[2024] UGHC 1112

# **THE REPUBLIC OF UGANDA**

# **IN THE HIGH COURT OF UGANDA HOLDEN AT KITGUM**

# **MISCELLANEOUS APPLICATION No. 066/2024**

# **(Arising from KITGUM HIGH COURT - CIVIL APPEAL No. 052/2015)**

# 5 **(Formerly GULU HIGH COURT - CIVIL APPEAL No. 044/2015) (ARISING FROM CIVIL SUIT 112/2012: MAGISTRATE PADER) OBOTE DAVID APPLICANT**

**Versus**

### **ODORA YASONI**

#### 10 **(ADMINISTRATOR,**

**OJUL ODORA ONESIMUS) RESPONDENT**

#### **BEFORE HON. MR. JUSTICE PHILIP W. MWAKA.**

# **RULING.**

## **Introduction and Background.**

- 15 [1]. The Applicant seeks Orders from this Court firstly, for leave to Amend the Memorandum of Appeal in **Civil Appeal No. 044/2015** and secondly, making provision for Costs of the Application. - [2]. The Motion instituting the Application was issued on the 16th April, 2024 while the Memorandum of Appeal had been filed on the 3rd November, 2015. - 20 [3]. The Court observes that multiple Appeals which had been filed by the Parties were identified *vide* Ruling of this Court dated 20 th September, 2023 in **Civil Appeal No. 014/2023** between the same Parties and withdrawn in subsequent proceedings leaving the instant Appeal **Civil Appeal No. 044/2015** as the sole matter before the Court.

- 25 [4]. The Application is instituted by way of Notice of Motion under **Section 33 (now S. 37) of the Judicature Act, Cap. 13 (now Cap. 16); Section 98 of the Civil Procedure Act, Cap. 71 (now Cap. 282); and, Order 43 Rules 1 and 2 of the Civil Procedure Rules, SI 71 - 1.** - [5]. These citations were revised by the **Law Revision Act, Cap. 3 and Statutory** 30 **Instrument No. 049/2024: The Law Revision (Commencement of the 7 th Revised Edition) (Principal Laws) Instrument, 2024.** - [6]. An Affidavit supporting the Application is attached deponed by an Advocate representing the Applicant whom is the Appellant herein and was the Defendant at the Trial in the Lower Court. - 35 [7]. There was some confusion in respect of the suit and respective Judgment in the Lower (Trial) Court giving rise to the Appeal which in the Memorandum of Appeal is initially cited as arising from Civil Case No. 05/2013 Pader and later Civil Case No. 122/2012. The Judgment on Record dated 28th October, 2015 and Proceedings are in respect of Civil Suit No. 112/2012 as the correct 40 citation – written over in pen over 122. This was before His Worship Isaac Rukundo then Magistrate Grade 1, Kitgum Chief Magisterial area.

#### **The Applicant's Case and Submissions.**

[8]. The Applicant's/Appellant's grounds in the Motion are: - firstly, he retained 45 Messrs. Opwonya & Co. Advocates which instituted Civil Appeal No. 044/2015 by filing a Memorandum of Appeal; secondly, the Appeal was dismissed on the 8th December, 2020 for want of prosecution; thirdly, the Applicant through new Lawyers Messrs. Okello Oryem & Co. Advocates applied to re-instate the Appeal which was granted on the 27th January, 2023; 50 fourth, the Applicant has upon considering the Memorandum of Appeal discovered that important questions of Law and Fact were omitted which would aid the Court in arriving at a just and fair decision; fifth and lastly, it is in the interests of Justice that the Application is granted.

- [9]. In the supporting Affidavit the deponent reiterates and expounds on the 55 grounds outlining matters he avers were left out of the earlier Memorandum of Appeal citing five (5) grounds. - [10]. It is on this basis that the Applicant seeks amendment of the Memorandum of Appeal which he contends will assist the Court address all questions arising in the Appeal. Attached to the Affidavit is a draft of the proposed Amended 60 Memorandum of Appeal stating five (5) grounds. - [11]. The Applicant filed Written Submissions on the 8th July, 2024 and addressed the issue of Whether the Application meets the criteria for grant of leave to amend the Memorandum of Appeal and citing **Order 43 Rule 2 of the Civil Procedure Rules** and *inter alia* **Misc. Application No. 386/2013: Musisi** - 65 **Gabriel Vs. Edco Limited & Another** submitted that a Party may seek leave of Court to argue a ground of Appeal not initially included in the Memorandum of Appeal in effect allowing an Amendment. - [12]. It is the understanding of the Court that the Applicant in the instant Application seeks herein to forthrightly and affirmatively amend the 70 Memorandum of Appeal prior to the hearing to include all matters he intends to canvas at the hearing rendering the foregoing unnecessary. - [13]. It is the Applicant's case that the discretion whether or not to grant leave to Amend the Memorandum of Appeal should be informed by the requirement to do substantive Justice. - 75 [14]. The Applicant cites **Supreme Court Civil Appeal No. 4/1994: Gaso Transport Services (Bus) Ltd Vs. Martin Adala Obene** in respect of considerations to be taking into account prior to granting leave to amend and submits that his new grounds include a failure by the Lower (Trial) Court to visit the *Locus in Quo* which he contends is not objected to by the Respondent 80 and would not affect his rights continuing to argue that the Respondent would not suffer any injustice or prejudice by the amendment being allowed. He concedes that he withdrew other Memoranda of Appeal previously filed.

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[15]. The Applicant concludes by submitting that the Application is not made with *malafides* and prays that it is granted.

#### **The Respondent's Case and Submissions.**

- [16]. A representative filed an Affidavit in Reply on the 5th June, 2024 in opposition to the Application and stating that the Application is misconceived, frivolous, vexatious, bad in Law and an abuse of Court process. - 90 [17]. The Respondent makes reference to Memorandum of Appeal of 2015 and one filed in Civil Appeal No. 014/2023 which he avers are still on Court Record and have not been addressed by the Applicant. It is his further averment that the Applicant is on a hunting spree for grounds of Appeal which is an abuse of Court process and should not be entertained by the Court 95 and in the interests of Justice the Application should be dismissed. - [18]. The Respondent filed Written Submissions on the 15th July, 2024 and initially highlighted non-compliance with directions and timelines given for filing Submissions. Substantively, the Respondent contends that the Application does not meet the criteria for grant of leave to amend the Memorandum of 100 Appeal and is without merit. Also citing **Order 43 Rule 2 of the Civil Procedure Rules** and **SCCA No. 4/1994: Gaso Transport Services (Bus) Ltd Vs. Martin Adala Obene** he submits that the Application is *malafide* and promotes multiplicity of proceedings. - [19]. In respect of the draft grounds of Appeal, the Respondent submits that only 105 one ground is new and different from the earlier Memorandum of Appeal being the third ground in respect of the need for the Court to have visited the *Locus in Quo* – referencing the draft Amended Memorandum of Appeal and the Judgment of the Lower (Trial) Court as well as proceedings before a Local Council Two (LC2) Court. The substantive arguments on the merits of the 110 Appeal shall not be considered by the Court at this stage.

- [20]. In concluding, the Respondent contends that the other grounds are not different from the earlier Memorandum of Appeal as a result of which there is no need for an amendment and the Application should be dismissed with costs. - 115 [21]. There are no Rejoinders filed on the Record of the Court.

#### **Representation.**

- [22]. Counsel, Mr. Omoloi Ivan, represented the Applicant. The Applicant was present in Court. - 120 [23]. Counsel, Mr. Anyuru Boris, represented the Respondent. The Respondent was absent.

# **Proceedings of the Court.**

[24]. The Proceedings were on the 5th June, 2024.

# **Issues for Consideration.**

125 [25]. The Issue for consideration to be addressed by the Court is - **Whether the Applicant has provided sufficient cause for the Court to Judiciously exercise its discretion and grant him leave to Amend the Memorandum of Appeal.**

# **Considerations and Determination of the Court.**

130 [26]. At the outset, the Court observes that the Memorandum of Appeal (**Civil Appeal No. 44/2015**) was filed on the 3rd November, 2015 – a period of nine (9) years ago – and the instant Application filed in April, 2024 is in no way timely. The Court went to great lengths to untangle the multiple Appeals filed by either the Appellant himself and, or Counsel as well as establish the correct 135 decision giving rise to the instant Appeal *vide* Ruling in **Civil Appeal No. 014/2023** and to the credit of Counsel the other duplicitous Appeal(s) were withdrawn leaving **No. 44/2015** on the basis that it was filed first.

- [27]. **Order 43 Rule 2 of the Civil Procedure Rules SI 71 – 1** provides **"Grounds which may be taken in Appeal –** - 140 **The Appellant shall not, except by leave of the Court, urge, or be heard in support of any ground of objection not set forth in the Memorandum of Appeal; but the High Court in deciding the Appeal shall not be confined to the grounds of objection set forth in the Memorandum of Appeal or taken by leave of the Court under this Rule; except that the** 145 **High Court shall not rest its decision on any other ground unless the Party who may be affected by the decision has had sufficient opportunity of contesting the case on that ground."** - [28]. In **SCCA No. 4/1994 [1990 – 1994] 1 EA 88: Gaso Transport Services (Bus) Ltd Vs. Martin Adala Obene** the principles regarding amendment 150 were considered by the Court including – (1). The amendment should not work injustice to the other side and an injury which can be compensated by the award of costs should not be treated as an injustice. (2). Multiplicity of pleadings should be avoided as far as possible and all amendments which avoid such multiplicity should be allowed. (3). An Application which is 155 malafide should not be granted. (4). No amendment should be allowed where it is expressly or impliedly prohibited by any law including limitation of action. - [29]. The Court observes that the Memorandum of Appeal was filed timely on the 3 rd November, 2015 with the Judgment having been delivered on the 28th October, 2015 - much as the history of the case is chequered with dismissal 160 for want of prosecution and subsequent reinstatement. The Judgment and Proceedings are on the Court Record. - [30]. The Court has had occasion to review the original Memorandum of Appeal already on Court Record also setting out five (5) grounds of Appeal and it is apparent that its preparation was wanton and offers little assistance to the 165 Court in addressing complaints raised and arising from the decision of the Lower (Trial) Court in as far as the grounds are not laid out concisely.

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- [31]. A close scrutiny reveals that the grounds in the draft Amended Memorandum of Appeal are substantially the same as in the original Memorandum of Appeal with a side by side comparison showing that grounds 1, 2 and 5 of the original - 170 Memorandum correspond with grounds 2, 1 and 5 of the draft amendment. Grounds 3 and 4 of the original Memorandum of Appeal are reconstituted in ground 4 of the draft Amended Memorandum of Appeal as a generic issue. - [32]. Meanwhile, ground 3 of the draft Amended Memorandum of Appeal regarding *Locus in Quo* is the only new content introduced. - 175 [33]. The net effect of the draft Amended Memorandum of Appeal is that it rephrases the grounds setting them out more concisely only introducing a single ground – ground 3. - [34]. It is the finding of the Court based on the tests in **SCCA No. 4/1994** already cited that allowing the draft Amended Memorandum of Appeal which raises 180 a single new ground of Appeal and otherwise sets out more concisely the other grounds in the original Memorandum will not cause any of the adverse effects envisaged therein but shall in fact aid the Court in duly resolving the grounds and issues in controversy with the specificity expected. Moreover, the multiplicity of Appeals is already addressed and no malafides are apparent. - 185 **See: Supreme Court Civil Application No. 02/2021: Crane Bank Ltd (In Liquidation) Vs. Sudhir Ruparelia & Anor.** - [35]. The Respondent shall have every opportunity to respond to the grounds set out during the hearing and no prejudice is occasioned. - [36]. Having carefully given due consideration to the Application, supporting 190 Affidavit, responsive Affidavit as well as the Annextures thereto, the respective Submissions and the circumstances of the case – the Court grants the Application and the Applicant is hereby granted leave to file the Amended Draft Memorandum of Appeal in the form it is presented within twenty-one (21) days of the delivery of this decision. - 195 [37]. Each Party shall bear their own costs.

## **Orders of the Court.**

[38]. Accordingly, the Court makes the following Orders: -

- 1. **Miscellaneous Application No. 066/2024** is granted. - 2. The Applicant is hereby granted leave to Amend the Memorandum of 200 Appeal in the form presented and shall file it within twenty-one (21) days of the delivery of this decision. - 3. Each party shall bear their own costs.

It is so Ordered.

#### 205

**Signed and Dated on the 27 th day of December, 2024 at High Court Kitgum Circuit.**


210 **Philip W. Mwaka**

**Acting Judge of the High Court.**

#### 220 **Delivery and Attendance.**

This signed and dated Ruling has on the directions of the Presiding Judge been delivered to the Parties electronically by the Deputy Registrar, High Court Kitgum Circuit.

- 1. Deputy Registrar,

- 225 High Court Kitgum Circuit Her Worship Suzanne Aisia Musooli. - 2. Counsel for the Applicant Mr. Omoloi Ivan. - 3. The Applicant Mr. Obote David. - 4. Counsel for the Respondent Mr. Anyuru Boris. - 5. The Respondent Rep. Mr. Ojul Odora Onesimus. - 230 6. Court Clerk and Interpreter Mr. Atube Michael.

7. Interested and Affected Persons and Entities.


235 **Philip W. Mwaka**

**Acting Judge of the High Court.**

**High Court Kitgum Circuit.**

**27 th day of December, 2024.**