[2025] UGCommC 110

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (COMMERCIAL DIVISION) MISCELLANEOUS APPLICATION NO. 2503 OF 2023 10 (ARISING FROM CIVIL APPEAL NO. 007 OF 2019)

EGESA NOAH………………………………………………….…APPLICANT

# VERSUS

# POST BANK UGANDA LIMITED………………………….. RESPONDENT

# BEFORE: HON. LADY JUSTICE SUSAN ODONGO

#### 20 RULING

This Application is brought by Notice of Motion under the provisions of Section 33 Judicature Act cap 13, section 98 Civil Procedure Act, Order 44 rules 2,3 and 4 and Order 52 rule 2 and 3 of the Civil Procedure Rules, S. I. 71-1 for orders that:

- a) Leave be granted to the applicant herein to appeal the Judgement/ruling of this - Honorable Court by Hon. Lady Justice Grace Harriet Magala on the 19th 25 day of September 2023 dismissing Civil Appeal No. 007 of 2019 - b) Costs of this Application be provided for.

The application was supported by the applicant's affidavit filed in this court on 18th October 2023, and a subsequent affidavit in rejoinder deponed by the applicant.


#### 5 Background:

The background of this case as stated by the appellate court is that:

The applicant who was the plaintiff in civil suit no. 1055 of 2017 commenced the suit against the respondent for the recovery of Ugx 16,428,626/=, general damages, interest and costs of the suit. The claim emanates from unauthorised ATM 10 withdrawals made on the applicant/plaintiff's bank account held with the Respondent/defendant bank allegedly during the period the applicant/plaintiff was in police custody.

On 28th January 2019, the trial magistrate ruled in favour of the applicant/Plaintiff and held, inter alia, that once the plaintiff denied making the withdrawals and contended

15 that he never exposed his ATM card details to a third party, the burden shifted to the defendant to show that the plaintiff was responsible for the disputed transaction. Further that the defendant had a duty of care to the plaintiff which was breached by failing to provide CCTV footage in time to indicate what happened on the fateful days. That the defendant also failed to block the plaintiff's account. The 20 respondent/defendant appealed the decision under Civil Appeal No. 007 of 2019.

On 18th September 2023, the Hon. Judge who heard the appeal ruled in favour of the respondent/defendant (Appellant) finding that the learned trial magistrate err in law and fact in holding that the appellant was in breach of his contractual duty of care to the plaintiff and also when she held that the Appellant was liable for the withdrawal 25 of monies from the respondent's bank account using an ATM Card.

The applicant/plaintiff being dissatisfied with the orders of the Hon. Judge filed this

# Applicant's application and affidavit in support:

In the said application, the applicant points out that the time within which the appeal

application on 18th October 2023, for grant of leave to appeal the Judgement/ruling.

30 should have been lodged has expired. The applicant further asserts that his appeal

5 raises pertinent points of law and has a high likelihood of success. That he cannot file an Appeal against the judgment/ruling of this court without leave, hence the application.

# Respondent's reply

The respondent opposed the application by an affidavit deponed by Paul Keishaari, a 10 legal officer of the respondent stated that the applicant has no justifiable reason for his failure to file the intended Appeal within the time prescribed by law. Further that the application is prejudicial to the respondent given that the intended appeal affects the certainty and finality of court decisions.

# Applicant's Rejoinder:

15 In rejoinder the applicant contended that there is no inordinate delay in bringing the application. The applicant further averred that on 29th September 2022 Her Lordship Lady Justice Harriet Grace Magala issued directives to parties and guided that the ruling shall be on notice. That thereafter the applicant made several follow ups in respect to the date of the Judge's decision and as a result of the persistent following the 20 Judge advised the applicant to leave his Whatsapp contact with her secretary for judgement notification. The applicant obliged. However, no notice of the decision was given. The applicant learnt from the clerk when he contacted the clerk on 18th

October 2023 that the Judgement had been delivered on ECCMIS on 18th September 2023.

# 25 Applicant's submissions

The applicant addressed the court on the following legal issues: whether leave to appeal out of time should be granted to the applicant and what are the available remedies for the parties.

It was the submitted by the Applicant that indeed the respondent filed Civil Appeal 30 No. 007 of 2019 which was allowed by Hon. Lady Justice Grace Harriet Magala and

- delivered on the 19th 5 day of September 2019. That during the hearing the court informed the parties that the ruling would be on notice but the same was delivered on 19th day of September 2019 without notice and the Applicant only learnt of the decision later on 18th October 2023 when he contacted the clerk of the Judge. - The Applicant cited section 66 of the Civil Procedure Act which confers a right of 10 appeal from decrees of the High Court to the Court of Appeal. He highlighted that section 79(1)(a) of the said Act sets a limitation period within which every appeal, except otherwise provided, should be entered, and that is, thirty days of the date of the decree or order of the court. He then proceeded to state that under section 79(1)(b) of the Act, an appellate court may for good cause admit an appeal though the period of - 15 limitation prescribed by the section (30 days) has lapsed. The applicant also asserted that the law requires that a notice of appeal should be lodged in the High Court within fourteen days after the date of the decision (Rule 76(2) of the Judicature (Court of Appeal Rules) Directions). - Notably an application for enlargement of time is not granted as a matter of course but 20 is discretionary and dependent of proof of "good cause". Evidence supporting the application should be carefully examined, and if it doesn't clearly show that the applicant meets the necessary criteria, the request should be denied. The applicant referred to his affidavit in rejoinder at paragraph 3 where the applicant explained the effort made to find out from both the court and his advocate when the matter was to 25 be decided. Where the dilatory conduct, mistake, faults are attributable to the advocate, they should not be visited on the litigant to his detriment. It would be a denial of justice considering the circumstances of the case to shut the Applicant out

from exercising his rights. The interests of justice usually require that a dispute should

be determined on the merits and any errors and lapses should not debar a litigant from 30 the pursuit of his rights unless the lack of adherence to rules renders the appeal process difficult. Consequently, in the interest of justice and where the applicant has shown good cause, the courts have enlarged time even where an application for leave to 5 extend time within which to appeal was filed after over two years from the date the judgment was passed. *(Muzamil Ayile Versus Rose Tarapke & Ors Miscellaneous Application No. 0024 of 2013 cited Andrew Bamanya V Shamsherali Zaver, S. C. Civil Appln. No. 70 of 2001; Sabiiti Kachope & 3 Ors v Margaret Kamuje, S. C. Civil Applicn No. 31 of 1997 [1999] KLR 238*

# 10 Respondent's submissions

The respondent raised a preliminary objection in their submissions to the effect that the application is filed in the wrong court and under the wrong law. According to the respondent, the Application is premised on the provisions of S.33 of the Civil Procedure Act, Order 44 rules 2,3 and 4, Order 52 rules 1, 2 and 3 of the Civil

- 15 Procedure Rules S. I 71-1 as amended seeking for the extension of time from the High Court within which to file an Appeal against the judgement and orders delivered by the same court. That according to section 79(1) of the Civil Procedure Act and rule 5 of the Judicature (Court of Appeal Rules) Directions S. I. 130-10 of 2012 the application should have been made in the Court of Appeal. For this error, the - 20 application should be dismissed. *(Ogbuonye v Kawooya (Civil Appeal no. 40 of 2016))*

In respect to the issue on whether leave to appeal out of time should be granted, the respondent relied on the criterion set by the court in *Mulindwa v Kisubika (2018)* UGSC *38* to determine the application. Accordingly, the court laid down 4 guiding principles, namely, the length of delay; the reason for the delay, the possibility or chances of 25 success and the degree of prejudice to the other party.

On length of the delay the respondent submitted that the decision from which the applicant intends to appeal was rendered on 18th September 2023 and the applicant having been dissatisfied should have lodged a notice of appeal in this Court within 14 days (1st October 2023) in accordance with regulation 76(2) Judicature (Court of

Appeal Rules) Directions. However, the applicant only took action on 18 30 th October 2023 even when he had knowledge of the judgment and orders of the court.

- 5 On the reason for delay, the respondent submitted that the applicant had not given sufficient reason for not lodging the appeal in time. The applicant seeking for extension of time has the burden of proving to the Court's satisfaction that for sufficient reasons it was not possible to appeal in the prescribed time. Sufficient reason should relate to the inability to take a particular step in the proceedings *(Kananura Andrew Kansiime v* - 10 *Richard Henry Kaijuka Civil reference no. 15 of 2026).* The reason stated by the applicant in his rejoinder and not in the affidavit in support of the application was an afterthought only triggered by the respondent's Affidavit in reply which pointed out that there was no justification for the Applicant's non compliance with the timelines. Then again the applicant has not adduced evidence to prove that he followed up on - 15 the matter with the Judge as stated for whoever desires the Court to give judgment as to the existence of a fact which they assert must prove that fact exists (see; section 101 Evidence Act). On the argument that the dilatory conduct of counsel should not be visited on the client, the respondent submitted that indeed the advocate has exhibited lapses and dilatory conduct which should be justification for the applicant as client not - 20 to continue remaining the advocate. However, considering the applicant is still enjoying the services of the same counsel he is estopped from seeking protection from the misdeeds in their service. On possibility of success the respondent submitted that from the grounds of the appeal stipulated in the affidavit in support, the appeal does not have a chance of success considering that the learned Judge properly re-evaluated - 25 the evidence on record and arrived at the right decision. Further that the grounds of appeal are outside the provision of section 74 and 72 of the Civil Procedure Act for being on matters of fact and not law, hence are likely to fail.

On degree of prejudice to the other party, the respondent submitted that whereas the applicant argues that the respondent will not be prejudiced by the grant of application 30 because the respondent has not taken steps to enforce the judgment, the nature of the orders issued by the court do not necessarily require enforcement.

#### Representation

5 When this application came up for hearing, the Applicant was represented by M/s Taskk Advocates, and the respondent by Mr. Eden Mulondo of M/s Akamba and Company Advocates. The parties filed written submissions to, inter alia, clarify their cases.

# Issues for determination

- 10 I have had the opportunity of considering the evidence of both sides which was by way of affidavits. Submissions of both counsel and authorities referred to me have also been considered. The first issue for the determination of this court is whether leave to appeal out of time should be granted to the applicant. However, from consideration of the parties' pleadings and submissions, as informed by the Preliminary Objection, the first - 15 issue to be interrogated seems to be whether this Honourable Court has jurisdiction to entertain this application of leave to extend time to file an appeal. The issues for determination are therefore: - 1. Whether this Honourable Court has jurisdiction to entertain this application of leave to extend time to file an appeal. - 20 2. Whether leave to appeal out of time should be granted to the applicant. - 3. What are the available remedies for the parties.

# Court's determination.

Whether this Honourable Court has jurisdiction to entertain this application for leave to extend time to file an appeal.

25 The issue is premised on the respondent's preliminary objection, which challenges the jurisdiction of this court to hear the application. Jurisdiction is fundamental to the exercise of judicial power. As such, any question relating to jurisdiction must be addressed and resolved at the outset, as it determines the court's competence to hear and determine a matter.


- 5 The respondent submitted that the application is filed in the wrong court and under the wrong law. Accordingly, this Application is premised on the provisions of Section 33 of the Civil Procedure Act, Order 44 rules 2,3 and 4, Order 52 rules 1, 2 and 3 of the Civil Procedure Rules S. I 71-1, seeking an order from the High Court for the extension of time within which to file an Appeal against its own judgement and orders. - 10 The respondent contends that, in accordance with section 79(1) of the Civil Procedure Act and rule 5 of the Judicature (Court of Appeal Rules) Directions S. I. 130-10 of 2012 the proper forum for seeking an extension of time to appeal is the Court of Appeal, rather than the High Court. For this error, the respondent prayed that this court dismisses the application. The respondent cited the case of *Ogbuonye v Kawooya Civil* - 15 *Appeal no. 40 of 2016.*

As stated by the respondent, this application was brought under the provisions of Section 33 Judicature Act cap 13, section 98 Civil Procedure Act, Order 44 rules 2,3 and 4 and Order 52 rule 2 and 3 of the Civil Procedure Rules, S. I. 71-1 for orders that: Leave be granted to the applicant herein to appeal the Judgement/ruling of this

Honorable Court by Hon. Lady Justice Grace Harriet Magala on the 19th 20 day of September 2023 dismissing Civil Appeal No. 007 of 2019, and Costs of this Application be provided for.

The principal provisions in this case being Order 44 rules 2,3 and 4 of the Civil Procedure Rules, S. I. 71-1.

25 Order 44 provides as follows:

# *44. Appeals from orders*

- *(1) An appeal shall lie as of right from the following orders under section 76 of the Act—* - *(a) an order under rule 10 of Order VII returning a plaint to be presented to the proper court;* - *(b) an order made under rule 23 of Order IX rejecting an application for an order to set aside the*

30 *dismissal of a suit;*

5 *(c) an order under rule 27 of Order IX rejecting an application for an order to set aside a decree passed ex parte;*

*(d) an order made under rule 21 of Order X;*

*(e) an order under rule 10 of Order XVI for the attachment of property;*

*(f) an order under rule 19 of Order XVI pronouncing judgment against a party;*

- 10 *(g) an order under rule 31 of Order XXII on an objection to the draft of a document or of an endorsement;* - *(h) an order under rule 67 of Order XXII setting aside or refusing to set aside a sale; (i) an order that execution be levied made under rule 6 of Order XXIII;*

*(j) an order under rule 8 of Order XXIV refusing to set aside the abatement or dismissal of a suit;*

15 *(k) an order under rule 9 of Order XXIV giving or refusing to give leave;*

*(l) an order under rule 6 of Order XXV recording or refusing to record an agreement, compromise, or satisfaction;*

*(m) an order under rule 2 of Order XXVI rejecting an application for an order to set aside the dismissal of a suit;*

- 20 *(n) orders in interpleader suits under rule 3, 6 or 7 of Order XXXIV;* - *(o) an order made upon the hearing of an originating summons under Order XXXVII;*

*(p) an order made under rule 2, 3 or 6 of Order XL;*

*(q) an order made under rule 1, 2, 4 or 8 of Order XLI;*

*(r) an order under rule 1 or 4 of Order XLII;*

25 *(s) an order of refusal under rule 16 of Order XLIII to readmit or under rule 18 of that Order to rehear an appeal;*

*(t) an order under rule 4 of Order XLVI granting an application for review;*


5 *(u) an order made in an interlocutory matter by a registrar.*

*(2) An appeal under these rules shall not lie from any other order except with leave of the court making the order or of the court to which an appeal would lie if leave were given.*

*(3) Applications for leave to appeal shall in the first instance be made to the court making the order sought to be appealed from.*

10 *(4) Application for leave to appeal shall be by motion on notice.*

*Ssekaana Musa and Salima Namusobya Ssekaana in Civil Procedure and Practice In Uganda at page 375* state that, there is no right of appeal against judgment or order of court of a competent jurisdiction unless a statute expressly so provides. At page 378 the authors state that where there is no such a right, then an appeal shall be by leave of that same 15 court which made the order.

I hold the view that the right of appeal is not intended to grant parties unlimited opportunity to relitigate but rather to correct errors, retain coherence of the law and ultimately to serve justice. In addition, the right of appeal is not intended to be exercised at the mere discretion of a dissatisfied party. The law imposes a limitation

20 period to prevent indefinite exposure to legal uncertainty and to uphold the finality of judicial decisions.

It is critical to highlight that the intended appeal is to lie from the High Court to the Court of Appeal. The Judicature (Court of Appeal Rules) Directions S. I. 13-10 of 2000 is the governing law for the practice and procedure of the Court of Appeal in 25 connection with appeals and intended appeals from the High Court to the Court of Appeal and the practice and procedure of the High Court in connection with appeals to the Court of Appeal. (Rule 2(1) of the Judicature (Court of Appeal Rules) Directions S. I. 13-10 of 2000). Rule 2(2) thereof recognizes the inherent jurisdiction of the Court of Appeal and of the High Court in respect to making orders for the ends of justice in

 5 respect to appeals. Such orders include extending time, correcting procedural errors, setting aside judgments. The provision states:

*" Nothing in these Rules shall be taken to limit or otherwise affect the inherent power of the court, or the High Court, to make such orders as may be necessary for attaining the ends of justice or to prevent abuse of the process of any such court, and that power shall extend to setting aside*

10 *judgments which have been proved null and void after they have been passed, and shall be exercised to prevent abuse of the process of any court caused by delay."*

The rules establish a robust appellate framework, clearly stipulating the procedure and the timelines within which each step in the appeal process must be undertaken. Rule 40(1) of the Judicature (Court of Appeal rules) Directions S. I 13-10 provides for the

15 time frame for lodgment of an appeal from the High Court. The rule instructs as follows:

# *"40. Application for certificate of importance or leave to appeal in civil matters*

*(1) In civil matters—*

*(a) where an appeal lies if the High Court certifies that a question or questions of great public or* 20 *general importance arise, application to the High Court shall be made informally at the time when the decision of the High Court is given against which the intended appeal is to be taken; failing which, a formal application by notice of motion may be lodged in the High Court within fourteen days after the decision, the costs of which shall lie in the discretion of the High Court; and*

25 *(b) if the High Court refuses to grant a certificate under paragraph (a) of this subrule, an application may be lodged by notice of motion in the court within fourteen days after the refusal to grant the certificate by the High Court for leave to appeal to the court on the ground that the intended appeal raises one or more matters of public or general importance which would be proper for the court to review in order to see that justice is done". (Emphasis mine)*


- 5 As seen from the authorities cited by both sides, the courts are cognizant of the likelihood of blunders and lapses which may result in a party failing to seek leave by filing a formal application within the prescribed time. In as much as an applicant may have the right of appeal, where he/she has not complied with the timeframe for lodgment of an appeal they are constrained from exercising this right and can only do - 10 so if the court enlarges the period. The court would be moved by a formal application. Under Rule 42(1) of the Judicature (Court of Appeal rules) Directions, which guides on the order of hearing applications, it stipulates that whenever an application may be made either in the Court of Appeal or in the High Court, it shall be made first in the High Court. - 15 In this application, the order sought is for leave to appeal the Judgement/ruling of this Honorable Court. However, the applicant's evidence in support of the application states that he intends to appeal against the judgment of this court but he has not been able to comply with the period prescribed for lodging the appeal. In the premises, he seeks leave of this court to enlarge time to enable him file his appeal. - 20 The applicant commenced this application under Order 44 rules 2,3 and 4 of the Civil Procedure Rules. My reading of the said provisions is that they pertain to leave to appeal and not to applications for leave to extend time within which to appeal. To that extent, I am inclined to agree with the Respondent that the application has been instituted under the wrong provisions of the law. The application and the supporting 25 affidavit lack coherence. A clear indication of lack of diligence on the part of counsel. - However, with the guidance of rule 2 and rule 42(1) of the Judicature (Court of Appeal rules) Directions, I do not agree with the respondent that this Honourable Court does not have jurisdiction to entertain this application. The case of *Ogbuonye v Kawooya Civil Appeal no. 40 of 2016* cited by the respondent is clearly distinguishable, as it concerned - 30 an appeal directed to the High Court whereas the present application arises from a decision of the High Court itself. Accordingly, reliance on section 79 of the Civil

5 Procedure Act is misplaced, as it governs appeals to the High court and not appeals from it. Having found so, I will proceed to determine the issue on whether leave to appeal out of time should be granted to the applicant.

#### Issue 2

#### Whether leave to appeal out of time should be granted to the applicant.

10 As stated above the specific provision governing the timeframe for lodging an appeal from the High Court is found in rule 40 of the Judicature (Court of Appeal rules) Directions. Notably, a formal application by notice of motion is lodged in the High Court within fourteen days after the decision to be appealed against.

According to the applicant's affidavit in support, the time within which the appeal 15 should have been lodged has expired. The applicant further asserts that his appeal raises pertinent points of law and has a high likelihood of success. However, he cannot file an Appeal against the judgment/ruling of this court without leave, hence the application.

The applicant's reason for extension of time as per the affidavit in rejoinder is that on

29th 20 September 2022, Her Lordship Lady Justice Harriet Grace Magala issued directives to parties and guided that the ruling shall be on notice. That thereafter the applicant made several follow ups in respect to the date of the Judge's decision and as a result of the persistent following the Judge advised the applicant to leave his Whatsapp contact with her secretary for judgement notification. The applicant 25 obliged. However, no notice of the decision was given. The applicant learnt from the clerk when he contacted the clerk on 18th October 2023 that the Judgement had been delivered on ECCMIS on 18th September 2023.

While the right of appeal is fundamental, it is not unlimited in time. Where an appeal is lodged beyond the statutory 14 day period, the applicant assumes the burden of 30 demonstrating sufficient cause for the delay. In such context, it is the duty of the court


- 5 to consider the circumstances of each case. In determining its position, the court may take into account various legal and factual questions, for instance; from the time of learning of the decision what steps have been taken to appeal; is the applicant guilty of unexplained and inordinate delay in commencing the appeal; has the applicant accounted for the delay; are the grounds of appeal substantial; is the extension - 10 prejudicial to the respondent.

In the case of *Mulindwa v Kisubika (2018) UGSC 38*, where the applicant's reason for failure to lodge appeal in time was that he was taken ill at the time, the court stated that each application is to be viewed by reference to the criterion of justice and it is important to bear in mind that time limits are there to be observed, and justice may be

15 defeated if there is laxity. The court went on to provide factors to be considered in an application for extension of time. These are: the length of delay; the reason for the delay, the possibility or chances of success and the degree of prejudice to the other party.

# The length of delay.

- 20 This is a critical factor because it helps the court assess whether the applicant has acted diligently and in good faith. A short delay, especially when reasonably explained, may not prejudice the other party or the integrity of the proceedings. Conversely, a prolonged or unjustified delay may suggest negligence, indifference or an abuse of court process. The applicant invited this court to consider the case of *Muzamil Ayile* - 25 *Versus Rose Tarapke & Ors Miscellaneous Application No. 0024 of 2013* which cited *Andrew Bamanya V Shamsherali Zaver, S. C. Civil Appln. No. 70 of 2001; Sabiiti Kachope & 3 Ors v Margaret Kamuje, S. C. Civil Applicn No. 31 of 1997 [1999] KLR 2 38* where time to appeal was extended even after the applicant had taken over 2 years to file the appeal.

I must state that in the said authorities the court clearly found that the applicant had 30 not furnished a convincing explanation for the delay but due to the sensitive nature of the subject matter, that is a land dispute, the court granted the application. In the


- application before me, the length of delay is not as long, judgment was on 19th 5 September 2023 and the application for extension of time was on 18th October, 2023, late by a period of about two weeks. It must be acknowledged that even a delay of one day outside the prescribed time can, depending on the context, result in prejudice to the other party or affect the integrity of the proceedings. - 10 Reason for delay

This brings into focus the legal concept of sufficient cause which must be established by the applicant to justify delay. The concept of 'sufficient cause' has been elaborated upon in numerous judicial decisions, with courts emphasizing factors such as diligence, good faith and absence of prejudice. *(see; Nicholas Roussos v Gulam Hussein*

- 15 *Habib Virani Nazmudin Habib Virani, Civil Appeal no. 9 of 1993).* By judicial practice "sufficient cause" is liberally constructed in order to advance substantial justice, when no negligence, or inaction or want of bona fides, is imputed *(see Bishop Jacinto Kibuuka v. The Uganda Catholic Lawyers' Society and two others, H. C. Miscellaneous Civil Application No. 696 of 2018).* What constitutes sufficient reason is left to the Court's unfettered - 20 discretion. The court will accept either 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 though out of time. *(see; Boney M. Katatumba V Waheed Karim SC Civil Application No. 27 of 2007).* Basically, sufficient reason should relate to the inability to take a particular step in the proceedings *(Kananura Andrew Kansiime v Richard Henry* 25 *Kaijuka Civil reference no. 15 of 2026).* - In *Shanti v. Hindocha and others [1973] EA 207*, it was held that:

*"The position of an applicant for an extension of time is entirely different from that of an applicant for leave to appeal. He is concerned with showing sufficient reason why he should be given more time and the most persuasive reason that he can show is that the delay has not been*

30 *caused or contributed to by dilatory conduct on his own part. But there are other reasons and*

*these are all matters of degree"*

- 5 In *Ooko Otanga v Phillister Marry Nabunjo [1965] 1 EA 384* where the defendant who was acting in person, entered an appearance to sue but did not take any further steps in the matter as she was under the honest but mistaken belief that the procedure in the High Court was the same as in the Buganda Courts and that she would in due course be summoned by the Court to attend the hearing. No notice of the hearing was given to - 10 the defendant and judgment was entered in her absence. Subsequently the defendant applied for setting aside the ex parte judgment. It was held that an additional warning should have been given in the summons of the need to file a defence within the prescribed period and the consequence of default in doing so. Owing to her ignorance of the Rules of Procedure of the High Court, the defendant was prevented by sufficient 15 cause from appearing when the suit was called on for hearing.

The key issue in this application, is whether the Honourable Judge's failure to give notice of judgement delivery, contrary to her earlier undertaking, constitutes sufficient cause for the applicant's delay in filing the appeal.

The applicant contends that the delay in filing the appeal was occasioned by the 20 Honorable Judge's failure to give prior notice of the delivery of judgment, contrary to her earlier undertaking. The applicant learnt from the clerk when he contacted the clerk on 18th October 2023 that the Judgement had been delivered on ECCMIS on 18th September 2023. He argues that but for this omission, the appeal would have been filed within time. The applicant attached the record of proceedings by which the Hon. 25 Judge pronounced that judgment would be on notice. In addition, the applicant attributes his failure to file the appeal in time to the inaction of his counsel whose dilatory conduct he submits should be treated as sufficient cause justifying the extension sought. He implores this court not to visit his counsel's misdeeds on him.

As stated by the applicant the decision of the court had been delivered via ECCMIS, 30 an electronic case management system designed to generate automatic notifications. However, when the court specifically undertakes to notify parties prior to the delivery of a ruling, or any court related action, it creates a legitimate expectation, and a party


5 is entitled to rely on that assurance and will reasonably await such notification before taking further steps.

#### Possibility or chance of success of the appeal

At paragraph 6 of the affidavit in support, the applicant states that his lawyers have informed him that the intended appeal has a high likelihood of success. He further 10 stipulates the grounds on which he intends to challenge decision of the court. The

a). The learned trial judge erred in law and fact when she failed to evaluate the evidence on record as a whole thereby arriving at wrong decision.

b). That the learned trial Judge erred in law and fact when she held that the Icam 15 evidence was secondary and not taking into account the fact that the respondent was in the military detention and reaching a wrong decision.

The grounds of appeal appear to raise substantial matters, but they suffer from poor construction and lack of clarity. Upon reviewing the judgment from which the applicant intends to appeal, it appears that the second ground of appeal should address

20 the legal duty owed by a bank to its customer, particularly in light of the trial court's finding that the appellant bank did not owe such a duty to the respondent. To that end, the second ground of appeal ought to be redrafted to capture that legal issue more accurately.

# Prejudice to the other party

grounds of appeal are that;

- 25 The rules of procedure are deliberately structured to impose clear timelines for the conduct of litigation. This framework is intended to prevent undue delay and to safeguard the respondent from prejudice that may arise from prolonged uncertainty or tactical litigation. The court in *Mulindwa v Kisaka* (Supra), considered that the respondent had been dragged to court for over ten years by the appellant and is being - 30 made to incur costs of litigation that the appellant is by his own admission which is on

- 5 the record, incapable of paying or reimbursing. The Justices of the Court of Appeal found that the continuation of the proceedings in question would greatly prejudice the respondent who was holding a Decree from the High Court since 1995 which Decree the appellant has stubbornly refused to satisfy to date. The court cited with approval the words of Newbold P in *Lakhashmi Brothers Ltd v R. Raja & Sons [1966] E. A 313, 314* - 10 which state:

*"There is a principle which is of very greatest importance in the administration of Justice and that principle is this: It is in the interest of all interested persons that there should be an end to litigation",*

In *Muzamil Ayile* (supra) in as much as the court found that there had been delay by 15 the applicant in the prosecution of the intended appeal, the court observed that the respondent had not taken any steps yet in enforcing that judgment. The court held that allowing the applicant to appeal out of time will in convenience the respondent whose enforcement of decree will be delayed, but is unlikely to occasion him any significant prejudice. The court was of the view that the dispute at hand would be better put to

``` 20 rest if it progressed to a higher court. ```

The applicant has submitted that the respondent has not taken any steps to enforce the judgment and as such extending time to enable the applicant to appeal is unlikely to occasion the respondent any significant prejudice. The respondent opposed this and submitted that the only action not taken is to tax the costs of the Appeal as granted by

25 the Court. The nature of the orders issued by this Court does not necessarily require 'enforcement'. Further, this Appeal was filed in 2019 and it was determined and judgement delivered in 2023. The Respondent has had to wait long and hard for justice considering that this dispute has been in the Court system since 2017 when the civil suit was first instituted. The Respondent should not be held captive to endless 30 litigation. The respondent also submitted that this Court having issued a landmark decision on the usage of the Automated Teller Machines by financial institutions this


5 Application if allowed has the potential of throwing banking institutions into uncertainty.

I have considered the arguments of both sides on this matter. I observe that the judgement of the trial court was in favour of the applicant. The court awarded the applicant Ugx 16,413,041/= for breach of duty by the respondent, Ugx 5,000,000/= 10 as general damages, interest at 10% and costs of the suit. The respondent then successfully appealed that judgment and orders, which were set aside with costs. In the present circumstances, the only aspect of the judgment that is enforceable is the award of costs. From the evidence of the parties, the successful party has not taken any steps in enforcing the award of costs. Therefore, given the nature of the award and the 15 fact that the respondent has not taken steps to pursue it, it is unlikely that granting the extension will occasion the respondent any significant prejudice. I agree with the applicant that this matter warrants final determination by a higher court.

I have taken into account the various factors relevant to the grant of application for extension of time. While these factors are not exhaustive, they provide a useful guide 20 for the court in the exercise of its discretion. I find that the applicant has, to a great extent, satisfied this court that it is just and equitable for the time to file his appeal to be enlarged. Considering the circumstances outlined, the delay in filing this application has not been inordinate and is deemed reasonable. Taking into account that delay to file the appeal was due to court related factors, the applicant has demonstrated that he 25 was prevented by sufficient reason from taking the essential step in time. The applicant has set out the proposed grounds of appeal, demonstrating that the intended appeal is not a sham. As already considered, it is unlikely that granting the extension will occasion the respondent any significant prejudice.

Therefore, borrowing the language of the Supreme Court in *Banco Arabe Espanol v Bank*

30 *of Uganda [1999] 2 EA 22,* and in the interest of justice, I hold the view that "*errors or lapses should not necessarily debar a litigant from the pursuit of his rights"*. Consequently, this application is allowed.


- 5 I, accordingly, grant the following orders: - 1. The time within which to file the applicant's appeal is enlarged. - 2. The applicant should file the notice of appeal within fourteen days from this decision. - 3. The costs of this application are awarded to the respondent.

I so order.

Dated, signed and delivered electronically this 27 th day of May 2025.

.........................................................

15 Susan Odongo

JUDGE