[2014] UGCA 141

# THE REPUBLIC OF UGANDA

## IN THE GOURT OF APPEAL OF UGANDA AT KAMPALA

## CIVIL APPEAL NO 64 OF 2012

OVIA NAMUSOKE APPELLANT

## VERSUS

BIKOLO MBAZIIRA AGNES RESPONDENT

### ram:

n. Justice Mwangusya Eldad JA

n. Justice Solomy Balungi Bossa JA

n Justice Kenneth Kakuru JA

appeal from the ruling and orders of the High Couft at Nakawa before Hon. Lady tice Faith Mwonda date 9th May 2012 high court Civit Suit 62 of 2006 and Misc. ication No. 121 of 2006

# JUDGMENT OF THE COURT

e appellant, SCOVIA NAMUSOKE on the 21"tday of April 2006 filed Civil Suit No 62 2006 against the Respondent, NABIKOLO MBAZIRA AGNES for a declaration that estate of the Late Levi Musoke of which the appellant is the administrix is the istered owner of land comprised of Block 236 Plot 481. On the 18th day of May 2006 appellant filed a Misc. Application No 121 of 2006 for an order of temporary

nction and arising out of the application, an application for interim order was filed granted on 27.06.2006 restraining the respondent from selling and evicting the llant from the suit land until the disposal of the main application for a grant of a rary injunction. Following the grant of the interim order neither the application for porary injunction nor the main suit was heard for a period of over six years.

e record shows that the application for the temporary injunction was set down for aring on 9.05.2012. Counsel for the appellant appeared before the Registrar of the urt at 10:00 a.m. the application was adjourned by the Registrar lo 27.09.2012 al 30 a.m. for mention. Then on the very day 9.05.2012 the same matter was placed re the Resident Judge at 12:00 noon. Mr. Mudoola learned counsel for the efendant /Respondent appeared in Court together with his client. The aintiff/Applicant and her Counsel were absent. The proceedings of the Court as to at transpired before the Resident Judge is reproduced below:-

### ceedings:

⁰¹²- 12:00 noon ^ai ntiff/Ap pl ic a nt a b sent nU Respondent present ounsel for the ApplicanWlaintiff absent ounsel Mudoola for DefendanilRespondent present

This suit from which the application arose vyas filed 6 years ago vide Cs-No.662006. The application which the applicant purpofted to fix for puaoou:

hearing today was fixed at the initiative of the defendanUrespondent. This was an application for a temporary injunction and yet the inteim order was granted in 2006 on the 27/062006 by the Registrar. This means that if the defendanUrespondent did not move coutt to get this date, the applicanUplaintiff was not bothered. Meanwhile our client the detendant is suffeing the injustices caused by the delay of disposing of the suit. Our client is of very advanced age. lts tite law that if a case takes two (2) years without being moved the court can dismiss it for want of prosecution. So lhe applicanUplaintiff is taking advantage of the defendant's vigilance and wanting the application for a temporary injunction to be heard and then the applicant and her lawyer didn't come to court, shows that the action against the defendant are not in good faith.

The fact that the chamber summons was fixed today shows that they are no just interested in justice. The aftidavit of Nelson Munyagwa filed in couft on 4/trlay2012 shows that it was the heaing notice which the counse/s served on them which moved them to fill the date in their chamber summons for the application for a temporary injunction,

ln the premises we pray that the main suit which ls sta/e as it had not been moved for over two (2) years be drsmissed wifh cosfs.

We also submit that the purported temporary injunction application can't aise from a stale suit. We pray that the application be dismissed too, all under O. 17 14 of the Civil Procedure Rules. We fufther pray that court

invokes its powers and pray that the couft grants remedies to the parties to be completely and finally determined and all multiplicities of legal proceedings conceming any of those matters avoided.

ln pafticular we bing to the attention of Court that the plaintiff is only entitled to 26 decimals of the subject matter which she inheited from her father Levi Musoke. The plaintiff is willing to give the applicant her share. The plaintiff ls trespasslng on Plot 481 Block 236. We pray that the plaintiff and her agents or servant be restrained from fufiher trespass from the defendanUre spondent's land.

So we pray.

- utt: Upon hearing counsel for the defendant on the mafter and upon careful consideration and perusal of the application for a temporary injunction and the reply of the respondenUdefendant, I find the following:- - (1) That its true the Civil Suit was filed in 2006 and an inteim order was issued on 27/062006. - (2) That since then, there is no evidence of the applicant having moved coutt to either dispose of the main application for a temporary injunction or fix the main suit for heaing since June, 2006. - (3) That apafi from the chamber summons indicating that CS-No-62-2006, the main file is not on record.

- (4) ln addition to the application having been stale even if court can hear it which cannot be the case, it doesn't establish a prima facie case with a probability of success. On the contrary the respondent's reply filed on the 4/052,012, show that she has a strong case and if the application was to be granted, it's her who will be subjected to ineparable damage which cannot be adequately compensated in damages. - (5) That I am satisfied that the applicanUplaintiff have no interest in pursuing the case and application by her apparent absence from couft when, they were aware of this date. - (6) According to the documents on court record the applicanUplaintiff has been moving to vaious offices in a bid to defraud the defendanUrespondent of the land rbsue. She repofted to lG's office where she was advised to institute fhis suft for courl to determine their legal ights. She has by her conduct failed to prosecute the case she instituted (CS-No. 62-2006) srnce she has taken all this time more that 2 years without moving it.

that this is a very appropiate case to invoke 5.33 of Judicature Act Cap. 13 Laws Uganda 2000 to grant the remedies to the padies to this suit are entitled to. ^I refore:-

(1) Dismiss suff No. 63-2006 and the application thereof .

- (2) An injunction doth issue against the plaintiff/applicant for a temporary injunction, her agents and servants from fuiher frespass on the defendanUrespondent's land Plot 481 Kyadondo Block 236 measuring approximately 2.26 acres. - (3) The 26 decimals which the father of the applicant purchased be sunendered to her within six (6) months from today. - (4) Costs provided for the respondenUdefendant.

be it done.

ith Mwonda

dge

5/2012"

ing aggrieved by the decree of the High Court set out above the Appellant filed this peal in which she raises the following grounds:-

- (1) The Learned Judge erred in Law and fact when she failed to consider all the evidence on record hence arriving at a wrong decision. - (2) The Learned Judge erred in Law and fact when she considered only part of the evidence and ignored the rest thereby causing ^a miscarriage of justice.

- (3) The Learned Judge erred in Law and fact when she issued orders out of a Civil Suit when the main file was not before her. - (4) The Learned Judge erred in Law and fact when she gave the Respondent audience when before Court when she had not locus having not filed a written statement of defence. - (5) The Learned Judge erred in Law and fact when granted a temporary injunction against the appellant when the same was never applied for by the respondent. - (6) The Learned Judge erred in Law and fact when she issued ^a temporary injunction out of the main suit she hence dismissed. - (7) The Learned Judge erred in Law and fact when she ruled that the appellanUplaintiff was moving in various offices in a bid to defraud the respondent of her land. - (8) The Learned Judge erred in Law and fact when she gave out the suit land to the respondent in Misc. Application 121 ot 2006 when no evidence was led between the parties as to ownership and the appellant was. - (9) The Learned Judge erred in Law and fact when she proceeded with the suit on gth May 2012 at midday when the same was adjourned that day before the Registrar to 27th September,2Ol2 al g:30 a.m.

(10) The Learned Judge erred in Law and fact when she signed an order which had different contents from the ruling.

ring the hearing of the appeal the Respondent's proper name was disputed. Her unsel Mr. Brian Othieno submitted that her proper name is NABIKOLO MBAZIIRA BINAH and not NABIKOLO MBAZIIRA AGNES. Court ordered that she should ar an affidavit to explain the discrepancy which she did by filing a Statutory claration on 14.10.2013. ln paragraph 2 of her declaration she avers that, her names ROBINAH NABIKOLO NAKAZINGA MBAZIIRA and that she has never been known Agnes. She suggests that the use of the name Agnes which was unknown to her s intended to obtain an order against her without service of Court documents which claims is what happened. Since the identity of the two parties in the suit is not in tion and since the Respondent actually was able to access Court, presented her and obtained orders in her favour that are subject of this appeal the discrepancy in name whether intended or otherwise is not material to these proceedings. Like in trial court both parties aftended Court and were represented by lawyers who ably ued the appeal.

respondent also raised a preliminary objection to this Appeal. ln his submission on preliminary objection Mr. Brian Othieno, contended that the appeal was incompetent use it is against a ruling and orders of the High Court and not against a decree. ln submission the Order was not appealable as of right and the requisite leave to peal was not obtained from the court which granted the order or from the Court where appeal lies. He relied on the case of DR. SHEIKH AHAMED MOHAMED KISUULE

GREENLAND BANK (!N LIQUIDAT|ON), SUPREME COURT OF UGANDA CtVtL PEAL NO. 11 OF 2011 where an appeal from an order was struck out as no leave to eal had been sought.

response to the above objection Mr. lssa Kavuma Counsel for appellant submitted t there is a distinction between an order that is appealable only with Leave of Court a decree that is appealable as of right. According to him there was no requirement pply for Leave because this appeal was from a decree which finally determined the t of the parties. He also cited the case of MAKULA INTERNATIONAL VS HIS INENCE CARDINAL WAMALAEg8a HCB AT P.21 for the proposition that a Court Law cannot sanction that which is illegal and that an illegality once brought to the ntion of Court overrides all questions of pleadings including any admission made reon. The Court is enjoined by Section 101 now Section 98 CPA in exercise of its erent powers to prevent an abuse of its process and it is an abuse of Court process make an order that is contrary to Law. He pointed out the illegalities to include the ling of the file at 12:00 noon when the same had already been adjourned by the gistrar at 10:00 a.m., the granting of remedies to the Respondent when she had no t of audience before the Court when she had not even filed a defence and granting an order of temporary injunction when the Suit from which it had arisen had been missed and was granted to a party who had not applied for it. ln

above submissions give rise to the application of Order 17 Rules 4 and 6 and Order ule 10 of the Civil Procedure Rules both of which were cited. The relevancy of er 17 Rules 4 and 6 is that while an order under Rule 4 may be appealable as of I (

an order under Rule 6 is not. Order 9 Rule '10 is a general rule where no defence led. We shall deal with the application of Order 17 Rules 4 and 6 first because they directly concerned with the issue of the right of appeal as raised by Counsel for the pondent and during the trial the Court was asked to invoke both provisions in issing the suit and the Misc. Application. era is

er 17 Rules 4 and 6 are set down however Order 17 rule 4

"Court may proceed notwithstanding either party fails to produce evidence

lMhere any party to a Suit to whom time has been granted fails to produce his or her evidence, or to cause the aftendance of his or her witness, or to peiorm any other act necessary to the fufther progress of the suit for which time has been allowed, the court may, notwithstanding that defauft proceed to decide the Suit immediately."

er 17 Rule 6

#### "Suit may by dismissed if not step taken for two years.

- (1) ln any case, not otherwise provided for in which no application is made or step taken for a peiod of two years by either parly with a view to proceeding with the Suit, the Court may order the Suit to be dlsmr'ssed - (2) ln such a case the plaintiff may subject to the Law of Limitation, bring a fresh Suit." ough the ruling does not state the rule under which the Rule Court purported to act ismlssing the suit we do not see how Order 17 Rule 6 would be applicable in the umstances of this case because after the filing of the Suit a step was taken. An lication for a temporary injunction and one for an lnterim Order which was granted filed. in

ate was set for hearing of the application for a temporary injunction and it is aterial by whom it was set. The suit was not stale because there was a process ng on. Secondly, the ruling goes ahead to disposal of the suit property in the ng terms:-

(1) Dismiss Suit No. 6212006 and the application there of.

- (2) An injunction does issue against the plaintiff applicant for a temporary injunction, her agents and servants from further trespass on the defendanvRespondents land Plot 481 Kyadondo Block 236 measuring approximately 2.26 acres. - (3) The 26 Decimals which the father of the applicant purchased be surrendered to her within 6 months from today. - (4) Costs provided for to the respondenUdefendant.

disposition of the Suit property brings the case under the ambit of Order 17 Rule 4. distinction between the two rules is quite clear to us. A dismissal under Order '17 le 6 is remediable by bringing a fresh Suit subject to the Law of Limitation while a missal under Order 17 Rule 4 is deemed to be decision on the merits and is lable as of right.

already observed, the High Court was asked to invoke both rules in dismissing the intiffs suit. The Court did not indicate under which rule the dismissal was granted. Court was also asked to invoke S. 33 of the Judicature Act (Cap 13) Laws of nda to determine the case and indeed S. 33 of the Judicature Act is cited in the ng. S. 33 is in part Vl of the Judicature Act headed "Remedies" it provides as

# 33 General provisions as to remedies

The High Court shall, in the exercise of the juisdiction vested in it by the constitution, this Act or any Written Law, grant absolutely or on such terms or conditions as it thinks just, all such remedies as any of the padies to a cause or mafter is entitled to in respect of any legal or equitable claim property brought before it, so that as far as possib/e all matters in controversy between the parties may be completely and finally determined and all multiplicities of legal proceedings conceming any of those matters avoided."

he first place this court does not comprehend how the above provision could be ked when no evidence had been laid before the Court to determine what remedies re available to any of the parties. Our view is that it is only when a case has been rd that a Court will be able to exercise its jurisdiction under S.33 of the Judicature and "grant absolutely or on such terms and conditions as it thinks just, all such edies as any of the parties to a cause or matter is entitled to in respect of any legal equitable claim property brought before it..." A dismissal of a case in the ln

cl umstanced of this case definitely limits the scope of the Court to determine as to remedies any of the parties was entitled to before granting any. This was pounded by the fact that the defendant who had not even filed a defence and had in ot }. er words not pleaded for any remedy was granted remedies where no evidence had rel n adduced to prove them. As a consequence Court ended up issuing a decree in tion to the suit which in our view would be open to an appeal without any Leave be ng sought.

Th re was also an argument as to whether the Court issued an order or a decree. The pr ceedings from which the Order of the Court was extracted have been set down. m the proceedings the following Order was issued:- Fr

#### "Order

Upon this matter coming up for finat dlsposa/ this 9th day of May 2012 before HER LORDSHIP JUSTICE FAITH MWONDA, in the presence of MUDHOLA DEN/S, Counsel for the RespondenU Defendant and in the absence of the Applicant and/ or her Counsel it is herby ordered and Decreed as follows:

- 1. The Plaintiff Suit Civil Suit No 62f2006 and Misc. Appl. No 121 of 2006 be dismissed for want of prosecution. - 2. The ApplicanU Plaintiff is restrained from fuiher encroaching on the Respondenfs and other beneficiaies land comprising in Kyadondo Block 236 Plot 481 at Bweyogerere which was subdivided into Plots 2629,

2630, 2631 , 2633, 2634, and 2635 save for the Applicant portion of Land measuing approximately 0.26 decimals that she inheited from her father.

3. The ApplicanUPlaintiff shall pay the costs of fhe suiL "

ough the above is headed 'ORDER' the contents contained an order and decree ra 2 of the Order is explicit as to the rights of the parties. ln view of this paragraph find that the matter went to the merits of the case and as such is a decree which is pealable as of right without Leave of Court. lf only the order for dismissal had been de there would be no need for an appeal but an application for reinstatement of the t. A decision of Court such as the one before us which determines finally a dispute en parties is a final decree and is appealable as of right. This is notwithstanding fact that an order instead of a decree was extracted. The objection has no merit d is accordingly dismissed. w€

already indicated the appeal raises 10 grounds. The 1't,2nd and 3'd grounds of peal were argued together. The 'l"t and 2nd grounds of appeal are related to the trial ge's failure to consider all the evidence on record but if there was no trial and no idence had been adduced we do not see the relevance of the two grounds and their nnection with ground 3 which is related to the fact that Court proceeded to issue ers related to a case file that was not before it. This Court would dismiss both unds 1 and 2 for being irrelevant and only proceed to consider ground 3.

ground 3 it is clear from the record that the matter before the trial Court was Misc. lication No. 121 of 2006. Paragraph 3 of the Court ruling stated as follows:-

I

"That apafi from the Chamber Summon indicating thaf C. S. No. 62/06 the main file is not on record"

if the file was not on Court record it means that Court dismissed a suit which was not ore it even if there had been grounds to do so. While this Court acknowledges that a I Court has power to dismiss a Suit for want of prosecution the Court cannot dismiss uit without ascertaining as to whether or not there are grounds to do so. As already erved in this judgment there was a Court process going on. From the record it is rcuIt to tell why the application for Temporary lnjunction was called twice. lt was first lled before the Registrar in presence of Counsel for both parties and then adjourned en it was placed before the trial Judge Counsel for the plaintiff was absent sumably because he had left Court after the matter had been adjourned to ptember. The trial Judge was in error to dismiss an application that had already been journed to another date and a Suit that had not been cause listed for hearing on that y because the absent party would not be expected to attend Court. This in effect poses of this appeal. However, there are grounds that raise fundamental issues that s Court will endeavour to resolve and one of these grounds is ground No. 4 a

nd 4 is to the effect that the learned Judge erred in Law and fact when she gave Respondent audience when she had no locus having not filed a written statement of nce. This ground brings into issue the application of Order 9 Rule 10 of the Civil dure Rules which provides as follows:-

# er I rule ¹⁰

### neral rule where no defence filed

ln all Suits not by the rules of this order othervvise specifically provided for, in case the party does tile a defence on or before the day fixed therein and upon a compliance with rules 5 of this Order, the Suit may proceed as if that party had filed a defence."

er 9 rule 5 (

# "Affidavit of service upon failure to file defence

lMere any defendant fails to file a defence on or before the day fixed in the summons and the plaintiff is desftous of proceeding upon default of filing the defence under any of the rules of this Order, he or she shall cause an affidavit of seruice of the summons and failure of the defendant to file a defence within the prescibe time to be filed upon the record"

ur view all this means is that a plaintiff may be required to adduce evidence to prove or her claim. The status of the party who does not file defence remains that he/she s excluded himself/herself from the jurisdiction of the Court and is not entitled to any edies or reliefs because none would have been pleaded or claimed. So it was neous for the trial Judge to not only grant a temporary injunction but also give ers about the Suit property in favour of a party that had not filed defence.

the temporary injunction which is raised in ground 5 there was no basis for its grant n the suit had been dismissed for what of prosecution. The essence of ^a porary injunction is to maintain a status quo pending disposal of the main suit. As ady discussed in this Judgment the order and decree disposed of the Suit property ch if the decree was tenable would mean that there was no longer any basis for a porary injunction. Secondly even if the main suit had not been dismissed and the rt only dismissed the application for the Temporary lnjunction that was before it the issal of the Application which had been filed by the Plaintiff would not entitle the ndant to the Temporary lnjunction which was granted in this case because as ady stated she had not applied for it. The dismissal of the Application would inate it.

,

other ground of appeal that merits a comment is ground 10. The complaint under ground is that the Judge signed an Order which had different contents from the ng. The difference between the Order and the ruling both of which have been set n in this judgment are glaring. For example paragraph 2 of the order to the effect t "the applicanUplaintiff is restrained from further encroaching on the respondents other beneficiaries/land comprised in Kyadondo Block 236 Plot 481 at Bweyogerere ch was subdivided into Plots 2629, 2630, 2631, 2632,2633,2634, and 2635 save or Applicant portion of land measuring 0.26 decimals that she inherited from her father" ot a true reflection of the ruling. The ruling does not mention any subdivision of d. lt does not mention any beneficiaries of the land and as already stated in this gment no evidence was adduced on these matters where there had been no trial. wish to observe that once the appeal is allowed and the orders and decree are set IS ant

e the question of discrepancy between the ruling and the decree or judgment me irrelevant. Secondly, and more importantly if order 21 Rule 7(2) is followed the tion can resolved without resorting to an appellate Court.

er 21 Rule 7 Subrule 2 provides as follows:-

'i

"lt shall be the duty of the parly r,yho ls successful in a Suit in the High Court to prepare without delay a draft decree and submit if for approval of the other pafties to the suit, who shall approve it with or without amendment, or reject it, without undue delay. lf the draft is approved by the pafties, it shall be submifted to the registrar who if he or she is safis/?ed that it is drawn up in accordance with the judgment, shall sign and seal the decree accordingly. lf all the parties and the registrar do not agree upon the terms of the decree within such time as the registrar shall fix, it shall be settled by the Judge who pronounced the judgment and the pafties shall be entitled to be head. On the terms of the decree if they so desire"

Court expects compliance with the above rule which is quite straight forward out recourse to an appeal process.

he result this appeal is allowed with costs to the appellant. The matter is remitted to High Court Nakawa for retrial of the Suit. ln

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