THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT JINJA
CIVIL APPEAL NO. 062 OF 2016
(Arising from Busembatia Civil Suit No. 003 of 2014)
ASA NABIRYE& ANOR ……………………………………. APPELLANT
ISIIKO PAUL ……………………………………. RESPONDENTS
BEFORE HON. LADY JUSTICE EVA K. LUSWATA
Brief introduction and background
When the appeal came up for hearing on 26/4/2018, Mr. Balidawav Ngobi, counsel for the respondent indicated his intention to raise preliminary points of law. Counsel were allowed to file submissions in which Mr. Ngobi submitted as follows:
- This appeal No. 062/2016arises from Civil Suit No. 003/2014(hereinafter the suit) which was effectively withdrawn by counsel for the appellants on 10/03/2016. That both in law and fact the suit ceased to exist on court record the moment it was effectively withdrawn on 10/03/2016.
- The Memorandum of Appeal and grounds of appeal are drawn in a manner that is defective and argumentative, are manifestly groundless which renders the appeal frivolous, vexatious and an abuse of court process.
Resolution of points of law raised.
According to Counsel for the respondent, this appeal was preferred from a suit that ceased to exist when it was effectively withdrawn on 10/03/2016. Counsel drew courts attention to page 15 of the record of the lower Courtindicating the proceedings during which the suit was withdrawn without contest. He charged therefore that the suit ceased to exist on the day it was withdrawn and no appeal could be preferred from it and as such, it should be considered as being illegal
Mr. Kasajja Robert for the appellant made a joint response to both objections. He stated firstly that the points raised are not points of law and thus, ought to be considered together with the full merits of the appeal. Secondly that the appeal infact does not arise from the suit itself but on the decision of the Court to award costs to the respondent after withdraw of the suit.Thirdly that, neither Order 44 nor Order 43 CPR give power to this court, as a first appellate court, power to dismiss or strike out this appeal on the ground of objections, the type raised for the respondent. He prayed that all objections be overruled.
Counsel’s argument that this appeal arose not from the suit but from the order on costs is very strange and misplaced. The appellant chose to withdraw the suit in the preliminary stages. Since his counsel sought court’s leave before withdrawal, the same was given and a ruling made in line with O.25 CPR. It was part of that that order (i.e. the award of costs) and no other, against which this appeal is based. I fear that counsel was presenting arguments meant to confuse the Court, which boarders on contempt by counsel.
Whether the objections were matters of law that could be raised without descending into the merits of the appeal was discussed in the authority provided by appellant’s counsel. Newbold P advised that “a preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained, or it what is sought is the exercise of judicial discretion. See Mukisa Biscuit Co. Ltd Vrs West End Distributors Ltd (1969) EA 696 at 701. Under Order 6 rr 28 and 29 CPR the Court may upon the application of either party hear and dispose of a preliminary point of law at any time before the hearing, and where it finds that the objection substantially disposes of the whole suit, dismiss it forthwith.
This appeal was preferred against an order of the lower court and the record was available. There was no contest by either party that the suit was withdrawn by the appellant for the reasons given in the order. My Court is not required to make any further investigation of the facts. It is only required to decide on whether the decision of the Magistrate was correct on certain aspects. The contention of respondent’s counsel is that the appeal is illegal, and the memorandum drawn in a manner that offends particular provisions of the law relating to appeals. These are all pure matters of law, best to be raised before the appeal is heard. Should my decision favour the respondent, then the entire appeal falls. Lastly, Orders 43 and 44 CPR would not necessarily be applicable here. An illegality once brought to the attention of the Court, cannot be sanctioned and the court must be deal with it summarily. See for example Makula International Limited Vs His Eminence Cardinal Nsunbuga 1982 (HCB) 11. However, as I will show, this appeal offends particular provisions of law
Under Order 25 rr 1 and 2 CPR, a plaintiff has liberty to withdraw their suit, either before or after the defence has been filed, and with or without leave of Court. It is not in dispute that the suit was withdrawn on 10/03/2016 and at page 15 (paragraph 3) the record indicates the submission of the plaintiff/appellants’ counsel being as follows:
‘’ I have instructions from the plaintiff to withdraw the suit on the regards that the subject matter in dispute is well over 30 acres of land each estimated at UGX 2,000,000/= bringing to the total value of the subject matter to at least UGX 60,000,000/= . In the circumstances, I seek leave to withdraw the same…’’
Respondent’s counsel did not object to the application for withdraw but prayed for costs as the law mandates, and the learned magistrate granted the same underSection 27 of the Civil Procedure Act.
Reference was made to Black’s Law Dictionary 9th Edition by Bryan Granar at page 1739 for the definition of the term “withdraw” to mean “…taking back something presented, granted, enjoyed, possessed or allowed, to retract, to refrain from proceeding or prosecuting an action or to terminate”.
Going by the above definition, the submission by appellant’s counsel on 10/3/2016 unequivocally withdrew the suit for the reasons given. Since there was no contest, and a specific prayer was made for costs in favour of the respondents, the Magistrate was obligated under Order 25 rr.1 and 2 CPR, to make a finding on that point, which she did. Following those proceedings, the suit was formerly withdrawn from the Court record and there could be no appeal preferred from it. It is trite that appellate jurisdiction is specifically created by law(see for example,Baku Raphael Vs AG SCCA NO.1/2005. Indeed, an order made under Order 25 CPR does not envisage an appeal and in the unlikely event that there was one aggrieved by such an order, then they would first have to seek leave to appeal under Order 44 CPR, which was not done.
The arguments by appellant’s counsel that respondent’s counsel had the obligation to inform court that it had no jurisdiction, are without merit. It is uncontested that by the time the appellants filed the suit, they were still unrepresented. However, they chose to file it without legal advice, at their peril. The Court is ordinarily under no obligation to refrain from issuing summons for a case it suspects is being filed in a wrong court. Filing of suits is a personal matter by one who feels aggrieved and pleadings are received at the Court registries, with limited powers only to receive and register pleadings. Even then, in this particular suit, the value of the subject matter was not revealed.
As observed by respondent’s counsel, once it came to the attention of the Court that it was not clothed with jurisdiction to hear the matter, it had to immediately stop any further hearings. Indeed, I notice that the Magistrate in her ruling gave substantial attention to her lack of jurisdiction. She commented that even without the withdrawal, the suit would have been dismissed for lack of jurisdiction and therefore, the defendant could not be denied of their costs merely because the plaintiffs chose to withdraw the suit.
In conclusion, the suit was conclusively withdrawn on 10/3/2016. The only remedy open to the appellants would be under Order 25 rr 4 and 5 i.e., tofile a fresh suit in the correct court for as long asthe provisions of limitation do not prevent it. As I have already found, appeals are creatures of statue, and this is not an order from which an appeal can lie.
In my view, the first objection is with merit and disposes of the appeal. There would be no reason to consider the other objection. I accordingly allow Mr. NgobiBalidawa’s objection and dismiss this appeal under Order 6 rr 29 CPR with costs to the respondent.
EVA K. LUSWATA