Aisha Nakitende v Wanume (Civil Application No. 255 of 2016) [2017] UGCA 152 (10 February 2017)

Full Case Text

## THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

## **CIVIL APPLICATION N0.255 OF 2016**

AISHA NAKITENDE:::::::::::::::::::::::::::::::::::

#### **VERSUS**

#### GERALD WANUME::::::::::::::::::::::::::::::::::::

(Arising from the decision of the High Court of Uganda at Kampala before Her Lordship Hon. Justice Flavia Senoga Anglin dated 04.08. 2016)

#### **BEFORE: HON. LADY JUSTICE HELLEN OBURA, JA**

## **RULING OF THE COURT**

#### **Introduction**

This is an application brought by notice of motion under Sections 98 and 79 $(B)$ of the Civil Procedure Act, and rules 2, 5 and 43 of the Judicature (Court of Appeal) Rules, SI 13-10 seeking for orders that:-

(a) The applicant be granted leave to file and serve notice of appeal and letter 20 requesting for proceedings and or commence appeal out of time and or the same be validated in respect of Civil Suit No. 438 of 2014.

(b) The applicant be granted leave to file and serve memorandum of appeal out of time against the judgment and orders made in HCCS No. 438 of 2014.

$\mathsf{S}$

## 5 Background to the Application

The background to this application as can be deduced from the notice of motion and the supporting affidavit is that in 2004, the applicant and another person were sued by the respondent vide High Court Civil Suit No. 438 of 2014 where upon the applicant was represented by M/S Bashasha & Co. Advocates. The applicant was later informed by her lawyers that a judgment had been passed against her on 4th August, 2016 with orders, inter-alia, declaring the applicant a trespasser on the land I,R. V 710 Folio 10, Plot 2-8 Nyondo Close, Kirumba-Katwe, Masaka Municipality and a permanent injunction was issued against her in respect of the said land. According to the applicant, this information came long after the days within which she could commence her appeal had expired.

The applicant was also informed about the taxation notice which her counsel declined to receive and directed that service be done on her personally. Upon receipt of this information, the applicant instructed M/S Kakeeto, Ssekitto Advocates and Solicitors to peruse the court file and advice her on the way forward. The new counsel perused the file and advised the applicant thatjudgment was entered against her and the time within which to appeal had lapsed. The applicant immediately instructed her counsel to commence an appeal against the said decision, hence this application.

The grounds of this application are contained in the affidavit of Aisha Nakitende, 2s the applicant, namely that:-

- 1. "The applicant was prevented by sfficient cause from sert,ing the notice of appeal upon the respondent in time. - 2. The failure to serve the notice of appeal in time was as a result of

- inadvertent omission of the applicant's former counsel and the same should not be visited upon the innocent applicant. - 3. The application was brought without in ordinate delay. - 4. The court has the discretion to extend time within which to serve the notice of appeal on the respondent or alternatively validate the service of the same out of time. - 5. The respondent will not suffer prejudice if this application is granted and that the applicant should not be shutfrom the seat ofjustice. - 6. h is only fair, just and equitable and in the interest of justice that the application be allowed. "

#### 15 Representation

At the hearing of this application, Mr. Etayu Richard appeared together with Siraji Kakeeto for the applicant while Mr. Magellan Kazibwe appeared together with Mr. Ambrose Tebyasa for the respondent.

## Applicant's Case

20 Counsel Etayu submitted that this Court has power to grant the orders sought under rules 2 (2), 5 and 53 of the Rules of this Court. He cited the case of Molly Kyalikunda Turinawe and 4 ors vs Engineer Ephraim Turinawe and anor, SCCA No.27 of 2010 to support his submission that in order for this Court to grant the orders sought, the applicant has to show that; she was prevented by sufficient cause from commencing the intended appeal, the applicant has an arguable case worth consideration by the appellate court and the appeal has a reasonable chance ofsuccess, the applicant has the desire to prosecute the appeal, the application was 25

5 brought without undue delay and the denial of the application will occasion injustice to the applicant.

Counsel Etayu further submitted that the applicant has demonstrated in paragraphs 6,7,8,14 and 15 of her affidavit in support that she has sufficient cause. Furthermore, that the delay in prosecuting or filing the necessary documents was 10 not the applicant's own making but of her former lawyers. He cited the case of Kaderbhai and anor vs Shamsherali and 2 ors, Civil Application No. 20 of 2008(SC) and submitted that what constitutes sufficient cause should be left to the unfettered discretion of the court. Counsel also argued that mistake of counsel has been held in several authorities to constitute sufficient cause. See.' Kaderbhai and 1s anor vs Shamsherali und 2 ors (supra) snd Mutaba Barisa Kweterana Lld vs

Bazirakye Yeremiya and anor, Civil Application No, 158 of 2014.

Counsel further submitted that the alleged service of the judgment notice on the applicant's counsel as averred in paragraph 8 of the respondent's affidavit in reply is hearsay since the deponent said he was informed by his lawyer who said he had been informed by the applicant's lawyer but no name is mentioned and no affidavit is attached to that effect. He also submitted that the judgment notice attached to the affidavit in reply was only received by counsel for the respondent and as such, there was no proof of service on the applicant's counsel. Counsel urged this Court to find that the applicant has demonstrated that she was prevented by sufficient cause to take the necessary steps to commence and prosecute the intended appeal in time.

On whether there is an arguable appeal worth consideration, counsel Etayu submitted that the applicant has demonstrated this in paragraph 9 and annex "A" and "C" attached thereto, and in paragraph l0 and annexure "C". He argued that it

5 is now a settled principle of law that a party is not allowed to succeed in a case not pleaded save by amendment. The matter must be pleaded first then be framed as an issue. He relied on the decision in the case of Interfreight Forwarders (u) Ltd vs East African Development Bank, SCCA No. 33 of 1992. Counsel submitted that the written statement of defence of the 2nd defendant should have been attachedto the affidavit in reply to show the specific pleadings on ownership of the suit property. Regarding the applicant's desire to prosecute the intended appeal, counsel submitted that this has been demonstrated in paragraphs 8 and 12 ofthe affidavit in support. 10

On application being brought without undue delay, counsel submitted that this has been stated in paragraphs 8 and 16 and he referred this Court to the case of Koderbhai and anor vs Shamsherali and 2 ors (supra), 15

Regarding the effect of denial of the application, counsel submitted that this has been shown in paragraphs 17 and l8 of the affidavit in support. He also relied on the case of Captain Phillip Ongom vs Cstherine Nyero Owota, SCCA No. 14 of 2001 and Kaderbhui und anor vs Shamsheruli and 2 ors (supra).

In conclusion, counsel submitted that the applicant has demonstrated the grounds required and prayed that this Court tjnds so and grants the orders sought.

## Respondent's Case

In reply, counsel for the respondent opposed the application and submitted that the application has no merit. He contended that the applicant has not demonstrated any sufficient cause that prevented her from commencing the appeal in time. He argued that the respondent in paragraphs 6,7,8,9, l0 and 1l ofhis affidavit deposed that the applicant's former counsel M/S Bashasha and Co. Advocates

ru5

5 were duly served with the judgment notice on 310812016 by the High Court process server the same day the respondent's counsel was served. This fact has not been denied by the applicant. He further submitted that the respondent averred in paragraph 6 that the applicant did not state in her affidavit when she last checked on the High Court file and found that no submissions had been filed and neither did she state the steps she took to find out why submissions had not been filed. Counsel further submitted that the applicant never bothered to take steps to commence the appeal within the statutory time and this has never been controverted. This is premised on the fact that service of judgment notice on the applicant's counsel was effective service on the applicant under order 3 rule 4 of the Civil Procedure Rules. He implored this Court to find that this was effective service on the applicant and that she was aware of the judgment. In the premises, counsel argued, there was no sufficient cause that prevented the applicant to take steps to file the appeal in time. 10 15

Counsel distinguished the authorities of Kaderbhai snd anor vs Shamsherali and 2 ors (supra) and Mutaba Barisa Kweterant Ltd vs Bazirakye Yeremiya and anor (supra) and submitted that whereas in those two cases there was mistake of counsel, in this case there was no mistake of counsel as the applicant was aware of the judgment but delayed to commence the appeal and therefore she is guilty of dilatory conduct. He cited the case of Masaka Municipal Council vs Gerald Ssemwogerere, Civil Application No. 57 of 1998 where the Court held that each 20

case must be decided on its own facts and the delay must not be caused by dilatory conduct of the applicant. Counsel submitted that in this case the applicant is guilty of dilatory conduct as he was aware of the judgment and therefore the case of Kaderbhai and anor vs Shamsheroli and 2 ors (supra) is not applicable. 25

# 5 On arguable case, counsel submitted that there is no merit in the appeal. The parties filed the trial bundle which laid the agreed issues which were replicated in the judgment sought to be appealed against. He further submitted that the case of Inlerfreight Forwarders (u) Lttl vs Easl African Developmenl Bank (supra) relied upon by counsel for the applicant states that parties are to rely on issues framed and in this case the issues framed and determined were consistent with the pleadings. 10

On desire to prosecute, counsel submitted that the applicant has not demonstrated a desire to prosecute the appeal from the time ofjudgment and the current alleged desire is an afterthought.

- In response to the alleged injustice that the applicant is likely to suffer if the application is denied, counsel submitted that it was the finding of the trial Court that the applicant had neither the equitable nor registarable right over the suit property and so she will lose nothing if the application is not granted. 15 - In addition to the above submissions for the respondent, counsel Tebyasa submitted on the issue of sufficient cause that it is not enough for an applicant to come to court to shift all the blame on her former counsel for having failed to take the appropriate steps. He contended that there is no evidence before couft from M/S Bashasha & Co. Advocates that they never received the judgment notice and that they neither updated the applicant on the progress of her case nor told her about the judgment. On the alleged determination of matters not pleaded, counsel submitted that these issues were born out ofpleadings. Further, that counsel for the applicant did not state that there was a matter that had not been decided which was in the pleadings. He prayed that this Court dismisses this application with costs. 20 25

## 5 Findings of the Court

This Court has the discretion, under rule 5 of the Judicature (Court of Appeal) Rules, SI 13-10, to extend the time limited by those Rules or by any decision of this Court or of the High Coun for the doing of any act authorized by the Rules. However, the applicant must prove that he/she was prevented by sufficient cause from doing that particular act.

DuffP. in the case of Mugo and ors vs Lltanjiru and anor [1970J EA 481 at p.484 stated the general rule that guides courts when dealing with application for extension of time in the following words:-

15 "..... Each applicalion musl be decided in the particulur circumstances of each case but as a general rule the appliconl musl satisfactorily explain the reason for the delay and should also salisfy the court os to whelher or not there will be a denial of justice by the refusal or granting of the application."

20 In the case of Molly Kyalikunda Turinawe and 4 ors vs Engineer Ephroim Turinawe and anor (supra) cited by counsel for the applicant, Kisaakye E, JSC considered the following 3 questions in a similar application like this one:-

- l, Whether lhe applicant has estublishetl suf/icienl reasons for lhe court to extend lhe lime in which to lodge the appeal. - llthether lhe applicant is guil4, of tlilulory conducl 2 - 25 Ll/helher ony injustice will be caused if the upplicolion is not granted. J

This Court will bear the above general rule and questions in mind as it proceeds to determine this application.

ffi

5 It was submitted for the applicant that delay in commencing the appeal was not applicant's own making but of her former lawyers. Counsel further submitted that the alleged service of the judgment notice on the applicant's counsel is hearsay as there was no proof of service. In response, counsel for the respondent submitted that the respondent in his affidavit stated that the applicant's former counsel IWS Bashasha and Co. Advocates were duly served with the judgment notice on 310812016 by the High Court process server the same day the respondent's counsel was served. 10

According to the affidavit of the applicant, she instructed her former counsel M/S Bashasha &Co. Advocates to represent her and file written submissions on her behalf and she requested them to first give her a draft copy of the written submissions for her perusal, which opportunity she was not afforded but she found out later that the submissions had not yet been filed. Subsequently, she was informed by her lawyers on 0910912016 that judgment was passed against her on 04l08l20l6long after the days within which to commence the appeal had lapsed.

Rule 76 (l) & (2) of the Judicature (Court of Appeal) Rules SI 13-10 provides thus; 20

> (1) Any person who desires to appeal to the court shall give notice in v)riting, which shall be lodged in duplicote h)ith the regislrar of the High Courl,

(2) Every notice under sub-rule (l) of this rule shall, subjecl to rules 83 and 95 of these Rules, be lodged within fourteen days after the date of the decision against which it is desired lo oppeal. 25

In this application, the notice of appeal was not lodged within the 14 days prescribed under the Rules. In the case of Shanti vs Hindocha and ors [19731 EA 207, it was stated that the delay in lodging an appeal must not be caused or

2#Ct

5 contributed to by the dilatory conduct on the part ofthe applicant. The applicant in this case blames her counsel for failing to inform her about the judgment date and to notifo her in time that judgment was entered against her.

I have had the opportunity to carefully evaluate the evidence as contained in the affidavit in support ofthe application swom by the applicant and I am satisfied that the applicant has shown that, due to either the negligence, mistake, effor or omission of her former counsel, she came to know about the judgment long after the period allowed for filing the notice of appeal had run out. She was therefore not able to institute the appeal in time.

It is now a settled principle of law that "oversight", 'mistake", "negligence", or "error", as the case may be, on the part of counsel should not be visited on a party the counsel represents and it constitutes "sufficient reason" or "sufficient cause" for purposes of granting applications of this nature. See:. Atlorney General vs A. K. P. M Lutoya Civil Application No. 12 of 2007 (SC); Zamu Nalumansi & onor vs Sulaiman Lule Civil Application No.2 of 1992 (SC); and Mulowooza & Bros Ltd vs N. Shah & Co Ltd Civil Application No, 20 of 2010 (SC). 15 20

The rationale for this principle is that a party should not be permanently deprived of the right of putting forward a bona fide claim or del'ence by reason of the default of his professional advisor or advisor's clerk. It follows the legal position that once a party instructs counsel, he/she assumes control over the case to conduct it throughout, the party cannot share the conduct of the case with his counsel. See: Court of Appeal decisions in Yowasi Kabiguruka v Sqmuel Byarufu C. C. C. A No. 18 of 2008 and Hajati Safino Nababi v Yafesi Lule, Civil Appeal No. 9 of 1998.

In the instant case, the applicant just like any other represented litigant, relied on her counsel to inform her of the date when the judgment in the case would be

5 delivered and the outcome of the judgment but they did not do so. Counsel for the respondent argued emphatically that the judgment notice was served on the applicant's former counsel by the High Court process server on 03108/2016. However, there is no proof of service as no affidavit of service was attached. In addition, a copy of the judgment notice annexed to the respondent's affidavit only bears the stamp and signature of counsel fbr the respondent's law firm. The cardinal principle of law is that he who alleges must prove. It is the respondent who is alleging that the applicant was served on the very day his counsel was also served. The burden therefore lies on the respondent to prove the alleged service and does not shift to the applicant, as counsel Tebyasa seems to imply, until he discharges it. 10 15

In any case, even if it were to be believed that service was done, there is no evidence that counsel communicated that information and the outcome of the judgment to the applicant in order to get further instructions on the way forward.

- This Court is convinced that there was an omission or negligence of the applicant's former counsel which should not be visited on the applicant. That omission or negligence constitutes sufficient cause which merits granting this application. I do not find the applicant guilty of any dilatory conduct. Instead, I find that refusal to grant this application would occasion injustice to her as the delay was not caused by any fault on her part. 20 - In the result, this application is granted. The notice of appeal on record filed and served outside the stipulated time is accordingly validated and the applicant is hereby ordered to file and serve the memorandum of appeal and the record of appeal within 15 days fiom the date of delivery of this ruling. 25

The costs of this application is awarded to the respondent

11 &5

It is so ordered. $\mathsf{S}$

Dated at Kampala this....... $10^{10}$ .....................................

HON. LADY JUSTICE HELLEN OBURA

**JUSTICE OF APPEAL**

$10/2/17$ Ruling read en open Court.

Dosemary Bareese APR