[2023] UGCA 85

## rHE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT I(AIVIPALA CIVIL APPLICATION NO. 325 OF 2OI7

(Aising out of H. C. C. S I[o. 69 of 2012)

SENYONJO DICK :::::::: :: : :::::::::: APPLICANT

#### VERSUS

DELTA PETROLEUM (U) LTD : : : : : : : : : : : : : : : : : : : : : : : : : : RESPONDENT

# CORAM: HON. JUSTICE RICHARD BUTEERA, DC,. I HON. JUSTICE CATHERINE BATVIUGEMERTIRE, JA HON. JUSTICE STEPHEN MUSOTA, JA

#### RULING OF COURT

This application was brought by r,vay of Notice of Motion under Rules 5, 43 and 44 of the Judicature (Court of Appeal Rules) Directions seeking for orders that time within which to appeal be extended and leave be granted to the applicant to appeal the High Court decision in H. C. C. S No. 69 of 2Ol2 and that costs of the application be provided for.

The grounds upon which the application is premised are laid out in the Notice of Motion and the affidavit of the applicant, Senyonjo Dick, and are briefly that;

1. The applicant was sued by the respondent in Civil Suit No. 69 of 2OL2.

- 2. Judgmentwas passed in favour of the respondent on the 8th day of April 2OL6. - 3. Being dissatisfied, the applicant immediately instructed their lawyers, Messrs P. wettaka Advocates to file a Notice of Appeal. - 4. The said Notice of Appeal was filed but the applicant later on learnt that the same was liled out of time. - 5. That upon discovery of the above error, the applicant immediately withdrew the appeal under Rule 94 of the Judicature (Court of Appcal Rules) Directions. - 6. The applicant is still interestcd in prosecuting the appeal. - 7. Counsel's mistake cannot bc visited on the litigant. - 8. It is in the interest of justice that the application is granted.

The respondent filed an affidavit in reply deponed by Eric Karambasaizi and stated therein that the applicant's appeal was filed on 3'd February 2oL7 and a copy of the Memorandum and Record served on the respondent's then lawyers. Later the applicant withdrew the appeal but has not shown sufficient reason why he withdrew the appeal resulting in its dismissal in law instead of applying to Court to validate the appeal. On 3oth March 2OLT , the respondents filed an application vide Civil Application No, 78 of 2Ol7 Delta Petroleum (Uganda) Limitcd Vs Dick Senyonjo seeking orders that the applicant's appeal be struck out on grounds that the Notice of Appeal was served out of tinre.

### Representation

When this application came up for hearing, Mr. Songon Mustapha Walima appeared for the appellant while Mr. George Arinaitwe appeared for the respondent. Both parties filed written submissions which they adopted.

## Applicant's submissions

Counsel for the appellant referrecl to Rule 5 of the Judicature Court of Appeal Rules Direction SI 13-10, which allows this court, for sufficient reason, to extend the time limited by these Rules. Counsel relied on the decision in Rosette Kizito Vs Administrator General and others S. C. C. A No. 9 of 1986 in which 'sufficient reason'was defined to relate to the inability or failure to take the particular step in time. Counsel relied furthcr- on the Supreme Court decision in Sabiiti Kachope and 3 others vs Margaret Kamuje Supreme Court Civil Application No. 31 of L997 in which Oder, JSC (as he then was) held that; "for appliccttiorLs of ertenslon of time, a mistake or negligence of the applicctnt's counsel magbe accepted q.s a proper groundfor granting relief such cts lcque to file out of time. The discretion of court is not fettered as long cts stfficient reason has been disclosed to iustifg court's exercise of its ciiscretion in fauor of the Applicant."

Counsel argued that in the present case, the affidavit of the applicant emphasizes that the inordinatc dclay was caused by the applicant's previous counsel who inspite of having instructions to file a Notice of Appeal, failed to do so within timc. He negligently filed the Notice of Appeal when time within which to file had passed. Counsel relied on

Julius Rwabinumi Vs Hope Bahimbisomwe Civil Application No. 14 of 2OO9 in which the applicants sought to file their Memorandum of Appeal 9 months out of tim<:, and it was held that where there is a mistake of counsel, it can be considered sufficient ground to grant an extension of time.

### Respondent's submissio ns

In reply, counsel for the responrlcnt submitted that the Notice of withdrawal filed by the applicant was never served on the respondent and the respondent never conscnted to it under Rule 94 of the Rules of this Court. Counsel relied on thc Supreme Court decision in Crane Bank Limited (in receivership) Vs Sudhir Ruparelia and another Civil Appeal No. 7 of 2o2o in which the respondent, upon being served, had endorsed his objcction to the withdrawal on the notice of withdrawal. Since the objection was still before the court, the court had the occasion to dismiss thc appeal. In the present case, the notice was not even servcci ui)olr the respondent contrary to the mandatory requirement in liulc 94(2) of the Rules of this Court.

Counsel submitted further that the applicant in this case has not shown sufficient cause to warrant the exercise of Court's discretion to extend time within which to lile the proposed appeal. Counsel relied on the decision in Mutindwa George William Vs Kisubika Joseph s.c.c. A No. L2 of 2oL4 in which it was held that an applicant seeking for extension of time has the burden of proving to the court's satisfaction that for sutficient reasons, it was not possible to lodge the appeal in the prcscribcd time.

That the applicant in the present case seeks to rely on the mistake of counsel which ought not to bc visited on the innocent litigant. The Notice of Appeal was filed within 130 days instead of the stipulated 14 days and it was never served on the respondent. Counsel submitted that the general principle o[ larw stated in the case of Kananura Andrew Kansiime Vs Richarrd I'Ienry Kaijuka Supreme Court Civil Reference No. 15 of 2OL6 is thaiL mistake of counsel should not be visited on the litigant is subjccL to cxceptions.

# Applicant's submissions in rejoinder

In rejoinder, counsel for the applicant relied on Rule 94 of the Judicature Court of Appeal Rules Directions SI 13-10 and argued that for an appeal to be dismisscd with costs, it is subject to an application by the party who dicl not consent under Rule 94 (5) which shall be made L4 days aftcr lodging the notice of withdrawal. In addition, the respondent did noL scrve on the appellant's address of service under Rule 80 of ttrc rulcs of this court.

Counsel further relied on the dccision in Chelbei and another Vs Masai Labu Misc. Application No. 14O of 2OlO which states that Rule 94(L) of the rules of this court permits an appellant to withdraw an appeal only before it hars becn called for hearing and once it has been called for hearing, it cannot be withdrawn by the appellant. Counsel argued that the wittrdriin'n nppeal had never been scheduled for hearing at the time it wa:;'ui,itirr.lrawn and the appellant exercised his right to withdraw thc saiid rrprpcal so as to prepare a fresh and more prepared appeal in this cc.,irrL.

# Court's consideration of the a'1>plication

Rule 5 of the Judicature (Court of Appeal Rules) Directions SI13- 1O, gives this Court discretior-rarry powers to extend time within which an act is required to be donc try the rules. The rule provides as follows;

"The Court ffiaU, for sufficiertt reclsot'1, extend the time limited by these Rules or bg ang decision of the court or of the High Court for the doing of ang act authorized or recquirecl bg these Rules, whether before or afier the expiration of that time urud uthether before or afi,er the d.oing of the act; and ang referencc in thc:se Rules to any suchtime shallbe construed as a reference to the titrrc as extended."

The condition for the grant ol- the extension of time is that the applicant must show sufficicnt rcarson as to why the Court should grant the extension of tirnc; in this case, extension of time within which to appeal. In Re. Christinc Namatovu Tebajiukira Versus Noel Shalita .1992-93) HCB 85, iL was held that an application for extension of time must sho\*, sr-rl-lk:ient reason before the court can exercise its discretion in grrrrrLinl; tlrc same.

In Dr. Rubinga v Yakobo Kato and 2 others, Supreme Court Civil Appeal, No. 35 of 1992, it u,as ircld that;

'When a judge se/s out to consiclc:r an application for leaue to appeal out of time he maA take into ctc:c:ctun.t alt the circumstances inuolued. in the procedures up to that poirtt. Iror instance, he maA take into account the delays which haue occurred, lhe probable tikelihood ofsuccess o.,f the Appeal or otherwise arLcl lrc: rnay take into account the general situation as to whether the app<:tl c:ould in law be institttted.'

Under the Constitution, a pcrsorr u,hose civil rights and obligations are being determined by 'a court or tribunal is entitled to a fair hearing which is a hearing condtrctcd impartially in accord.ance with due process where a party hns lrad reasonable notice as to the time, place and issues with reasonablc opportunity to prepare.

Likewise, in Clouds 10 Lirnited v standard Chartered Bank (U) Limited, supreme court civil Application, No. BS of ]-gg2, Manyindo, DCJ (as he then \\/arsr) l-r<:ld that; 'The Court is onlg entitled to grant an extension of tilrLe.lrtr sufficient reason, which must be shown to the court.'

In the present case, the appliczrnt has stated in paragraph 5 that his current lawyers inadverter-rtl1, I'ilcd Civil Appeal No. 20 of 2OI7 without reahzing that thc: N<;ticr: o1'Appeal filed earlier was filed out of time. The applicant filed ar Noticc of withdrawal of the appeal and now seeks extension of timc anrlf or leave of court to file his appeal in a proper manner. Thc Supn:;r-rc Court in Seperia Kyamulesiire Vs Justine Bikanshire Bairgaurlr,: Civil Appeal No. 20 of 1995 held that errors or omission by cr.,r-,r,sli-,l are no longer considered fatal to the applicant under Rulc I <tf'tlic llules of the court unless there is evidence that the applicarrt. \r,i-r; 11uilty of dilatory conduct in the instructions of his lawyer.

The applicant, after thc dr:ci:-:itrn in civil Suit No. 69 of 2012, instructed his lawyers Mcssrs i). Wettaka Advocates to file a Notice

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of Appeal. The Notice of Appeal was filed and the applicant learnt later that it had been filed out of time and withdrew the appeal under Rule 94 of the Rules of this court. From the set of events since the judgment of the High Court was delivered, it is clear that the applicant is interested in prosecuting his appeal and was only let down by the previous lawyers.

The Constitution, in Article 28(1), requires that the substance of disputes should be investigated on their merits, and errors and lapses should not necessarily bar a litigant from the pursuit of his/her rights.

In the result, an extension of time and/or leave to appeal out of time being sought by the applicants is hereby granted. Notice of Appeal should be lodged within 7 days from the date of delivery of this ruling.

Each party shall bare its costs.

Dated this $\frac{q}{2}$ day of March 2023

Richard Buteera, DCJ

Catherine Bamugemereire, JA

WARRAND LUN

Stephen Musota, JA

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