Wakilii

Lawino v Akuru (Miscellaneous Application No. 141 of 2021)

High Court · [2023] UGHCCD 33 · 2023 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to strike out purported civil appeal for failure to file memorandum of appeal
Decision
Application dismissed; purported appeal declared invalid; case file remitted to trial court for continuation of execution proceedings

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that appeals from Magistrates Courts to the High Court must be instituted by memorandum of appeal under Order 43 rule 1 of the Civil Procedure Rules, not by notice of appeal. A notice of appeal filed in lieu of a memorandum of appeal does not constitute a competent appeal and is invalid at law. The purported appeal was declared non-existent and struck out. However, applying substantive justice principles under Article 126(2)(e) of the Constitution, the court treated the incompetent notice as serving its intended purpose to avoid prejudicing the respondent on a technicality.

Outcome

Application dismissed; purported appeal declared invalid; case file remitted to trial court for continuation of execution proceedings

Facts

The applicant successfully sued the respondent in the Chief Magistrate's Court of Gulu in Civil Suit No. 40 of 2018 for breach of contract relating to sale of goodwill in property. Judgment was entered on 1 October 2020 awarding the applicant general damages of UGX 8,000,000 with interest and costs, and ordering the respondent to vacate the property. Two days later, on 7 October 2020, the respondent lodged a document titled as a notice of appeal but did not file a memorandum of appeal. The applicant commenced execution proceedings in the trial court. The respondent's purported notice of appeal caused the case file to be transferred from the trial court to the High Court, frustrating the execution process. The applicant then brought this application to strike out the purported appeal on grounds that no memorandum of appeal had been filed. The respondent contended he could not file a memorandum because he had not received certified proceedings and judgment from the trial court.

Issues

  1. Whether there is a competent appeal before the High Court.
  2. If not, what remedy is available to the applicant.

Orders

  • Miscellaneous Application No. 141 of 2021 dismissed for lack of merit.
  • No order as to costs.
  • The purported Civil Appeal No. 47 of 2020: Akuru David v Lawino Christine Kijange declared invalid and non-existent at law.
  • The Deputy Registrar directed to cancel and deregister the purported Civil Appeal No. 47 of 2020 from the Register of Appeals.
  • Case file in Civil Suit No. 040 of 2018 remitted to the Magistrate Grade One Court to continue execution proceedings.

Rules and key headnotes

Civil Procedure — Appeals — Mode of Appeal from Magistrates Court to High Court — Memorandum of Appeal Required
Appeals from Magistrates Courts to the High Court must be instituted by way of a memorandum of appeal under section 220(1)(a) of the Magistrates Court Act Cap 16 and Order 43 rule 1(1) and (2) of the Civil Procedure Rules. Filing an appeal by any other mode, including by notice of appeal, is improper and renders the purported appeal incompetent.
Civil Procedure — Appeals — Notice of Appeal — Not a Requirement for Appeals from Magistrates Court
A notice of appeal is not a legal requirement in the procedure of commencing a civil appeal from a Magistrates Court to the High Court. The practice of filing notices of appeal in such cases has grown as a rule of practice but is not mandated by the Magistrates Courts Act, the Civil Procedure Act, or the Civil Procedure Rules.
Civil Procedure — Appeals — Distinction Between Civil and Criminal Appeals — Different Modes of Institution
The mode of instituting appeals varies across different courts and types of proceedings. Criminal appeals to the High Court from Magistrates Courts are instituted by notice of appeal under section 28 of the Criminal Procedure Code Act without a memorandum of appeal. Civil appeals from Magistrates Courts require a memorandum of appeal. Appeals to the Court of Appeal and Supreme Court require both notice of appeal and memorandum of appeal in both civil and criminal matters.
Civil Procedure — Substantive Justice — Application of Article 126(2)(e) — Avoiding Technicalities
Courts should apply substantive justice principles under Article 126(2)(e) of the Constitution to avoid technicalities that would prejudice a party. Where a lay person files an incompetent notice of appeal in error, the court may treat it as serving its intended purpose to avoid injustice, even while declaring it invalid as a mode of appeal.

Legislation cited (14)

Cases cited (4)

  • Tarlol Singh Saggu v Road Master Cycles (U) Ltd (Court of Appeal Civil Appeal No. 46 of 2000)
  • Kasirye Byaruhanga & Co. Advocates v Uganda Development Bank (Supreme Court Civil Appeal No. 2 of 1997)
  • Board of Governors and Headmaster Gulu Secondary School v Phinson E. Odong (High Court Civil Appeal No. MG 2 of 1990)
  • Suleiman v Byekwaso (High Court Civil Appeal No. 4 of 1986)

Full judgment

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

Lawino v Akuru (Miscellaneous Application No. 141 of 2021) [2023] UGHCCD 33 (27 February 2023)
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.