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Orute Julius v Etyang Jacob (CA NO. 002-2023) [2024] UGHC 1239 (20 December 2024)
- Citation
- [2024] UGHC 1239
- Status
- Judgment
- Jurisdiction
- Uganda
- Court
- High Court of Uganda
- Panel
- Kawesa, J
- Case number
- CA NO. 002-2023
- Language
- English
More details
- Court
- High Court of Uganda
- Panel
- Kawesa, J
- Case number
- CA NO. 002-2023
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that the appeal was not properly instituted because there was no valid memorandum of appeal on record. The only memorandum present had been cancelled and was not endorsed or stamped by the court. The subsequent attempt to present a memorandum alongside submissions, without leave of court, was deemed unlawful and contrary to the Civil Procedure Rules. The court emphasized that the rules require strict compliance, and the absence of a memorandum of appeal means there is no competent appeal before the court. Citing both the Civil Procedure Rules and relevant case law, the court held that this procedural defect is fatal and cannot be cured by subsequent irregular filings. Consequently, the appeal was dismissed with costs as there was no valid appeal to adjudicate.
Court disposition
appeal dismissed with costs
Orders
- The appeal is dismissed with costs to the respondent.
02
Material facts
Parties
Etyang Jacob
Appellant Counsel: Musigire Stephen Kabera AdvocatesOrute Julius
Respondent Counsel: Sebowa03
Procedural history
Posture
Civil Appeal / Ruling on Preliminary Objection/dismissal
04
Questions and positions
Legal issues
- 01
Whether the appeal was properly instituted in accordance with the mandatory requirements of the Civil Procedure Rules.
- 02
Whether the absence of a valid memorandum of appeal renders the appeal incompetent and liable to dismissal.
Party arguments
- Applicant
- The appellant's counsel purportedly filed submissions with attachments, including a memorandum of appeal and index, after the original memorandum had been cancelled and without leave of court. The appellant did not follow the prescribed procedure for instituting an appeal.
- Respondent
- The respondent, through counsel Sebowa, highlighted the absence of a valid memorandum of appeal on record and prayed for the matter to be scheduled for submissions, implying the appeal was not properly before the court.
05
Court’s reasoning
Legal principles
- 01
Order 43 Rule 1(1) of the Civil Procedure Rules
Every appeal to the High Court must be preferred in the form of a memorandum signed by the appellant or his advocate and presented to court or an appointed officer.
- 02
Order 43 Rule 1(2) of the Civil Procedure Rules; Bakaluba and Anor v Naluga (Election Petition Application No. 024 of 2011; UGHCEP II)
Failure to file a memorandum of appeal within the prescribed time or without leave of court is an illegality and renders the appeal incompetent.
06
Ratio, limits and disposition
Ratio decidendi
The court found that the appeal was not properly instituted because there was no valid memorandum of appeal on record. The only memorandum present had been cancelled and was not endorsed or stamped by the court. The subsequent attempt to present a memorandum alongside submissions, without leave of court, was deemed unlawful and contrary to the Civil Procedure Rules. The court emphasized that the rules require strict compliance, and the absence of a memorandum of appeal means there is no competent appeal before the court. Citing both the Civil Procedure Rules and relevant case law, the court held that this procedural defect is fatal and cannot be cured by subsequent irregular filings. Consequently, the appeal was dismissed with costs as there was no valid appeal to adjudicate.
Obiter and limits
- Expedition is of essence in litigation, and delay in taking the right procedural steps hinders successful parties from enjoying the fruits of their judgment.
- The rules of procedure are designed to ensure orderly and timely administration of justice, and non-compliance cannot be condoned.
Court disposition
appeal dismissed with costs
- The appeal is dismissed with costs to the respondent.
Source and reliance status
High Court of Uganda
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
High Court of Uganda
Judgment
CA NO. 002-2023-ORUTE JULIUS VS ETYANG JACOB [RULING]
THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT TORORO CIVIL APPEAL NO. 002 OF 2023 [ARISING FROM TORORO CIVIL SUIT NO-034 OF 2019]
| ETYANG JACOB::::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPELLANT | |---------------------------------------------------------------------------------| | VERSUS | | ORUTE JULIUS::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDNENT |
BEFORE: HON. DR. JUSTICE HENRY 1 KAWESA RULING
This Civil Appeal of 2023 arose from Tororo Civil Suit No. 034 of 2019 and it was filed in this Court by Appellant's advocates; M/S Musigire Stephen Kabera Advocates.
On the 17th day of November 2024 when this matter was called for hearing, the parties were absent save, Counsel Sebowa for the Respondent who prayed for a schedule to file submissions which this Court granted. This was after Court noted that the application did not have a memorandum of appeal on record. The one on record, having been cancelled with a blue pen, with no stamp of Court or endorsement by Court.
Strangely, I see on record purported submissions by the Appellant's Counsel with attachments of a purported memorandum of appeal and index of the appeal. This is very strange and unlawful.
CA NO. 002-2023-ORUTE JULIUS VS ETYANG JACOB [RULING]
Firstly, under O.43 r(i)(i), every appeal to the High Court shall be preferred in the form of a memorandum signed by the Appellant or his Advocate and presented to Court or such officer, appointed for that purpose, which was never done. O.43 r(1)(2) - then gives the form of the memorandum.
The memorandum being presented alongside the submissions without any leave of Court is illegal
I do not have to point out that this appeal was due for dismissal under O.43(r)(31) for delay to have it fixed, but in any case, it never amounted to an appeal since it has no memorandum to originate it.
In the Court of Appeal's decision in *Bakaluba and Anor versus*
*Naluga (Election Petition Application No. 024 of 2011; UGHCEP*
*II*, dealt with failure to file a memorandum of appeal on time in that Court. Court held that:
"*according to the rules of the Court governing Parliamentary appeal, the relevant law requires a memorandum of appeal 10 be filed with the Registrar within 14 days*".
The party did not do it and Court held that;
"*the rules of' procedure were made 10 enable the expeditions disposed of elections related matters and therefore there being no application for extension of' time in Court, matters*
CA NO. 002-2023-ORUTE JULIUS VS ETYANG JACOB [RULING]
*of this nature, expedition is of essence. Delay in taking the right step in litigation al the right lime hinders the successful parties from enjoying the fruits of their judgment which was obtained in their favour.*
They dismissed the appeal with costs.
In this matter, neither a memorandum of appeal nor a decree are on record, there is therefore no appeal before this Court. This is an illegality before me and for that reason, it offends O.43 (r)(l). The appeal is accordingly dismissed with costs.
I so order.
Dr. Henry I Kawesa JUDGE 20/12/2024
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