appellants’ leave to appeal if the Appellants’ reasoning in respect of Miscellaneous No. 589 of 2009 is not acceptable.

The Respondents’ submissions

Counsel Nkuruziza for the Respondents’ opposed the Appeal. He submitted that the Appeal before this Honorable Court is incompetent and without merit. Counsel for the Respondents further pointed out that Civil suit No. 287 of 2009 was filed under Order 36 on a Specially Endorsed Plaint.  It was Counsel Nkuruziza’s submission that the Appellants filed Miscellaneous Application No. 589 of 2009 seeking leave to appear and defend which was subsequently dismissed by Court for Want of Prosecution and a Summary Judgment entered for the Respondents.

Counsel for the Respondents argued that the Appellant filed Miscellaneous Application No. 21 of 2013 in order to set aside the Summary Judgment. This Application was also dismissed by Court. The Learned Counsel Nkuruziza contended that the Appeal is against the Order of dismissal of Miscellaneous Application No. 21 of 2013 thereby being incompetent before this Honorable Court since it was brought without leave of Court.

In his submissions, Learned Counsel for the Respondent relied on the principle of law that an Appeal is a creature of Statute. Counsel Nkuruziza considered Section 220 of the Magistrates Court Act Cap 16 coupled with Section 76 of the Civil Procedure Act Cap 71 which prohibits Appeals except those specifically provided for by the Civil Procedure Rules S.I 71-1. Counsel Nkuruziza further cited Order 44, Rules 1, 2 and 3 of the Civil Procedure Rules which provide for instances in which an Appeal shall lie as of right or upon leave of Court. It was Counsel Nkuruziza’s argument that Order 36 of the Civil Procedure Rules is excluded from Appeals that lie as of right.

Regarding the issue of the procedure, Counsel for the Respondent submitted that an application to set aside judgment on a Specially Endorsed Plaint should have been brought under Order 36, Rule 11 of the Civil Procedure Rules S.I. 71-1.

DECISION

1. The issues raised by this Appeal are;-
2. Whether the Appellant can appeal as of right.
3. Whether the Appeal can be granted.

In determining this Appeal, I will first consider the cognate issues of procedure raised by the parties then make a decision on the Appeal.

It is pertinent to note that the Respondent in his written submissions disputed the competence of the Appeal basing on the fact that the Appellants failed to seek leave of Court before lodging the Appeal.

This Appeal arises out of the Ruling of Magistrate Grade 1 in Miscellaneous Application No. 21 of 2013 brought under Order 9, rule 27 and Order 22, rule 23 of the Civil Procedure Rules SI. 71-1 in which the Appellants sought orders to set aside an Ex parte Judgment entered in Civil Suit NO. 287 of 2009.

According to the record of Appeal at page 51, the application was for Orders that the Ex parte Judgment entered in Civil Suit No. 0287 of 2009 be set aside; and execution be stayed. The application was supported by the Affidavit of Rose Timbigamba who also deposed a Supplementary Affidavit stating that the Appellants were the sitting tenants on the property and that they were entitled to be given the first priority to any sale.

At the hearing of the Miscellaneous Application No. 21 of 2013 and according to the Court record at page 94, Counsel Nkurunziza raised an objection on a matter of law in which he stated that the application was not brought under the proper law. Counsel Nkuruziza’s contention was that the Application was brought under Order 9, Rule 27, Order 22 Rule 23; Order 52, Rule 1 and Section 98 of the Civil Procedure Act Cap 71 which Orders according to him, were not applicable to the matter before this Honorable Court because the main suit was filed under a Summary Procedure on a Specially Endorsed Plaint under Order 36, of the Civil Procedure Rules. He further argued that where a Decree is entered under Order 36 of the Civil Procedure Rules, the only way to set aside the Decree is under Order 36 Rule 11 which is to the effect that if there was no proper service or for any sufficient cause shown and if the Court is satisfied that there is a triable issue, it can set aside the Decree and stay execution. In the same vein, the Court can grant the Applicant leave to appear and defend.   However, the Trial Magistrate, in her Ruling handled the issue by holding it to be under the Order 36 rule 11 of the Civil Procedure Rules.

Counsel Nkuruziza also argued that Courts do not act in vain. He pointed out that the Miscellaneous Application No. 21 of 2013 filed by the Appellant for leave to defend was dismissed for Want of Prosecution on the 13^th March, 2012 and that there was no subsequent Application to set aside the Judgment.

It was also Counsel Nkuruziza’s argument that the Appellants failed to prove that they have sufficient cause as to why they failed to prosecute the Application for leave to defend. He contended that the Appellants took three years without making any attempt to open up a duplicate file to ensure that the Application is prosecuted since they claimed that the file was lost and could not be found.

In rejoinder, Counsel Opwonya submitted that failure by the Applicants Advocates not to find the Court file or open a duplicate file was lapse of Counsel which should not be visited on the Applicants. It was Counsel Opwonya’s argument that there is evidence that the Applicants were going to Court to try and trace the file but in vain.

Counsel for the Appellants, Mr. Opwonya on the other hand argued that the mistake of an Advocate should not be visited on the litigant. He relied on the case of Hajji Nuru Din Matovu vs. Ben Kiwanuka S.C.C.A 12/91, J.O Okello vs. Kayondo & Co. Advocates H.C.C.A 1/99. He also cited Andrew Bamanya vs. Sham Sherar Zaye CAC 70/0 in which Justice Mukasa Kikonyogo observed that mistakes, falls, lapses or dilatory conduct of Counsel should not be visited on the litigant.

Counsel Opwonya further relied on Article 126 (2) (e) of the Constitution of the Republic of Uganda 1995 as amended which enjoins Court to go to the gist of the matter other than dwelling on a technicality. It was Counsel Opwonya’s argument that, if the application is pleading for something that is known to the Court and in turn, that which will not prejudice the other party, then Court will always overlook the technicalities.

The Trial Magistrate in her ruling agreed with the principles cited by Counsel Opwonya on lapse of Counsel to proceed under a wrong law. Her Worship Mugala Jane pointed out that since the pleadings did not indicate that there was a mistake or lapse occasioned by Counsel, the submissions by Counsel Opwonya do not hold water and thus disregarded it as being evidence from the bar.

Although the Trial Magistrate did not agree with Counsel Opwonya’s submissions that failure to bring the Miscellaneous Application  21 of 2013 under a proper law was merely lapse of Counsel, She did not find such an error to be fatal. Her Worship Mugala stated that no action may be defeated by use of wrong procedural mode and the judge has discretion to hear it either in Court or in Chambers. The Trial Magistrate relied on the case of Tarlol Singh Saggu vs Road Master Cycles (U) Ltd C.AC.A No. 46 of 2000 which was cited with approval in the case of Nanjibhai Prabdudas & Co. Ltd vs Standard Bank Ltd [1968]1 E.A 670. In that case, it was held that the 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 a most fundamental nature. It also held that matters of procedure are not normally of a fundamental nature. She also referred to a number of authorities, (See Kinyanjui & Anor vs Thande & Anor [1995-98], Francis Wazarwahi Bwengye vs Haki Bonera C.A No. 33 of 2009).

Counsel Opwonya contended that the Trial Magistrate erred in law when she concluded that the Appellants failure to go repeatedly in Court to follow up the Application was not a “sufficient cause” shown to set aside the ex parte Judgment.

I will make reference to the record of proceedings on page 6. The Trial Magistrate referred to the case of Kingstone Enterprises Ltd & 2 Ors vs. Metropolitan Properties Ltd HMA 341/12 where Court held that “good cause” was defined to mean a legally sufficient reason and that the burden of proving what amounts to “sufficient” reason is vested on the litigant to show why a request should be granted or an action taken. Her Worship Mugala drew back on the record of proceedings when Counsel Opwonya for the Appellants appeared before the Learned Chief Magistrate on the 17^th of December 2012 whereby he told Court that the Appellants had given him instruction in December 2011 and that from that time, the Appellants had been looking for the file in vain until on the 12^th December, 2012 when he discovered that the Decree was issued for recovery of land on the 16^th of August 2012 before Her Worship Esther Wambayo.

It was the wise reasoning of the Trial Magistrate that for a whole year, Counsel for the Appellants could not move Court to have the Application fixed and heard. According to Her Worship Mugala, one cannot rely on the argument that there was lapse on the side of the Lawyer where it is not shown in the pleadings. It is prudent for the person who has been going to Court to try and find the file to swear an Affidavit and provide the dates he/she went to Court, the person he/she saw at Court and his/her actions after the repeated failure to retrieve the file.

Therefore, the Trial Magistrate found that there was no “sufficient cause” shown to warrant the grant the Application to set aside the Ex parte Judgment as the Appellants sat back after filing Miscellaneous Application No. 589/09 who were only re-awakened in December 2012 when the Respondent threatened the Appellants with a copy of a Decree.

It is my understanding and through available jurisprudence that there is a set procedure for instituting or otherwise dealing with any pleadings under Order 52, rule 1 of the Civil Procedure Rules. The main suit in Civil Suit No. 287 of 2009 was brought on a Specially Endorsed Plaint under Order 36 of the CPR. Therefore Order 36, rule 11 of the CPR is sufficient in that it also provides for the mechanisms under which an order under a Specially Endorsed Plaint may be set aside.  Order 36, rule 11 states that;

‘After a decree the Court may, if satisfied that the service of summons was not effective, or for any good cause…. Set aside the decree and if necessary stay execution……….’

There is no contention that the foregoing Rule of Procedure provides for a special procedure through which suits on a specially endorsed plaint may be instituted as well as set aside. However, Order 9, rule 27 provides for other instances of setting aside a decree instituted differently than by a Specially Endorsed Plaint.

It should be observed that according to the record at page 48 of the Record of Appeal, the suit was dismissed on the 13^th day of March 2012 when Judgment was entered for the Respondent in which Court decreed in the following terms:

1. A declaration ensues that the Plaintiff is entitled to full, exclusive and quiet possession and management of the land comprised in the common property of the condominium plan Nos. 0026 and 0029 now lawfully occupied by the defendants, and each of them;

2. That it is hereby ordered that the defendants, each of them, do forthwith vacate and put the plaintiff in possession of the said common property comprised in the common property of the condominium plan Nos. 0026 and 0029 now unlawfully occupied by the Defendants, and each of them…………..’

Therefore this Court acknowledges that the Application for setting aside Miscellaneous Application No. 21 of 2013 could only be brought under Order 36, rule 11.

Pertaining to the issue of whether the Appellants have a right of Appeal, I would conclude that this Appeal lies against the dismissal in Miscellaneous Application No. 21 of 2013 which falls within Order 36, rule 11 of the CPR. Hence, the Appellants have no automatic right of Appeal. (See Attorney General vs. Shah [No.4] [1971] EA 50).

When this matter came for hearing Mr. Nkuruziza appearing for Respondent raised an objection to the validity of this Appeal. He contended that the Order appealed against does not fall within the categories of the Orders that are appealable from without leave of Court. That leave to appeal is mandatory and therefore this Appeal was irregularly before the Court. Counsel Opwonya’s contention was that leave of Court may be sought after the event like an extension of time or leave to Appeal.

I have considered the contentions of both Advocates in this matter. In order to resolve the disagreement; a reference has been made both to the Magistrates Courts, Act Cap 16 and The Civil Procedure Act, Cap 71 together with The Civil Procedure Rules (CPR) S. I. 71-1 Section 220 (1) (a) of The Magistrate Courts Act Cap 16 provides: That subject to any written law and except as provided in this section, an Appeal shall lie

1. From the decrees or any part of the decrees and from the orders of a Magistrate’s Court presided over by a Chief Magistrate or Magistrate Grade One in exercise of its original jurisdiction to the High Court."

The above Sections grant the right of Appeal subject to any written law. This section must be read and applied with provisions of Order 22 of the Civil Procedure Rules (S1 71-1). Under Order 44, Rule (1) (a) to (u) categorizes orders from which Appeal shall lie as of right without seeking leave to Appeal. Order 44, Rule 2 C.P.R clears states that

"(2) An Appeal under these Rules shall not lie from any other order except with leave of Court making the order or of the Court to which an Appeal would lie if leave were given."

Furthermore, Section 76 of the Civil Procedure Act provides for the particular instances upon which an appeal shall lay as of right or by leave of Court. Order 44 of the CPR also enunciates on the orders of Court upon which an Appeal may lie as of right and the Orders relating to setting aside of an Ex parte Judgment on a Specially Endorsed Plaint are excluded from the provision. The Respondents also brought to the notice of this Honorable Court a vast number of authorities which are binding on this Court in which Court emphasized the need to seek leave where it is required by law.  (See Dr. Sheikh Ahmed Mohammed Kisuule vs. Green land Bank (in liquidation) SCCA No.11 of 2010.

The order dismissing an application for leave to defend under Summary Suits or Order 36 of C.P.R is not one of the orders set out in order 44, rule 1. Therefore the Appellant ought to have sought leave to appeal as prescribed under Rules 3 and 4 of this Order. In the circumstances, I agree with the decision of Court in the case Mugabe vs. Twinobusingye Civil Appeal No. 050 of 2009, where it was held that the Appeal was filed in violation of the written law as the Appellant ought to have sought leave to appeal as prescribed under Rules 3 and 4 of Order 36.  In the case of Sango Bay Estates Ltd v Dresdner Bank A.G [1971] EA 17, it was held that where leave is not sought the Appeal is rendered incompetent and must be struck out.

I have carefully perused the law and considered the submissions of both Counsel. Order 44, rule 1 of the CPR which specifies orders from which Appeals lie as of right does not include orders made under Order 36 of the CPR. The original suit and subsequent Miscellaneous Application to set aside the Summary Judgment was brought under Order 36 of the CPR. Thus decisions made under Order 36 are not appealable as of right under Order 44 rule 1. Leave ought to be sought under Order 44, rule 2 to Appeal against a decision made under Order 36. (Emphasis added)

It follows therefore that the Appellants should have first sought leave from the Court that made the order before lodging this Appeal. Counsel for the Appellant, in his prayer, urged Court to grant him leave to Appeal, if in its opinion his arguments pertaining to the dismissal of the Miscellaneous Application No. 589 of 2009 does not hold water. It is certain that no application for leave to appeal was ever lodged either in the trial Court or to this Court. This was in contravention of Section 76 of the Civil Procedure Act and Order 44 rule 2 of the CPR.

The position of the law is now settled. Where leave is required to file an Appeal and such leave is not obtained the Appeal filed is incompetent and cannot even be withdrawn. It must be struck out. (See Makhangu v Kibwana [1995-1998] EA 175). This principle was applied by the Supreme Court of Uganda in the case of Dr. Sheikh Ahmed Mohammed Kisuule v Greenland Bank (In Liquidation) S.C.C.A No. 11 of 2010 where a Preliminary Objection had been raised on the ground that the Appellant had not sought leave of the High Court or Court of Appeal prior to filing the Appeal. Kitumba, JSC observed that obtaining leave is not merely a procedural matter but an essential step. She held that no genuine steps had been taken to apply for leave and so there was no competent appeal before the Court.

Similarly, I find that in the instant case, the Appellants did not take any genuine steps to apply for leave either in the Chief Magistrate’s Court or in this Court as required by the law. This requirement was essential prior to the filing of this Appeal. It therefore follows that without leave to appeal this Appeal is invalidly before this Court and it is incompetent. The defect is not curable.

It follows therefore that the Appellants should have first sought leave of the Court that made the order before lodging this Appeal. In the event that leave was denied by that court the Appellant should have then sought leave of this Court. 

For those reasons, I find that this Appeal is incompetent, I make the following Orders.

1. The Appeal is hereby struck out;

2. Costs shall be paid to the Respondents.

3. This file shall be returned to the trial Magistrate for the conclusion of the proceedings in the original suit.

I so Order.

Signed:…………….………………………………………………

HON. LADY JUSTICE ELIZABETH IBANDA NAHAMYA.

J U D G E

7^TH FEBRUARY, 2014