[2024] UGHCCD 138

# **THE REPUBLIC OF UGANDA**

## **IN THE HIGH COURT OF UGANDA AT KAMPALA**

## **(CIVIL DIVISION)**

## **CIVIL APPEAL NO. 89 OF 2022**

## **(ARISING FROM LCD NO. 89 OF 2022)**

## **IN THE MATTER OF THE ADVOCATES ACT CAP 267**

**KAKEETO SIRAJE ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPLICANT**

#### **VERSUS**

## **1. SEMUWEMBA SWAIBU MAHAMUDU**

**2. LAW COUNCIL :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENTS**

*CORAM;*

*HON. JUSTICE SSEKAANA MUSA*

*HON. LADY JUSTICE ESTA NAMBAYO*

*HON. JUSTICE WAMALA BONIFACE*

#### **RULING**

This was an appeal arising from the decision of the Law Council Disciplinary Committee delivered in LCD 89 of 2019. When the appeal came up before this Court, the respondents raised a preliminary objection regarding the competence of the appeal challenging the ruling of the Disciplinary Committee of the Law Council.

#### *Background.*

On 4th February 2019, Dr. Ssemuwemba Swaibu M. lodged a complaint with the Secretary Law Council against Lawyer Kakeeto Siraje on allegations that he had failed to remit to him a sum of USD 52,000. The lawyer (appellant herein) was arrested and taken to police on charges of obtaining money by false pretences; whereupon he only managed to refund USD 10,000 in 2016 leaving a balance of USD 42,000 which he had failed to pay.

The appellant wrote to the Secretary Law Council on 17th October 2019, specifically committing to pay the outstanding monies to the complainant. Indeed, Counsel Peter Mulongo further requested the Committee to mediate the matter; to which the committee agreed. Through his advocate, the appellant agreed to make a monthly payment of UGX 12,000,000/= until full payment of the total sum owed of UGX 150,000,000/=.

The appellant's counsel, Ogomba Issa, proposed that the appellant's certificate of title be left with the Secretary Law Council until completion of the payment and that the 1st respondent would be paid before the close of the month of April (insert year)

The Disciplinary Committee gave a ruling upon the mediation settlement and made the following orders;

- *a) That he is liable to pay Ugx 150,000,000/=* - *b) That in a settlement proposal the respondent/appellant pays a down payment of Ugx 30,000,000/= before the end of April 2022.* - *c) That the respondent/appellant pays Ugx 12,000,000/= per month starting with May 2022 for the next 10 months.* - *d) That the respondent/ appellant was directed to deposit the land title to the Law Council with a valuation report.* - *e) That following the conduct of the appellant over the years in failing to meet his obligations financially, a 6% percent interest is levied on the outstanding payment after the Ugx 30,000,000/= cash down.* - *f) That the respondent (now appellant) refunds to the complainant Ugx 10,000,000/= as travel expenses.* - *g) That the appellant pays Law Council costs of Ugx 1,000,000/=.*

The Law Council in execution of its orders issued a notice to show cause after the appellant failed to pay the down payment of 30m. The appellant requested that he pays 2m per month to clear 150m. The Committee ruled that no cause had been shown and a warrant of arrest was issued for the appellant's arrest on 27th October 2022.

On 8th December 2022, the appellant represented by Counsel Osekeny challenged the Law Council's power to issue a warrant of arrest arguing that the powers in section 20(6) of the Advocates Act are restrictive in nature. The Committee extended the warrant of arrest returnable on 23rd February 2023.

The appellant filed a Notice of Appeal in this court on 13th December 2022, challenging the Law Council's ruling of 6th April 2022. He applied for a stay of execution and successfully, although erroneously, obtained an interim stay of execution of the warrant of arrest before the Deputy registrar who did not have jurisdiction to entertain any application in appeals from the decisions of the Law Council.

When the appeal first came up for hearing on 17th May 2024, the respondents raised a preliminary objection regarding the propriety of the appeal before this Court. The point raised by the respondents was that the appeal was filed out of time without an application for enlargement or extension of time. It was also stated that the filing of the appeal was an afterthought and thus an abuse of the court process, intended to delay/defeat the execution of the 2nd respondent's orders.

## *Issues for determination*

# *a) Whether appellant's appeal is competently before the court?*

# *b) What remedies are available?*

The appellant was represented by *Counsel Ogomba Issa and Mbalile Muhamad* while the 1 st respondent was represented by *Counsel Lillian Khalayi* and the 2 nd respondent was represented by *Elizabeth Namakula (SSA)*.

# *Determination*

# *Whether the appeal is competently before the court?*

The respondents' counsel submitted that the ruling of the 2nd respondent was delivered on 6th April 2022 and the appellant filed his Notice of Appeal on 13th December 2022 and that, up to the point the matter came up before the court, there was no Memorandum of Appeal on record.

Counsel further submitted that the Advocates Act requires that an appeal shall be lodged within 14 days from the date of the ruling. The appellant, however, filed the Notice of Appeal after 8 months without any leave of the court.

# *Analysis*

The right of appeal or denial of a right of appeal must be provided for in the clearest possible language since the conferment of an appeal is a curtailment of the jurisdiction of the court whose decision is being appealed from, and extension of the jurisdiction of the court to which the appeal lies.

No right of appeal exists save as is conferred by statute. A right of appeal is always conferred by statute, and when the statute conferring the right lays down conditions precedent of that right to a litigant, it is essential that those conditions be strictly performed otherwise the right does not become vested.

Section 22 of the Advocates Act provides that;

*"Any advocate aggrieved by an order of the Disciplinary Committee made under Section 20 may, within 14 days after the receipt by him or her of the notice to be given to him or her under Section 21, appeal against the order to the High Court by giving notice of appeal to the Registrar, and shall file with the Registrar a memorandum setting out his or her grounds of appeal within 30 days after the giving by him or her of the notice of appeal."*

The right to appeal emanates from the above provision and prescribes timelines within which the right of appeal should be exercised. The notice of appeal is to be filed or lodged within 14 days after the decision and thereafter a memorandum of appeal to be filed within 30 days after the notice of the appeal. The Advocates Act thus imposes a limitation period within which an appeal shall be filed in court. Therefore, such limitation period cannot be extended by the court, if there is no provision in the enabling law which gives the court power to exercise discretion to extend the time.

Where the appeal is filed out of time or otherwise has suffered from fundamental and radical defect which goes to the root of the appeal, then as a notion, there would be nothing before the court with respect to which the court might exercise any jurisdiction at all. The court's jurisdiction is to handle appeals; such jurisdiction is not to be exercised in void. As such, if there was no appeal pending, then the court has no jurisdiction to do anything.

It is a requirement of due process that all parties who desire to appeal in cases that have been tried must comply with the conditions under which the right of appeal has been conferred on them. It is settled on long line of authorities that an appeal filed outside the statutory period provided under the law without any valid extension of time is void. See *Captain Robert Mba Tindana v Chief of Defence Staff [2011] SCGLR 1 724; [2011] 2 SCGLR 733 (No.2).*

In this case, the appellant filed the notice of appeal on 13th December, 2022 challenging the Law Council Ruling of 6th April, 2022. This was a period of 8 months outside the prescribed period of time under the Advocates Act. It follows, therefore, that there is no valid appeal pending in this court and whatever was filed is void.

Accordingly, the purported appeal by way of a notice of appeal is struck out with costs to the respondents.

The decision of the Law Council Disciplinary Committee shall be enforced. Consequently, the appellant should be arrested for refusing to sign transfer forms and providing necessary documents to facilitate the transfer of the said land title in the names of the 1st respondent. If transfer of the land into the 1st Respondent's name is effected, its value shall be determined by the Disciplinary Committee of the Law Council and the outstanding balance, if any, shall be paid by the appellant.

In the event that any balance is outstanding, execution for recovery of the same shall issue in any mode deemed appropriate by the Disciplinary Committee of the Law Council.

We so order.

Dated and delivered this 30th day of August 2024.

| Ssekaana Musa<br>(Judge) | __________________________ | |--------------------------|----------------------------| | Esta Nambayo (Judge) | __________________________ | | Wamala Boniface (Judge) | __________________________ |