[2024] UGHC 800

# THE REPUBLIC OF UGANDA IN THE HIGHCOURT OF UGANDA AT ARUA CIVIL APPEAL NO. 0011 OF 2022 (ARISING FROM CIVIL SUIT NO.0037 OF 2018)

#### 10 ONEN THOMBO:::::::::::::::::::::::::::::::::::

### **VERSUS**

### **1. MR ONYUA SAVERINO**

# 2. THE SCHOOL MANAGEMENT **COMMITTEE OF ERUBA P/S**

3. DRANIA::::::::::::::::::::::::::::::::::: 15

### **RULING**

## BEFORE HON. JUSTICE COLLINS ACELLAM.

#### 20 **INTRODUCTION**

This is an Appeal against the decision of His Worship Paul Kedi delivered in the Chief Magistrates Court of Arua at Arua on the 25^th day of January 2022.

The Appellant sued the respondents jointly and severally for trespass to land, recovery of land, declaratory orders that the Plaintiff is the rightful and lawful owner of the land comprised at Embeva village, Eruba Parish, Vurra sub county, vurra county, Arua District measuring

- 25 approximately 2 acres, a permanent injuction restraining the Defendants from interfering with the quiet possession of the land an order of vacant possession, eviction order, damages and costs of the suit. - The appellant's case was that he is the biological son of Daniel Thombo who and rightly inherited 30 the suit land from his late father upon his demise in the 1990s. He further averred that his late father settled on this suit land way back when he found it vacant as his late father was a casual worker with the British before his family was driven out of the land by Idi Amin war where he fled to exile together with his family and that during his absence the 1^st respondent connived with others and entered the suit land. 35

At the start of the trial, counsel of the $1^{st}$ and $2^{nd}$ respondent's counsel raised two preliminary objections to the effect that the suit was time barred and service of summons was not effective on the $2^{nd}$ respondent.

The Appellant's counsel on the other hand countered the preliminary objection and submitted that in the course of the proceedings, they sought leave to amend the plaint and included trespass to land as the cause of action and trespass is a continuous action and has no particular time limit and that the service of summons was effective. The respondent's counsel then prayed that the

$\mathbf{A} = \mathbf{A}$

45 preliminary objection be dismissed and the suit proceeds.

$\mathsf{S}$

Counsel for the respondent in their submission in rejoinder averred that the Appellant had not $\mathsf{S}$ demonstrated that the amended plaint was served on the 1^st Respondent and prayed that the plaint be struck off for nonservice on the first service. Counsel further submitted that the Plaint is a bed rock of hearing and that court should be sure that the Plaint is not bad by time and invited court to investigate whether the suit was not bad by time. He then reiterated his earlier submissions that the suit was time bad and prayed that the same be dismissed with costs. 10

### Ruling of the lower court

In his ruling delivered on the 25^th day of January 2022, the trial Magistrate found that the for trespass to land to happen the appellant had to have physical control over the land and take steps 15 to deny others access to the land. And that whereas trespass is a continuous tort, maintenance of that action is only available to a person that is in possession. He also found that the Appellant's claim disclosed recovery of land as the cause of action. And that mere mentioning of the word trespass does not make it the cause of action and in this case the facts that led to the cause of action are only disclosing recovery of land and not trespass to land. He then noted that in that 20 regards Section 5 of the limitation Act would apply and to that effect, he held that the suit was barred by time and dismissed it with costs.

### Duty of the 1^st Appellant Court

The duty of the 1^st Appellate Court was well stated by the Supreme Court of Uganda in its land landmark decision of Kifamutwe Henry vs Uganda, SC, (Cr) Appeal No. of 2007 where it held that:

"..... the appellate court has duty to review the evidence of the case and to reconsider the materials before the trial judge. The appellate court must make up its own mind not 30 disregarding the judgement appealed from but carefully weighing and considering it."

In rehearing afresh, a case which was before a lower trial court, this appellate court is required to make due allowance for the fact that it has neither seen nor heard the witnesses and where it finds conflicting evidence, then it must weigh such evidence accordingly, draw its inferences and 35 make its own conclusions. See: Lovinsa Nankya vs Nsibambi (1980) HCB 81. In considering this appeal, the above legal provisions are taken into account.

#### Representation

The appellants were represented by M/s Okecha Baranyanga &co. Advocates while the 1^st 40 Respondent was represented by M/s Ederu & Gama Advocates & Solicitors and the 2^nd Respondent was represented by the Attorney General's Chambers Arua Regional office

#### The ground of appeal 45

The appellant being dissatisfied with the ruling of the trial magistrate, filed this appeal on the ground;

1. That the learned trial Magistrate misdirected himself on the law, fact, principles of the law of tort of trespass hence coming to a wrong conclusion that the suit is barred by limitation.

$\mathsf{S}$ The Appellant prayed that the appeal be allowed and the ruling of the trial magistrate be set aside and the plaint to wit Civil suit No. 0037 of 2018 be heard on the merits. The Appellant also prayed for costs in this court and in the lower court.

#### 10 Preliminary Objection

While replying to the Appellant's counsel's submission, Counsel for the Respondents raised a preliminary point of law.

The Respondents' counsel raised a preliminary objection under section 76(1) of the civil procedure act cap71 and Order 44 rule 1 of the civil procedure rules which sets out the orders 15 upon which right of appeal is given by a statute and it spells out the orders upon which there is an automatic right of appeal.

He cited Order 44 rule 2 of the Civil Procedure rules which provides that an appeal under the 20 civil procedure rules shall not lie from any other order except with leave of court making the order or the court to which an appeal would lie if leave were given. In correspondence to this preliminary objection counsel for the Respondent submitted that the Appellant filed an appeal against an order which requires the leave of court without seeking the necessary leave. He further submitted that orders from the trial magistrate are not appealable as of right and that the appeal

is not properly set before this court and that it was filed prematurely without leave of court. To 25 which they prayed that the suit be dismissed.

In Response to the preliminary objection, counsel for the Appellant in his written submissions in rejoinder submitted that the Appeal at hand does not fall under any of the orders under section 76(1) of the CPA but rather rises from a preliminary objection on a point of law brought under section 5 of the Limitation Act that disposed off the whole suit. The ruling out of the preliminary objection is a substantive order and a defense that arises out of an Act and it becomes a decree. And that the disposal of a suit by a preliminary objection qualifies the ruling of the learned trial Magistrate into a decree and a decree is appealed as of right.

# Determination of the preliminary objection

I have addressed myself to submissions of both Counsel in respect to the preliminary objection and I have advised myself on the law cited by both Counsel.

It is established law that an Appeal is a creature of statute and where there is no inherent right 40 of appeal provided to an aggrieved party, she or he must seek leave. See; Tumuhaise Mary Arinaitwe vs Emily Turyasingura HCCA No. 0011 of 2021. Further, Chief Justice Benjamin Odoki (as he was then) in Baku Raphael Obura & Another vs Attorney General CA No.0001 of 2005 observed thus;

# "It is trite law that there is no such thing as inherent appellate jurisdiction. Appellate Jurisdiction must be specifically created by law, it cannot be inferred or implied."

$A$ $A$

The High Court only entertains appeals that legally lie to it by virtue of law and where there is no such provision under the statute, high Court cannot confer upon itself jurisdiction to 50 entertain appeals.

It should be noted that appeals from orders are governed by Section 76 of the Civil Procedure $\mathsf{S}$ Act and Order 44 of the Civil Procedure Rules which set out the orders upon which the appeal is given by statute. The orders which are set out under Section 76(1) (a-h) of the CPA are clear and the orders of the Magistrate in respect to civil suit No.0037 of 2018 do not fall under any categories outlined in Section 76(1) of the Civil Procedure Act therefore the Appellant needed 10 to first seek leave to appeal.

In the instant appeal, there is no application for leave to appeal that was made in the Magistrate's court of Arua. The Appellant just filed a memorandum of appeal without leave of court. Order 44 rule 2 of the Civil Procedure Rules provides that an Appeal under these rules shall not lie from any other except with leave of the court making the order or of the court to which an appeal would lie if given leave. This therefore infers that failure to obtain leave to appeal makes the appeal incompetent and it cannot be heard since the provisions of section 76(1) of the Civil Procedure Act Cap71 and Order 44 Rule 1 subrule 2 have not been complied with. The Appellant did not take any steps to apply for leave either in the trial court or in this court where

the appeal would lie as required by law. Without complying with this requirement, the appeal is 20 incompetent and as such cannot even be curable under Article 126(2) (e) of the Constitution.

Further, Justice Bashaija K. Andrew in the case of Emmanuel Tumusiime vs Perusi Namagembe & another Civil Appeal No.42 of 2013 stated to appeal against an order from a preliminary objection which is not provided for under Section 76 of the Civil Procedure Act or 25 Order 44 of the Civil Procedure Rules, leave must be sought under Order 44 rule 1 and an appeal filed without such leave is incompetent

Therefore, the appeal is dismissed with costs for being filed prematurely without leave of court and the ruling of His Worship Paul Kedi, Magistrate Grade one of the Chief Magistrate's Court of Arua delivered on the 25^th of January 2022 is upheld in its entirety.

I so order

$\frac{2}{\sqrt{2}}$ Day of .... Dated at Arua this.. $...2024$

Collins Acellam Judge