[2024] UGSC 27

# THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA

# AT KAMPALA

# CIVIL APPLICATION/ REFERENCE NO. 02 OF 2022

THE REGISTERED TRUSTEES OF THE HINDU UNION

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#### **VERSUS**

## **KAGORO EPIMAC ::::::::::::::::::::::::::::::::::::**

[Reference from the ruling and order of Prof. Tibatemwa Ekirikubinza (JSC) sitting as a single Justice dated 14th January, 2022, in Civil Application No.46 of 2021)

#### **RULING OF THE COURT**

The reference is brought under section 8(2) of the Judicature Act and Rules $41(2)$ and $52(1)(b)$ of the Rules of this Court. It is a challenge against the ruling of Prof. Tibatemwa -Ekirikubinza (JSC) vide Civil Application No. 46 of 2021 dismissing an application for extension of time within which to file and serve the respondent with a memorandum of appeal and record of appeal.

## **Background**

The Registered Trustees of the Hindu Union, the Applicant brought HCCS NO. 166 of 2010 against Kagoro Epimac, The Registrar of titles and Flugensia Tumwesigye seeking for declarations that the transfer of the land comprised in FRV 318 Folio 8 and Plot 1B Lugogo bypass

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formerly FRV 62 Folio 1 approximately 0.081 Hectares in the names of the respondent was fraudulent, a permanent injunction against the Respondent from trespassing onto the suit land and against other defendants from further dealing with the suit property. The Applicant lost at the trial Court. Being dissatisfied with the decision of the trial court, the Applicant appealed to the Court of Appeal vide Civil Appeal No. 185 of 2018 which appeal was dismissed with costs to the Respondent on 26^th June, 2019.

Being dissatisfied with the decision of the Court of Appeal, the Applicant lodged a Notice of Appeal in the Court of Appeal on 4^th July, 2019 and applied for a copy of typed proceedings and judgment. On 27^th September, 2019. The Applicant was furnished with a copy of the typed proceedings and judgment. An additional copy of the proceedings was furnished to the Applicant on 15^th October, 2019. The Applicant did not institute the appeal within the 60 days of receipt of the complete proceedings.

On 19^th March, 2020, the Applicant moved this Court to hear an application for an order extending the time within which to file its Appeal. However, through consent of both parties, the application for extension of time was granted by Hon. Justice Esther Kisaakye (JSC) on the same day. It was ordered that the Applicant files and serves the Memorandum of Appeal and record by 21^st April 2020.

That evening, due to the Covid 19 Pandemic, the Country went in total lockdown which was only lifted on 4^th June 2020.

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The Applicant filed its appeal on 14^th April, 2021. The Applicant later filed an application for extension of time vide Civil Application No. 46 of 2021 which was dismissed. Hence this reference.

The grounds for this reference include the following:

The Application is supported by the affidavit of Mukesh Shukla in his capacity as a Registered Trustee of the Applicant.

- On 19^th March, 2020, the date on which the Order for $(i)$ extension of time within which to file the memorandum of Appeal in this Court by Kisaakye JSC, the country went into total lockdown. - That the time allowed by the Court expired on 21^st April, 2020 $(ii)$ when the country was still in total Lockdown. - That the Applicant was precluded from filing the appeal as (iii) ordered by Court due to the total lockdown that had been imposed by the president. - That the Applicant filed SCCA No. 10 of 2021 in April 2021 $(iv)$ and has been served upon the Respondent. - That the Applicant had also filed an application for extension $(v)$ of time to validate the appeal. - $(vi)$ That the failure to file the memorandum of Appeal sooner was due to negligence on the part of the advocates and this should not be visited upon the Applicant. - (vii) That in dismissing the application for extension of time, Tibatemwa- Ekirikubinza (JSC) erred in law and in fact.

- (viii) That it is in the interest of justice that SCCA No. 10 of 2021 be heard on its merits so as not to cause an injustice to the Applicant by shutting them out of the highest Court of the land. - $(ix)$ That it is imperative that the Court looks at the fact that the subject matter is a communal land and that the whole community is likely to suffer a grave injustice if the appeal is not heard on its merits.

The Respondent on the other hand opposed the reference. He deponed an affidavit in reply with the following grounds which included among others the following:

- That the Applicant has not shown sufficient reasons to $(i)$ warrant the setting aside or reversal of the judgment of Tibatemwa- Ekirikubinza (JSC) - $(ii)$ That the Applicant contravenes rule 52(2) of the Supreme Court Rules by adducing additional evidence to support its claim without leave of court. - (iii) That the likelihood of success of the intended appeal is slim. - That the Applicant has failed to adhere to the procedural $(iv)$ requirements for filing a Memorandum of Appeal and service thereof two times in a row. - That the Applicant is guilty of laches having failed to $(v)$ diligently prosecute its appeal and instead seeks to frustrate the Respondent's development of his property.

# **Representation**

At the hearing, Muhammad Golooba appeared for the Applicant whereas Kiboijana Richard appeared for the Respondent. Both counsel adopted their written submissions as final their submissions.

Mr. Mukesh Shukla was in court for the Applicant.

# Applicant's submissions:

Mr. Golooba Muhammad, counsel for the appellant contended that the Applicant had in line with Rule 4 of the Judicature Supreme Court Rules provided court with sufficient reason upon which an application for extension of time could be granted. He submitted that an order for extension of time can be granted before the expiration of the time allowed by court within which an act can be done, after the expiration of that limited time, before the act is done and after the act is done.

He argued that the sufficient reason in this instance was that on the 19^th day of March, 2020 the country went into total lockdown which prevented the applicant from honoring the order of court. And that even the last day of filing the memorandum of appeal as allowed by court fell within the time of the total lockdown of the Country. That the sufficient cause in this case was the inability to file and serve the memorandum of appeal occasioned by the restricted movement and the closure of most institutions including the judiciary.

He contended that as a matter of law that time permitted by Court could not run when the country was still under lockdown. He argued against the finding of the single justice that the Applicant was guilty of laches for 9 months after the lifting of the lockdown because he failed to file the memorandum in the Court registry and serve it on the respondent.

He further argued that Rule 4 does not specify the time within which the application for extension of time and that what is required is that the Applicant files the application within reasonable time which varies on case to case basis. He relied on the case of **F. L Kaderbhai** & Anor vs. Shamsherali & Others, Civil Reference No. 20 of 2008. where the Court allowed an application for extension of time that was filed after 10 months. He also relied on the decisions in Attorney General vs. A. K. P. M Lutaaya Civil Application No. 12 of 2007 and Mulowooza & Brothers Limited vs. Shah & Co. Ltd, Civil Application No. 20 of 2010.

He contended that the subject matter of the appeal is of great importance to the Hindu community as it constitutes burial grounds for persons who profess the Hindu faith and that it is in the interest of justice that the case be heard on its merits. He relied on rule $2(2)$ of the Rules.

Finally, counsel for the Applicant contended that the delay in filing of the appeal was occasioned by mistake of counsel which cannot be visited on the litigant. That the Applicant's former counsel M/s Bwango Araali & Co Advocates occasioned the delay was dropped and

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that it has instructed M/s Kavuma, Kabenge & Co. Advocates who has since filed a Notice of change of advocates.

Counsel prayed Court to allow the reference validate the Applicant's Appeal, and allow the appeal to be heard on its merits.

# **Respondent's submissions**

In response, Kiboijana Richard Counsel for the Respondent, opposed the reference. He contended that the Applicant has not presented sufficient reasons to warrant the setting aside the decision of the single justice. He argued that Her Lordship Tibatemwa- Ekirikubinza ably considered all the facts at hand especially relating to the limitations imposed by the total lockdown. He contended that the lockdown was lifted on 4^th June, 2020.

He submitted that it took the Applicant 9 months from the lifting of the lockdown before it filed Civil Appeal No. 10 of 2021 on the 14^th April 2021 without the leave of Court. He submitted further that the Applicant failed to explain or account for the delay in filing on the appeal. That the Applicant also failed to explain why it took it 6 months to serve the respondent the appeal it had filed in April and to file Civil Application No. 46 of 2021 for extension of time when the Courts were open and functioning.

He contended thus supported the decision of the single justice as having been correctly made.

On ground 2, counsel for the respondent argued against ground 2 of the application. He contended that the Applicants argument that the

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suit property is one of great importance being a burial ground for persons who profess the Hindu faith. He contended further that the importance of the subject matter should not be used as excuse to abuse court process.

On ground 3, on mistake of counsel, counsel for the respondent argued that the Applicant did not raise this ground in the pleadings and hearing of Civil Application No. 46 of 2021. He argued further that the Applicant is simply trying to smuggle additional evidence in contravention of Rule 52(2) of the Rules.

Counsel contended that cases and authorities cited by the Applicant do not support the facts at hand. He relied on the case of **Mulindwa** George William vs. Kisubika Joseph, SCCA No. 12 of 2014 which prescribes the considerations for the grant of extension of time which are; the length of the delay, the reasons for the delay, the possibility or chances of success, and the degree of prejudice to the other party.

He prayed Court to find that the single justice properly determined that the applicant did not furnish sufficient reasons to warrant the reversal of her judgment. He prayed Court to be dismissed with costs.

In his submissions in rejoinder, counsel for the Applicant reiterated his earlier submissions for the most part. Regarding the issue of the Applicant adducing additional evidence in this application, counsel submitted that although mistake of counsel was not pleaded in Civil Application No. 46 of 2021, the court is not precluded from inferring the matter. He cited the case of **James Bwogi and Sons Enterprises** vs. Kampala City Council CCA No. 09 of 2017 to support his argument.

#### **Consideration:**

The single issue for this Court's Consideration is:

Whether the Single judge did not put into account the evidence presented by the Applicant that prevented it from filing a memorandum of Appeal by 20^th April, 2020 as was ordered by the judge in dismissing Civil Application No. 46 of 2021.

The Applicant, The Registered Trustees of the Hindu Union, presents two seemingly contradictory explanations for the delay in filing their memorandum of appeal within a reasonable time frame. On one hand, counsel argues that rule 4 of the Supreme Court Rules, which allows for an extension of time to perform an act, does not specify a deadline for submitting an application for such an extension. Consequently, they assert that their application was timely.

On the other hand, the Applicant contends that the nine-months delay in filing the Memorandum of Appeal in the Court Registry and the additional six months' delay between the filing of the memorandum and the filing of the Application for extension of time was due to the negligence of their former counsel. Counsel further submits that a more diligent lawyer has now been engaged to pursue the appeal diligently.

This dual argument can be seen as "blowing hot and cold." By claiming the application was timely under rule 4, the Applicant

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suggests no fault in the timing. However, by attributing the delay to former counsel's negligence, they concede there was a period of inactivity requiring explanation.

Be that as it may, the ground of inadvertence of counsel cannot be introduced at this stage as it was not raised in the application before the single justice. It contravenes rule 52(2) of this Court's Rules which states that at the hearing of three judges, of an application against the decision by a single judge, no additional evidence shall be adduced except with the leave of the Court.

Therefore, cases such as F. L Kaderbhai & N. H Valiji & Shamsherali M. Zaver Virji & 2 Others (supra) Attorney General vs. A. P. K. M Lutaaya (supra) cannot be applied to this case.

The law relating to extension of time is prescribed in Rule 4 of the Supreme Court Rules.

It reads as follows:

"The court may, for sufficient reason, extend the time prescribed by these Rules or by any decision of the court or of the Court of Appeal 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 so extended." (Emphasis Added)

The Application of this Rule has been explained in various decisions of this Court including F. L Kaderbhai & N. H Valiji & Shamsherali M. Zaver Virji & 2 Others (supra) Attorney General vs. A. P. K. M Lutaaya (supra), Mulowooza & Brothers Limited vs. Shah & Co. **Ltd** (supra).

In the case of **Mulindwa George William vs. Kisubika Joseph** (supra) the Court stated as follows:

"The applicant seeking extension of time has the burden of proving to the Court's satisfaction that for sufficient reasons it was not possible to lodge the appeal in the prescribed time. Sufficient reason must relate to the inability or failure to take a particular step in the proceedings.

This application must be viewed by reference to the criterion of justice and it is important to bear in mind that time limits are there to be observed, and justice may be defeated if there is laxity. Factors to be considered in an application for extension of time are:

- The length of the delay $(i)$ - $(ii)$ The reason for the delay - (iii) The possibility or chances of success

The degree of prejudice to the other party. $(iv)$

Once delay is not accounted for, it does not matter the length of the delay. There must always be an explanation for the period of **delay.**" (Emphasis added).

In determining the application for extension of time, Her Lordship Tibatemwa – Ekirikubinza, JSC, stated as follows:

"It is also an undisputed fact on record that on the night of $19^th$ March 2020 following the Covid -19 pandemic, a country wide lockdown was imposed. The lockdown remained in place until 4^th June 2020. On 18^th June 2021, a second lockdown was imposed which remained in force until 1^st August 2021. It is clear that during this period, the applicant's time for filing its documents as directed by Justice Kisaakye, JSC expired.

Whereas it is true that the applicant and its counsel are not to be blamed for the lockdown, the question is whether any steps were taken by the applicant as soon as the first lockdown was lifted on $4^{th}$ June 2020.

The record and affidavits filed in respect of this application show that the applicant filed its documents in April 2021. During the 9 months when the lockdown was lifted and before the second one was imposed, the applicant took no action in prosecuting or following up its matter.

It is clear that the filing of the applicant's documents in April 2021 was done out of time and without first seeking the Court's leave to file the said documents. I note that it is on $1^st$ November 2021 that the applicant sought the leave of court to have its documents filed out of time validated. Again the applicant did not account for any steps taken between April 2021 when it filed the documents and November when it filed its application for

# extension of time. in the premise, I find that the applicant has been guilty of laches in prosecuting this matter."

I agree with this position.

In matters regarding the filing of a Notice of Appeal and a Memorandum of Appeal, time is indeed of the essence. This is evident from the rules themselves, which stipulate that a Notice of Appeal should be filed within 14 days of the delivery of the judgment and the Memorandum of Appeal within 60 days from the receipt of typed proceedings and judgment of the lower court. (See Rule 79 of the Supreme Court Rule). The application of Rule 4 has to be made with the provisions of rule 79 in rear view.

On 19th March 2021, the Court ordered that the Applicant file its Memorandum of Appeal by 21^st April, 2020. This 31-day period was interrupted by a nationwide lockdown starting the evening of the Court's order. As the lockdown prevented the Applicant from complying with the filing deadline, the 31 days only began to run once the lockdown was lifted on 4th June 2020, expiring on 6th August 2020.

The Applicant's failure to file the Memorandum of Appeal within this extended period necessitated a prompt application for an extension of time with sufficient justification for the delay. Instead, the Applicant unlawfully filed on 21^st April 2021 its Memorandum of Appeal, without first seeking leave of court, demonstrating a contemptuous disregard for procedural requirements.

Furthermore, the application for an extension of time was filed six months after the unlawful Memorandum of Appeal, without adequate explanation for the delay.

The Leniency granted for a first application for an extension of time cannot be extended indefinitely. The Applicant is making a $2^{nd}$ application for extension of time.

The first time, the respondent had shown considerable kindness by consenting to the first extension, which the Court approved. The Applicant's repeated laxity suggests a lack of commitment to prosecuting the appeal and a disregard for both the respondent and the Court. It would therefore be prejudicial to the respondent if the Applicant is allowed to continuously breach procedural timelines without any consequences.

The Applicant squandered the opportunity provided and failed to act within the reasonable and extended timeframes allowed. Such conduct does not merit further leniency.

It is for the aforementioned reasons that I disallow this reference. I find no reasons to set aside the decision of Tibatemwa- Ekirikubinza, JSC.

In the result, this reference is dismissed with costs to the respondent.

Dated at Kampala this....................................

$\mathcal{L}_{\mathcal{R}}$

#### JUSTICE OF THE SUPREME COURT

Hon. Elizabeth Musoke

## JUSTICE OF THE SUPREME COURT

Justmet mas

Hon. Stephen Musota

### JUSTICE OF THE SUPREME COURT

Delumée by the Registron<br>Joeth.<br>27/6/24