[2024] UGHC 1070

## THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA HOLDEN AT MBALE MISC. APPLICATION NO. 121 OF 2024

### (Arising from land suit No. 18 of 2024)

# THE REGISTERED TRUSTEES OF CHILD RESTORATION OUTREACH ::::::::::::::::::::::::::::::::::::

#### **VERSUS**

- 1. DEPARTED ASIAN PROPERTY CUSTODIAN BOARD - 2. Y. Y GENERAL CONSTRUCTION LTD

# 3. COMMISSIONER LAND REGISTRATION :::::::::::::::::::::::::::::::::::: **BEFORE: HON. JUSTICE LUBEGA FAROUQ**

#### **RULING**

- 1. This application was brought by way of Notice of Motion under section 37 of the Judicature Act Cap 16, section 96 and 98 of the Civil Procedure Act 282, Order 51 rule 6 and Order 52 rule 1 and 3 of the Civil Procedure Rules SI.71 for orders that- - (a) That the Applicant be granted leave to file a reply to the $2^{nd}$ defendant's counter claim out of time; - (b) That costs of this application be provided for. - 2. This application was supported by the affidavit sworn by Nabitiri Paul, the Applicant's country director and the grounds therein are briefly that- - (a) That the $2^{nd}$ Defendant filed her written statement of defense on $26^{th}$ March, 2024 and the same was served on the Applicant's lawyers on the same date: - (b) That unfortunately, owing to the intense pressure at the time, there were applications for interim injunction and temporary injunction that had to be heard and since the $2^{nd}$ Defendant was threatening

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to take over the suit property thus the lawyers were unable to file the reply in time;

- (c) That the mistakes or lapses of the lawyers should not be visited on the innocent litigant; - (d) That the Applicant has a good defense/ reply to the written statement of defence and the counter claim; - (e) That the application has been brought without delay and no injustice shall be caused on the Respondents; - (f) That the Applicant has demonstrated sufficient cause/ reasons for the grant of the extension of time in the instant application. - 3. This Application was opposed by the $2^{nd}$ Respondent in its affidavit sworn by Yunus Yusuf its managing director averred as follows- - (a) That the $2^{nd}$ Respondent was served with the Plaint in the main suit and filed its defence together with a counter claim on the 26^th day of March, 2024 and served the Applicant on the same date; - (b) That the Applicant/Counter Defendant had up to 10^th April, 2024 to file its reply to the defence and defence to the counter claim but failed to do so adamantly; - (c) That on the $26^{th}$ April, 2024 the $2^{nd}$ Respondent in its affidavit in reply to Misc. Application No. 46 of 2024 again reminded the Applicant that it had not filed its defence to the counter claim in paragraphs 15 -16 thereof which the Applicant just laughed in its rejoinder filed on 29^th April, 2024 and sworn by the same Nabitiri Paul bragging that they still had time; - (d) That by the premises above the assertion that the delay to file the defence to the counter claim was occasioned by any pressure of handling MA. No. 46 and 47 of 2024 is a lame duck; - (e) That by 10^th April, 2024 when the Applicant was supposed to file the reply and defence, MA No. 47 of 2024 had already been disposed of and MA No. 90 of 2024 was pending ruling before the judge and MA No. 46 of 2024 had already been filed by the Applicant herein;

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- (f) That the claim of mistake of counsel cannot arise in this case; - (g) That there is no sufficient reason established for the grant of this application; - (h) That the 2^nd Respondent will be highly prejudiced since it has already applied for default judgment awaiting setting down the suit for formal proof; - (i) That the Applicant has no plausible defence to the counter claim since even Mbale City the successor of Mbale Municipality has denied having issued any lease in respect of the impugned certificate of title sought to be cancelled by the counter claim. - 4. In rejoinder the 2^nd Respondent averred that the Applicant never laughed off as alleged, what is evident is that there was a lot of pressure with the $2^{nd}$ Respondent threatening to take possession of the suit property explaining why there was a delay. He added that the $2^{nd}$ Respondent will not be prejudiced by the grant of the application.

#### 5. Legal Representation

- 6. Counsel Luchivia Faith and Wetaka Bourn represented the Applicant whereas Counsel Kamba Hassan represented the 2^nd Respondent. The $1^st$ and $3^rd$ Respondents were not represented. - 7. This application proceeded by way of oral submissions. I will consider them in the determination of this matter - 8. Issues for determination - 9. For proper determination of this application, court has framed the following issues- - (a) Whether this application raises grounds for the grant of leave to file a reply to the $2^{nd}$ Respondent's counter claim out of time? - (b) What are the remedies available to the parties? - Issue No.1: Whether this application raises grounds for the 10. grant of leave to file a reply to the $2^{nd}$ Respondent's counter claim out of time?

Section 96 of the Civil Procedure Act Cap 282 provides that- $11.$

> "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."

- In the case of Molly Kyalikunda Turinawe and 4 others V. 12. Engineer Ephraim Turinawe & another Supreme Court Civil Application No. 27 of 2010, Kisaakye, JSC stated 3 questions to be determined before disposing of an application for extension of time and these include- - (a) Whether the applicant has established sufficient reasons for *the court to extend the time in which to lodge the appeal.* - (b) *Whether the applicant is guilty of dilatory conduct.* - (c) Whether any injustice will be caused if the application is not granted. - The above principles were also considered by Duff P in the case 13. of Mugo and ors V. Wanjiru and anor [1970] EA 481 at p.484 where he stated that-

"Each application must be decided in the particular circumstances of each case but as a general rule the applicant must satisfactorily explain the reason for the delay and should also satisfy the court as to whether or not there will be a denial of justice by the refusal or granting of the application."

In the instant case, the Applicant averred under paragraphs 3 and 14. 5 of the affidavit in support that owing to the intense pressure at the time, there were applications for interim injunction and temporary injunction which had to be heard, since the $2^{nd}$ defendant was threatening to take over the suit property, the lawyers were unable to

file the reply in time. He added that it was a mistake or lapse by the lawyers and the same should not be visited on the innocent litigant.

Counsel for the Applicant to support her averments cited the case of 15.

ABC Capital Bank Limited V. A-Industries Ltd and 2 others where a case of Hajati Safina Nababi V. Yafesi Lele Civil Appeal No.9 of 1998 was cited. In that case, the Court of Appeal held inter alia that-"if a party instructs counsel, he assumes control over the case to conduct it throughout, the party cannot share the conduct of the case with his counsel. Accordingly, the applicant cannot therefore be blamed for the mistake of its counsel in failing to take the necessary steps to file the reply to the written statement of defense and a defense to the counterclaim".

- In the above case, the Applicant's counsel fell ill and upon return 16. drafted and filed the reply to the written statement of defense and a defense to the counter claim out of time. This should be distinguished from the instant application. - On the other hand, counsel for the 2^nd Respondent while arguing 17. that the application does not raise any sufficient ground/cause to warrant extension of time referred this court to Kasule Samuel V. Mubeezi James & Others Supreme Court Misc. Application No.24 of 2015. In that case the Supreme Court noted that- "although failure to serve the Notice of Appeal was an error of counsel which should not be visited on the litigant, the same is not absolute, where an applicant does not establish sufficient reason, then she or he cannot rely on the principle. That the function of the principle is to serve as an instrument to advance the ends of justice. Where the principle is not used to serve its proper function, then it cannot be used as a shield in abuse of the court process and justice. A litigant cannot use the principle as a shield to conceal his dilatory conduct." - From the Applicant's averments, he alleges that his counsel was 18. prevented from filing his reply to the counter claim in time because of

the pressure at a time arising from the threat to take over the suit land. He however, admit that he was properly served on the same day with the written statement of defense and the counter claim.

- It should be noted that enlargement of time is a matter of judicial 19. discretion which is intended to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error but is not designed to assist a person who deliberately sought, whether by evasion or otherwise, to obstruct or delay the cause of justice. - In the present case, what I understand from the Applicant's 20. averments is that her lawyer and herself were aware of their duty to reply to the written statement of defence and counter claim but intentionally decided to take their time with the view that they will after wards file this application. - In Byansi Elias and Anor V. Kiryomunju Tofasi Civil Appeal No. 21. 029 of 2010, Justice Bashaija stated that-

"In as much as the principle that mistake of counsel should not be visited on the litigants, I am unable to find that a busy schedule of an advocate could reasonably amount to mistake of counsel. A mistake of counsel in my view would arise where due to some inadvertent act or omission, the advocate duly instructed by a litigant does or omit to do something that prejudices the litigant's interest who must not have been party to or known of the act or omission. The act or omission must be solely attributable to the professional negligence and conduct of the advocate."

I agree with my brother judge's reasoning. Although in the instant 22. case the applicant refers to pressure of threatened eviction, in essence it is the busy schedule of counsel that prevented her from filing the reply, because the Applicant refers to the interim and temporary injunction which its lawyer was engaged in at that time which prevent her from filing a reply to the written statement of defense. To my understanding, this a dilatory conduct.

- Order 8 rule 11 of the Civil Procedure Rules SI.71 gives 15 days 23. within which to file a reply to the counter claim. Following that position, it defeats logic for the Applicant to claim that for all the 15 days, his counsel was under pressure of threat to take over the property by the respondent. I am not convinced. - However, be the above as it may, the case of Molly Kyalikunda 24. Turinawe & 4 others V. Engineer Ephraim Turinawe & another (Supra) and Mugo & ors V. Wanjiru & anor (Supra) emphasizes the prejudice which the opposite party may occasion if an application of this nature is granted. - The $2^{nd}$ Respondent averred under paragraph 10 of the affidavit in 25. reply that it will be prejudiced if this application is granted since it had already applied for a default judgment awaiting setting down the suit for formal proof. The said application was however not attached for this court to take judicial notice of the same. - In Horizon Coaches V. Edward Rurangaranga and Mbarara 26. Municipal Council SCCA No. 18/2009 (unreported), Katureebe JSC, as he then was, held as follows:

"Article 126 (2) (e) of the Constitution enjoins Courts to do substantive justice without undue regard to technicalities. This does not mean that courts should not have regard to technicalities. But where the effect of adherence to technicalities may have the effect of denying a party substantive justice, the Court should endeavor to invoke that *provision of the Constitution.* "

In the present case, although as discussed in the body of this ruling, 27. the Applicant was at fault, the $2^{nd}$ Respondent has not clearly indicated

to court how it will be prejudiced if this application is granted. In any case, the hearing of Civil Suit No. 18 of 2024 has not commenced.

- Therefore, in the exercise of the powers granted to me under section 28. 98 of the Civil Procedure Act Cap 282, the Applicant is granted leave to file its reply to the written statement of defence and to the counter claim within 5 days from the date of this ruling. - 29. Issue No.1 is answered in the affirmative. - 30. Issue No.2: What remedies are available to the parties? - From my discussion in the body of this ruling, the Applicant has 31. been faulted for its failure to file its reply to the written statement of defence and counter claim in time, given the fact that it was effectively served with the same - In the circumstance, costs of this application are awarded to the $2^{nd}$ 32. Respondent.

I so order.


Ruling delivered via the emails of the Advocates of the parties on $14^{th}$ day of November, 2024.