Otim v Ocen (Civil Appeal 6 of 2015) [2023] UGHC 355 (21 February 2023)

THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT LIRA CIVIL APPEAL NO 006 OF 2015

(Arising from Otuke Chief Magistrates Court Civil Appeal No.017 of 2013)

OTIM AUGUSTINE ::::::::::::::::::::::::::::::::::::

VERSUS

OCEN PAUL ::::::::::::::::::::::::::::::::::::

BEFORE HON. JUSTICE ALEX MACKAY AJIJI JUDGMENT

This Appeal arises out of a Judgment of the Otuke Magistrate Grade One His Worship Ssajjabbi Noah Norobert in Land Claim No 17/2013.

The background of this Appeal is as follows;

The Appellant/plaintiff to the present Appeal sued the defendant for trespass on his land located at Teoboke Village, Omonylee Parish, Ogor Subcounty, Otuke District measuring about 15 acres. The Respondent herein contended that the suit land belonged to his late brother's widows and it is them that were in possession and not him as alleged by the plaintiff.

The court determined the suit in favour of the respondent on the 11^th February, 2015.

On the 26^th of February, 2015, a Notice of Appeal was lodged in this court and on the same date the memorandum of Appeal was filed listing three grounds.

The Memorandum of Appeal before this Honourable Court contains the following grounds: -

- 1. That the Trial Magistrate erred in law and fact by not properly evaluating the evidence on record which were given during the hearing by the plaintiff and his witnesses hence arriving at a wrong decision which occasioned a miscarriage of justice. - 2. That Trial Magistrate erred in law when he gave judgment in favour of the people who were not parties in the suit. - 3. That there was also biasness during the whole proceedings in the said court, hence making it come to a wrong decision.

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The Appellant prayed that the Appeal be allowed and the judgment and orders of the lower court set aside, an order for stay of execution and costs of the appeal.

Counsel for the Appellant filed written submissions on the 22/05/2018 but there is no record of any submissions by the respondent.

Representation.

The Appellant first represented himself although his submissions were filed by M/S Okae, Basalirwa, Kakerewe & Co Advocates although there is no Notice of change of Advocates on the record while the Respondent was self represented.

Determination.

Appeals from Magistrates Courts to the High court are governed by the provisions of Section 76 of the Civil Procedure Act Cap 71 and Order 44 rules 1 of the civil procedure rules 71-1.

I will reproduce the above provisions for emphasis and clarity;

Appeals from orders

76. Orders from which appeal lies.

(1) An appeal shall lie from the following orders, and except as otherwise expressly provided in this Act or by any law for the time being in force from no other orders—

(a) an order superseding an arbitration where the award has not been completed within the period *allowed by the court;*

(b) an order on an award stated in the form of a special case;

(c) an order modifying or correcting an award;

(d) an order staying or refusing to stay a suit where there is an agreement to refer to arbitration;

(e) an order filing or refusing to file an award in an arbitration without the intervention of the *court; (f) an order under section 65;*

(g) an order under this Act imposing a fine or directing the arrest or detention in prison of any person, except where the arrest or detention is in execution of a decree;

(h) any order made under rules from which an appeal is expressly allowed by rules.

(2) No appeal shall lie from any order passed in appeal under this section.

ORDER XLIV—APPEAL FROM ORDERS.

1. Appeals from orders.

(1) An appeal shall lie as of right from the following orders under section 76 of the Act—

(a) an order under rule 10 of Order VII returning a plaint to be presented to the proper court;

(b) an order made under rule 23 of Order IX rejecting an application for an order to set aside the dismissal of a suit;

(c) an order under rule 27 of Order IX rejecting an application for an order to set aside a decree $passed$ ex parte;

(d) an order made under rule 21 of Order $X$ ;

(e) an order under rule 10 of Order XVI for the attachment of property;

(f) an order under rule 19 of Order XVI pronouncing judgment against a party;

(g) an order under rule 31 of Order XXII on an objection to the draft of a document or of an endorsement;

(h) an order under rule 67 of Order XXII setting aside or refusing to set aside a sale;

(i) an order that execution be levied made under rule 6 of Order XXIII;

(j) an order under rule 8 of Order XXIV refusing to set aside the abatement or dismissal of a suit; (k) an order under rule 9 of Order XXIV giving or refusing to give leave;

(l) an order under rule 6 of Order XXV recording or refusing to record an agreement, compromise, *or satisfaction;*

(m) an order under rule 2 of Order XXVI rejecting an application for an order to set aside the dismissal of a suit;

(n) orders in interpleader suits under rule 3, 6 or 7 of Order XXXIV;

(o) an order made upon the hearing of an originating summons under Order XXXVII;

(*p*) an order made under rule 2, 3 or 6 of Order XL;

(q) an order made under rule 1, 2, 4 or 8 of Order XLI;

(r) an order under rule 1 or 4 of Order XLII;

(s) an order of refusal under rule 16 of Order XLIII to readmit or under rule 18 of that Order to rehear an appeal;

(*t*) an order under rule 4 of Order XLVI granting an application for review;

(*u*) *an order made in an interlocutory matter by a registrar.*

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

(3) Applications for leave to appeal shall in the first instance be made to the court making the order sought to be appealed from.

(4) Application for leave to appeal shall be by motion on notice. (Emphasis mine).

My appreciation of the above two provisions of the law is that there are instances when an appeal is granted by creature of statute and there are also instances when leave to appeal ought to be sought.

In the instant appeal before this court, leave to appeal ought to have been sought before instituting the said appeal. I have looked at the judgment of His Worship Ssajjabbi Noah Norobert and the same doesn't fall under the ambit of either of the above provisions of the law.

Counsel for the appellant never addressed his mind to the above provisions and neither did he submit on the same. Counsel ought to have known that before the instant appeal had to be preferred, he had to seek leave from the chief magistrates Court or of the court to which an appeal would lie if leave were given in line with Order 44 rules $(2)$ , $(3)$ & $(4)$ of the Civil Procedure Rules.

I have looked at the record of proceedings and I found no such application.

An Appeal filed without the leave of the Chief Magistrates Court or of the High Court is incompetent and cannot be sustained on the court record. See Allen Mayende V Akena George

William & Anor Civil Appeal No. 174 Of 2019; Tumheise V Turyasingura Civil Appeal 11 Of 2021.

In the instant Appeal, no application for leave to Appeal was made in the Magistrate's Court of Otuke. The Appellant just filed a Notice and Memorandum of Appeal without leave of court. Failure to obtain leave to Appeal makes this Appeal incompetent and it cannot be heard since the provisions of Section 76 (1) of the Civil Procedure Act and Order 44 Rule 1 sub-rule 2 have not been complied with.

Therefore, the Appeal is dismissed with costs to the Respondent.

I So Order.

Dated and delivered at Lira this ... $21$ Of ... Polo 2023

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ALEX MACKAY AJIJI JUDGE