[2023] UGCA 356

# THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

[Coram: G. Kiryabwire, JA, M. Kibeedi, JA, C. Gashirabake, JA.]

## CIVIL REFERENCE NO.258 OF 2020

(Arising from Miscellaneous Application No. 112 of 2020)

(Arising from Civil Suit No.095 of 2020)

#### **BETWEEN**

MUSA AFWERK TEKLE...................................

(Suing through Muhumuza Moses, holder of Powers of Attorney)

AND

#### 1. COMMISSIONER LAND REGISTRATION

## 2. JOHN KALUNGI KABUYE

3. OSCAR CHRIS KALULE...................................

(Reference arising from the decision of the Irene Mulyagonja JA. sitting as a single justice, delivered on the $19$ ^th of October 2020)

## RULING OF THE COURT

#### **Introduction**

11 The Reference arises from the decision of Irene Mulyagonja J. A, which was delivered on the 19^th of October 2020 wherein she declined to grant leave to enlarge the time within which the Applicant should file an appeal and to grant an injunction restraining further transactions on the suit land pending disposition of the intended Appeal.

#### Ilacksrou nd

- 2l thc Applicant/Plaintiff brought Civil Suit No. 95 of 2017, against the Commissioncr Land Ilegistration and John Kalungi Kabuye hereinaftcr rcferrcd to as the first and second respondents in this application. The Applicant was challenging the canceltation of the proprietorship on the suit land on the ground that the I't respondent had no jurisdiction and basis to cancel thc titlc. 'I-hc Applicant furthcr statcd that he was a bonafide purchascr lor value without notice. I-lis Lordship Eudes Keitirima J. in Fligh Court Case Civil Suit No.095 of 2020 decided that since the I't respondent had made allcgations of fraud, thc Applicant had no option but to rcfer the matter to court for adjudication, secondly, that thc Applicant purchased land in good faith and with no knowlcdgc oI lraud and therefore is a bonafide purchaser for value without noticc and finally, Court ordercd that thc Applicant recovers moncy cquivalent to Uganda Shs 1,009,608,000/: reccived by the 3'd respondent. - 3] 'l'he Applicant was dissatisficd with the decision of the court on the remedy olrccovery ol moncy lrom thc 3'd rcspondcnt thus taking thc option of Appeal' Flowevcr, the timc within which to appeal had elapsed since earlier, as the Applicant's counsel had crroneously takcn the option of review which was to thc Applicant's dctrimcnt. - 4] On this basis, thc Applicant opted to fllc Miscellaneous Application No ¹¹² ol2020 arising from Civil Suit No. 95 ot20l7, seeking for cxtension of time within which to appcal against part oIthc decision olEudes Keitirima J, Irene Mulyagonja J. A. dcclincd to grant the application bccause the Judgment of the lowcr court was clear and left no questions unresolved. Dissatisfied with hcr lordship's decision, the Appticant relcrred the matter to a panel and the issues lbr detcrmination are;

- a. Lyhether the application discloses sfficient grounds for grant of leave to appeal? - b. LYhether the application discloses sufrtcient grounds for lhe grant ofan injunction?

## Ilcprcscntation

5l The Applicant was represented by Mr. Sam Mukwatiriri. I'he Respondent was represented by Mr. ShakahZiwa.

## Submissions by Couns cl for thc Apnlicant

- 6] Counsel for the Applicant submitted that the mandatc of this court to extcnd the tirne to file an appeal is providcd lor undcr Rule 5 of thc Judicature (Court ol Appeal Rutes) Dircctivcs S.l l3-10. 'l'o support his Submissions counscl cited the Supremc Court decision in thc case of Bonny Katatumba Vs. Wahhed Karim, Civil Application No. 27 of 2007, where thc court hcld that "suf{lcient reason" is not deflncd by the rulcs, howevcr, it is lcft lor thc coutl to define as it excrcises its discrction. - 7l Counscl lor thc Applicant furthcr citcd the casc oll]anco Arabc Espanol Vs. Ilank of Uganda (1999) EA 22, whcrc thc Suprcmc Court obscrvcd that thc adrninistration oljustice rcquircs that the substancc oIthc dispute be dccidcd on their merits, errors or lapscs should not bc uscd to dcbar a litigant lrom thc pursuit ol his or hcr rights. - 8] Counscl argucd that the Applicant should not bc punishcd fbr thc negligcncc of his counsel and brcach ol fiduciary relationship. It was submitted that thc Applicant relicd on counscl's cxpcrtisc and this should not bc visited on him. Counsel cited thc case of Kasulc Samuel Vs. Mubcczi James and 2 othcrs, Misccllaneous Application No. 24 of 2015 and the casc of Magczi and Brian Mbazira Vs. Sudhir lluparelia, Civil Application No.l0 of 2002.

- 9] Furthermore, counsel submitted that the courts will grant an application for leave to appeal where it appears prima facie that there are prospects of success. Counsel cited the case of Sango Bay Estates Limited Vs. Dresdner Bank and Attorney General (1971) EA 17, Spry J. and Ddegeya Trading Stores Vs. Uganda Revenue Authority, Court of Appeal Civil Application No. 16 of 1996 - On whether the application discloses sufficient grounds for the grant of $10$ an injunction, counsel submitted that an application for a grant of injunction is intended to maintain the status quo and preserve the right of appeal. Counsel cited the cases of Theodore Ssekikubo & Others Vs. Attorney General, SC Constitutional Application No. 4 of 2014, and Tusingwire Vs. Attorney General, Constitutional Application No. 06 of 2013, where the principles for the grant of injunctions were considered, the court stated that the Applicant must prove that he has a prima facie case and the petition is neither frivolous nor vexatious with a possibility of success. Counsel submitted that the 3^rd respondent has no means of repayment of a sum of Ug. Shs. 1,009,608,000/ $=$ . The suit property is under imminent threat from third-party claims such as Hosanna Real Estate claiming ownership of the same, as a result, the Applicant will suffer damages and loss of the purchased land if an injunction is not granted.

## Submissions by Counsel for the Respondent.

Counsel for the respondent agreed with the issues raised by the $111$ Applicant but added the third one regarding whether the law firm of Ms. Rwabogo and Co Advocates has a right of audience before this Court. On this issue counsel for the respondent submitted that during the hearing of Miscellaneous Application No. 112 of 2022 before Irene Mulyagonja JA, the Applicant was represented by counsel Hellen Amwemi of Ms Mugimba &

Co. Advocates. On the 26th of October 2020, the Applicant filed and scrved the respondent with a notice of change of Advocates wherein the firm of Ms' Mukwatiriri, Natetwa & Co. Advocates purporled to takc ovcr the matter lrom Ms. Mugimba & Co. Advocates. 'l'he same law firm wrote to the Deputy Registrar of the Court requesting for a rccord of proccedings to pursue thc reference. Counsel alleged that Ms. Rwabogo & Co. Advocates did not file or serye us with a Notice of instructions in thc instant mattcr yct they are indicated as the authors of the Applicant's submissions.

- 12) Counsel submitted that this deprives the law firm audience before this Court under Itule 24 of the I(ules of this Court. Counscl cited the case of Salvation Army Vs. Uganda Land Commission, Civil suit No. 284 12019, which held that lailurc to servc or filc a Noticc oi' Change of Advocates on court rccord deprivcs an advocatc olthe right to audicncc. - l3] On issue No. 1, regarding whether this court should grant lcave for the expansion of time within which to file an appeal, counscl submittcd that thc Applicant does not mect thc well laid down tcst to satisly the ground of thc mistake of counsel. Counscl cited the case of Tiberio Okcny and another Vs. Thc Attorney General and 2 others, C' A Civil Appeal No. 51 of 2001 and Nkalubo Vs. Ssckikubo and anothcr, Misc. Application No. l6 of 2016. - l4l Counscl lor thc rcspondcnt submitted that thc mistake was a result olfailurc to asccrtain the rcquircmcnts of thc law and not onc cnvisioncd to warrant it as counsel's inadvertent conduct. - l5l Additionally, counsel submittcd that the plaintiff was suing through his holder ol I)owcrs of Attorney, Mr. Muhumuza Moses who is an advocate practicing undcr Ms. Mugimba and Co. Advocatcs. Ily his qualifications, hc

is not an ordinary litigant who would not detect such a reckless and negligent act olapplying for rcview based on an clror on the face of thc rccord.

- l6] Counsel submitted that it was trite that the stated time limit intends to put an end to litigation and avoid abuse of the court process. - l7l On whether the Applicant discloscs grounds lor the grant of an injunction, counsel submitted that the Applicant had to satisfy certain requirements ofthe grant ofan injunction. - l8] Firstly, thcre must be proof o[ a prima facie case. Counsel submitted that sincc thc Applicant has not properly withdrawn the application lor review, he has no prima lacie case . '['hc Applicant purported to withdraw the apptication for rcvicw under ordcr 25 rulc I (2) o{- the Civil Procedure Rules but hc did not adhere to the requirements of the said rule. Under that rule, the Applicant was rcquired to seek lcave ol court and serve the respondent with thc lctter ol withdrawal but he did not do that. lrurther, thcre was no ordcr madc as regards cost. 'l'hat lailurc to obscrve the legal requirements and procedures for withdrawal in elfcct meant that the application for review is still pcnding and hence precluded from bringing the instant application' - ^Ig] on irreparable damages, counscl lor the respondent submittcd that the loss cannot be said irreparable sincc thc money is liquated and ascertained as Ugx. 1,009,608,000/: (one billion Nine Million six hundrcd Eight thousand Uganda shillings onlY) - 20] on the balance of convenience, counsel for the respondent submitted that it is settled that the balancc ofconvcnience is always in favour ofthe party in possession of thc suit tand. In this instant case, it submitted that the land is in possession ol third Parties.

### Considcration of Court.

- 2ll We have read through thc subrnissions of the partics and thc cascs thereof. 'the application beforc us is for an Order extending the time within which an appeal against part of thc judgment and Orders in the Fligh Court Civil Suit No 95 of 2017.'Ihe Appticants filed the application before a singlc justice which was dcnied hencc this reference. - 221 In his submissions, counsel for the Respondent raised a preliminary objection which wc will first considcr bclorc addrcssing the issucs raiscd before this court. - 231 Counsel for the Rcspondent submittcd that the firm Rwabwogo & Co. Advocates did not file or servc thcm with the notice of instructions contrary to I{ulc 24 of the Itules of this Court. 'l'hc rule providcs thus:

" 24. Change of odvocale, etc.

Where a party lo an applicalion or appeol in lhe court changes his or her advocale or having been represenled by an advocate, decides lo ctcl in person or, having acted in person, engages an advocate, he or she shall, as soon as praclicable, lodge wilh lhe registrar notice of lhe change and shall serve a copy of the notice on lhe other parly or on each olher party appearing in person or separalely repre.rented, as lhe ca.re may be."

241 It is a requirernent undcr the abovc rule that once there is a change ol an advocate, thc samc should filc a Noticc of Changc with the registrar and also serve thc othcr party. Wc have carclully pcruscd thc filc and lound ^a Notice of Changc o[Advocatc dated l8'h January 2021 which was lodged in this court on 22nn January 2021. tlowever, thcre is no proofon rccord that thc appellant served the l{espondent with thc samc. It is prudent that oncc thcrc is a change oladvocate, the other party is scrvcd lor purposes ofcorrespondcnce. We therelore find that the [aw firm of M/s I{wabwogo & Co Advocatcs has an audience before this court having filed the Notice of Change in court on the 22^nd January 2021. The objection is therefore overruled.

Turning to whether the Applicant has demonstrated grounds for the $25]$ grant extension of time, Rule 5 of the Rules of this Court provides that;

"5. Extension of time.

The court may, for sufficient reason, extend the time limited by these Rules or by any decision of the court or the High Court for the doing of any act authorized or required by these Rules, whether before or after the expiration of that time and whether before or after the doing of the act; and any reference in these Rules to any such time shall be construed as a reference to the time as extended."

It follows, therefore that the court may for sufficient reason grant an 26] extension of time within which to file an appeal. The power given to the court under the above rule is discretional but it must be exercised judiciously. This Court in the case of St Kizito Youth Farm Ltd Vs. Attorney General, Civil Application No. 58 of 1997 stated that the expression "sufficient reason" is not defined anywhere in the rules. The court cited other cases in a bid to explain what would amount to sufficient reason. It cited the cases of Mugo Vs. Wanjiri [1970] EA 481 at page 483. Njagi Vs. Munyiri [19751EA 179 at page 180 and Rosette Kizito Vs. Administrator General and others [Supreme Court Civil Application No. 9/86 reported in Kampala Law Report Volume 5 of 1993 on page 4 where it was held that sufficient reason must relate to the inability or failure to take the particular step in time.

The courts have established various tests as to what amounts to 27] sufficient reason to warrant the grant of leave to extend the time within which to file an appeal. In the case of Captain Phillip Ongom Vs. Catherine Nyero Owoto, SCCA No. 14 of 2001 it was held that what amounts to sufficient reason includes a mistake by an advocate, illness of a party or advocatc, and ignorance of filing proccdure by the party or thcir advocatc.

- 28] In this particular case the Applicant allegcd that when the judgment was delivered, counsel erroneously applied flor review of the said judgment, and by the time he thought olappcaling the timc within which to filc an appeal had elapsed. We arc inclined to find the Applicant truthful and grant thc leavc to appcal since it was the advocate who acted crroneously. In the case of Banco Arabe Espanol Vs. Ilank of Uganda [19991 2 EA, thc Supreme Court held that thc administration of justice should normally requirc that the substance ol all disputes should bc investigatcd and dccidcd on their merits and lapscs or errors should not ncccssarily debar a litigant lrom pursuit olhis or her rights. - 29) In the cases of Florencc Nabatanzi Vs. Naome Binsobcdde SC Civil Application No.6 of 1987 and Sipiriya Kyaturesire Vs.. Iustinc Bakachulikc Ilagambc, CA No. 2011995 both courls notcd that;

" First and foremosl the application must show suflicient reaxtn which relales to the inability or failure to take some particulor slep wilhin the prescribed lime. \'he general requirement notwithstanding each case must he decided on facts. Sce Mugo vs. Waniiru (Supra).

T'he adtninistration ofiuslice normally requires that lhe subslance ofall clisputes should be invesligated and decided on lheir nterits and that errors and lapses should rutl necessarily debar u litigant from the pursuit of his rights see lissoji vs. Solanki (.vupru).

Whilsl mistakes of counsel sometimes may amounl lo dn error oJ judgment bul nol inordinate delay negligence lo observe or ascerlain ploin requirements of the law. tlttorney General vs. Oriental Construction Limited (supra).

9lPage

llhere an Applicant inslructed a lawyer in time, his riShls should not be blocked on lhe grounds of his lawyer's negligence or omission lo comply with the requiremenl of the law.

1 vigilant Applicant should not be penalized for the fault of his counsel on whose actions he has no conlrol. "

- 30] In the circumstances, thcrefore, the Applicants have established sullcient cause to warrant the cxercise of the court's discretion to grant leave to the Applicants to file their appeal. - 3l I On the issue of an injunction, thc Suprcmc Court in the case of Hon. Thcodore Ssckikubo & Othcrs Vs. The Attorney Gcncral and Another' Constitutional Application No. 06 of 2013, restated the conditions for the grant olan injunction as fbllows;

"(l) 1'ha upplication nust er'lablish that his appeal has a likelihood of success, or a prima /itcie case of his right to appeal

(2) It must ulso be established thul thc Applicant will suffer irreparable damage or that the appec will be rendered nugatory if a stay is rtot granled.

(3) f t and 2 above have rutl been established, lhe Courl musl consider where the balance of convenience lies.

(4) l'hat the Applicunt must ctlso estoblish that the applicalion was insliluled without delaY. "

## I,ikclihood of succcss.

32) On thc likelihood ofsuccess, the Applicant argued, that the Fligh Court lound in his lavour, that hc boughl land as a bonafidc purchaser but did not reinstatc him on thc title. ]'hc court directcd that hc recovers his purchase price lrom the vendor. IIe atleged that the vendor may not have the capacity to refund that money and desired to be reinstated on the certificate as the rightful proprietor. In the case of American Cyanamid Co. Vs. Ethicon Ltd, 1975, **AC 396**, the House of Lords held that;

"the general rule that one must establish a probability or a strong probability, is not correct. One must look at the whole case to see whether there is a question to be tried ..."

We find that the Applicant established that there is a triable issue that 33] would warrant consideration by this court.

## **Suffering irreparable damages**

On irreparable loss, it is trite that where the amount is ascertainable, 34] then it cannot be said to be irreparable. In the circumstances of this case, it is a liquidated sum of Ugx 1,009,608,000/= (one billion, nine million, and six hundred and eight thousand shillings only). This is ascertainable and cannot be said to be irreparable. In Giella Vs. Cassman Brown & Co. [1973] E. A **358,** it was held that by irreparable injury id does not mean that there must not be the physical possibility of repairing the injury, but it means that the injury or damages must be substantial or material one that is; one that cannot be adequately atoned for in damages. This court in **Haruna Sentongo Vs. I &** M Bank Ltd Formerly Orient Bank (U) Ltd, held that;

> "in applying the above principles of irreparable damage, I find that the property subject of the appeal before this court is a commercial building whose rent proceeds can be ascertained. In addition, there was a valuation done on the property when the Applicant applied for the loan facilities, and as such, the value of the property in question can be ascertained and the same can be compensated in monetary terms, should the Applicant's appeal succeed. I am therefore unable to find that the *Applicant will suffer irreparable damages.*"

Considering the above precedents, I find that the sum is ascertainable, 351 so it cannot be said that the Applicant will suffer irreparable damages. This condition has failed.

## **Balance of convenience.**

In assessing the balance of convenience, the case of American 36] Cynamid Co. case (Supra) offers guidance. The court held that;

"so unless the material available to the court at the hearing of the application for an interlocutory injunction fails to disclose that the plaintiff has any prospect of succeeding in his claim for a permanent injunction, at the trial, the court should go on to consider whether the balance of convenience lies in favour of granting or refusing the relief that is sought.

As to that, the governing principle is that the court should first consider whether, if the plaintiff were to succeed at the trial in establishing his right to a permanent injunction, he would be adequately compensated by an award of damages for the loss he would have sustained as a result of the defendant's continuing to do what was sought to be enjoined between the time of the application and the time of the trial.

If damages in the measure recoverable at common law would be an adequate remedy and the defendant would be in a financial position to pay them, no interlocutory injunction should normally be granted, however strong the plaintiff's claim appeared to be at that stage. If on the other hand, damages would not provide an adequate remedy for the plaintiff in the event of his succeeding at the trial, the court should then consider whether, on the contrary hypothesis that the defendant were to succeed at the trial in establishing his right to do that which was sought to be enjoined, he would be adequately compensated under the plaintiff's undertaking as to damages for the loss he would have sustained by being prevented from doing so between the time of the application and the time of the trial. If damages in the measure *recoverable under such an undertaking would be an adequate remedy* and the plaintiff would be in a financial position to pay them, there would be no reason upon this ground to refuse an interlocutory injunction.

It is where there is doubt as to the adequacy of the remedies in damages available to either party or both, that the question of balance of convenience arises. it would be unwise to attempt to even list all the various matters that may need to be taken into consideration in deciding where the balance lies, let alone to suggest the relative weight to be attached to them. These will vary from case to case."

- In assessing the balance of convenience court will look at who will be 37] affected most by the decision of this court. The undisputed facts before this court are that none of the parties is in possession of the suit land. It is in possession of third parties which include the widow of the late John Kabuye and Hossana Real Estates Ltd who are not even part of this suit. It is therefore our considered opinion that the balance of convenience does not favor the Applicant. - We decline to grant the injunction. 38]

## Decision

- 1. The Applicant is granted 2 weeks within which to file their appeal. - 2. The grant of the temporary injunction is declined.

22 day of December ... 2023 Dated at Kampala this..

$\sim$

**GEOFFREY KIRYABWIRE**

**JUSTICE OF APPEAL**

**MUZAMIRU KIBEEDI JUSTICE OF APPEAL**

**CHRISTOPHER GASHIRABAKE** $\textbf{JUSTICE OF APPEAL}$

$\mathcal{Q}$

$\circ$