[2024] UGHC 645

THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT JINJA **MISCELLANEOUS APPLICATION NO.38 OF 2023 ARISING FROM CIVIL APPEAL NO.72 OF 2021**

# 1. THE MANAGEMENT COMMITTEE OF **KIMASA PRIMARY SCHOOL**

- 2. OKELLO PAUL - 3. OPIO DOMINIC - 4. HARUNA WAMANGA - 5. BOGERE MUWANIKA ONEK - 6. WAKODO BARAZA PAUL - 7. KIWALA MIRABU

**APPLICANTS**

## **VERSUS**

SEKAMATE NAMALE JOYCE ::::::::::::::::::::::::::::::::::::

## BEFORE: HON. LADY JUSTICE FARIDAH SHAMILAH BUKIRWA NTAMBI **RULING**

## **Introduction**

The Applicants instituted this Application under Order 4 Rules 28, 29 and 30, Order 52 Rules 1 & 3 of the Civil Procedure Rules seeking orders that this Court be pleased to grant an order striking out the 1^st, 2^nd, 3^rd, 6^th and 7^th grounds of Appeal in Civil Appeal No.072 of 2021.

The grounds of application are laid out in the Affidavit in Support of the Application deponed by Okello Paul but the main ground states as follows;

That the said grounds of appeal as framed offend the provisions of Order 43 Rule 1 of the Civil Procedure Rules.

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The Respondent opposed this Application by filing an Affidavit in Reply deponed by Sekamate Namale Joyce wherein she stated that grounds 1, 2, 3, 6 & 7 of the appeal were raised in strict compliance with the law and that this Application is an abuse of court process intended to delay this suit.

### **Representation**

The Applicants were represented by Tuyiringire & Co. Advocates while the Respondent was represented by Wetaka Bukenya & Kizito Advocates.

### **Determination of the Application**

It should be noted that whereas this Court gave direction to the parties to file written submissions, the Respondent did not file her written submissions and the court will therefore move to determine this Application basing on the Applicant's written submissions.

Counsel for the Applicant submitted that grounds 1, 2, 3, 6 and 7 of the Memorandum of Appeal offend the provisions of Order 43 rule 1 of the Civil Procedure Rules and should therefore be struck out of the Appeal. He relied on the decision is Saverio Malimbo V Asanasi Mukwayo and Another Civil Appeal No.8 of 1968 [1971] 3 ULR 126-128.

The contested grounds are stated below.

Ground 1: That the Learned Trial Magistrate erred in law and fact when she held that the Respondents had not trespassed on the suit land.

Ground 2: That that the Learned Trial Magistrate erred in law and fact when she granted reliefs not sought for by the Respondents.

Ground 3: That the Learned Trial Magistrate erred in law and fact when she ignored the Appellant's evidence of possession of the suit land as at the time of filing the suit.

Ground 6: That the Learned Trial Magistrate erred in law and fact when she evaluated the respondent's evidence in isolation of that of the Appellant.

Ground 7: That the Trial Magistrate erred in law when she ignored the inconsistencies in the Respondent's case and yet determined the suit in her favour.

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Grounds of appeal are said to have been properly drafted if they conform with the law. The law governing appropriate drafting of grounds of appeal is Order 43 Rule 1(2) of the Civil Procedure Rules.

Order 43 rule 1(2) of the Civil Procedure Rules provides that the memorandum of appeal shall set forth, concisely and under distinct heads the grounds of objection to the decree appealed from without any argument or narrative.

In M/S Tatu Naiga & Co Emporium vs Verjee Brothers Ltd (Civil Appeal 8 of 2000), the Supreme Court held that:

"...counsel who frame memoranda of appeals and other legal documents which are ultimately presented to court should comply with the requirements of the rules and forms for framing memoranda and such other legal documents."

(See Ismail Serugo vs Kampala City Council and AG (Supreme Court Constitutional Appeal no. 2 of 1998 per Kanyeihamba JSC).

The grounds of appeal therefore ought to be clear and self-explanatory, brief and persuasive without narrative and argument. The ground of appeal must specify in what way and what specific aspect of the decision being appealed against that the trial court erred in arriving at its decision. (See Ndawula Ronald vs Hiraa Traders (U) Limited (Civil Appeal No.259 of $2021$ ).

I have examined all the grounds of appeal in the instant matter and I am in agreement with counsel for the Applicant that they were not well formulated. Grounds 1 and 2 were not specific enough. The Respondent's counsel ought to have stated the reliefs granted that were not sought for. Under ground three, the ground does not reflect the effect of the failure by the Trial Magistrate in ignoring the Appellant's evidence of possession. I do not see any major problem with grounds 6 and 7.

The stance that the courts in this jurisdiction have taken where grounds of appeal have been found to be offensive to the Rules has been to frown upon them and strike out the offending grounds and proceed with those grounds that were not offensive.

In the instant case, much as some of the grounds are defective, it is my finding that they are not fatally defective as they can be clarified in the submissions by counsel for the Appellant. In any case, courts have excused badly drafted grounds of appeal in the interest of dispensing

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substantive justice in the given circumstances of the case under Article 126(2)(e) of the Constitution. (See Katumba Byaruhanga vs Edward Kyewalabye Musoke (Court of Appeal Civil Appeal no. 2 of 1998), Sietco vs Noble Builders (U) Ltd Civil Appeal No. 31 of 1995 and Lagedo and Others Vs Obwoya Civil Appeal No.82 of 2019).

In a bid to dispense justice as enshrined in Article 126(2) (e) of the Constitution, I will grant the Respondents an opportunity to submit on the grounds of Appeal and expound on them to make their case known to this court. However, in so doing, the Respondent's Counsel should refrain from arguing grounds that were not raised in the memorandum of appeal. In any case, the Applicant will not be prejudiced by the said submissions as they will have an opportunity to make submissions in reply.

It should however be pointed out that the purpose for which Article 126(2)(e) of the Constitution was enacted was not to encourage sloppy drafting of pleadings amongst advocates or litigants as this is why rules were enacted to govern procedure in this court. I am buttressed in arriving at this finding by the decision of the East African Court of Appeal in Mamji Vs Arusha General Store (1970) EA 137 in which court held that;

"We have repeatedly said that the rules of procedure are designed to give effect to the rights of the parties and that once the parties are brought before the Courts in such a way that no possible injustice is caused to either, then a mere irregularity in relation to the rules of procedure would not result in vitiation of the proceedings. I should like to make it quite clear that this does not mean that rules of procedure should not be complied with- indeed they should but non-compliance with the rules of procedure of Court, which are directory and not mandatory rules, would not normally result in the proceedings being vitiated if in fact, no injustice has been done to the parties." [Per Sir Charles Newbold].

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See Tororo Cement Co Ltd vs Frokina International Ltd Supreme Court Civil Appeal no.2 of 2001.

In the circumstances, this Application is dismissed and costs shall be in the cause.

I so order.

. . . . . . . . . . . . . . . . . . . FARIDAH SHAMILAH BUKIRWA NTAMBI Delivered on this 3^rd JUDGE<br>JUDGE<br>day of JUDGE<br>2024

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