Wakilii

Birungi v Orihikayo and Others (Civil Appeal No. 11 of 2016)

High Court · [2021] UGHC 64 · 2021 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from Chief Magistrate's Court judgment concerning execution sale of family land
Decision
Appeal dismissed — amended memorandum of appeal struck out for procedural non-compliance

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that an amended memorandum of appeal filed without leave of court is incompetent. Article 126(2)(e) of the Constitution does not permit non-compliance with mandatory procedural rules under Order 43 Rule 2 of the Civil Procedure Rules requiring leave to amend a memorandum of appeal. The amended memorandum was struck out and the appeal dismissed with costs.

Outcome

Appeal dismissed — amended memorandum of appeal struck out for procedural non-compliance

Facts

The appellant, Birungi Gorret, appealed a Chief Magistrate's Court judgment that arose from an execution sale of land. The land had been sold in execution to satisfy a judgment debt of UGX 2,700,000 owed by the 1st respondent, Orihikayo Simon. The appellant, the customary wife of the 1st respondent, claimed ownership of the land and that she had not consented to its mortgage or sale. The trial magistrate found the attachment and sale erroneous since the 1st respondent was not the legal owner, but held that the 3rd respondent was a bonafide purchaser. The magistrate ordered the 1st and 2nd respondents to pay UGX 12,000,000 to the appellant for an alternative piece of land. The appellant filed a memorandum of appeal on 9th February 2016, then filed an amended memorandum on 14th March 2016 without obtaining leave of court. The respondents raised a preliminary objection on this procedural irregularity.

Issues

  1. Whether the appellant was required to obtain leave of court before filing an amended memorandum of appeal.
  2. Whether the irregularity of filing an amended memorandum without leave could be cured under Article 126(2)(e) of the Constitution.

Orders

  • The amended memorandum of appeal filed on 14th March 2016 is struck out for non-compliance with Order 43 Rule 2 of the Civil Procedure Rules.
  • The preliminary objection is upheld.
  • The appeal is dismissed with costs.

Rules and key headnotes

Civil Procedure — Memorandum of Appeal — Amendment Without Leave — Order 43 Rule 2 Civil Procedure Rules
An amended memorandum of appeal filed without leave of court is incompetent and must be struck out, as Order 43 Rule 2 of the Civil Procedure Rules requires that an appellant shall not except by leave of court urge or be heard in support of any ground of objection not set forth in the original memorandum of appeal.
Constitutional Law — Article 126(2)(e) — Limits on Application — Substantive Justice Without Undue Regard to Technicalities
Article 126(2)(e) of the Constitution does not permit litigants to disregard mandatory procedural rules. The principle of substantive justice without undue regard to technicalities must be applied subject to the law, including rules of procedure. A litigant seeking to invoke Article 126(2)(e) must satisfy the court that it was not desirable to pay undue regard to the relevant technicality in the circumstances of the particular case.
Civil Procedure — Rules of Procedure — Compliance — Handmaidens of Justice
Rules of procedure act as handmaidens of justice and have not been done away with by Article 126(2)(e) of the Constitution. Litigants must comply with the rules of procedure in litigation, and failure to do so cannot be excused simply by invoking constitutional principles where such failure relates to a mandatory procedural requirement.

Legislation cited (4)

Cases cited (8)

  • Hellen Oyeru v Florence Namuli Matovu (Supreme Court Civil Appeal No. 7 of 2008)
  • Mawji Vs Arusha general stores (1970) EZ137
  • Byaruhanga Yozefu Vs Kahemura Patick
  • Kasirye Byaruhanga and Co. Advocates v Uganda Development Bank (Supreme Court Civil Application No. 2 of 1997)
  • Utex Industries Ltd v Attorney General (Supreme Court Civil Appeal No. 52 of 1997)
  • Kasirye Byaruhanga & Co. Advocates v Uganda Development Bank (Supreme Court Civil Appeal No. 2 of 1997)
  • Itiriza Coaches v Edward Rurangaranga (Supreme Court Civil Appeal No. 18 of 2009)
  • Mulindwa Kisubila (Civil Appeal No. 12 of 2014)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Birungi v Orihikayo and Others (Civil Appeal No. 11 of 2016) [2021] UGHC 64 (17 December 2021)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.