[2019] UGCA 2098

# THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

[*Coram: Egonda-Ntende, Musoke, Obura, JJA*]

Civil Appeal No. 46 of 2011 & 245 of 2015

(Arising from Court of Appeal Civil Reference No. 69 of 2008)

# **BETWEEN**

Mayambala Charles ———————————————————————————————————— $=$ Appellant

# AND

Stanbic Bank (U) Ltd ===================================

(Reference from the decision of a Single Justice of this Court (A E N Mpagi-Bahigeine, JA [as she then was]) delivered on $23^{rd}$ May 2011)

# Judgment of Fredrick Egonda-Ntende, JA

# **Introduction**

- $\lceil 1 \rceil$ This appeal arises out of an application for extension of time to file a Notice of Appeal out of time. The appellant filed Court of Appeal Civil Application No. 84 of 2007 that was consolidated with Court of Appeal Civil Application No. 53 of 2005 against the respondent seeking orders to file a Notice of Appeal out of time and costs. The application was based on the grounds that the applicant/appellant had to join the proper respondent and that he had spent time looking for means of engaging the services of a lawyer. This application was heard by the Ag. Registrar of this court who dismissed the appeal on ground that the application was res judicata and the applicant/ respondent had not shown sufficient reason to warrant the grant of the orders sought. - Being dissatisfied with the decision of the Ag. Registrar, the appellant referred $[2]$ the matter to a single justice of this court under Civil Reference No. 69 of 2008 seeking to alter the decision. On 23^rd May 2011, the learned Justice of Appeal upheld the decision of the Ag. Registrar and dismissed the reference hence this appeal.

$[3]$ The grounds of appeal in Court of Appeal Civil Appeal No 46 of 2011 in the Memorandum of Appeal are stated as follows:

> '1. Hon Mpagi Bahigeine erred when, after Her ruling, upholding the judgment in the Originating Summons-High Court Misc. Cause No. 160 of 1981 she stopped there. It was insufficient. It is evident there was misunderstanding of the reason of appeal. The appeal was not against the judgment in the Originating Summons – High Court Misc. Cause No. 160 of 1981.

> Appeal arose for omission committed by Court under authority and command under interim Court Order Practice. Court was to make final Orders in High Court Misc. Cause No.1 of 1981 which was stayed by authority under Court interim Order practice when in hearing progress before judgment, to be finalized on maturity of the interime Order.

> 2. The obstacle of Res Judicata to prevent Court from action was raised by Lawyers to Stanbic Bank in the earlier Court of appeal in Court of Appeal Application N0.84 of 2007 which was presided over by Her Worship G. K Nakibuule Ag. Registrar Court of Appeal and insisted by the same Lawyers before Hon. Mpagi Bahigeine in this case- Court of Appeal Civil Reference No. 69 of 2008 and she (Hon. Mpagi Bahigeine) also allowed it (allowed the obstacle of res judicata)

> Court process to establish by search through Court process the successor to Uganda Commercial Bank by judgement by which Stanbic Bank was established was already successful. It cannot be reversed. The obstacle should have been only used to prevent court from process of search for recovery of the successor to Uganda Commercial Bank through search by court process. That was the period it (res judicata) could be applicable because there were repetitions until Stanbic Bank was established through court search in Supreme Court Appeal No. 12 of 2003.

#### 3. An implication for Court to answer for itself.

I plead as follows:

I paid into Court the amount due to Uganda Commercial Bank by Decretal sum after judgement order in High Court Civil Suit No. 1399 of 1978 with the permission of Court official who had examined the court file after inquiry and he answered that court had not yet issued an execution order and he allowed me to pay the amount into court. I paid in two installments and I was given Receipts which I gave to my lawyers Mr. Sendege before I terminated his firm.

I feel oppressed by court.

$\frac{\epsilon}{\epsilon} \frac{\epsilon}{i\epsilon}$

I cannot reason out why court should allow lawyers to Stanbic Bank to keep on pursuing me in court for this matter after I paid this amount into court, or what else had Uganda Commercial Bank for further persuasion. This issue should have been finalized then.'

In Court of Appeal Civil Application No. 245 of 2015, the memorandum of $[4]$ appeal states as follows:

'I intend to limit my appeal activities to this honourable court of appeal to one ground of appeal, being action to finalise the application in this suit which was not finalised. The application was in hearing progress but was stayed before judgement by authority of its (Court's) interim order, ordering that a new case which had sprang up in Court at the same time by Originating Summons -High Court Misc. Cause No. 160 of 1981 be heard and finalised first.'

It is difficult to fathom the appellant's grounds of appeal as they are mixed with $[5]$ submissions and with what the appellant considers as grounds of appeal. I agree with counsel for the respondent that this offends the rules of this court. Rule 86 (1) of the Judicature (Court of Appeal Rules) Directions states :

> "(1) A memorandum of appeal shall set forth concisely and under distinct heads without argument or narrative, the grounds of objection to the decision appealed against, specifying the points which are alleged to have been wrongly decided, and the nature of the order which it is proposed to ask the court to make."

- The appeal could be struck off for this reason. However, I have considered the $[6]$ fact that the appellant is a lay person representing himself. Besides, he strongly believes he has been oppressed by the manner in which the courts have treated him. Consequently, I have refrained from exercising that power, at this stage, and tried my level best to discern from Memoranda of Appeal what the actual complaint of the appellant is. As far as I am able to discern from the Memoranda of Appeal and the appellant's submissions on record, the grounds of appeal are that: - 1) The Court did not determine the issues that were before it for determination. - 2) The doctrine of res judicata was not properly applied. - 3) He wants this court to finalise High Court Miscellaneous Cause No. 1 of 1981.

The respondent opposed the appeal and raised the issue of whether this appeal $[7]$ is competent before this court.

# Submissions of the appellant and counsel for the respondent

- [8] At the hearing of the appeal, the appellant represented himself while the respondent was represented by Mr. Ssembatya Ernest - [9] The gist of Mr. Mayambala's submissions was that the respondent did not follow the proper procedure to realise the mortgage as required by the law. He contended that Uganda Commercial Bank ought to have instituted in court execution proceedings against the appellant before the sale of the suit property. He further submitted that Uganda Commercial Bank should not have disposed of the suit property before finalization of High Court Miscellaneous Application No. 1 of 1981 which directly had an impact on the sale. He argued that the actions of Uganda Commercial Bank selling the suit property to James Musinguzi were unlawful and not in good faith. He also contended that the sale should have been by public auction and for a proper consideration. Mr. Mayambala stated that he is not certain of actual price that was paid for the suit property which information he was entitled to know from Uganda Commercial Bank. - [10] Mr. Mayambala also contended that this court should finalise High Court Miscellaneous Cause No. 1 of 1981. He submitted that upon dismissal of High Court Miscellaneous Cause No. 160 of 1981, the High Court did not go ahead and finalise High Court Miscellaneous Cause No. 1 of 1981 that had been stayed pending determination of the former. He also submitted that he discovered that High Court Miscellaneous Cause No. 160 of 1981 was not properly before court as the summons were not signed by the judge and are therefore defective and of no legal bearing. On this basis, he prayed that this court goes ahead and determines High Court Miscellaneous Cause No. 1 of 1981 and High Court Civil Suit No.1399 of 1978 while relying on the submissions on record. - [11] In reply, Mr. Ssembatya submitted that the appeal is incompetent before this court because the reference was filed out of time contrary to Rule $55(1)$ (b) of the Judicature (Court of Appeal Rules) Directions. Counsel for the respondent contends that the rules require the appellant to file a reference of the matter to three Justices of Appeal within seven days from the date of the decision of the single justice but the appellant filed this reference almost three years from the

$\mathbf{r} = \mathbf{r}$

date of the decision. He relies on the case of <u>Barclays Bank Uganda Limited $v$ </u> Eddy Rodrigues (1987) HCB 36 for the proposition that this appeal ought to be struck out for failure to apply for extension of time.

- [12] He also contended that the Memorandum of Appeal offends the provisions of Rule 86(1) of the Judicature (Court of Appeal Rules) Directions because they make no reference to the decision appealed against, the ground of objection to any decision and the points which the appellant alleges to have been wrongly decided. - [13] Mr. Ssembatya further contended that the only issue the learned Justice of Appeal was to consider on reference to a single judge was whether the registrar was right in dismissing the application for extension of time. He submitted that the learned registrar rightly dismissed the appeal because this court had earlier on granted the appellant leave to extend the period to file his Notice of Appeal that led to Civil Appeal No. 4 of 1998 rendering the matter res judicata. He also submitted that the appellant filed several other incompetent applications on the same subject like Court of Appeal Civil Application No. 52 of 1998, Court of Appeal Civil Application No. 53 of 2005 and Supreme Court Civil Application No.22 of 2003 where he was also seeking leave to extend time to file his notice of appeal. - [14] He contended that High Court Civil Application N0. 84 of 2007 has been the subject of other applications and is therefore res judicata. He relied on section 7 of the Civil Procedure Act and on Semakula v Susane Magala & 2 others (1979) HCB 90 for this submission. It was the respondent's submission that the appellant has not shown a tenable reason or fault in the learned Justice of Appeal's decision to warrant the setting aside of the decision. - [15] The respondent prayed that this court dismisses the reference with costs.

# **Analysis**

[16] I find it necessary to first handle the issue raised by the respondent on the competence of this action since it is a point of law. It was the respondent's contention that this reference was incompetent before this court as it was filed with in contravention of Rule 55 $(1)$ of the rules of this court. Section 12 $(2)$ of the Judicature Act states:

# '12. Powers of a Single Justice of the Court of Appeal.

A single justice of the Court of Appeal may exercise any power vested in the Court of Appeal in any interlocutory cause or matter before the Court of Appeal.

Any person dissatisfied with the decision of a single justice of the Court of Appeal in the exercise of any power under subsection (1) shall be entitled to have the matter determined by a bench of three justices of the Court of Appeal which may confirm, vary or reverse the decision.'

[17] Rule 55 (1) of the Judicature (Court of Appeal Rules) Directions Statutory Instrument $13 - 10$ states:

> $(1)$ Where under section 12 (2) of the Act, any person being dissatisfied with the decision of a single judge of the court— (a) in any criminal matter wishes to have his or her application determined by the court; or

> (b) in any civil matter wishes to have any order, direction or decision of a single judge varied, discharged or reversed by the court.

> the applicant may apply for it informally to the judge at the time when the decision is given or by writing to the registrar within seven days after that date.'

- [18] From the evidence on record, the ruling which the appellant seeks to reverse was delivered on 23rd May 2011 and this reference was filed on 1st August 2014 approximately three years later. The appellant did not apply to this court to extend the time within which to file the reference. It should be noted that the appellant is representing himself but none the less ignorance of the law is not an excuse. He had sufficient time to inquire on the proper course of action and he has not given an excuse for the failure to comply with the procedural requirement. Failure to have applied for extension of time renders the instant matter incompetent before this court. - [19] Nonetheless, in the event I may be wrong on the foregoing point and in the interests of justice I shall proceed to consider the issues raised by the respondent. With regard to the issue of whether the learned Justice determined the issue before it, it should be noted that Court of Appeal Civil Reference No. 69 of 2008 that is the subject of this appeal originated from Court of Appeal Civil Application No. 84 of 2007 in which the appellant was seeking an order for extension of time to file a Notice of Appeal out of time. Upon perusal of the judgement, I am of the view that the learned Justice of Appeal (as she then was) handled the matter before the court.

$\cdot \mid_{k}$

# [20] Rule 5 of the Judicature (Court of Appcal Rules) Directions S. I l3- 10 states:

'The court may, for su{Ticient reason, extend thc time limited by these Rules or by any decision ofthe court or ofthe l'ligh Court for the doing of any act authorised or required by these Rules, whether belore or after the expiration of that time and whether before or after the doing ofthe act; and any reference in these Rules to any such time shall be construed as ^a reference to the time as extended.'

- [21] The power granted to this court is discretionary and can only be exercised upon the applicants satisfying court that there is sufficient cause for the extension of time. Sufficient reason must relate to the inability or failure to take a particular step in the proceedings. See Mulindwa v Kisubik - [22) The leamed Justice did not find sufficient reason to grant the orders sought and dismissed the reference on the ground that the matter is res judicata while concurring with the Ag. Registrar's ruling in Court olAppeal CivitApplication No.84 of2007.

o

a

[23] This leads us to the issue raised by the appellant on whether the leamed Single Justice olAppeal properly applied the doctrine ofresjudicata. Section 7 ofthe Civil Procedure Act provides lbr the doctrine of res judicata and states:

> 'No court shall try any suit or issue in which the maner directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any ofthem claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.'

124l In Mansukhlal Ramii Karia and Anor v Attoren y General and Qrs [20041 UGSC 32, Tsekooko, JSC (as he then was) stated:

> 'The provision indicates that the following broad minimum conditions have to be satisfied: -

- (l)There have to be a lormer suit or issue decided by ^a competent court. - (2) The matter in dispute in the former suit befieeen parties must also be clirectly or substanlially in dispute beheeen lhe parties in the suit where lhe doctrine is pleaded as a bar (3) *The parties in the former suit should be the same parties.* or parties under whom they or any of them claim, litigating under the same title.

In HCCS 553 of 1966 (Ismail Karshe Vs Uganda Transport Ltd) cases on Civil Procedures and Evidence, Vol.3 page.1, Sir Udo Udoma, former Chief Justice of Uganda, put it this way: Once a decision has been given by a Court of competent jurisdiction between two persons over the same subject matter, neither of the parties would be allowed to relitigate the issue again or to deny that a decision had in fact been given, subject to certain conditions. In my opinion this is a correct summary of $S.7.'$

[25] The Supreme Court again on *res-judicata* in Fr. Narsensio Begumisa and Others vs Eric Tibebaga [2004] UGSC 18 held:

> 'The defence of res judicata is a bar to a plaintiff whose claim was previously adjudicated upon by Court of competent jurisdiction in a suit with the same defendant or with a person through whom the defendant claims'

- [26] This matter started way back in 1978. In 1977, the appellant borrowed $100,000/$ = from Uganda Commercial Bank and mortgaged his land comprised in Kibuga Block 1 Plot 296 as security. Upon default by the appellant, Uganda Commercial Bank sued the appellant in High Court Civil Suit No. 1399 of 1978 for the recovery of the principal loan and the accruing interest. Judgement was entered in favour of the Uganda Commercial Bank and the appellant was ordered to pay the decretal sum of UGX 113, 452/80 and 9% of the interest of the original loan. - [27] It appears that the appellant failed to pay the decretal sum and the bank exercised its power of sale by public auction in October 1980. The land was sold to a one James Musinguzi. Being aggrieved by the sale, the appellant lodged a caveat against the subject land forbidding any transaction relating to the suit land. The bank together with James Musinguzi instituted High Court Miscellaneous Cause No. 1 of 1981 against the appellant seeking orders to remove the caveat. In May 1991, the appellant filed High Court Miscellaneous Cause No. 160 of 1981 against the respondent seeking for an order to set aside the sale on the ground of illegality. High Court Miscellaneous Cause No. 1 of 1981 was stayed until High Court Miscellaneous Cause No. 160 of 1981 was heard and determined. High Court Miscellaneous Cause No. 160 of 1981 was

$\mathbf{x} = \frac{1}{\sqrt{2}}$

dismissed on 9n January 1992 by Justice Louis Ongom. He lbund that the sale was proper and that James Musinguzi had acquired irrevocable title against the appellant.

[28] It is not clear what happened thereafter untit 1997 when this court allorved the applicant to file a Notice of Appeal in this court. Subsequently, the Notice and Memorandum of Appeal was filed in Court of Appeal Civit Appeal No. 4 of 1998. The case was scheduled lor hearing on 26th October but the applicant disowned the Notice of Appeal. According to Twinomujuni, JA, (as he then was) in his ruling in Court of Appeal Civil Application No. 9 of 1999, the appellant was reported to have said, during the hearing, the following:

> "l disown this record of appeal drawn by Mls Zzabwe & Co. Advocates whom I already dismissed. He had no instructions to prepare this record of appeal. I also disown the Notice of Appeal prepared by Ws Zzabwe & Co. Advocates."

[29] The order in Court of Appeal Civil Appeal No. 4 of 1998 states:

O

a

'The appellant having disowned the Record ofAppeal that has been filed by his lawyers who he dismissed and having not filed another record of appeal, there is no appeal pending before this court. Court ofAppeal No. 4 of I 998 is accordingly struck off.'

- [30] Thereafter, the appellant did not file any other appeal in this court but filed other civil applications related to High Court Civil Suit No. 160 of 1981. He filed Court of Appeal Civil Application No. 52 of 1998 applying for extension of time to file a Notice of Appeal but was struck out and court directecl the appellant to find the right Successor of Uganda Commercial Bank. He also filed Court ofAppcul Civil Application No. 9 t-rf 1999 sccking tr-r add thc Privatisation Unit as a party to High Court Civil Suit No. 160 of l98l . Twinomujuni, JA (as he then was) struck it off upon discovering that there was no appeal pending before this court. - [31] Thereafter, the appellant filed Supreme Court Civil Application No. l2 of ²⁰⁰³ seeking to establish the successor to Uganda Commercial Bank where the respondent was identified as the successor. In 2004, he filed in the Supreme Court a civil application seeking an order for extension of time to file his appeal out of time but the appellant withdrew the application. In 2005, the appellant filed Court of Appeal Civil Application No. 53 of 2005 also seeking an order of extension of time to file his Notice of Appeal out of time that was consolidated with Court of Appeal Civil Applications No.84 of 2007. These were heard by the Ag. Registrar of this court and were subsequently dismissed. The appellant

then filed Civil Reference No. 69 of 2008 before a single judge that was heard by Mpangi-Bahigeine, JA (as she then was). The learned single justice of appeal upheld the decision of the registrar and dismissed the reference hence this appeal.

[32] In Mulindwa v Kisubika [2018] UGSC 38, the Supreme Court while considering an appeal from this court in an application of extension of time stated:

> In light of the above, we agree with the decision of the learned justice. We are also mindful of the fact that the appellant is a lay person and as such, he is not expected to comprehend and strictly follow the complex rules of civil litigation. Nonetheless, we believe that there must be a limit beyond which the courts can bend backwards to accommodate the unrepresented litigant without compromising the rights of the opposite party. The respondent has been dragged to court for over ten years by the appellant and is being made to incur costs of litigation that the appellant is by his own admission which is on the record, incapable of paying or reimbursing. Justice must be administered according to the law, not on the basis of sympathy. There must also be an end to litigation as stated by Newbold P in Lakhashmi Brothers Ltd v R. Raja & Sons [1966] E. A 313, 314 in the following words: $[1966]$ E. A 313, 314 in the following words:

> "There is a principle which is of very greatest importance in the administration of Justice and that principle is this: It is in the interest of all interested persons that there should be an end to litigation",

> This was followed in a recent case of Obote William v Uganda, Criminal Application No. 1 of 2017 (SC) where the applicant had applied for 20 [sic] review of the Court's judgment. The Court found that the said application was actually a disguised appeal against its judgment and dismissed it accordingly.'

[33] In light of the above, I find that the matter is *res judicata* and the learned Justice of Appeal properly applied the doctrine. This court granted the appellant an order to extend time within which to file his Notice of Appeal leading to Civil Appeal No. 4 of 1998 which was struck out on the motion of the appellant. It should be noted that he did not file a supplementary Memorandum of Appeal before disowning the one that had been filed by his advocates nor did he take steps to reinstate the appeal. There must be an end to litigation and this is one of the cases where the doctrine of *res judicata* is applicable.

$\mathcal{A} \in \mathcal{A}$

- [34] With regard to the issue of finalizing High Court Miscellaneous Cause No. 1 of 1981, this court is not clothed with the jurisdiction to handle the matter. High Court Miscellaneous Cause No. 1 of 1981 was instituted by Uganda Commercial Bank and James Musinguzi against the appellant seeking orders to remove the caveat he had lodge against the suit land. This application was stayed pending determination of High Court Miscellaneous Cause No. 160 of 1981 that had been filed by the appellant against the Uganda Commercial Bank challenging the sale of suit property. From my understanding, the decision in High Court Miscellaneous Cause No. 160 of 1981 would affect the outcome in High Court Miscellaneous Cause No. 1 of 1981 therefore disposing of the matter. This matter was before the High Court and also has no bearing on this appeal. - [35] In conclusion, I find no reason to interfere with the decision of the learned Single Justice of Appeal. This reference is incompetent for being out of time. Secondly even if it is considered it is without merit. I would strike it out with costs.

#### Decision

[36] As Musoke and Obura, JJA, agree this reference is struck out for being incompetent with costs (Obura, JA, dissenting on the award of costs).

Dated, signed and delivered at Kampala this 15 day of Ang.<br>Annually Manually

redrick Egonda-Ntende **Justice of Appeal**

### THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

(Coram: Egonda-Ntende, Musoke & Obura, JJA)

## CIVIL APPEAL N0. 46 OF 2011 & 245 OF 2015

(Appeal from the decision of the Learned Hon. Lady Justice AEN Mpagi Bahigeine, DCJ (as she then was) sitting as a single Justice in Court of Appeal Civil Reference No. 69 of 2008)

APPELLANT <table>

MAYAMBALA CHARLES::::::::::::::::::::::::::::::::::::

#### **AND**

STANBIC BANK (U) LIMITED::::::::::::::::::::::::::::::::::::

### JUDGMENT OF HELLEN OBURA, JA

I have read in draft the judgment of my learned brother Egonda-Ntende, JA and I concur with his findings and conclusion that the reference be struck out for the reasons given in the judgment. However, I do not agree with the order on costs. Because of the frail and distressed condition of the appellant, I am of the view that each party should bear his/its

own costs

Dated at Kampala this.... $\frac{1}{5}$ ...day of....................................

Hellen Obura

JUSTICE OF APPEAL

### THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA (Coram: Egonda-Ntende, Musoke and Obura, JJA) CIVIL APPEAL NO. 46 OF 2011 **BETWEEN**

<table>

MAYAMBALA CHARLES APPELLANT

#### AND

<table>

STANBIC BANK (U) LTD::::::::::::::::::::::::::::::::::::

#### JUDGMENT OF ELIZABETH MUSOKE, JA

I have had the benefit of reading in draft the lead judgment of my learned brother Fredrick Egonda- Ntende, JA.

I concur with the reasoning and conclusions therein with nothing useful to add.

Dated at Kampala this 15 day of August 2019

Elizabeth Musoke

JUSTICE OF APPEAL