[2024] UGHC 1009

# **THE REPUBLIC OF UGANDA**

# **IN THE HIGH COURT OF UGANDA HOLDEN AT KITGUM**

# **MISCELLANEOUS APPLICATION No. 05/2024**

# **(ARISING FROM CIVIL SUIT No. 016/2021: MAGISTRATE KITGUM)** 5 **OKOT MICHAEL MATTHEW APPLICANT**

**Versus**

# **OMOT BRIAN BONIFEST RESPONDENT**

#### **BEFORE HON. MR. JUSTICE PHILIP W. MWAKA.**

# **RULING.**

#### 10 **Introduction and Background.**

- [1]. The Applicant seeks Orders from this Court firstly for leave to Appeal out of time and thereby file a Memorandum of Appeal thus instituting an Appeal and effecting necessary service of the requisite Record of Appeal and secondly for provision of Costs of the Application. - [2]. The Motion instituting the Application was filed on the 16 15 th May, 2024 whilst the Judgment of the Lower (Trial) Court of His Worship Ponsiano Romans Odwori, Magistrate Grade 1 Kitgum was delivered on the 26th March, 2024 – a lapse of about one (1) month and twenty (20) days after the decision of the Trial Court and bearing in mind that the period within which to institute such an Appeal is thirty (30) days which expired on the 25th 20 day April, 2024. - [3]. The Application is instituted by way of Notice of Motion under **Section 33 (now S. 37) of the Judicature Act, Cap. 13 (now Cap. 16); Section 98 of the Civil Procedure Act, Cap. 71 (now Cap. 282); Order 51 Rule 6 and Order 52 Rules 1, 2 and 3 of the Civil Procedure Rules, SI 71 - 1.**

- 25 [4]. These citations were revised by the **Law Revision Act, Cap. 3 and Statutory Instrument No. 049/2024: The Law Revision (Commencement of the 7 th Revised Edition) (Principal Laws) Instrument, 2024.** - [5]. An Affidavit supporting the Application is attached deponed by the Applicant whom is the Intended Appellant and was the Defendant at the Trial in the 30 Lower Court, Mr. Okot Michael Mathew.

#### **The Applicant's Case and Submissions.**

- [6]. The Applicant's grounds in the Motion are: he was sued by the Respondent in the Lower (Trial) Court during which both Parties were self-representing and on the 26 35 th March, 2024 the Court *"erroneously"* passed Judgment against him; he verbally requested for the typed and certified Judgment and Proceedings from the Lower Court which have not been provided; he was ignorant of the procedures of Appeal to the High Court and the time within which to Appeal elapsed; the reasons for not filing the Appeal in time are 40 sufficient; the Appeal raises serious arguable grounds with a likelihood of success; it would be a miscarriage of Justice if the Application is not granted and it is equitable and in the interests of Justice that the Application is granted. [7]. In his Affidavit in support of the Application, the Applicant reiterates the grounds cited and substantiates that on the 7th May, 2024 upon retaining 45 Counsel he was advised to apply to the Court for enlargement of time since the time within which to Appeal had lapsed and he had been ignorant of the - procedures for Appeals to the High Court and he averred that he has not delayed in filing this Application.

[8]. The Applicant filed Submissions on the 10th July, 2024 and addressed the issue 50 of – Whether the Application has merit. The Applicant citing, *inter alia,* **CACA No. 67/2003: Hadondi Daniel Vs. Yolam Egondi** for the proposition that time can only be extended for sufficient cause which must relate to the inability or failure to take necessary steps within time prescribed to do so,

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# **SCCA No. 9/1993: Nicholas Roussos Vs. Gulam Hussein Habib Virani**

- 55 **& Anor** for the proposition that ignorance of the Rules of Procedure of the Court is sufficient cause that prevents the Appellant from appearing in Court as well as **Misc. Application No. 079/2019: Kasese Cobalt Co. Ltd Vs. David Kabagambe** for the proposition that delay in obtaining Court proceedings is a ground for extension of time - submits that the grounds 60 presented in the Application are thereby duly established. - [9]. In regard to the timeliness of the Application, the Applicant citing **Priscilla Wambi Mischek Vs. Samuel Thata & Others EACA No. 30/1976** submits that the delay of about one (1) month and two (2) weeks in filing the Application is not too long rationalizing it with the delays in obtaining the 65 Lower Court Record and ignorance of procedure. - [10]. In conclusion, the Applicant citing **Section 33 (now S. 37) of the Judicature Act** and **Article 126(2)(e) of the Constitution** submits that the Court should exercise its powers for the ends of Justice and substantive justice should be administered without undue regard to technicalities and prays that the 70 Application is granted with costs.

# **The Respondent's Case and Submissions.**

- [11]. The Respondent filed an Affidavit in Reply on the 21st May, 2024 contesting the Applicant's grounds and averring that the Applicant has not adduced any 75 evidence including any letter requesting certified Judgment and Proceedings showing that he took any reasonable steps before time elapsed and therefore he was not hindered from taking vital steps and was either undecided or opted to Appeal as an afterthought or was indolent. - [12]. The Respondent further avers that the Trial Magistrate informed both Parties 80 of the right to Appeal to the High Court Kitgum further and pointing out the Clerical Staff and Office.

- [13]. The Respondent also avers that ignorance of the Law is not a tenable defence or excuse against violation of Court rules, procedures and processes and thus the reasons for delay are baseless and the Application is an abuse of Court 85 process which stipulates specific timeframes to seek remedies and he will suffer injustice and incur costs in litigation if the Application is granted which would be neither just nor equitable - hence it should be dismissed with costs. - [14]. The Respondent filed Written Submissions on the 3rd July, 2024 and contends that in exercising discretion to enlarge time the Court should exercise such 90 discretion judiciously and on due consideration on a case by case basis - not as a matter of right. The Applicant must satisfy the Court by placing some material before it upon which the discretion may be exercised. - [15]. Enlargement of time is not granted where the delay is inexcusably long causing injustice to the other Party or where there is no justification. The 95 Applicant should have Appealed within the thirty (30) days provided by **Section 79(1)(a) of the Civil Procedure Act** and ought to have lodged the Appeal by the 26th April, 2024 following the Judgment delivered on the 26th March, 2024. The Respondent wrongly cites the filing date as 18th May, 2024. - [16]. The Respondent disputes the Applicant's claim that he followed up the 100 Record of the Lower Court with the Court Registry insisting that there is no such evidence substantiating the claim as required by **Section 101 of the Evidence Act** and as such the ground cannot be sustained. - [17]. In regard to self-representation in the Lower Court, it is conceded by the Respondent that the Parties were self-represented and contends that no Party 105 was *"cheated"* or prejudiced in any way with the Applicant attending the Judgment and being informed by the Trial Magistrate of the right to Appeal. It is his case that the Applicant has not shown how being unrepresented hindered his right to lodge an Appeal timely with Legal representation being optional and self-representation should not be an excuse with the grounds 110 being an abuse of Court process which ought to be struck out.

- [18]. Concerning the likelihood of success of the intended Appeal, the Respondent submits that the Applicant has not attached a tentative (draft) Memorandum of Appeal with proposed grounds and thereby contests the averment that there are chances of successfully Appealing. - 115 [19]. It is the Respondent's case that the delay in filing the Appeal is inexcusable and he has already commenced the process of execution for recovery of money and will suffer further financial loss. - [20]. In conclusion, the Respondent prays that the litigation comes to an end and the Application is dismissed with costs. - 120 [21]. There are no Rejoinders filed on the Record of the Court.

# **Representation.**

- [22]. Counsel, Mr. David Kinyera, represented the Applicant. The Applicant was present in Court. - 125 [23]. Counsel, Mr. Komakech Stephen, represented the Respondent. The Respondent was present in Court.

# **Proceedings of the Court.**

[24]. The Court proceedings were on the 6th June, 2024 at which directions were 130 given for filing Written Submissions.

# **Issues for Consideration.**

[25]. The Issue for consideration to be addressed by the Court in determining this Application is - **Whether sufficient cause has been provided by the** 135 **Applicant for the Court to judiciously exercise its discretion to grant leave to Appeal beyond the time prescribed by the Law.**

#### **Considerations and Determination of the Court.**

- [26]. **Section 79(1)(a) of the Civil Procedure Act** prescribes the time within 140 which an Appeal may be instituted as thirty (30) days from the date of the Decree or Order sought to be Appealed against with the Appellate Court empowered upon demonstration of good cause to admit an Appeal even after the period of limitation has elapsed. Needless to say that in order for the Court to judiciously exercise its discretion in enlarging time or for that matter 145 granting leave to Appeal out of time an intending Appellant seeking such remedy is required to place before the Court material and facts demonstrating or explaining the reasons for not filing the Appeal timely including any affirmative steps or actions which may have been taken in furtherance of instituting an Appeal or any impediment which may have impaired the 150 intending Appellants ability to institute the Appeal timely. - [27]. **Section 79(2) of the Civil Procedure Act** stipulates a variable in consideration of the computing or calculating time in as far as an offset is allowed in the time taken by the Court in providing the Record of the Lower Court required for the Appeal comprising the certified Judgment and Decree 155 as well as the Proceedings. The rationale is simply that the duty to provide the Record required for the Appeal ultimately lies with the Courts required to prepare it. This would therefore in and of itself constitute sufficient cause for enlargement of time or leave. The Courts should be diligent in preparing the Record required for an Appeal once requested so that the waiting period does 160 not become inordinately long to the prejudice of an intending Appellant. - [28]. The Applicant contends that he was a *Pro Se* litigant and verbally requested the typed and certified Judgment and Proceedings of the Lower Court, though he does not indicate when or to whom his request was made. Beyond his unverifiable word he does not provide this Court with material to offset the 165 time required in preparation of the Trial Court Record of which best practice would be for an intending Appellant to write to the Court requesting it.

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- [29]. A review of the Record of this Court indicates that the Deputy Registrar, High Court Kitgum wrote to the Lower Court on the 28th May, 2024 requesting its certified Judgment and Proceedings and that was after this Application was filed on the 16 170 th May, 2024. This was also after the Applicant retained Counsel said to be on the 7th May, 2024 and even so there is no letter from his Counsel requesting the Record of the Lower Court. It is the finding of this Court that the action which prompted the Deputy Registrar to request the Record of the Lower Court was the filing of the Application and not any earlier request as 175 has been claimed by the Appellant whose claim is simply opportunistic and insincere having made no effort to obtain it. - [30]. Notwithstanding, the Court observes that the Record has not been prepared todate. It is trite that the certified Judgment and Proceedings are a basis on which an intending Appellant would formulate grounds of their 180 Memorandum of Appeal under **Order 43 Rules 1 & 2 of the Civil Procedure Rules** and the absence thereof indeed generally constitutes a legitimate impairment in so instituting an Appeal. This, however, is not an absolute impairment since the Parties participate in the Trial proceedings and the Judgment is delivered publicly to them with their own Records being an 185 adequate source of material to formulate grounds in the Memorandum of Appeal - most especially where professionally represented by Counsel. - [31]. The other ground the Applicant presents as good or sufficient cause is his claim of ignorance of the procedures for instituting an Appeal and the lapse in time - which the Court understands to mean he was unaware of the thirty 190 (30) day time frame within which to Appeal. This Court, citing Appellate Authorities, has previously observed that ignorance of the Law *"Ignorantia Juris"* or for that matter ignorance of Legal procedures (the *"layman"* argument) may constitute sufficient cause for the Court to judiciously exercise its discretion to enlarge time or grant leave to Appeal. **See: Misc.** 195 **Application No. 140/2023: Obonyo Peter Vs. Otto Alex Atik & 2 Others.** - [32]. Therefore, in view of the fact mutually admitted that the Parties were selfrepresenting *Pro Se* litigants in the Lower Court, the Applicant's ground to the effect that he was ignorant of the procedures involved in Appealing its decision is credible and reasonable in the circumstances. - 200 [33]. This Court does not have the Record of the Lower Court to establish whether the Lower Court explained the right of Appeal to the Parties as averred by the Respondent – or the details of any explanation. Even if it did, it is observed that even where litigants are represented by Counsel it is not uncommon for Appeals not to be instituted within the prescribed time or 205 pursuant to the incorrect procedure of simply filing a Notice of Appeal – instead of the Memorandum of Appeal required under the Rules. A lay litigant would not reasonably be held to the same standard as Counsel and would thus receive the benefit of the doubt. - [34]. It is not disputed that the Applicant retained Counsel sometime after the 210 Judgment of the Trial Court to file this Application and pursue the Appeal. The date mentioned by the Applicant of retaining Counsel stated to be on the 7 th May, 2024 is in some doubt with the Notice of Instructions of his Counsel filed on the 3rd July, 2024 curiously stating that he was retained on the 28th May, 2024. In any case, the Court observes that it is not unreasonable to infer 215 that his retaining Counsel was owing to him being overwhelmed by the procedures required to institute an Appeal. The Court finds that the ground of his being a *"layman"* litigant has merit and is therefore sustained. - [35]. In regard to the Applicant's submission that this Application has been brought without inordinate delay, the period between the Judgment of the Trial Court on the 26 220 th March, 2024 and the filing of this Application on the 16th May, 2023 of about one (1) month and three (3) weeks is not unreasonable. In effect, this was three (3) weeks after the limitation had lapsed and would not reasonably be described as inordinate delay reflecting indolence but would rather reflect a degree of diligence.

- 225 [36]. The Applicant has already explained that he took steps to retain Counsel to file this Application. The explanation with its associated factors including mobilization involved is accepted by the Court which finds that the Application in pursuit of the Appeal was filed without inordinate delay. - [37]. The Applicant contends that his intended Appeal raises serious arguable 230 grounds with a likelihood of success which merit consideration of the Court. Apparently, no material whatsoever has been presented to the Court to enable it come to any determination on this ground – in the absence of a draft Memorandum of Appeal or the Judgment and Proceedings of the Trial Court or even simply an explanation. It is therefore not possible to make a 235 determination on the merits of this ground one way or the other in such a vacuum. It cannot however be that an Appeal is filed for Appeals sake or perhaps to circumvent execution proceedings. - [38]. The Court reiterates that it is incumbent on Litigants and Counsel to go the extra mile and present necessary material to the Court supporting their 240 propositions as a basis for any Orders sought, including matters for Appellate consideration. In the absence thereof, this ground in respect of the Appeal raising serious arguable grounds is therefore not in any way established. The question which arises is - whether this is fatal? - [39]. The Appellate authorities over time have given varied positions on 245 enlargement of time and leave to Appeal out of time - including on the one hand that this is not the stage at which the Court should scrutinize the grounds of Appeal and on the other hand that it should be demonstrated that serious points of Law are raised on Appeal and it is not frivolous or for that matter vexatious. - 250 [40]. It is observed that the earlier Authorities indicated that it is *"appropriate"* to consider the likelihood of success of an intended Appeal much as the ground should be considered alongside other factors raised.

**See: Supreme Court Civil Reference No. 15/2016: Kananura Andrew Kansiime Vs. Richard Henry Kaijuka (Dismissed); Supreme Court** 255 **Civil Application No. 2/1992: Zamu Nalumansi & Anor Vs. Sulaiman Lule (Seaton, JSC - Granted); Supreme Court Civil Application No. 11/1992: Kananura Melvin Consulting Engineers Vs. Connie Kabanda (Seaton, JSC - Granted);**

- [41]. In **Supreme Court Civil Application No. 6/1987: Florence Nabatanzi** - 260 **Vs. Binsobedde (Manyindo, DCJ)** citing the time old cases of **Mugo & Others Vs. Wanjiru & Anor [1970] EA 481** and **Shanti Vs. Hindocha & Others [1973] EA 207** held that the fact that an Appeal appears likely to succeed cannot of itself amount to a sufficient reason. In distinguishing between extension of time and leave to Appeal it was determined that the 265 former should best show sufficient reason for being allowed more time demonstrating that one's conduct was not dilatory amongst other reasons. It was further held that whilst one needn't show that the Appeal has reasonable prospects of success or is arguable, one's Application would be viewed more sympathetically or for that matter favourably if he does so. In the final result, 270 the Application was dismissed for failure to show sufficient cause on the basis of a lack of diligence. - [42]. In the consideration of this Court, it would generally be unwise to grant an Application for leave to Appeal out of time or enlargement of time where the Applicant/intended Appellant has not expressed or shown any inkling of his 275 intended grounds of Appeal - however convincing the other good cause or sufficient cause may be – and filing such an Application without any notion of what is in contention on Appeal should be discouraged since it risks Appeals for the sake or to simply circumvent execution. Ultimately a standard should be established for disclosure of intended grounds of Appeal as a basis 280 for Courts to have an appreciation of matters in contention. Moreso, since at this stage one should be reasonably certain of direction taken in Appealing.

[43]. In this instance, on the one hand it is the Applicant whom presented this ground and might therefore fall on his own sword in failing to disclose matters in contention on Appeal; but on the other hand, in the circumstances of this 285 case the Applicant relied on the professionalism of Counsel who should have made time to frame the intended grounds of Appeal to exhaust the possibilities and grounds available to his client in an Application such as this. The fault lies with Counsel. To dismiss the Application on this ground alone where other good cause and sufficient cause specified has been established 290 would be manifestly unjust.

## **See: CACA No. 51/2001: Tiberio Okeny & Anor Vs. The Attorney General & 2 Others.**

- [44]. Finally, in regard to prejudice claimed by the Respondent, the Parties shall be accorded an opportunity to have their day in Court and sufficient remedies 295 are provided by Law to place a litigant in an appropriate position to avert any adverse factors occurring during the course of litigation – including where execution proceedings may be pre-empted. On the other hand, great prejudice may arise where a dissatisfied litigant is locked out of the Appellate process which one has a right to explore to its full extent. The claim of likelihood of 300 prejudice here is resolved in favour of the Applicant and his right to institute an Appeal. - [45]. Having carefully given due consideration to the Application with its supporting Affidavit, the responsive Affidavit, the Written Submissions of both the Applicant and the Respondent and upon consideration of the Law 305 Applicable and taking into account all relevant factors the Court in the final result finds that the Applicant has established sufficient cause as specified herein-above for leave to Appeal the decision of the Trial Court out of time and in exercise of its discretion the Application is granted. - [46]. Each Party shall meet their own costs of the Application.

## **Orders of the Court.**

[47]. Accordingly, the Court makes the following Orders: -

- 1. **Miscellaneous Application No. 05/2024** is granted and the Applicant/intended Appellant is granted leave to Appeal out of time. - 315 2. The Deputy Registrar, High Court Kitgum Circuit will obtain and avail to the Parties the Record of the Lower (Trial) Court required for the Appeal comprising the typed and certified Judgment and Record of Proceedings within thirty (30) days of delivery of this Judgment. - 3. The Applicant/intended Appellant shall file a Memorandum of Appeal 320 within not more than thirty (30) days of receiving the Record of the Lower (Trial) Court. - 4. Each Party shall meet their own costs of this Application.

It is so Ordered.

**Signed and Dated on the 29 th** 325 **day of October, 2024 at High Court Kitgum Circuit.**

**Philip W. Mwaka**

**Acting Judge of the High Court.**

## **Delivery and Attendance.**

This signed and dated Ruling has on the directions of the Presiding Judge been delivered to the Parties electronically on **Wednesday, the 30 th day of October, 2024** by the Deputy Registrar, High Court Kitgum Circuit.

- 340 1. Deputy Registrar, - High Court Kitgum Circuit: Her Worship Suzanne Aisia Musooli. - 2. Counsel for the Applicant: Mr. Kinyera David. - 3. The Applicant Mr. Okot Michael Matthew. - 4. Counsel for the Respondent: Mr. Komakech Stephen. - 345 5. The Respondent: Mr. Omot Brian Bonifest.

- 6. Court Clerk and Interpreter: Mr. Atube Michael. - - 7. Interested and Affected Persons and Entities.


**Philip W. Mwaka**

350 **Acting Judge of the High Court.**

**High Court Kitgum Circuit.**

**29 th day of October, 2024.**