[2024] UGHC 786

The Republic of Uganda

In the High Court of Uganda at Soroti

Miscellaneous Application No. 0039 of 2023

(Arising from Kumi Civil Appeal No. 003 of 2022)

Iriso Gabriel ::::::::::::::::::::::::::: 10 <pre>....................................

#### Versus

Okurut Francis ::::::::::::::::::::::::: <pre>....................................

# Before: <u>Hon. Justice Dr Henry Peter Adonvo</u>

## Ruling

### 1. Introduction.

This application was brought by way of notice of motion under Order 52 rules 1,2 & 3 of the Civil Procedure Rules and Sections 96 & 98 of the Civil Procedure Act for orders that the applicant be granted leave to file and serve a memorandum of appeal out of time against the judgment and decree issued in Civil Appeal No. 003 of 2022 by Chief Magistrates Court of Kumi holden at Kumi. Further that costs of this application be provided for.

2. Grounds.

The grounds of this application as set out in the application and supporting affidavit sworn by the applicant are that; 25

1. The applicant was the appellant in Civil Appeal No. 003 of 2022 at the Chief Magistrates' Court of Kumi and the said judgment was pronounced on the

$\mathsf{S}$

- 31^st of May 2022 against the applicant but he was not informed of this date. - 2. That during the hearing of the appeal the trial magistrate stated that the honourable court would not proceed with the appeal until the certified record of proceedings from the LC III Court of Bukedea Town Council is availed which record was never availed. - 3. The applicant received the said judgement on the 20^th day of February 2023 from the court premises when he had gone to follow up the said appeal. - 4. That he could not lodge his appeal in time because he only got to know of the existence of the said judgment on the 20^th of February 2023. - 5. That it is just and equitable that this honourable court grants this application.

The respondent in his affidavit in reply stated that;

- 1. The applicant is trying to mislead court, the applicant filed the appeal and all proceedings from the lower court were attached as annexures. - 2. The applicant was present in all appearances before the lower court and judgement was delivered in his presence. - 3. It will be unjust, unequitable and a waste of court's time to allow this application since the applicant sat on his rights to request for a typed copy of the judgment and appeal within time. - 3. Representation.

The applicant was represented by M/s Opio & Co. Advocates while the respondent was represented by M/s Sanywa, Wabwire & Co. Advocates. This matter proceeded by way of written submissions and the same will considered as and when necessary.

$5$

#### 4. Determination. $\mathsf{S}$

This is an application for the applicant to be granted leave to file and serve a memorandum of appeal out of time against the judgment and decree issued in Civil Appeal No. 003 of 2022 by Chief Magistrates Court of Kumi holden at Kumi and any other orders related thereto. The application is mainly in relation to enlargement of time.

Section 96 of the Civil Procedure Act provides for enlargement of time, it states;

Where any period is fixed or granted by the court for the doing of any act prescribed or allowed by this Act, the court may, in its discretion, from time to time, enlarge that period, even though the period originally fixed or granted may

have expired. 15

The applicant is similarly seeking to invoke the inherent powers of this Honourable Court which is provided for by Section 98 of the Civil Procedure Act which provides thus;

Nothing in this Act shall be deemed to limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to 20 prevent abuse of the process of the court.

The general agreed position of the courts is that an order for enlargement of time to file the appeal should ordinarily be granted unless the applicant is guilty of unexplained and inordinate delay in seeking the indulgence of the Court, has not presented a reasonable explanation for his failure to file the appeal within the time prescribed by Act.

It would be wrong to shut an applicant out of court and deny him or her the right of appeal unless it can fairly be said that his or her action was in the circumstances inexcusable.

When an application is made for enlargement of time, good cause showing that $\mathsf{S}$ justice warrants such an extension must be proved by the applicant before court can exercise its discretionary powers and grant the extension.

This requirement was re-echoed in Tight Security Ltd v. Chartis Uganda Insurance Company Limited and Another H. C. Misc Application No 8 of 2014 where it was

held that for an application of this kind to be allowed, the applicant must show 10 good cause.

"Good cause" that justifies the grant of applications of this nature has been the subject of several decisions of the courts such as in the cases of *Mugo v. Wanjiri* [1970] EA 481 and Pinnacle Projects Limited V. Business In Motion Consultants

Limited, H. C. Misc. Appl. No 362 of 2010, where it was held that the sufficient 15 reason must relate to the inability or failure to take a particular step in time.

In the case of Roussos v. Gulam Hussein Habib Virani, Nasmudin Habib Virani, S. C. Civil Appeal No. 9 of 1993 in which it was pointed out that a mistake by an advocate; though negligent, ignorance of procedure by an unrepresented defendant, and illness by a party may also constitute sufficient cause, but that the failure to instruct an advocate is not sufficient cause.

In Andrew Bamanya v. Shamsherali Zaver, C. A Civil Application No. 70 of 2001 it was pointed out that mistakes, faults, lapses and dilatory conduct of counsel cannot be visited on the litigant; and further that where there are serious issues

to be tried, the court ought to grant the application. (Also see: *Sango Bay Estates* 25 Ltd v. Dresdner Bank [1971] EA 17 and G M Combined (U) Limited v. A. K. Detergents (U) Limited S. C Civil Appeal No. 34 of 1995).

However, an application for extension of time will not be granted if there is $5$ inordinate delay in filing it as was held in Rosette Kizito v. Administrator General and others, S. C. Civil Application No. 9 of 1986 [1993]5 KALR 4.

The considerations which guide courts in arriving at the appropriate decision in matters where there is sought enlargement of time were outlined in the case of

Tiberio Atwooma Okeny and Another v. The Attorney General and Two Others C. A. 10 *Civil Appeal No. 51 of 2001*, where Hon. Justice Twinomujuni (RIP) held that:

- a. First and foremost, the application must show sufficient reason related to the liability or failure to take some particular step within the prescribed time. The general requirement notwithstanding each case must be decided on facts. - b. The administration of justice normally requires that substance of all disputes should be investigated and decided on the merits and that error and lapses should not necessarily debar a litigant from pursuit of his rights. - c. Whilst mistakes of counsel sometimes may amount to sufficient reason this is only if they amount to an error of judgment but not inordinate delay or negligence to observe or ascertain plain requirements of the law. - d. Unless the Appellant was guilty dilatory conduct in the instructions of his lawyer, errors or omission on the part of counsel should not be visited on the litigant. - e. Where an Applicant instructed a lawyer in time, his rights should not be 25 blocked on the grounds of his lawyer's negligence or omission to comply with the requirements of the law..."

In the above case, the learned justice pointed out that it is only after "sufficient reason" has been advanced that a court considers, before exercising its discretion

whether or not to grant extension, the question of prejudice, or the possibility of $\mathsf{S}$ success and such other factors.

In this instant application, the applicant stated that he was not able to file his appeal in time because he was not aware of the date when the judgment was delivered. He adds that during the hearing of the appeal the magistrate stated

10 that the honourable court would not proceed with the appeal until the certified record of proceedings from the LC III Court of Bukedea Town Council was availed which record was never availed but that however judgment was later given.

The respondent in his affidavit in reply strongly opposed this application on the grounds that the applicant was present on the date when the judgement was delivered.

I have had the occasion to carefully peruse the proceedings in Kumi Civil Appeal No. 003 of 2022 and they indicate that on the 31^st of May 2022, when the ruling was delivered all parties were present in court and the said ruling was delivered in their presence. This fact is confirmed by the said ruling itself which in parts states thus;

"... This appeal is coming up for final disposal on the 31^st day of May 2022 before H/W Watyekere George Wakubona A. G. Chief Magistrate in the presence of *Counsel Nakoko Eric, for the respondent and in the presence of the appellant* and the respondent..."

On the 2^nd of February 2023 when the matter came up for hearing of the Notice 25 to Show Cause why the applicant should not be arrested in execution of costs granted in CA No. 003 of 2022, the applicant herein informed court that he has never received any copy of the judgment.

$\mathsf{S}$ He further stated that he heard the pronouncement when the Magistrate delivered the judgment and thereafter went to the High Court Soroti to appeal but was told to first get a copy of the judgment.

The trial Magistrate availed him with one month to process his appeal and serve the court with proof of the appeal lodged in the High Court at Soroti.

On the $2^{nd}$ of March 2023, when the matter came up for mention on the status 10 of the applicant's appeal, he stated that he is processing the appeal but in the meantime he undertook to pay the costs of $3,680,000/$ = within one and a half months. He, however, failed to pay the same and rather filed this application on the 20^th of March 2023 and an application for stay of execution pending the hearing of this application on the 27^th of March 2023 which action caused the 15

Magistrate's Court to give an order that execution issue.

Basing on the above and contrary to the averments of the applicant, he was not only present when the ruling of the Chief Magistrate's Court of Kumi was delivered but was even aware of the import of the said ruling but from his indolent actions took his time to file this appeal.

And as even seen from the record of Civil Appeal No. 003/2022 the applicant only sought to file an appeal after the respondent filed a bill of costs. It was only at this point that he began requesting for a copy of the ruling so as to file his appeal.

Even when he was issued with a notice to show cause why execution should not issue, he on his own volition, sought to pay the taxed amount but failed to do so 25 and it was only after this that he decided to file his appeal to this Honourable Court.

I note also that while the impugned ruling was delivered on the 31^st of May 2022 and this application was filed on the 20^th of March 2023. This was nearly a year

after the ruling which I already established that the applicant was present when $\mathsf{S}$ the ruling in CA No.003 of 2022 was delivered and was therefore aware of the orders therein.

The applicant appears to have only brought up the issue of an appeal and all applications attendant thereto when he appeared for hearing on the notice of

cause why execution should not issue and filed this application merely as an 10 afterthought when he was faced with execution of the costs in CA No. 003 of 2022.

Arising from the factual assessment of the sequence of events above, I would find that the applicant has failed to prove that he was stopped by sufficient cause from filing his appeal in time.

That being the case, I would as a result find that this application lacks merit and thus would fail.

The application, is as a result dismissed with costs to the respondent.

I so order.

Hon. Justice Dr Henry Peter Adonyo

27^th August 2024

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