[2022] UGSC 38

#### THE REPUBLIC OF UGANDA

# IN THE SUPREME COURT OF UGANDA AT KAMPALA CIVIL APPLICATION NO. 11 OF 2021

(ARISING FROM COURT OF APPEAL CIVIL APPEAL NO.184 OF 2012) DR. WASSWA JOSEPH MATOVU::::::::::::::::::::::::::::::::::::

### **VERSUS**

#### 1. MAKERERE UNIVERSITY

- 2. PROF. DDUMBA SSENTAMU - 3. RACHEL MIREMBE:::::::::::::::::::::::::::::::::::

#### RULING OF RUBBY OPIO-AWERI, JSC

#### Introduction:

Dr. Wasswa Joseph Matovu hereinafter the applicant brought the instant application under the provisions of Rule $2(2)$ , 5, $42(1)$ of the Rules of this court seeking orders that he be granted an order extending time within which to appeal the decision of the Court of Appeal in Civil Appeal No.184 of 2012.

#### Background:

The brief background to the application is that the applicant is a researcher in the 1^st respondent's Faculty of Economics and Management. The applicant won a Post-Doctoral fellowship research grant from the organization for Social Science Research in Eastern and Southern Africa in 2006. The funds amounting to USD 1499.25 being the last batch of three disbursements was transferred to the 1st respondent's faculty account in Standard Chartered Bank (U) Ltd for onward disbursement to the applicant. The $2^{nd}$ and $3^{rd}$ respondents were agents of the 1^st respondent authorized to administer the 1st respondent's faculty account and had a duty to transfer the funds to the applicant's account in Stanbic

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Bank. When the duty to act arose, the l"t and 2"d respondents denied knowledge of the whereabouts of thc transferred funds.

After several complaints from the applicant, the respondents informed the applicant that his funds had been returned to the remitter as per the remitter's instructions. To the rcspondents, the bank was unable to credit the faculty account duc to incorrcct particulars of thc account that were furnished by the applicant and that due to the irregularities, the funds were returned to the remitter on 2"d September, 20 10. Consequently, the appiicant filed I'{. C. M. C No.l45 of 20lO which was dismissed by the trial Judge on grounds that thcre was no basis for issuing an order of Mandamus to pay the applicant the sum of USD 1499.25 since the funds in issue were returned to thc remitter. Additionally, the High Court also found that there werc no procccdings conducted by the respondents nor any decision taken by them in which thc applicant was denied a hearing as alleged. Dissatisficd with the High Court dccision, the applicant appealed to the Court of Appeal which upheld thc decision of the High Court. According to the applicant, he discovcred aycar later that the Court of Appeal had dclivered its judgment to which he was aggrieved and since he was out of time to lodge an appeal to this court, he sought the leave of this court for extcnsion of timc within which to lodgc his appeal hcnce the instant application.

## Grounds for the application:

The application is bascd on thc grounds that on l61h July, 2O19, thc Court of Appeal heard Civil Appeal No. 184 of 2072 and reserved its judgment that was to be delivered on notice, and on I 1 t' November, 2019, the Court of Appeal delivered its judgment. However, the applicant was never given noticc of thc judgmcnt datc and on 5th . January, 2021, when he visitcd the

registry of the Court of Appcal to follow up, he discovered that judgment had been dclivered which hc was dissatislied with. Hc immediately lodged a notice of appeal and applied for thc certified copy of the judgment and proceedings which were availed to him on 6rh April, 2021 . Tlne applicant remains discontent with the decision of the Court of Appeal and that the 14 days within which hc could have lodgcd his appeal to this court have expired. Hc is however still intcrcsted in appealing against the judgment of the Court of Appeal and that thc delay to lodgc the appeal was not his fault. The applicant also contended that that he filed the instant application without dclay and in thc interest of achieving the ends of justice, the time to appeal should be extended.

The application was also supported by an affidavit in support deponed by the applicant which basically rc-cchocs the above grounds which I don,t intend to reproduce.

## Reply to the application:

The respondents opposed thc application through an affidavit deponed by one Yusuf Kiranda, the University Secretary of the l"r respondent.

In that reply, Mr. Kiranda avers that the application is frivolous, vexatious and brought in bad faith with a deliberate intcntion to frustrate the respondcnt's rights as dctermincd by thc High Court and affirmed by the Court of Appeal. It was his furthcr contention that when the appeal at Court of Appeal was heard, the applicant took no steps to establish the status of the matter for a period of more than a year despite being the appellant in the matter and as a rcsult, the applicant is guilty of inordinate delay in seeking the indulgencc of this court. It was thus the contention of the rcspondents that thc application is gcnerally misconceived, lacks merit and does not contain any sufficicnt grounds to warrant the grant of the

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orders sought thercin. Mr. Kiranda lurthcr contended that the appeal that the applicant intends to pursue lacks mcrit and is not likely to succeed and that the 1\*t respondent shall continuc to suffer prejudice owing to the applicant's refusal to pay costs awarded by the High Court.

### Submissions:

When the application came up for hearing, parties were directed to file written submissions. The pcrusal of thc rccord indicates that it's only the applicant who complied with that dircctivc as no submissions have been filed by the respondents. That being the position, I will proceed to consider the application on the basis of what has bcen filed.

It was the applicant's argumcnt that when Civil Appeal No. 184 of 2Ol2 was heard by the Court of Appeat, thc court reserved the delivery of the judgment to be delivercd on noticc. For over a year, there was no such notice and its then that the applicant chose to cross check with the registry of the Court of Appeal. At the rcgistry, the applicant discovered that judgment in the appeal had long been delivered to which he was dissatisfied. He immediately lodged a notice of appeal and requested for a certified copy of the judgmcnt and proceedings which wcre availed on l6rh April, 2021. That though the applicant filed a notice of appeal, he discovered that the 14 days within which to appeal had expired thus this application. The applicant furthcr argucd that the delay was not his fault and that he filcd the instant application without delay.

It was a-lso the argumcnt of the applicant that this application is not brought in bad faith neither is it an abuse of court process as he is interested in prosecuting his appeal in this court. The applicant also demonstrated that the appea\_l he intends to prosecute in this court has merit as it raises important legal issues with a strong likelihood of success.

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He thus prayed that it is in thc interest of justice and preserving his right of appeal that this application should bc allowed.

## Consideration:

In determining this application, i have fully considered the pleadings, the submissions on court record and the law in their entirety.

The instant application was brought under Rules 2(2),5, and 42(l) of the rules of this court. Rule 2(2) basically provides for the inherent powers of this court in as far as the court can make such orders necessar5z for achieving the ends of justicc while rule 42(1) provide for the form of application to be liled in this court. It would therefore appea\_r that the pertinent law and which is of relevancy in the determination of this appiication is rulc 5 of the rules of this court. Rule 5 provides thus;

"The courT mag, for sufficient reason, extend the lime prescribed by these ruIes or bg ang decision of the court or of the Court of Appeal for the doing of ang act authorbed or required bg these rules, whether befure 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".

Furthcr to the abovc, section 96 of the Civil Procedurc Act empowers this court to cnlarge time for a party to pcrform an act rcquired by court if sufficient reasons arc showed by such party. If such reasons are showed to the satisfaction of court, then such party can be granted leave or time can be extended by the court to pcrform such an act that the party ought to have performcd within the statutory pcriod.

In Hadondi Daniel vs Yolam Egondi, Court ofAppeal Ctvil Appeal No. 67 of 2OO3, the Court of Appcal observcd that time can only be extended

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if sufficient cause is shown and that sufficicnt cause must relate to the inability or failure to takc necessary stcps, and that the applicant should not be guilty of dilatory conduct.

Other circumstances that could amount to suflicient cause include mistake of counsel, illness and ignorance of filing procedures by a party See, Philip Ongom Vs Catherlne Nyero Owoto, SC Civtl Appeal No. 14 of 2OOl.

This court has previously found that the principle governing applications for extension of time is that disputes should be hcard and decided on merit and that it would be a dcnial of justicc considering the circumstances of the case to shut the applicant out from exercising his rights. See Andrew Bamanya Vs Shamsherali Zaver SC Ctvil Application No. 7Ol2OOl

To the instant application, it is the applicant's contention that his appeal at thc Court of Appeal (Civil Appeal No. 184 ol 2Q121 was heard on 16th July, 2019 and the court rcscrved dclivcry of judgment on notice. Unknown to him, thc Court of Appcal delivered its judgment on I lth November, 2O 19 without giving notice to the applicant. It was on 5th January, 2O2 I when the applicant visited the registry of the Court of Appeal only to be told that the judgment had been delivered in the appeal.

I obscrve that the timc bctwccn thc datc ol hearing thc appeal and the dclivery of judgmcnt is roughly three and a ha-lf months. The appeal was heard on 16th July, 2O l9 and the applicant went to check on the status of his appeal on 5th January, 2021. That is approximately one and a half years from the date of hearing the appeal! A party that is interested in pursuing their case cannot take more than a year without bothering to find out thc position of their case. The laxity exhibitcd by the applicant in

following up his case in my view has not been suffrciently explained in his pleadings.

I observe however that the applicant was not represented but a none represented litigant in my view would be more pro-active in establishing thc status of his case since hc/she may not bc well grounded in the law and procedure. This is evident in his application when he states that he was expected to file his appeal within 14 days from the date of judgment which is not the true position of the law. Section 79(l )(a) of the Civil Procedure Act requires that every appeal should be liled within thirty days from the date of the decree or order of the court, except where it is otherwise spccifically provided in any other law.

Be that as it may, it is my vicw that the time specifications as provided under the law in performing specific acts are intended to guide parties in taking actions gcarcd towards the hcaring and determination of matters to avoid unnecessary delays. Conscquently, for any delay to be excused, it must be sufhciently cxplained.

Ordinarily, an order for enlargement of time to file an appeal should be granted unless the applicant is guilty of unexplained and inordinate delay in seeking the indulgence of the court, has not presented reasonable explanation of his failure to filc thc appeal within the time prescribcd by statute or where the extension is prejudicial to the respondent or the court is otherwise satished that the intcnded appeal is not an arguable one.

The other aspcct to consider however is that, it is not obvious that applications of such a nature should always be granted. Grant of extension ol time is discrctionary and depends on proof of good cause showing that the justicc of the mattcr warrants such an cxtcnsion. It is incumbent upon the court to carefully consider thc materials before it and determine

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whether it prescnts sufficicnt cause to warrant the grant of the orders sought. What constitutes sufficient cause will naturally depend on the circumstances of each case. See Shanti versus Hlndocha and others [19731E. A2O7.

Where however an applicant has becn culpable of inordinate delay, has not demonstrated that thc intended appeal is meritous and likely to succced and that circumstanccs cxistcd that prevented such a party to act in time, then such application shall not granted.

To the instant application, the applicant took over a year to cross check the status of his appcal only to find that judgment had been delivered. He has not demonstrated any circumstanccs in the application that prevented him from following up on his matter in time. Being a self-represented Iitigant, he should have taken the necessary effort to follow up his case specifically with the Registrar of the Court of Appcal as to when judgment was to bc delivered in his appcal. Courts of law are not open to only represented litigants. The same duty in my view is imposed on an unrepresented litigant in ensuring that he is timely appraised as to the status of his case. Failure to do so will tantamount to inordinate delay just like the case of the applicant, to which, I hold him culpable.

As to whethcr the intended appeal prcsents good grounds with a possibility of success, at this stage, thc only way to assess that possibility of success of the appeal is by perusing thc relevant record of proceedings, the judgment of the court from which the appeal emanates and the memorandum of appeal in question.

Though no memorandum of appcal has bccn hled as yct, I have taken time to peruse the judgment of thc Court of Appeal attached to the application marked annex 'B'. It is cvident from that judgmcnt that the subject matter

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that forms the basis of contention between the parties herein were the funds that were sent to the $1^{st}$ respondent for remittance to the applicant which were however remitted back to the sender. That was the crux of the matter which is now extinguished following the directive by the sender that the funds should be remitted back which directive was complied with. From that background, I see no possibility of success of the appeal, coupled with the dilatory conduct of the applicant in following up his appeal at the court of Appeal.

Overall, I find no merit in this application and accordingly dismiss it. In the premises, i decline to grant the orders sought.

Each party shall meet its costs.

$28$ .......day of $JULY$ 2022 Dated at Kampala this.....

> **RUBBY OPIO-AWERI** JUSTICE OF THE SUPREME COURT.

$210$

dorand

Delivored as<br>How Jushie

$447$

$28 - 07 - 20$