[2013] UGCA 2047

THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA CIVIL REFERENCE NO. 60 OF 2011 (Arising from Misc. Application No. 15 of 2011) (Arising out of CA.7 of 2005) (Arising out of H. C. C. Appeal No. 21 of 2004) ...................................... AMAMA MBABAZI.................................. **VERSUS** <table>

MUSINGUZI GARUGA JAMES....................................

CORAM: HON LADY JUSTICE MWONDHA FAITH, JA

## **RULING**

This Application was brought before me by Ms J. B. Byamugisha Counsel for the Applicant. It sought for orders of setting aside the order of the Registrar dated 23^rd June 2011 extending time to the respondent (James Garuga Musinguzi) to serve the record of Appeal out of time.

The grounds were as follows;

- (a) That the grounds stated in the Application and the affidavit in support of it did not establish sufficient reason for the Registrar to grant the order. - (b) That the Registrar totally ignored the injustice the applicant would suffer in being called upon to provide for costs arising from a decision $2\log(25)$ of 30^th September 2004.

The application was supported by the affidavit of one Albert Byamugisha. The respondent filed a reply by an affidavit deponed by his counsel Ms Alziik Namutebi of Nyanzi Kiboneka & Mbabazi Advocates. She stated in

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paragraph (3) therein that it was true that the respond€nt was granted leave to serve th€ record of appeal in civil Appeal no. 07/2005 to the applicant withln Tdaye from 23tt June 2011.

That sufficlent reason was duly established in mlscellaneous application No 15/ 20'11 to Justiff the grant of an order €xtendlng tlmo to serve th6 record of Appeal out of tlme and that the lnstant reference was without Justlfication.

ln order to appreclate and to facilitate understand the lssu€s ln the present appllcation slnc6 counsel for the applicant attempt6d to refer to lt, ^I dlrected the reglstry to avail me with the file of High Court Civil Appeal No 7/2005 whlch contained the record of proceedings and the judgment in CA No 2112004.

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The background of tho lnstant application was {hat the respondent was the successful party in all Election Petition which was agalnst the applicant and the Electoral Commission. g,

The court grantod caets ln favour of the respondent in the Election 21\os'1"d3 Pettlon. When the bill of cosls was fled, tfie respondent in his wisdom filed two separate Bill of Costs for the appllcant in thls lnstant case and the Electoral Commission.

The taxing master went ahead to tax the bill of costs separately and the applicant was to pay a total of shilllngs139, 81 1,500/= to the respondent and the Electoral Comission bill was taxed at 10,255,000/=.

The applicant was dissatisfied with the taxation and so appealed to the High Court vide C. A No 21/2004 citing the taxation being discriminatory and un constitutional.

The High court pointed out the law the taxing master ought have followed in order to come to that. And how the costs were to be recovered. The Judge pointed out that or.18 $r$ 6 (2) of the CRR provided that the decree shall state by whom or out of what property or in what proportion the costs incurred in the suit are to be paid. The Judge in his ruling stated that the court did not specifically pronounce itself on the property out of which the costs were to be got, let alone in what proportion they were to be paid. He stated that clarity eluded that formula used to workout the ratio of costs due to each Judgment debtor to the Judgment creditor not to maintain the cause for separate bills of costs in the circumstances.

The High court cited illegally in the taxation much as the taxation had been done by consent. He relied on the case of Brooke Bond Liebig (T) Ltd v. Mallya 1975 E. A 269, which laid down the principles to follow for setting $\frac{4}{2}$ $\frac{4}{3}$ aside a consent Judgment and Makula International Ltd v. His Eminence Cardinal Nsubuga and another (1982) HCB 11 respectively on the issue of illegality.

Consequently the taxation of the bill of costs were set aside and the respondent ordered to file fresh bill of costs complying with the relevant provisions of the law. This order/decision was made on 30^th September

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2004 and the respondent prefened an Appeal to this court vide Civil Appeal no 7/2005 llled ln Feb. 2005.and the r€spondent was belng represented by thre€ firms and Advocates according to annexture RRl, a document annexed to the afffdavlt of Alberl Byamuglsha ln rejoinder and in respecl to Applicatlon flled ln court on 12! August 2013. These were (1) Ms Nyanl, Klboneka and Mbabazl advocates, (2) Ms Kwesigabo, Bamwine and Walublrl Advocates (3) Ms Ngaruye Ruhlndi, Spencer & co Advocates

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The record of procoedings was never served on the applicant ln the instant (applicatlon) sinc€ 2005 and confer€nclng notes by the respondent had been filed still without s€Mng the appllcant or his counsel. The letter for the typ€d record of proceedlngs was filed ln court on 13h October 2004 and according to the affidavit of Albert Byamuglsha, the appeal was ffled 66days out of time. Th6 same affidavit stated that upon perusal of the 'g record of proceedlngs which was served on the them aft€r the Registrar zrlo\*lz.rrg had granted th6 appllcant l€avo to s€rve them out of time, they established that the record dldn't cohtaln the R€gbfars certificate certifflng the tlme the High court took for the praparaton and delivery of tha record of proceedings to the lntended appellant.

don't contain the certificato or the l€tter which has been refened to above. Tho same affidavit state that the four records of appeal in the court registry

It was worthy noting that on annoxture RR 2 a document annexed on the affidavit reJoinder of Albert Byamuglsha whlch ls a memorandum of appeal by the respondent in the appeal ln this court, it specmcafly stated that the proceedings wsre c€rtified on 30th November 2004 but doesn't state the date they were availed to hlm. (Court took Judiclal notice on this' it was not a mlstake to leave out the date).

On the maln affidavit supporting the applicatlon for setting aside th€ Reglstra/s order to extend time, Albert Byamuglsha deponed that they were served with Court of Appeal misc. no 1512011on the 17m may 20l l. Annextures Al, A2, & A3 were to that afiecl and I noted that the affdavit of Ms Atziik Namutebl counsel for tho rospondent didn't state when the appllcation for extenslon of tlme to s€rv€ the respondent (Applicant) was filed. Jg

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ruling of His Worship Elias Klsawul dated 23rt June 2011 grantlng the respondent leave to sorve tho record of appeal out of time and required tho matter to appear befure a JwXco 6f Appoal. The applicant in the instant referencey'appllcation was dissatisfied with the zl[ o6 lza3

At the hearlng of the reference both counsels made oral submisslons. Counsel J. B. Byamugisha submitt6d that this reference was brought under rule 2 gub rule 2 and rulo .lll of the Judicature court of Appeal rules. The grounds have already been stated abovs. He submitted that suffcient

reason/cause to justify the grant of leave to serve out of time had not been established by the respondent.

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That the affidavit in support of misc. application/no 15/2011deponed by Ms Alziik Namutebi in paragraph 3 stated that "due to our own inadvertence and or mistake the record of appeal was not served on the respondent as required by law.

That the presiding registrar totally ignored the injustice the applicant would suffer in being called upon to provide for costs arising from a decision of 2004. That there was unwillingness to state what exactly constituted the honest mistake or inadvertence which prevented them to serve. That the issue was whether the explanation was cogent enough to constitute sufficient reason. He relied on the case of Bonny Katatumba and Waheed Karim (Administration of late Suleiti Haji's Estate SCC. Application No. 27/2007. Hon. Justice Mulenga JSC as he then was had this to say at $21\sqrt{8}$ page 5 where it was stated:

"I take it that it's well settled that the party should not be penalised for the mistake of his counsel unless the mistake is caused by the party's own conduct like failure to give adequate or proper instructions. For that reason I was inclined to grant the application summarily on the ground that the applicant had properly instructed the advocates to appeal but had been failed by reasons beyond his control. How ever I paused to consider the cogency of the applicants' explanation and

whether contended by the respondent an inference of dilatory conduct on the applicants part could be made from undisputed averments in the respondents' affidavit cancelling the attempted settlement and the agreement to pay the fees of the respondents Advocates.

It is well settled that rule 5 of the court of appeal rules, the court may for sufficient reason extend the time prescribed by the rules. And what constitutes sufficient reason is left to court's unfettered discretion.

In that case (Bonny Katatumba) it was stated that in that context the court will either accept a reason that prevented an applicant from taking the essential step in time or other reasons why the intended appeal should be allowed to proceed out of time. He went further to say for example an application that is brought promptly will be considered more sympathetically than one that is brought after $2\sqrt{08}/2072$ unexplained inordinate delay. But even where the application is unduly delayed, the court may grant the extension if shutting out the appeal may appear to cause injustice"

The subject in that case was delay to file an appeal and an application was filed almost after a year seeking to extend time. It took the registrar almost a whole year to prepare the proceedings.

The applicant took another seven month to file the application. His only explanation was that his former advocates ineptly handled his instructions to appeal among others.

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In that very case of Bonny Katatumba counsel Byamugisha referred to the case of Shah v Jamnadas (1959) EA. 838 where it was stated that;

"An application for extension of time under rule 9 should be supported by a sufficient statement of the nature of judgment and of his reason for deciding to appeal against it to enable the court to determine whether or not a refusal of the application would appear to cause an injustice"

Justice Mulenga went a head to state as follows "the same is true of rule 5 of court of appeal rules. It follows that where it is not shown that the enforcement of limitation of time would result in manifest denial of justice, extension of time is not justified. This imposes on the applicant the burden to show that if he is not allowed to appeal out of time, would suffer injustice". Cases like in Re Alexandria & Okello v Kayondo and Co. $v$ 21/os/2012 Advocates Civil Application No 17/96 (SC), Yona Kanyomozi Motormart(v) ltd C. A. No 8/98(SC), Shiv Construction Co. Ltd v Endesha **Enterprises C. A No 15/92(SC)** were cited in approval of this position.

The Court in SCC Appl. No. 27/07 stated among others that "the applicant made no serious attempt to show that the refusal of extension of time would result in manifest injustice although the applicant averred in paragraph 11 of his affidavit that his appeal touches on a number of novel points of law but neither the facts nor the affidavits of his learned counsels' submissions had any such points identified......"

The learned justice falled to ffnd sufficlent roason to grant the extension of time applied for, so the appllcation was dismissed with costs.

Counsel J. B Byamuglsha further submitted that by annelture 82 a letter from Kwesigawo, Bamwlne, Walubiri Advocates to the Registrar Court of Appeal dated 13h September 20'10 of whlch they roceiv€d a copy ( as it was cloarly indlcated thereon court observed).

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Counsel Walublri was the lead counsel, Annoxtur€ 83 a letter to the Registrar Court of Appeal dated 23m September 2010 was written by @unsel Byamugisha and lt was also copl€d to Kwesigaho, Bamwine, Walubiri Advocatos and Arnama Mbabal, th6 purpos€ of this letter was to inform the Registrar Court of Appeal lhat as counsels who represented 27t'October 2004. Hon. Amama Mbabazl, they had n6v6r be6n servod with a Memorandum and Record of Appeal slnce they flled a notlce of address for service #r, l\*l-S

That they had never been served s,tth th€ scfiedule for conferencing. Thal despite the above letter Ma Kweslgaho, Bamwlne & Walublrl Co Advocates never dld anything until after thre€ months when they filed a Notlc€ of Motion on 25101 1201 1.

He submitted that this was dilatory conduc.t on thelr part, which conduct was never explalned. H6 argued that ther6 was no affldavit by the applicant to show that he was not guilty of any dilatory conduct having filed the appeal ln 2005 and what he dld after fillng was not explained.

The contents of paragraph 3 and 4 of Albert Byamugisha in reply to Misc. Application 15/2011. He submitted that this was dilatory conduct on their part (both the applicant or his lawyers) were left unrebutted in that there was no affidavit by the applicant to show that he was not guilty of any dilatory conduct having filed the appeal in 2005 and what steps he took after filing the Appeal. The Registrar granted the application in the interest of justice but never referred to those points. All the justice was in favour of the respondent. Counsel further submitted.

At this point counsel J. B. Byamugisha submitted that when they were served with the record of appeal they discovered that it was an illegal document. That the affidavit of Albert Byamugisha in rejoinder filed in court on 12^th August 2013 in paragraph 4 and 5, they clearly showed that the appeal was filed out of time that is 66 days out of time. I found it useful to $2(|0|)|_{20}$ interject at this point on the grounds that this point was not raised prominently when Misc. Application 15/2011 was being heard as a preliminary point of law and secondly the affidavit in rejoinder perhaps because of the short time in which it had been filed, the respondent would not have had time to file an affidavit in rejoinder. Counsel therefore accepted not to persue it. MS. Namutebi for the Respondent, submitted that sufficient reason for extension of time had been established to justify the grant of Misc. Application 15/2011. She argued that in **Rule 5** of the Judicature Act (Court of Appeal Rules) what was required was sufficient reason was establish€d as it was counsel then for the Respondent who failed to serve the recod not the respondent (Applicant in Misc. Application No. 15/2011). Paragraph 5 of the affidavlt in support of Misc. Application 1512011 it vvas deponod as follows;

"That all along M/s Nyanzi Kboneka & Mbabazl Advocates honestly believed that the reand of appeal had been sarued on the respondent but when the anomaly was pointed out on 3082010, she d@s checked with their rcads only to disov\* that no g@f of seMce of the recod of appeal existed and could not rc@ll wlrether the read was se.ed' I noted that there was no deponement on when lnstructlons were given to her, and neither was the name of tho Lawysr then for the respondent was. g

she also deponed in paragraph 7 that the applicant ln this application wru 2t I o(l:r'3 sufier no inJustice if application 'l5l20'|,1 was granted in the respondents favour, she further submitted that there was no evidence by the applicant to show that the respondent in the instant case wa8 aware. that the record had not been served in order to attribute the mistakes done on tho respondent. That there was no affdavit in rebuttal fled for that purpose. That the record she submitted showed that the failure to serve the record in time was attributed on respondent counsel should not be visited on the respondent. She relied on the case of Troplcal Afilca Bank Ltd v Grac6 Were Muhwaya CMI Appllcatlon 3f2012 before Hon. Justice Katureebe,

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JSC. She referred to pages 12 and 13 thereto after referring to several cases which were Horizon Coaches and Mulowoza & Brothers SC Civil Application No. 18/2009 & Mulowoza & Brothers Vs N. Shah & Co Ltd Sc Civil Application 20/2010.

The ruling in the Tropical Africa Bank Ltd was as follows; in part, "no doubt counsel was negligent in not making sure that all documents particularly the letter seeking for proceedings, were served on time on all the parties conceived. I also find that the failure to produce the record of proceedings in time or certify as to the period required for its preparations was a failure on the part of Court officials. It would be wrong for this court to visit these mistakes, omissions or failures on the applicant who is only yearning for justice which he can only get by having this appeal heard and delivered by **court".** The application was allowed on those grounds.

Earlier counsel for the applicant in the Tropical Africa Bank Ltd submitted that the failure to serve the letter requesting for proceedings upon the respondent had been through inadvertence of counsel. That upon realisation of that counsel moved quickly to rectify the problem by seeking out counsel for the respondent and requesting him to accept late service of the letter. When that one did not work counsel moved quickly and filed this application. So he submitted that counsel was not guilty of dilatory conduct.

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On the second ground she submitted that the injustice referred to was the injustice the applicant in the instant application would suffer if the application for extension of time was granted. As to whether the respondent had spent the money to pay, that was not a bar to stop the applicant to enjoy the fruits of litigation. She prayed that the reference be disallowed with costs.

In a short reply by counsel J. B Byamugisha, reiterated mostly what he submitted earlier but added that an equivocal statements say;

"I made a mistake is not the same as it was herein stated that honest mistake/or inadvertence of counsel which failed to say what it was exactly. That there was no single counsel who came forward to explain the role he/she played in filing the appeal and so the evidence of sufficient reason $\mathcal{L}$ was insufficient.

$211061203$ Upon careful perusal and consideration of the application with the affidavit attached thereon and the annextures thereto and upon careful consideration of the affidavit in reply against the application and submissions of the counsel for and against the application I find the following:-

(1) That the application was brought under Rule 2(2) and 43 of the Judicature (Court of Appeal) Rules and it was clear that the subject was applicability of Rule 5 of the Judicature (Court of Appeal) Rules. It provides for extension of time as follows,

'The Couft may, for suftcient reason, extend the lime limited by these ruiea or by any decision of the aurl or High Courl for the doing of any ad authorised or reguircd by these rules, whelher before or afrer the explntion of that time and whether or beforc of affer the dolng of the act and any refercne ln these rules to any such tlme shall be onstruad as a refercnce to the time as ertended'

(2) The issu6 to be resolved ln order to set aslde or not to set aside the Reglstra/s order wsre (a) whether sufllcl€nt reason was establlshed to Justlfy the grant of the applicatlon for extension of time as prayad in Mlsc. Appllcatlon 15/2011.

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(b) Whether inJustlce would manifost to th6 applicant if the applicatlon was not grant€d. S

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(3) The case of Bonry lGbhmba and Wahoed cited supra r6li6d on by counsel for the appllcant in the instant application it was cloar that by rule 5 of the court of appeal rules ths court ls left with unfettered dlscretlon to extend the tlmb prescribed by the rules. Thal ln that context the court will elther acc€pt a reason that prevented the appllcant from taking ths essential step in time or other reasons why the intended appeal should be proceed though out of tlme.

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(4) There was no evidence from the appllcant in Misc. Application ^1512011to explain the reasons that prev€nted him from ensuring that the record of proceedings are serv€d on the applicant or his applicants counsel in this application. Counsel J. B Byamugisha counsel for the applicant whlle substantiating on the affidavit in reply to Mlsc. Appllcatlonl5l2Oll statsd that from the time they recefued a notice of appeal on 221101200/. they never heard anything more about the appeal until they received a copy of th6ir letter from the Registrar dated 13/9/2010 conceiving conferencing schedule to whlch counsel responded by letter daled 231912010. That even after that they had nothing from them (respondents until they were served with the appllcaUon 1512011 on 1715DO11. this was an appoal filed on 4t2t2OO5 what was he doing after that? t { ,\* , - ,.

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wer6 glven to all tho three firms of advocates to represent the respondont. The affrdavits of lr,l/s Alziik Namutebi the counsel merely statlng that "all along Ms Nyaml Kiboneka & Mbabazi Advocates honestly believed that the record of appeal (5) There was no evidenco to shor at all when the instructions who actually argued the applicatlon were very ivassive ln that had been served on the respondent was not sufficient

reason. Respectfully I agree with th6 ruling of Hon. Justice

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Mulenga, JSC where he staled among others that, "l posed to consider the cogency of the applicant's explanation''

- (6) There was no evidence given as to tho reason why the intended appeal should be allowed to procaed though out of time. Alziik Namutebi's deponement in paragraph 3 was insufficienl as it needed to be substantiated giving speciftc reasons why they honestly thought so. - (7) Paragraph 4 of the above said affidavit Just exposed the respond€nt in the instant application as he deliberately intended to proc€ed without the applicant. The conferencing notes as discemed ftom that affidavit were filed on 1Z1A2OO9 that was about three to four years after fling the app€al and even when they dlscovered the anomaly there was no prompt step taken to remedy the situation even contac'ting the applicant in thls application or his counsel. g ztto&lzo-r:

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(8) That Paragraph 7 of the affidavit ln support of the Notlce of MoUon in Mlsc. Appllcation 1il2011 was hlghly misconcefued slnce lt was refenlng to the injustice that would not be suffered by the respondent (Applicant in the instant case) and yet the burden was on ths applicant (Rospondent in the instant case) to show court that injustice would be manitested to him if the applicatlon for extension of time to serve was not granted.

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In the lead case in such matters i.e. Bonny Katatumba already cited above the case of Shah v Jamnadas also was referred to the Court of Appeal for East Africa had this to say;

"The object of including rule 9 in the rules of court is to ensure that the strict enforcement of the limitation of time for filing of documents prescribed by the rules shall not result in the manifest of denial of justice. It is thus essential in my view that an applicant for an extension of time under rules 9 should support by sufficient statement of nature of the judgment and of his reasons for deciding to appeal against it, to enable the court to determine whether or not the refusal of the application would appear to cause injustice" There was no sufficient statement on the nature of judgment, I had to direct the Registry to avail me with the record of Appeal in CA No 7/2005. $\n *iloslz*os\n$

(9) The submissions of counsel for the respondent could not be sustained since there was no evidence to support them as discussed from both the affidavits in support of Misc. Application No. 15/2011 and the one in reply to the instant Application.

The Affidavit in reply to oppose the instant application would not stand therefore. The case cited to support counsel for the respondent submissions i.e. Tropical Africa Bank Ltd V Grace

that all Were Muhwaya had distinguishable facts in supported by the affidavits of the applicant important facts were and the case served on Court was not numbered on its pages so I could not get page 12 and 13 which counsel Namutebi referred to. So I wondered where the authority was retrieved from.

(10). The Court in Tropical Africa Bank Ltd granted the application to extend time not solely on negligence of counsel who failed to ensure that all documents particularly the letter seeking for proceedings were served on all parties concerned but that there was failure of court officials to prepare and satisfy the records which caused delay.

Hon. Justice Katureebe stated that it would be wrong for that court to visit the mistakes or omissions or failures on the litigant yawning for justice. It was not the same in this case as already discussed above. $\mathfrak{P}$

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(11). The appeal was filed in February 2005 and the respondent just kept quiet until in 2010 when the Registrar wrote a letter, there is no evidence of what the respondent or his lawyers were doing in all those 4 years to dispose of the Appeal or explain the delay. So the deponement that all along the respondent wanted the appeal to be disposed of was hanging as it was not supported by any evidence.

This in my view was the dilatory conduct not only on the respondents lawyers' part who were the three firms of lawyers but the respondent as well. He can't hide in purported honest belief to his lawyers. Since the affidavit of Albert Byamugisha was not rebutted or opposed at all the court takes it that the respondent had nothing useful to add and therefore the evidence contained therein was reliable. Considering the instant application/ case and that of Tropical Africa Bank Ltd whose counsel acted and I believe on instructions of the applicant to contact the lawyer of the opposite party to find the solution for late service. When the contact failed he promptly filed the application for extension of time. The respondent failed to make any serious attempt to establish sufficient reason in the instant application and he failed miserably to show that a refusal for extension of time would result in manifest injustice. Stating that it was honest mistake or inadvertence $\overline{21}$ of $2012$ of the respondents' lawyer perse without any supporting evidence could not establish a prima facie case to justify the grant of leave. From the above foregoing I was satisfied that this application was justified in that there was no sufficient reason established by the applicant to justify the extension of time. And also the Registrar ignored the injustice that the applicant would suffer since the matter being appealed against was of 2004 a result of Election Petition and

the respondent never took any action until after three to four years in 2010 and 2011 when the application No 15/2011 was filed.

I read the judgment of Court in CA 21/2004 and the Memorandum of Appeal but failed to see how injustice would be manifested if that application had not been granted.

Accordingly I have no option but to allow the application and set aside the order of the Registrar dated 23^rd June 2011 extending time to the respondent James Garuga Musinguzi out of time. The Application was before the Registrar was simply an abuse of Court process in my view. Costs of this Application provided for. Right of Appeal explained.

Dated this 15^th day of August, 2013 at Kampala.

Thuevalle

**FAITH MWONDHA JUSTICE OF APPEAL.** 15^th AUGUST 2013.