Musolho v Baryanga (Miscellaneous Application 13 of 2024) [2024] UGHC 519 (3 May 2024)

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT FORT PORTAL

MISCELLANEOUS APPLICATION NO. 13 of 2024

(ARISING FROM HCT-01-CV-CA NO. 31 OF 2023)

(ARISING FROM KAS-00-CS-169 OF 2021)

SATURDAY MUSOLHO=======================================APPLICANT

VERSUS

BARYANGA RICHARD======================================RESPONDENT

BEFORE HON. JUSTICE DAVID S. L. MAKUMBI

Applicant represented by M/S MRK Advocates

Respondent represented by Kanyonyi and Co. Advocates

RULING

BACKGROUND:

This Application is brought by way of Chamber Summons under Section 98 of the Civil Procedure Act; Order 5 Rules 1(1), 1(2), 1(3) and 32; and, Order 49 Rule 2 of the Civil Procedure Rules seeking orders that:

1. Civil Appeal No. 31 of 2023 be dismissed and/or struck out for failure to serve the Memorandum of Appeal within the time prescribed by law.

2. Costs of the Application be provided for.

The Application is supported by the affidavit of the Applicant Saturday Musolho on the grounds that:

1. The Applicant secured judgment against the Respondent vide Chief Magistrate Civil Suit No. 169 of 2021 at Kasese on 7th September 2023.

2. The Respondent filed High Court Civil Appeal No. 31 of 2023 at Fort Portal in respect of the aforementioned civil suit.

3. The Court record shows that the Memorandum of Appeal was sealed and endorsed by the Deputy Registrar of the High Court on 17th October 2023.

4. The Respondent has to date failed to serve the Memorandum of Appeal in the aforementioned appeal upon the Applicant within the 21 days prescribed by the law and there has been no application for extension of time with respect to the same.

5. High Court Civil Appeal No. 31 of 2023 is accordingly barred in law and ought to be dismissed for failure to serve the Memorandum of Appeal within the prescribed time.

6. There is no competent appeal against the Applicant as the same stands dismissed by operation of the law 7. It is fair, just and equitable that Civil Appeal No. 31 of 2023 be dismissed with costs.

Counsel for the Applicant prepared written submissions in support of the application based upon two issues.

1. Whether High Court Civil Appeal No. 31 of 2023 is incompetent and should be struck out for failure to serve the Memorandum of Appeal within the time prescribed by law; and 2. What remedies are available to the parties.

As concerns the competence of the appeal, Counsel argued that whereas the Respondent had lodged the appeal on 17th October 2023, the Respondent had taken no steps to serve the same on the Applicant. Counsel argued that this was in contravention of Order 49 Rule 2 and Order 5 Rule 1 of the Civil Procedure Rules. Counsel for the Applicant further argued that the Memorandum of Appeal was a document required to be served in a manner prescribed for service of summons as Section 2 of the Civil Procedure Act defines a suit to be inclusive of appeals.

It was Counsel for the Applicant’s contention that Order 5 Rule 1(3) stipulates that summons should be served within 21 days which meant that the time for service lapsed on the 7th of November 2023. Counsel for the Applicant cited the decision of Her Ladyship Justice Eva K. Luswata in Lubega Robert Smith & 2 Others v Walonze Malaki – High Court Civil Application No. 36 of 2016 wherein she held *inter alia* that an appeal is a creature of statute and would under the provisions of Section 2 of the Civil Procedure Act be regarded as a suit. She further held that a Respondent has a constitutional right to have knowledge of any proceedings against them which meant that they were entitled to be served with a Memorandum of Appeal just as much as a defendant or respondent in any other proceeding would. Furthermore, the provisions of Order 5 of the Civil Procedure Rules would apply to a memorandum of appeal against a respondent, even before service of a hearing notice of the appeal is served upon them. Her Ladyship Justice Luswata subsequently determined that Order 5 Rule 1(3) being couched in mandatory terms meant that a memorandum of appeal served out of time would render the appeal liable for dismissal without notice.

Counsel further cited decisions in Peace Barigye v Rosemary Kiiza Omamteker – HCMA No. 2075 of 2022; Sam Akankwasa v United Bank of Africa – HCMA 1233 of 2017; and Yudaya International Ltd v AG – HCMA 0827 of 2006 all in relation to dismissal of suits where summons are not served in accordance with Order 5 Rule 1 of the Civil Procedure Rules.

Based on the above, Counsel for the Respondent contended that Fort Portal High Court Civil Suit No. 31 of 2023 should be dismissed.

In response to the above, the Respondent contended by way of affidavit that he had initially instructed his advocate to extract judgment and a record of proceedings but when the record appeared to be delayed he instructed his lawyers to file the appeal pending receipt of the record of appeal. He further explained that when the matter decided before the Chief Magistrate Court came up for taxation of costs on 2nd November 2023, his lawyer prayed for adjournment in light of the appeal. The Respondent also disclosed that his lawyer had made a written application for the proceedings of the lower court on 26th October 2023 but to date the record is not yet available. The Respondent also pleaded that the court file had gone missing at some point and that the endorsed Memorandum of Appeal was not available for his lawyers to serve the Applicant.

The appeal had subsequently been fixed for hearing without the record of the proceedings and had been adjourned in the absence of the parties. The Respondent contended that he had been vigilant about following up the appeal.

Counsel for the Respondent prepared written submissions in support of the Respondent’s response and argued that whereas it was true that the appeal had been lodged, the record of proceedings for which it was the duty of court to provide was not ready, and this meant that the Respondent had opted to file a draft Memorandum of Appeal pending receipt of the record of proceedings.

Furthermore, Counsel for the Respondent argued to the effect that it was counter-intuitive to dismiss the appeal based on a draft Memorandum of Appeal in the absence of the lower court proceedings. To that extent Counsel cited the decision of His Lordship Justice Boniface Wamala in Sekabira Herbert v Suuna Mulema and Another – HCMA No. 186 of 2022 wherein he held that it was an exercise of due diligence for the Respondent/Appellant to file a Memorandum of Appeal within 30 days from time of passing the decree so that he can appropriately file and serve the Applicant. Counsel for the Respondent further argued that a Memorandum of Appeal is not a summons within the meaning of Order 5 of the Civil Procedure Rules and prayed that the application be dismissed as it was lacking in merit.

By way of rejoinder, Counsel for the Applicant reiterated their earlier arguments and maintained that the Memorandum of Appeal was never served and to that extent the appeal must be dismissed. Counsel for the Applicant also contended that the Respondent had been dishonest concerning the facts surrounding the record of appeal and that Counsel for the Respondents had no proof of the steps taken to obtain the lower court record of proceedings.

ANALYSIS AND RESOLUTION OF THE APPLICATION:

Having had the benefit of looking at the application and the submissions of the parties, I find that this court needs to determine the following issues:

1. Whether the failure to serve the Memorandum of Appeal in Fort Portal High Court Civil Appeal No. 31 of 2023 on the Applicant rendered the appeal liable for dismissal.

2. What remedies are available to the parties.

ISSUE 1:

Order 49 Rule 2 of the Civil Procedure Rules states that,

*“All orders, notices and documents required by the Act to be given to or served on any person shall be served in the manner provided for the service of summons.”*

Counsel for the Applicant argued that the Memorandum of Appeal was a document within the meaning of the rule above because it related to commencement of a suit within the meaning of Section 2 of the Civil Procedure Act. To that extent, Counsel contended that the Applicant should have been served within 21 days as the foregoing Order requires that the Memorandum being a notice is bound to be served within 21 days as stipulated under Order 5 Rule 1(2) in relation to summons.

While I can appreciate the fact that an Appellant ought to serve the Respondent, the plain fact is that the law is silent on service of the Memorandum of Appeal. Order 49 Rule 2 as cited above and relied upon by Counsel for the Applicant does not apply to a Memorandum of Appeal for the simple reason that the rule applies to *“all orders, notices and documents required by the Act to given to or served on any person”.*

By the very wording of the Order 49 Rule 2 above, there must be a requirement in the Act for the giving or service of a person (in this case the Applicant) before the rule can be said to apply. Counsel for the Applicant did not cite any requirement for service of the Memorandum of Appeal beyond the general Constitutional standard for a fair trial. Unfortunately, this cannot serve as a basis for seeking dismissal of the appeal. This is especially because there are specific grounds laid out under Order 43 for dismissal of an appeal to the High Court. The only context in which the framers of the law provided for dismissal of an appeal for failure to serve is Order 43 Rule 11 of the Civil Procedure Rules.

Order 43 Rule 11 of the Civil Procedure Rules provides that,

*“Notice of the day fixed for hearing of the appeal shall be served on the respondent or on his or her advocate in the manner provided for the service of a defendant of a summons to enter appearance; and all the provisions applicable to that summons, and to proceedings with reference to the service of the summons, shall apply to the service of the notice.”*

From the rule above it is clear that when it comes to service upon the Respondent, it is only default of service of the Hearing Notice that can warrant dismissal of the appeal. This is because the rule clearly creates a requirement to serve the Respondent and clearly links service of the Notice to the requirements of service of summons under Order 5 of the Civil Procedure Rules.

In this particular matter, there is no evidence that a Hearing Notice was extracted and to that extent the appeal cannot be deemed incompetent. I therefore find that in as much as there is no specific legal provision requiring service of the Memorandum of Appeal on the Respondent, this application fails.

However, before I take leave of this issue I must point out that just because there is no specific legal provision concerning service of Memorandum of Appeal in similar terms as Order 43 Rule 11 on the Hearing Notice, it is not a licence for an intended appellant to lodge a Memorandum of Appeal and then simply sit back. An Appellant must be on record as diligently following up on the progress of the intended appeal and once the lower court record and judgment are available, it is incumbent upon a prudent Appellant to extract a Hearing Notice and then serve it upon the Respondent along with the Memorandum of Appeal. The Hearing Notice must be accompanied by the Memorandum of Appeal in the interests of a right to fair trial.

ISSUE 2:

Despite the fact that the Application fails on legal premises I do also find that the Respondent/Appellant has been rather indolent in this matter. This is because ever since the Chief Magistrate certified the lower court record and judgment on 2nd November 2023, the Appellant has not taken any step toward extraction of Hearing Notice and to that extent formal notification of the Applicant/Respondent about the appeal.

It is to the extent of the above that I find that the Respondent/Appellant should take immediate steps toward extraction of Hearing Notice for the appeal and serve it upon the Applicant in this matter along with the Memorandum of Appeal.

ORDERS:

1. The application in this matter is hereby dismissed.

2. The Respondent/Appellant should extract a Hearing Notice for the appeal and serve it upon the Applicant/Respondent along with the Memorandum of Appeal.

3. Each party will bear its own costs in this application.

David S. L. Makumbi

JUDGE

03/05/24