[2024] UGCA 200

## THtr REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

## CIVIL APPLICATION NO. 0228 Ob- 2022

## ARISING FROM COA-OO-CV-CA.396 OF 2022

(GEOFFREY KIRYABWIRE; IRENE MULYAGONJA; OSCAR KIHIKA JJOA)

- 1. BUJJINGO AYUBU - 2. KAFUUMA IBRAHIM - 3. KASSIM ABDIRAHAMAN - 4. KASAM B. M. INVESTMtrNTS LTD

APPLICANTS

RESPONDENTS

#### VERUS

- 1. ABUBAKARI KIKOBA - 2. MARIAM MAKANGA

3. DDAMULIRA ABASI MABLE

#### RULING

# Introduction

This is an Application by way of Notice of Motion brought under Section 33 of the Judicature Act, Section 96 and 98 of the Civil Procedure Act, Orders 51 Rule 6 and 52 Rules 1 & 3 of the Civil Procedure Rules.

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The Application seeks Orders that: -

- 1. Leave be granted to validate the filing of the Notice of Appeal which was filed out of time and consequently the Memorandum of Appeal to enable the Applicants pursue their Civil Appeal No 396 of 2022 - 2. Costs of this Application be provided for.

The Application is supported by the Affidavit of Ms Rebecca Kisolo an Advocate with M/s NOMREK Law Consultants and Advocates. The Application on the other hand is opposed by a., Affidavit in Reply sworn by Abubakali Kikoba the first Respondent.

The case for the Applicants is detailed in the Motion and its supporting Affidavit and is summarised as hereinafter.

The Applicants were Defendants while the Respondents were Plaintiffs in the case Abubakali Kikoba and. 2 others V Buiiingo Ayub and 4 others HC-FD Suit No 558 of 2016. The said Suitwas decided in favour of the Respondents. The Applicant then filed an application before the trial Court for stay of execution of the said judgment (Vide HC-FD Misc Appl No. 168 of 2021)which application was not granted.

The Applicant also lodge a Notice of Appeal and filed a Memorandum of Appeal in this Court but the said Notice of Appeal was lodged out of time.

The Applicants then applied before this Court for a stay of execution (Vide Civil Misc Appl No 745 of 20221 which application was

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dismissed on the grounds that no appeal lay with this Court for the reason that the Applicant had not first sought leave of this Court to file the Notice of Appeal out of time and validate the Memorandum of Appeal; hence this Application.

## Case for the Applicant

Counsel for the Applicants submitted to us that the late filing of the Notice of Appeal was a fault of the Applicant's previous counsel while the failure to apply for leave to file the Notice of Appeal out of time was an oversight on their part both of which should not be visited on their client. Counsel for the Applicants argued that the foregoing reasons were sufficient cause for this Court to enlarge time and validate the Memorandum of Appeal. In this regard we were referred to the decision in James Bwogi and Sons Enterprises V Kampala City Council and Kampala District Land Board Civil Application No 09 of 2017 (SC).

# Case for the Respondent

On the other hand, the Respondents hrst raise an objection that the Applicants have frled this Application under the Rules of the High Court and not those of this Court.

The Respondent further argue that this Court should not allow this Application because the said Notice of Appeal was backdated and hence is fraudulent. Counsel for the Respondent argued that such a defect cannot be cured through validation or an application for amendment. In this regard we were referred to the authorities of

Shamsheralizaver Virji V F. L. Kadibhai & 3 Ors CA No 81 of 2004 (COA) and Makula International Ltd V His Eminence Cardinal Nsubuga & Anor 198 1 HCB 11.

Counsel for the Respondent further argued that the Applicants could not invoke Article 126 (2) (e) for two reasons. First, the said article could be used to wipe out procedural law and in this regard we were referred to the case of Utex Industries Ltd V Attorney General Civil Application No 52 of 1 995. Secondly, the backdating of a Court record cannot be viewed as a mere technicality.

#### Resolution and Decision

We have addressed ourselves to the Notice of Motion and the arguments of the parties for and against it. We have also addressed ourselves to the authorities shared with us for which we are grateful.

We shall start with the objection of using the wrong court rules in this application. We agree that the Applicant used the Rules of the High Court instead of the enabling Rule 5 of the Judicature (Court of Appeal) Rules (hereinafter referred to as "the Court of Appeal Rules") which provides for extension of time. However, it is our considered view that using the wrong court rules is a clear fault of Counsel but this notwithstanding, the rest of the Motion clearly shows that the application is for leave to expand time within which to file the Notice of Appeal. In this regard the Respondent is not prejudiced by this error of Counsel. It is therefore our decision that in the interests of substantive justice we shall over rule the objection.

The legal requirement for grant of extension of time as indicated above is Rule 5 of the Rules of this Court which provides: -

"... The court maA, for sulficient reason, extend the time limited by these Rules or bg ang decision of the court or of the High\_Court for the doing of ang act authoised or required bg these Rules, whether before or after the expiration of that time and whether before or after the doing of the qct; and ang reference in these Rules to ang such time shall be constnted as a reference to the time as ertended..."

There are also a lot of authorities interpreting this Rule from the Supreme Court and this Court whose on extension of time are in pai mateia.

Justice Joseph Mulenga (JSC as he then was) in the case of Bonney Katatumba V Waheed Karim Civil Application No 27 ot 2OO7 (SC) addressed the meaning of the words "sufficient reason" and held: -

o... "What constihttes 'sufficient reason' is lefi to the court's unfettered discretion. In this context, the court will accept either a reason that preuented an applicant from taking the essential step in time, or other reasons uhg the intended appeal should be allowed to proceed though out of time. For example, an application that is brought promptlg will be considered more sAmpathetically thqn one that is brought afier unexplained inordinate delay. But euen uthere the application is undulg delaged, the court mag grant the extension if shutting out the appeal maA appear to cause injustice..."

In Florence Nabatanzi v Naome Binsobodde, SC Civil Application No. 6 of 1987 Court found that; "The administration of justice normallg requires that substance of all disputes should be inuestigated and decided. on their meits and. that errors and lapses should not necessaily debar a litigant from pursuit of his ights. Where an applicant instructed a lautger in time, his ights should not be blocked on the grounds of his lawger,s negligence or omission to complg utith the requirement of the law.,,

In Tropical Africa Bank Ltd v Grace Were Muhwana, SC Civil Application No. 3 of 2012, Katureebe, JSC (as he then was) relied on an earlier case of Godfrey Magezi and Brian Mbazira v Sudhir Rupaleria, (SC) Misc. Application No. 6 of 2003 where Karokora, JC (as he then was) held that;

"It is now settled that omission or mistake or inaduertence of counsel ought not to be uisited on to the litigant, leading to the striking out of his appeal therebg denging him justice. There are manA decisions from this court and other jurisdictions in which it has been held that an application for extension of time, such as this one, tahere mistake or error or misunderstanding of the applicants' legal ad.uisor, euen though negligent haue been accepted as a proper ground. for graruting

relief.

Kasaala Growers Cooperative Society v Kakooza Jonathan & Anor, Civil Application No. 24 of 2O7O (SC) Tsekooko, JSC found as follows:

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"I think that in land cases it is proper to allow parties to exhaust their proper legal ights of appeal. Naturallg no court should condone lack of diligence bg a party seeking a remedg from court."

Applying the afore stated principles to this application, we find that the Applicant, notwithstanding professional errors, has made out a case of "sufficient reason" for us to extend time. We say so for the following reasons.

First, we have reviewed the Notice of Appeal said to be backdated (Annexture "C" to the Affidavit in Response) and hnd that the said date alleged to have been back dated is actually the date of the Notice of Appeal (12tr, February 2021). The said Notice was then endorsed by Court on the 4th March 2O2l . The fact that the two dates are different is not evidence of backdating.

Secondly, looking at the file as a whole, this dispute involves a commercial property being a house on Plot 139 Block 12 being land at Kasaato Zone, Kisenyi II Parish Centra-l Division in Kampala. This is clearly a valuable property for which it better to fully exhaust the legal issues involved in its ownership so that it does not go to waste.

Thirdly, we have not discerned any dilatory conduct on the part of the parties themselves but rather their lawyers.

## Final Decision

1. The Application is allowed

- 2. Leave is granted to extend time within which to file a Notice of Appeal and consequently the Notice of Appeal and Memorandum of Appeal on record are validated. - 3. The Applicant is given 30 days within which to file a Record of Appeal if ready at the High Court. - 4. Costs shall be in the cause.

## We so Order

Dated at Kampala this . j..,..1.. day of A1-i.. 2024.

I

GEOFFREY KIRYABWIRE, JA

s

IRENE MULYAGONJA, JA

l^l\*^t

OSCAR KIHIKA, JA