[2022] UGCA 211

## ⁵ THE REPUBLIC OF UGANDA,

## IN THE COURT OF APPEAL OF UGANDA AT ]GMPALA

## (CORAM: MADRAMA, MULYAGONJA, MUGENV, JJA)

## CIVIL APPEAL NO 315 OF 2OI9

r. DR. LUKA oKECH ABE)

# 2. DR. BENJAM]N oMARA ABE)

- 3. FRANK oKELLo ABE) - 4. AMURUAWOYA DISTRICT LOCAL GOVERNMENT} .. APPELI. ANTS

## VERSUS

- r. DR. WoKoRACH JUSTTNE) - 2. oCAYA GEoRGE) - 3. ANGEE DERoSTA AND 337 oTHERS) RESPONDENTS

(Appeal against the judgment and orders of the High Court of Uganda Holden at Gulu before Justice Stephen Mubiru dated th May 2019 in Civil Suit No. HCT. 02 - CV - C5 - 002 OF 2UA

## JUDGMENT OF CHRISTOPHER MADRAMA, JA

The respondents to this appeat and who were the ptaintiffs in the High Court had brought a suit against the appellants who were the defendants in the High Court on behalf of 337 others jointty and severalty for a declaration that they are the rightfut customary owners of the various holdings, constituted within tand comprised in LRV 1077 Fotio 22 situated at Apok Kalanga Amar Parish, Koch Goma Sub County, Nwoya District. They sought inter alia an order for cance[tation of that titte, general damages for trespass to [and, a permanent injunction, interest and costs.0n the other hand, the appellants who were the defendants denied the ptaintiffs ctaim and contended that their tate father, Jutius Peter Abe acquired the land measuring approximately 2628 ha and a leasehold titte deed was lawfully issued thereto by the Uganda Land Commission. The tand was vacant at the time it was acquired and it was only during the insurgency of the Lord's

⁵ Resistance Army that the ptaintiffs trespassed on the land. They denied any fraudutent acts of their predecessor in titte. They counterclaimed against the ptaintiffs for a declaration that the land betongs to them, general damages for trespass to tand, a permanent injunction, interest and costs.

The High Court declared that the ptaintiffs who are the respondents to this appeat are entitted to remain in possession of their respective holdings of the land in dispute and the possession was protected by a permanent injunction issued against the 1't, 2nd and 3'd defendants who are now the appettants, their agents, employees or persons claiming under them, restraining each of them from interference with the quiet possession and enjoyment of the respective hotdings of respondents. The counterclaim of the defendants who are now the appettants in this appea[ was dismissed and judgment was entered for the ptaintiffs as follows: 10 15

- (a) A declaration that the ptaintiffs are entitled to retain possession of their respective current holdings of the tand in dispute. - (b) A permanent injunction against the l'' to the 3'd defendants, their agents, emptoyees or persons ctaiming under them, restraining each of them from interference with the ptaintiff's quiet possession and enjoyment of their respective current hotdings. - (c) An order directed to the Commissioner Land Registration for cancellation of the defendant's title to the [and comprised in LRV 1077 Folio 22. - (d) The costs of the suit and of the counterctaim.

The judgment was delivered on the 9th of May 2019. The defendants being aggrieved, appealed to this court on 8 grounds of appeat namely:

1. The learned triat judge erred in taw and fact when he ordered for cancellation of titte of the I't to 3'd appe[[ants to the suit tand in the absence of any acts of fraud, dishonesty committed by them and also in the absence of any proof of customary ownership as ever obtained by the respondents on the same. 30

- ⁵ 2. The learned judge erred both in law and fact when he hetd that the suit [and was not inspected by the Area Land Committee, whereas the same was actually inspected and the report and letters thereto as attached and annexed to the pleadings of the appellants "Annexure l" were on record. - 3. The [earned judge erred in law and fact when he decided that the suit fited by the respondents/ptaintiffs was not time barred as they were merely seeking declaratory orders contrary to the specif ic pleadings/ptaint on record, thereby coming to a wrong conclusion. - 4. The learned triat judge erred in law and fact when he faited to conduct a proper [ocus visit of the subject matter when he decided to visit only 2 locations on the suit land and made assumptions of the presence of the respondents on the other areas thereby wrongfully deciding that att the respondents were on the disputed land contrary to the evidence adduced by the respondents that the originaI six famities had previously teft the suit [and only to return subsequentty. - 5. The learned trialjudge erred in law and fact when he went on to decide the matter which was conducted through a representative action for three hundred and forty (340) individuals where each of them ctaimed a distinguishabte right/interest in the suit [and, without subjecting att of the ptaintiffs to the specif ic evidence and right of ownership/interest in the suit [and, thereby coming to a wrong conclusion. 25 30 - 6. The learned judge erred in law and fact when he hetd that much as the respondents did not adduce evidence as to the customary ownership of the suit land and even fraud on the part of the appe[tants, there being scattered on parts of the tand gave them a better title to the tand contrary to the legal and equitable interests of the appettants.

i

- ?. The learned trial judge erred in law and fact when he hetd that the extension of the tease of the appettants by the District Land Board to a futt term was wrongfut, as his decision ignored the appe[[ant's legat and equitabte rights of the suit land thereby coming to a wrong decision which has occasioned to the appetlants a substantial loss and miscarriage of justice, and thus affecting all the numerous other lease extensions accorded by the 4th appeltant. 10 5 - 8. The tearned triat judge erred in law and fact when he faited to put into consideration the evidence adduced by the appettants of the effect of the numerous insurgencies that greatty affected their interest in the suit tand and the proper utitisation and timety extensions of their lease terms on the suit tand, thereby coming to a wrong conclusion that the respondents had always used the suit [and'

when the appeat came for hearing learned counsel Mr. watter 0kidi Ladwar represented the 4th Appetlant white the first, second and third appetlants were represented by learned counsel Mr. Moses 0yet jointty with learned counse[ Mr. Mark Nuwamani.0n the other hand, learned counsel Mr. Geoffrey Boris Anyor represented the respondents. The first appetlant, Dr. Luka Abe 0kech was present in court with susan Mitdred Abe and also present were Wokorach Justin, the first respondent and Mr. George 0caya, the second respondent. Leave to fite a supptementary record of appeal was granted and written submissions scheduted for fiting as the address of the parties to court and the appeat was adjourned for judgment on notice. 20 25

ln the written submissions, the respondent's counset objected to the appeat on the ground that the memorandum of appeat was [odged out of time. That being a preliminary matter, I have deemed it fit to handte the preliminary issue whose outcome witt determine whether to proceed with determination of the appeat on the merits or not. 30

ln the written submissions of the respondent's counse[, the respondents submitted that the appeal was filed out of time. He relied on rule 83 (l) and (2) of the court of Appeat Rutes which provides the time frame within which 35

⁵ an appea[ shatt be fited. An appeat shatt be fited within 60 days after the date when the notice of appeat was lodged or where an application for ^a copy of the proceedings in the High Court was made within 30 days after the date of the decision, in computing the time within which the appeaI is to be instituted, there shatt be excluded such time as may be certified by the Registrar of the High Court as having been required for the preparation and detivery to the appeltant of the proceedings. 10

The respondents contend that the record of appeaI shows that the appeltants todged in the lower court a letter requesting for certified copies of the record of proceedings on 14th May 2019. This was availed to the appetlants on l6th September 2019. The appetlant thereafter fited their record of appeat in this court on 20th of November 2019 5 days outside the 60 days stipulated in rule 83 (l) of the Rules of this court. He contended that the appeal is incompetent and should be struck out with costs and the judgment of the High Court upheld. 15

- ln the rejoinder submissions of the appettants, the appettants counsel submitted that by letter dated 14'h of May 2019, the appe[[ants requested for certified copies of the judgment and record of proceedings. Thereafter according to the Registrar's Certificate dated l2'h of November 2019, it is certified that the preparation of the record of proceedings and judgment in 20 - this case was completed on l2th November 2019. lmmediatety on receipt of the record of appeat, the appellants fited the appeaI at the registry of the Court of Appeat on 20'h of November 2019, eight days after they received the record and judgment and were within time. The respondents counsel emphasised that the time started running on l2th of November 2019 when 25 - they received the record of appeat. Further, he noted that the respondent's submissions seem to rety on the date of l6rh of September 2019 when the certification of the judgment and record of proceedings of the High Court was done. The appettant's counseI further submitted as follows: 30

the certification of the judgment and record of proceedings of the High Court is iust one of the processes done by the Registrar in preparation of the records. lt is our submission that what is of essence to commence the time factor is the

registrar certificate and not the certification of the judgment and proceedings. The registrar clearly stated in her certificate that the preparation of the record of proceedings and judgment in this case was completed on 12^th November, 2019.

The appellants counsel relied on Maviri v Jomayi Property Consultants Ltd (Civil Application 2014/274) [2015] UGCEA 178 (07 July 2015) where the Court of Appeal observed that the time started running on 30^th of June 2014 when the record of proceedings was supplied to the respondent.

Counsel submitted that the record of proceedings was ready for collection after the registrar certificate flagged them off. That the arguments of the respondents that the record of appeal was ready at the certification of the judgment and record of proceedings of the High Court is completely out of context. He contended that it is clear from the provisions of rule 83 (1) of the Rules of this court that appeals are filed within 60 days of the date of the initial decision or under rule 83 (2) and 83 (3), the time taken by the registrar to prepare and deliver copies of the proceedings to the appellant are excluded from the computation of the 60 days. The respondents counsel 20 submitted that the respondents in their preliminary point of law, premised their submissions on the date of certification of the record of proceedings and judgment in the High Court and it was greatly misconceived and should be disregarded and dismissed by this court.

#### Resolution of the preliminary point of law. $25$

I have carefully considered the preliminary objection and as carefully put by the respondent's counsel, the issue is whether time should be computed from the time of certification of the proceedings or the time certified and disclosed in the certificate of the registrar indicating that the record of proceedings and judgment in the case was completed on 12^th November 2019.

The facts which are not in dispute are that the decision of the High Court was delivered on 9^th May 2019. Thereafter the appellants filed a notice of appeal which was lodged in the High Court of Uganda at Gulu on 14^th of May 2019 and it is indicated as lodged in the registry on the 16^th of May 2019. In a

$\mathsf{S}$

- ⁵ letter dated l3'h of May 2019, the appellants wrote to the registrar by a tetter fited in the High Court of Uganda at Gulu on 14rh May 2019 asking the Deputy Registrar to avail them with certified typed copies of the proceedings and judgment in the case. The record revea[s that judgment was certified on 25th Juty 2019 with the stamp of the Registrar Gutu High Court indicating that "l - certify that this is a true copy of the origina[". The judgment runs from pages l0 to 48 of the record of proceedings. Thereafter at page 49 there is ^a document entitted "proceedings" and f irst page thereof is the typed proceedings certified as a true copy of the original dated l6th of September 2019. The stamp of the Registrar indicates as follows: "l certify that this is a 10 - true copy of the original, l6th Sep 2019, Registrar Gutu High Court". The record of proceedings ends at page 137 of the record of appeat and page 89 of the proceedings. Thereafter the record contains the ptaintiffs written submissions and other documents such as the pteadings and exhibits. Most crucia[[y, the last page of the proceedings is also certif ied by the stamp of 15 - the Registrar of the High Court which states that it is a true copy of the originaI and is dated l6th September 2019. 20

The question inter alia is what amounts to the certif icate of the registrar? Both counsel rightty, in my view, relied on 83 (2) and (3) of the Rutes of this court for the proposition that an appeal may be fited within 60 days from the date the copy of the proceedings in the High Court has been made provided that the appe[[ant apptied for the record of proceedings within 30 days from

the date of the decision of the High Court and served a copy of the application for the record of proceedings on the respondent with retained proof of that service. Rute 83 provides as fo[[ows:

83. lnstitution of a ppeals 30

> (l) Subiect to rule'113 of these Ru[es, an appeaI sha[[ be instituted in the court by todging in the registry, within sixty days after the date when the notice of appeal was [odged-

- (a) a memorandum of appea[, in six copies, or as the registrar sha[[ direct; - 35

(b) the record of appeal, in six copies, or as the registrar shall direct;

### ⁵ (c) the prescribed fee; and

(d) security for the costs of the appeal.

(2) Where an application for a copy of the proceedings in the High Court has been made within thirty days after the date of the decision against which it is desired to appeat, there shalt, in computing the time within which the appeat is to be instituted, be excIuded such time as may be certified by the registrar of the High court as having been required for the preparation and delivery to the appellant of that copy.

(3) An appettant shatt not be entitted to rety on subrule (2) of this rule, unless his or her apptication for the coPy was in writing and a copy of it was served on the respondent, and the appellant has retained proof of that service.

(4) The period prescribed by subrutes (1) and (2) of this ru[e for the institution of appeats shatt atso appty to appeals from the High court in the exercise of its bankruptcy iurisdiction.

0f particutar concern in the above rule is rute 83 (l) which provides that an appeat shatt be instituted by todging in the registry, within 60 days after the date when the notice of appeat was lodged, the record of appeat, the prescribed fees and the security for costs of the appeat. I wish to hightight rute 83 (l) (b) which provides for the todgement of the record of appeat in six copies or as the registrar shatt direct. The word "record of appea[" can be used interchangeabty but does not necessarity mean "the proceedings". Rute 83 (2) specificatty deats with an application for a copy of the proceedings in the High Court. The word "proceedings" means the record of what transpired in the High court. This can be discerned from rule 87 of the Rutes of this court which provides for the contents of the record of appeat. 20 25

- The contents of the record of appeat inctudes the index of a[[ documents in the record, a statement of the address for service of the appettant and the respondent, the pteadings, the triat judge's notes of the hearing, the transcript of any short hand notes taken or any other notes howsoever recorded at the triat and atso the affidavits and att documents, the judgment 30 - and other documents which are necessary for the proper determination of the appeat. Going back to rute 83 (2), it specificatty deats with an application for a copy of the proceedings in the High Court' To my mind the copy of 35

- proceedings does not mean the record of appeal but the record of what $\mathsf{S}$ transpired at the hearing of the suit or at the hearing of the appeal in the High Court. This is proved by rule 87 which deals with the contents of the record of appeal. Those contents merely are inclusive of the copy of proceedings of the trial court or the High Court as the case may be even if - it exercised appellate jurisdiction. Particularly the rule 87 (3) makes a $10$ separate reference on the contents of the record of appeal where the appeal emanates from the High Court in its appellate jurisdiction to the Court of Appeal and provides that the record of appeal shall contain documents relating to the proceedings in the trial court corresponding as - nearly as may be to those set out in sub rule 1 of rule 87 but particularly 15 shall contain the following documents: - $(a)$ the order, if any, giving the leave to appeal; - $(b)$ the memorandum of appeal; - $(c)$ the record of proceedings; - $(d)$ the judgment or order;

$\overline{a}$

$20$

- $(e)$ the notice of appeal; and - $(f)$ in case of a $3^rd$ appeal to the court, the corresponding documents in relation to the 2^nd appeal to the High Court, the certificate of the High Court that a point of law of general public importance is involved. - It is provided that documents adduced in evidence shall be put in order of 25 the dates adduced or when undated, the date when they were believed to have been made, without regard to the order in which they were produced in evidence. Clearly, the copy of proceedings is a subset of the record of appeal. It follows that rule 83 (2) of the Rules of this court deals with an - application for a copy of proceedings in the High Court which has to be made 30 within 30 days after the date of the decision against which it is desired to appeal. Secondly in computing time within which the appeal is to be instituted, the time taken for preparation of the copy of proceedings in the High Court has to be considered. - I have further considered rule 90 of the Rules of this court which provides 35 for preparation and service of supplementary record. The supplementary record may contain a copy of the proceedings or any other part of the record

- ⁵ of the lower court. Finatty, the respondent's counseI retied on the certif ication of the registrar of the proceedings which is dated l6th September 2019. 0n the other hand, there is a certificate entitted "registrars certif icate" which indicates that the preparation of the record of proceedings and the judgment in this case was completed on l2th November - 2019 and cotlected by the appetlants on l2th November 2019.lt attempts to give the impression that the record of proceedings was prepared and completed on the same day as when the appe[lant's counsel cottected it. ^I need to state that the record of appeal is prepared by the appellant's counseI and not the registrar. The duty of the registrar is to prepare a copy 10 - of the proceedings in terms of rule 83 (2) of the Rules of this court. lt is quite togicat for the parties to have the pleadings and documents in their possession inclusive of the written submissions. 0rat submissions witt be included in the copy of proceedings. 15

lhave carefutly considered the forms used in the Judicature (Court of Appeat Rutes) Directions and the "Registrar's Certificate" is not one of the forms. Ctearly, the "Registrar's Certificate" issued in this matter was meant to circumvent rule 83 (2) which provides that there shat[ be excluded, in computing the time within which the appeal is to be instituted, such time as may be certified by the registrar of the High Court as having been required 20

for the preparation and delivery to the appellant of a copy of the proceedings of the High court. 25

What are "proceedings"? Rute 87 (8) of the Rutes of this Court provides that:

Each copy of the record of appeal shat[ be certified to be correct by the appellant or by any person entit[ed under rute 23 of these Rutes to appear on his or her beha tf .

The record of appea[ is prepared by the Appettant white the proceedings are prepared by the registrar. lt is the duty of the registrar, to certify the time that was required for preparation and delivery of the proceedings. Ctearty the record of proceedings was ready by l6th of September 2019. The proceedings are part of the record. What was the time required for detivery of the record of proceedings? The same registrar certified the same

⁵ proceedings which were ready by l6th of September 2019. I find it odd that she certified the 12th November, 2019 which is the date when counset picked the documents as the date when it was ready. This was about 55 days after she had certified another copy of proceedings.

There is no particular format for certification and what is required is to indicate the time that was needed to prepare the copies of proceedings of the High Court and the time needed to deliver the same to the appellant. There is no indication as to what time was needed to deliver a copy of the proceedings to the appeltant. 10

Going by the certif ication of l6'h of September 201j, a copy of the proceedings of the High Court was ready for col[ection in the minimum by l6'h September 2019 when the registrar certified a true copy thereof. lt could have been ready eartier but we do not have evidence. We only have evidence that the judgment was certified as ready by 25rh of Juty 2019. 15

The appellants todged this appeat on 20th of November 2019 out of time. The certificate of the registrar cannot be relied upon to estabtish the time taken to prepare the record of proceedings or avaiI it to the appellants. 20

ln the premises, the preliminary objection of the respondent is sustained.

The appettants appeal ought latest to have been fi]ed by l5'h of November 2019. lt was filed 5 days out of time and no application was made for extension of time. lnstead the appettant's purported to obtain a certificate of the registrar showing a different date of l2th of November 2019 which does not disclose to court what is required by rule 83 (2) of the Rules of this court.

The copy of the proceedings had been certified as true by l6th September 2019. lt could not by any stretch of imagination have been ready for collection only for delivery by 12th of November 2019. 30

ln the premises, I woutd make an order that the appettants'appeal is struck out with costs for being fited out of time.

As my learned sisters Hon. Lady Justice Irene Mulyagonja, JA and Hon. Lady $\mathsf{S}$ Justice Monica Mugenyi, JA also concur, the appellants' appeal is struck out with costs.

Dated at Kampala the day of July 2022

$22i$

**Christopher Madrama** 10

**Justice of Appeal**

# THE REPUBLIC OF UGANDA, IN THE COURT OF APPEAL OF UGANDA AT KAMPALA (Coram: Madrama, Mulgag onJ a, Mugengl, . LIA) CIVIL APPEAL NO 315 OF 2019 BETWEEN

1. DR. LUKA OKECH ABE 2. DR. BENJAMIN OMARA ABE 3. FRANK OKELLO ABE 4. AMURU/NWOYA DISTRICT LOCAL GOVERNMENT ::::::::::::::: APPELLANTS AND

1. DR. WOKORACH JUSTICE 2. OCAYA GEORGE 3. ANGEE DEROSIA AND 337 : :: : : :: :: :: :: : : :: : :RESPONDENTS

lAppeal rrgrrlnst the Judgment and orders of Mr, Jttstlce Stephen Mubhtt, J. dated th Mag 2O19 tn Oulu Htgh Court C"hil Suit .l\Io. HCT-O2-CV-C5-OO2 OF 20 131

### JUDGMENT OF IRENE MULYAGONJA, JA

I have had the benefit of reading in draft the judgment of my brother, Hon Justice Christopher Madrama lzarr.a, JA.

I agree with his decision that the appeal was hled out of time and it ought to be struck out with costs to the respondents.

lrene Mulyagonj

JUSTICE OF APPEAL


THE REPUBLIC OF UGANDA

## THE COURT OF APPEAL OF UGANDA AT KAMPALA

### CORAM: MADRAMA, MULYAGONJA AND MUGENYI, JJA

### CIVIL APPEAL NO. 315 OF 2019

- 1. DR. LUKA OKECH ABE - 2. DR. BENJAMIN OMARA ABE - 3. 'FRANKLIN OKELLO ABE - 4. AMURU/ NWOYA DISTRICT LOCAL GOVT ....................................

#### **VERSUS**

- 1. DR. WOKRACH JUSTICE - 2. OCAYA GEORGE - 3. ANGEE DEROSIA & 337 OTHERS ....................................

## (Appeal from the Judgment of the High Court of Uganda at Gulu (Mubiru, J) in Civil

Suit No. 2 of 2013)

$\mathbf{1}$

## JUDGMENT OF MONICA K. MUGENYI. JA

I have had the benefit of reading in draft the lead Judgment of my brother Hon. Justice Christopher Madrama in this Appeal. I agree with the decision arrived at and the orders therein, and have nothing useful to add.

....,2022. Dated and delivered at Kampala tnis . Q.lday of ....\$.. Y::\ )

Monica K. Mugenyi JUSTICE OF APPEAL