Akaka Denis and Others v Julius Peter Nono (Miscellaneous Application No. 7 of 2025) [2025] UGHC 447 (20 June 2025)

## **THE REPUBLIC OF UGANDA**

## **IN THE HIGH COURT OF UGANDA HOLDEN AT KITGUM**

### **MISCELLANEOUS APPLICATION No. 07/2025**

# **(ARISING FROM CIVIL SUIT No. 015/2017: THE CHIEF** 5 **MAGISTRATE'S COURT OF KITGUM HOLDEN AT KITGUM)**

- **1. AKAKA DENIS** - **2. OYET CLAY** - **3. OKUMU PHILLIP** - **4. OGENGA S/O OLAL DISON** - 10 **5. AKENA RICHARD APPLICANTS**

#### **Versus**

#### **JULIUS PETER NONO RESPONDENT**

### **BEFORE: HON. MR. JUSTICE PHILIP W. MWAKA.**

#### **RULING.**

#### 15 **Introduction and Background.**

- [1]. The Applicants seek Orders from this Court firstly, for enlargement of time within which to institute an Appeal arising from **Civil Suit No. 015/2017** and, secondly, provision for Costs of the Application. - [2]. The Motion instituting the Application was issued on the 6 th February, 2025 20 while the Judgement of the Lower (Trial) Court presided over by His Worship Akera Derick. O in which he determined the matter in favour of the Plaintiff, now Respondent, declaring him the owner of the suit land in dispute situate at Palabek Kal Central in Lamwo District is dated the 10th July, 2023 and is said to have been delivered on the 19th November, 2024. The Application was 25 filed Three (3) months after the Judgement whereas an Appeal should have been instituted within Thirty (30) days expiring on the 18th December, 2024.

- [3]. The Application is instituted by way of Notice of Motion but curiously does not cite the provisions under which it was instituted much as it was prepared by Counsel. An Application of this nature would ordinarily be filed under 30 **Section 79(1), 96 and 98 of the Civil Procedure Act, Cap. 282** and **Order 51 Rule 6 and Order 52 Rules 1, 2 and 3 of the Civil Procedure Rules, SI 71-1.** This is, however, not fatal and can be accommodated in the interests of substantive Justice. **See: Sugga Vs. Road Master Cycles (U) Ltd [2002] 1 EA 255 and Article 126(2)(e) of the Constitution.** - [4]. An Affidavit supporting the Application is attached deponed by the 2 nd 35 Applicant whom is the one of the Intended Appellants and was a Defendant at the Trial in the Lower Court.

#### **The Applicants' Case and Submissions.**

- 40 [5]. The Applicants' grounds are set out in the Motion and expounded upon in the supporting Affidavits and are: - the Judgement was delivered on the 19th November, 2024 at which their Counsel was present without them in attendance and by the time their Counsel contacted them later in December, 2024 to inform them of the outcome of the Judgement the time within which 45 they could file an Appeal timely had already expired. This, the Applicants aver, was due to the absence of telecoms network on their mobile phones through which they would be contacted. It was then that they mobilized the resources to file an Appeal amidst hardship. It is their case that the delay of Three (3) months in filing the Application does not amount to dilatory conduct. 50 Attached is a draft Memorandum of Appeal raising Three (3) grounds. - [6]. It is their contention that they meet the criteria for grant of the Application based on Authorities they cited together with their having an arguable and meritorious Appeal along with their desire to prosecute the Appeal.

# **See: Supreme Court Civil Application No. 027/2010: Molly Kyalukinda**

55 **Turinawe & Others Vs. Engineer Turinawe & Another.**

[7]. It is also the Applicants' case for grant of the Application that they would suffer injustice and risk losing land holdings on which their families reside and from which they derive their sustenance, hence the need for grant of enlargement of time within which to Appeal. The Applicants aver that the 60 Respondent will not suffer any prejudice should the Application be granted.

#### **The Respondent's Case and Submissions.**

- [8]. The Respondent filed an Affidavit in Reply on the 13th February, 2025 in opposition to the Application. The Respondent avers that despite the 65 Applicants' claim to have received Notice of the outcome of the Judgement belatedly sometime in December, 2024 - of which the precise date they are not certain of - it still took them until February, 2025 to file this Application which is not credible. Moreover, the Applicants could have taken the initiative to themselves find out from the Court or contact their Counsel knowing of 70 the limitations in their being reached and as litigants had a duty to follow up on their matters before the Court without waiting Two (2) or so weeks and being content to place blame on the supposed absence of telecoms network. The Respondent contends that the Applicants simply intend to deny him the fruits of his successful litigation before the Lower Court and, in his view, 75 instituting an Appeal does not require much in terms of expense. - [9]. As regards authority given to the 2nd Applicant to solely depone the Affidavit in support of the Application, the Respondent contends that the letter cited is not dated and thus the 2nd Applicant acted without due authority.

[10]. On this basis, the Affidavit and Application should be struck out with Costs.

#### **Representation.**

- [11]. Counsel, Mr. Lloyd Ocorobiya, represented the Applicants who were present. - [12]. Counsel, Ms. Mwajuma Akoli, represented the Respondent who was present.

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#### **Issue(s) for Consideration.**

85 [13]. The Issue for consideration to be addressed by the Court is - **Whether the Applicants have shown sufficient cause for the Court to Judiciously exercise its discretion to enlarge time within which to Appeal or otherwise grant leave to Appeal out of time.**

#### 90 **Considerations and Determination of the Court.**

[14]. As a first preliminary consideration, the Court observes on its Record a Consent Agreement signed by the Parties stating that - **"… Time for filing of the Appeal by way of a Memorandum of Appeal by the Applicants be enlarged".** This Court observes that an Application for enlargement of 95 time is a matter for the discretion of the Court to be determined Judiciously based on the factors presented in justification of a delay and the circumstances of a case. As such, Parties to such a discretionary Application cannot purport to oust the discretion of the Court by entering into a Consent overriding the authority of the Court to exercise its discretion. The Consent Agreement is 100 therefore of no effect in binding the Court, save to negate any claims by the Respondent that he will suffer prejudice as a result of grant of the Application. [15]. As a second preliminary consideration, this Court observes that any or all of the Parties involved in a suit may generally file supporting or responsive Affidavits in their own right. Thus, they are generally not subject to the consent of the other Parties. The 2 105 nd Applicant, therefore, was within his rights to depone the Affidavit in support of the Application. Moreso, indicated as being aggrieved having been a party to the litigation in the Lower (Trial) Court in which the Learned Trial Magistrate made findings adverse to

his interests in the suit land also constituting the subject matter of the Appeal.

properly filed on its Record and declines to strike it out.

- For this reason, the Court finds the supporting Affidavit of the 2 110 nd Applicant - 4 | P a g e

- [16]. As a third preliminary consideration, an Application for enlargement of time, as contrasted with an Application for leave to Appeal, presupposes that the Applicants had already taken affirmative steps to institute an Appeal which 115 may include *inter alia* requesting the certified Judgement and Proceedings of the Lower (Trial) Court comprising the Record of Appeal required to institute an Appeal which would enable an intended Appellant form their grounds of Appeal. This would culminate in the final step in filing an Appeal which would be instituted by filing the requisite Memorandum of Appeal, albeit belatedly. 120 Here, the Applicants did not venture to take any affirmative steps whatsoever thus out rightly being a matter in which they seek leave to Appeal out of time. It is apparent that the Applicants' use the terms interchangeably. Notwithstanding, in the interests of substantive Justice, the Court shall inspite of the subtleties consider the Applicants' ultimate intention being the 125 institution of an Appeal. **See: Shanti Vs. Hindocha [1973] EA 207.** - [17]. In **Supreme Court Civil Application No. 09/1993: Nicholas Roussous Vs. Gulam Hussein Habib Virani & Another** the Court held that *"good or sufficient cause"* must relate to and include factors which caused an inability to file an Appeal within the prescribed time and the phrase *"good or sufficient cause"* 130 is wider and includes other causes than delay such as public importance of an Appeal and the Court shall not restrict the meaning of good cause. Each case should be determined on its fact and circumstances. - [18]. In regards to the substance of the Application, the main ground cited by the Applicants is simply that until sometime in December, 2024 they were not 135 aware that the Judgement had already been delivered in November, 2024 owing to inadequate telecoms network signal in the area in which they reside and therefore their Counsel could not reach them to communicate the outcome of the Judgement. Ancillary is that even after they were informed they had to mobilize resources to institute an Appeal culminating in the filing 140 of the Application two (2) months later in February, 2025.

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- [19]. These, the Court finds, cannot in and of themselves constitute a standard for good or sufficient cause in granting an Application for enlargement of time or leave to Appeal which would constitute acceptance of a passive standard. Moreover, the supporting Affidavit is notable for its non-specificity in terms 145 of dates including when the Applicants became aware of the Judgement and, or giving an account of the timelines of their actions in pursuing the Appeal in justification of a grant of enlargement of time or leave to Appeal out of time. If these were the sole considerations, the Application would fail. - [20]. The Court, however, accepts that Counsel for the Applicants whom himself 150 attended the Judgement of the Lower (Trial) Court in the absence of the Applicants as reflected in its Record attached to the supplementary Affidavit was not sufficiently professionally diligent in relaying the outcome of the Judgement to the Applicants as his Clients timely by all means available so as to interest them in their right to Appeal and on this ground the Application 155 would merit grant. Whereas the **"there was no network"** argument is dubious; the **"I was not informed"** argument has some merit here. - [21]. In regard to the duration of the delay of Three (3) months from the delivery of the Judgement to the filing of this Application which the Respondent contends constitutes dilatory conduct, the Court gives the Applicants the 160 benefit of the doubt in the circumstances of this case. - [22]. The Court observes that the suit involves litigation over land ownership and land interests and accepts that it is of fundamental importance as regards the livelihoods of all the respective Parties and it is therefore necessary that any matters in dispute arising from the decision of the Lower (Trial) Court are 165 addressed and resolved by this Court on Appeal. - [23]. In the final result, the Applicants have established a ground for grant of the Application and it is in the interests of Justice that they are allowed to present and argue their Appeal. No prejudice is occasioned to the Respondent who in any case indicated his acquiescence in the consent agreement.

- 170 [24]. Having carefully given due consideration to the Application with its supporting Affidavits, the responsive Affidavits, the respective Annextures and the respective oral Submissions and upon consideration of the Law applicable and taking into account all relevant factors and circumstances of the case; this Court hereby grants the Application and the Applicants are 175 hereby given leave to Appeal out of time by filing a Memorandum of Appeal within Thirty (30) days of the delivery of this decision. - [25]. Each party shall bear their own costs.

# **Orders of the Court.**

- 180 [26]. Accordingly, the Court makes the following Orders: - 1. **Miscellaneous Application No. 07/2025** is hereby granted. - 2. The Applicants are hereby granted leave to Appeal out of time by filing a Memorandum of Appeal within Thirty (30) days of the delivery of this Judgement. - 185 3. Each party shall bear their own costs.

It is so Ordered.

**Signed and Dated on the 20th day of June, 2025 at High Court Kitgum Circuit.**

190 **Philip W. Mwaka**

**Acting Judge of the High Court.**

#### 195 **Delivery and Attendance.**

This signed and dated Ruling shall on the directions of the Presiding Judge be delivered to the Parties electronically on **Friday, 20th June, 2025 at 10:00am** by the Deputy Registrar, High Court Kitgum Circuit.

| | 1. | Counsel<br>for the Applicants | -<br>Mr. Lloyd Ocorobiya. | |-----|----|-------------------------------|-----------------------------| | 200 | 2. | The Applicants | -<br>Mr. Akaka Denis. | | | | | Mr. Oyet Clay. | | | | | Mr. Okumu Phillip. | | | | | Mr. Ogenga S/O Olal Dison. | | | | | Mr. Akena Richard. | | 205 | 3. | Counsel for the Respondent | -<br>Ms. Mwajuma Akoli. | | | 4. | The Respondent | -<br>Mr. Julius Peter Nono | | | | | (Thru.<br>Ms. Susan Nono, | | | | | Holder, Powers of Attorney) | | | 5. | Court Clerk and Interpreter | -<br>Mr. Ongom Samuel Grey. |

210 6. Interested and Affected Persons and Entities.


**Philip W. Mwaka**

**Acting Judge of the High Court.**

**High Court Kitgum Circuit.**

**20th** 215 **day of June, 2025.**