Wakilii

Board of Governors & Anor V Phinson E. Odong (Civil Appeal No. MG.2 of 1990)

High Court · [1991] UGHC 1 · 1991 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Civil appeal from Chief Magistrate's Court — preliminary objection to competency of appeal
Decision
Appeal struck out for incompetence

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court struck out the appeal as incompetent on three independent grounds: failure to extract and file the decree or order appealed from with the Memorandum of Appeal as required by section 232(1) of the Magistrates Courts Act 1970; failure to obtain leave to appeal from an order not automatically appealable under Order 40 rule 1 of the Civil Procedure Rules; and filing the appeal outside the 30-day limitation period prescribed by section 80(1) of the Civil Procedure Act without obtaining extension of time.

Outcome

Appeal struck out for incompetence

Facts

The appellants, Board of Governors and Headmaster of Gulu Secondary School, appealed from a ruling of the Chief Magistrate's Court made on 3 April 1990. The original application, brought by the respondent by Notice of Motion under Order 48 rule 1 of the Civil Procedure Rules, section 220 of the Magistrates Courts Act 1970, and section 101 of the Civil Procedure Act, sought a declaratory ruling determining a dispute between the parties over entitlement to a D.A.P.C.B building on Plot No. M35B on Atwal Road in Gulu Municipality. The appellants filed a Notice of Appeal on 20 April 1990, requested copies of proceedings on 5 November 1990, and filed the Memorandum of Appeal on 31 May 1991. The respondent raised a preliminary objection challenging the competence of the appeal on multiple grounds.

Issues

  1. Whether the appeal is competent where the decree or order of the lower court was not extracted and filed with the Memorandum of Appeal.
  2. Whether the order appealed from is automatically appealable or requires leave of court.
  3. Whether the appeal is time barred having been filed outside the 30-day statutory period.
  4. Whether the Notice of Cross-Appeal is competent without payment of filing fees.
  5. Whether the procedure used to bring the original application before the lower court was proper.

Orders

  • Appeal struck out as incompetent.
  • Respondent permitted to pay appropriate filing fee on Notice of Cross-Appeal under section 100 of the Civil Procedure Act.
  • Both counsel directed to address the court on the propriety of the procedure used to bring the original application before the Chief Magistrate's Court.

Rules and key headnotes

Civil Procedure — Appeals — Filing Requirements — Mandatory Extraction of Decree or Order
Under section 232(1) of the Magistrates Courts Act 1970, an appeal to the High Court must be accompanied by the extracted decree or order of the lower court. A decree or order is a formal document distinct from the Memorandum of Appeal. Failure to extract and file the decree or order with the Memorandum of Appeal renders the appeal incompetent, and the court has no jurisdiction to entertain it.
Civil Procedure — Appeals — Leave to Appeal — Orders Not Automatically Appealable
An order made under Order 48 rule 1 of the Civil Procedure Rules is not included in the list of orders automatically appealable as of right under Order 40 rule 1 of the Civil Procedure Rules or section 77(1) of the Civil Procedure Act. An appeal from such an order requires leave of the court that made the order or of the appellate court. Where no such leave is obtained, the appeal is incompetent.
Civil Procedure — Appeals — Limitation Period — Commencement by Memorandum of Appeal
Under section 80(1) of the Civil Procedure Act and Order 39 rule 8 of the Civil Procedure Rules, a civil appeal to the High Court is commenced by filing a Memorandum of Appeal within 30 days from the date of the decree or order appealed from. Filing a Notice of Appeal does not commence the appeal, and time does not stop running until a written request for copies of the lower court proceedings is made. An appeal filed by Memorandum outside the statutory period without leave of extension of time is incompetent.
Civil Procedure — Cross-Appeals — Filing Fees — Proper Filing
A Notice of Cross-Appeal is a suit within the definition of section 2 of the Civil Procedure Act and must be accompanied by payment of the appropriate filing fee. No document is properly filed in court until the requisite filing fee has been paid. Where a respondent files a Notice of Cross-Appeal without paying the fee, the respondent may be permitted under section 100 of the Civil Procedure Act to pay the fee subsequently.
Civil Procedure — Applications — Use of Order 48 Rule 1 as Originating Motion — Illegality
Order 48 rule 1 of the Civil Procedure Rules governs applications in pending matters and cannot be used as an originating motion to commence proceedings. Where an applicant brings an application by Notice of Motion under Order 48 rule 1 as if it were an originating process, and invokes section 101 of the Civil Procedure Act in a situation where the law provides a remedy, the procedure is fundamentally wrong and constitutes an illegality which the court may consider at any stage.

Legislation cited (14)

Cases cited (14)

  • Zakaliya Muwonge v Sulemani Mwanje (1978)
  • Mukasa v Ocholi (1968) EA 89
  • Alexander Morrison v M.S. Versi and Anor (1953) 20 EACA 26
  • Kiwege and Mgude Sisal Estate Ltd v M.A. Nathwani (1952) 19 EACA 160
  • Kisule v Nampewo (1984)
  • Kyomutali v Zirondumu (1979)
  • Sulemani v Byekwaso (HCC Appeal No. 4 of 1986)
  • J.A. Dias v Ahmed S.S. Swedan (1960) EA 984
  • A. Kaliwin Mukaya v J Kasigwa (1978)
  • Babizahirwa Francis vs Bayanja Twenyo Co. LTD. HCCS No.10781/88
  • UNTA Export Ltd v Custom (1970) EA 648
  • S.M. Hemani v Mawjiwalji (Civil Appeal No. 73 of 1959)
  • Margaret Musango v Francis Mugongo (1979)
  • Halram Singh v S. Singh Dhiman (1955) 18 EACA 75

Full judgment

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

Board of Governors & Anor V Phinson E. Odong (Civil Appeal No. MG.2 of 1990) [1991] UGHC 1 (3 July 1991)
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.