Akugizibwe v Mugisa (Civil Miscellaneous Application 98 of 2023) [2024] UGHC 397 (31 May 2024)

# **THE REPUBLIC OF UGANDA**

# **IN THE HIGH COURT OF UGANDA AT FORT PORTAL** 3 **CIVIL MISC. APPLICATION NO. 0098 OF 2023 (ARISING KYENJOJO CIVIL SUIT NO. 028 OF 2022) AKUGIZIBWE ISAIAH ::::::::::::::::::::::::::::::::::::::::::::::: APPLICANT** 6 **VERSUS MUGISA ROBERT :::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT BEFORE: HON. JUSTICE VINCENT WAGONA** 9 **RULING**

# **Introduction:**

12 The applicant commenced this application under Section 98 of the Civil Procedure Act and Order 51 rules 1 & 3 of the Civil Procedure Rules for orders that:

**1. The time within which to file an appeal against the judgment and orders**

- **of the Grade I Magistrate at Kyenjojo delivered on 25** 15 **th August 2023 be enlarged.** - **2. That the costs of taking out the application be provided for.** - 18

### **Grounds of the Application:**

21 The application is premised on the contents of the motion and the affidavit in support deponed by Mr. Akugizibwe Isaiah, the applicant who deposed as follows:

(1)That he was the defendant in Kyenjojo Civil Suit No. 028 of 2022 where judgment was passed against him on 25 24 th August 2022.


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- (2)That he was not aware that judgment had been entered against him until 26th October 2023 when he checked from the court clerk who informed him that on the 18th 3 day of August 2023, judgment was not delivered but was adjourned to 25th August 2022. - (3)That on the 25 6 th August 2022, his former lawyer told him that there was a circular from the Chief Registrar of Uganda directing Judicial Officers to adjourn all cases involving lawyers because of the Uganda Law Society 6th Annual Law Conference which was scheduled for 24th and 25 9 th August 2023. - (4)That since his lawyer was involved in his case, the lawyer told him not to go 12 to court and wait for another date for judgment. That he was never served with a new judgment notice for 25th August 2023. - (5)That on 26 15 th October 2023, when he went to check on the status of the file, he found when judgment had been delivered. That he intended to appeal against the judgment and orders of the trial court and this court has the discretion to 18 extend the time within which to lodge the appeal. - (6)That since he was not present and his lawyer when the judgment was 21 delivered, that that constitutes sufficient cause to warrant enlargement of time. That the application was brought without inordinate delay and the intended appeal has high chances of success. - 24

# **Reply of the Respondent:**


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The application was opposed by the Respondent who averred as follows:

- (1)That on the 25th/08/2022, he was awarded judgment against the Respondent 3 by Kyenjojo Magistrate's Court in Civil Suit No. 028 of 2022 for a refund of 13,000,000/= for breach of contract and general damages of shs 3,000,000/=. That the judgment arose from a sale agreement dated 16/12/2020 in which the 6 applicant sold him land under attachment but failed to deliver possession or refund the purchase price. - 9 (2)That the sale was found to be irregular and the applicant did not account to court the proceeds of the sale as required by law. That the applicant admitted receiving the funds from him but pleaded immunity as a Bailiff under Section 12 46(2) of the Judicature Act. - (3)That the trial court ruled out immunity on ground that it was not absolute but 15 qualified as long as the applicant acted lawfully. That in his case, the applicant had acted unlawfully by diverting the proceeds from the sale and thus was found to be personally liable. - 18 - (4)That the applicant was aware of the date the judgment was scheduled to, having been served with a hearing notice. That in the letter by Chief Registrar, 21 she allowed matters which could not be affected by the absence of the advocates to proceed and the one in issue was for delivering judgment where presence of the applicant's lawyer was not required. That in any case, the 24 applicant ought to have attended court on the date the judgment was delivered.


- (5)That the applicant filed the current application after he was served with execution proceedings so as to frustrate the Respondent from recovering his 3 money. That the applicant did not attach a draft memorandum of appeal for court to examine the arguability of the appeal since the judgment was based on the applicant's own admission in his written statement of defense. - 6 - (6)That in the event Court is inclined to grant this application, the applicant should be ordered to pay the costs of the same to the Respondent. - 9

# **Representation and hearing:**

- 12 *Mr. Patrick Nyakaana* appeared for the applicant while *Mr. James Byamukama* for the Respondent. Both counsel addressed me by way of written submissions which I have duly considered herein. - 15

# **Issues:**

18 The application raises two issues for determination by court, that is:

**(1)Whether the applicant has demonstrated sufficient cause to warrant enlargement of time within which he should lodged an appeal against the**

- 21 **decision of Court in Kyenjojo Civil Suit No. 028 of 2022?** - **(2)What remedies are available in the circumstances?**

#### 24 **Submissions for the Applicant:**


Mr. Nyakaana Patrick, learned counsel for the applicant submitted that Section 96 of the Civil Procedure Act allows court to enlarge time within which an act is to be

- 3 done. It was pointed out that this discretion is exercisable upon proof of sufficient cause. That sufficient cause must relate to the inability or failure to take a particular step in time. He invited me to consider the decision of *William Nyandusi v Jackson* - 6 *Oyuko Kasendi, C. A. C. A No. 032 of 2018 & Rossette Kizito v Administrator General & others, SCCA No. 09 of 1986*). - 9 Learned counsel thus contended, that there was a circular by the Chief Registrar adjourning cases scheduled for 25/08/2023 to allow lawyers attend the Annual Law Conference. It was submitted that the judgment in issue was delivered on the said - 12 date in the absence of the applicant and his lawyer. It was contended that this constituted sufficient cause to warrant enlargement of time within which to appeal.

### 15 **Submissions for the Respondent:**

In reply, Mr. Byamukama, learned counsel for the Respondent asserted that 18 extension of time is not a matter of right but one of discretion. It was pointed out that the discretion to extend time can only be exercised upon proof of sufficient cause which relates to the inability to take a particular step in time. He invited me to

21 consider the Court of Appeal decision of *Tiberio Okeny & Anor v Attorney General & 2 others, Civil Appeal No. 51 of 2001.* He contended that whereas there was a letter by the Chief Registrar adjourning cases, the letter allowed matters where the 24 presence of the lawyers was not required, to proceed. That the current suit merely involved delivering judgment and the applicant ought to have attended.


It was submitted that the application was an afterthought since it was filed after the Respondent commenced execution. Further, that the intended appeal has no merit 3 since the judgment was based on an admission by the applicant in his written statement of defense. That as such there is no sufficient cause to warrant enlargement of time. That should court be inclined to grant the said application, the applicant 6 should be ordered to pay costs.

### **Consideration by Court:**

I have considered the submissions of both counsel and the pleadings and laws applicable. The settled position of the law is that enlargement of time within which 12 to do an act is discretionary and only exercisable upon proof of sufficient cause that warrants court exercising such discretion. Order 51 rule 6 of the Civil Procedure Rules provides thus:

#### *Power to enlarge time.*

18 *Where a limited time has been fixed for doing any act or taking any proceedings under these Rules or by order of the court, the court shall have power to enlarge the time upon such terms, if any, as the justice of the case* 21 *may require, and the enlargement may be ordered although the application for it is not made until after the expiration of the time appointed or allowed; except that the costs of any application to extend the time and of any order* 24 *made on the application shall be borne by the parties making the application, unless the court shall otherwise order.*

 The above order grants court unfettered discretion to enlarge time within which to do any act provided for under the Civil Procedure Rules. The main consideration is

- 3 that the applicant must demonstrate sufficient or just cause to warrant such enlargement. In *Hadondi Daniel vs Yolam Egondi Court of Appeal Civil Appeal No 67 of 2003* court observed thus: *"it is trite law that time can only be extended if* - 6 *sufficient cause is shown. The sufficient cause must relate to the inability or failure to take necessary step within the prescribed time. It does not relate to taking a wrong decision. If the applicant is found to be guilty of dilatory conduct, the time* 9 *will not be extended".*

The general position has been that sufficient cause must relate to the inability or 12 failure to take the required step within the time provided for under the law. The position is re-echoed in the cases of *Tiberio Okeny & Anor v Attorney General & 2*

*others, Civil Appeal No. 51 of 2001* and *William Nyandusi v Jackson Oyuko*

15 *Kasendi, C. A. C. A No. 032 of 2018 & Rossette Kizito v Administrator General & others, SCCA No. 09 of 1986*) relied upon by both counsel.

In *Kabarole District Local Government Vs. Gun Paper Industries Limited, Misc.* 18 *Application No. 102 of 2022,* I commented on the term sufficient case thus;

*"It is my understanding that whether a particular cause is sufficient or not is a matter for judicial determination taking into account the facts of the case. Each*

- 21 *decision would depend entirely on the particular facts of the case. The events occurring before the expiration of the time provided for under the law may be relevant. Where a party has not been grossly negligent or palpably indifferent in* - 24 *prosecuting the case, the delay may be excused to afford granting an extension. It appears to me that in circumstances where the denial to grant an extension would*


*occasion an injustice or lead to multiplicity of suits, or where in the court's consideration justice can be better served after hearing from both side especially in*

3 *land matters, an extension should be granted. This is intended to ensure that justice is done to all no matter the faults, mistakes, lapses and minor procedural irregularities that do not go to the roots of the administration of justice."*

In *Boney M. Katatumba Vs Waheed Karim* (*Administrator of late Suleiti Haji's Estate SC, xvii application No. 27 of 2007), while considering an application for* 9 *extension of time within which to appeal, Justice Mulenga (RIP)* observed thus:

*". ….. For example an application that is brought promptly will be considered more sympathetically than one that is brought after unexplained inordinate delay.*

- 12 *But even where the application is unduly delayed the Court may grant theextension if shutting out the appeal may appear to cause injustice."* - 15 In addition to the above, where the enlargement is for time within which to appeal, I find the considerations set in **Thuita Mwangi V Kenya Airways Ltd [2003] eKLR** applicable which are:

| 18 | i) The period of delay; | |----|--------------------------------------------------------------------------| | | ii) The reason for the delay; | | | iii)<br>The arguability of the appeal; | | 21 | iv)<br>The degree of prejudice which could be suffered by the Respondent | | | if the extension is granted; |


*v) The importance of compliance with time limits to the particular litigation or issue; and*

3 *vi) The effect if any on the administration of justice or public interest if any is involved.*

6 In the present application, the applicant deposed that on the date the judgment was delivered; that is 25th August 2023, his counsel was attending the Annual Law Conference in Kampala and there was a letter by the Chief Registrar adjourning 9 cases where advocates were involved. That his former advocate on the basis of the said letter informed him not to attend court and intimated to him that a new date would be communicated by court. That as such he was not aware that judgment had 12 been delivered. This is not denied by the Respondent. The contention by the Respondent is that the applicant ought to have attended court since the letter only concerned cases where the advocate's participation was required.

I have examined the pleading of the parties and their respective submissions. It is not in dispute that there is a letter dated 20th July 2023, authored by Her Worship

- Sarah Lang Siu, the Chief Registrar adjourning cases scheduled for 24th and 25th 18 August 2023 where advocates were involved to allow them attend the Annual Law Conference. The letter further stated, that the Chief Justice had instructed that those, - 21 dates being working days, the Courts were to continue to hear cases that were not affected by the absence of the advocates. The judgment in this case was delivered on 25th August 2023.


The applicant contends that he was represented and his lawyer told him not to attend since the case was to be adjourned on the strength of the said letter. I believe the 3 applicant was justified and he strongly relied on the advice from his lawyer not to attend court since to the knowledge of the advocate, the case was to be adjourned. Whereas I agree with the assertion by the Respondent that the applicant was meant 6 to attend court since he was a party and not the advocate and the stage of his case did not require active participation of his advocate, the mistake resulting from the advice by his counsel that led the applicant not to attend court should not be visited 9 on him as an innocent litigant. (See *Banco Arabe Espanol Vs. Bank of Uganda (1999)2 E. A 22*).

- 12 Further, the mistake of the applicant in not attending court on the advice of his former advocate is in my analysis not substantial enough to justify the closing of the gates of justice against the applicant and bar him from exercising his right of appeal. - 15 As guided by the Supreme Court in *Banco Arabe Espanol Vs. Bank of Uganda (supra)*: "*The administration of justice should normally require that the substance of all disputes be investigated and decided on their merits and errors or lapses* - 18 *should not necessarily debar a litigant from the pursuit of his rights and unless a lack of adherence to rules renders the appeal process difficult and inoperative, it would seem that the main purposes of litigation namely the hearing and* 21 *determination of disputes, should be fostered rather than hindered"*

I find it in the interests of justice that this application is allowed to protect the right 24 of the applicant to appeal since he was not aware of the date when the judgment was delivered. I decline the invitation by the Respondent to decline granting the application on ground that the intended appeal has no merit. This evaluation shall be


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exhaustively done by the appellate court on the merits. The prejudice that the Respondent may have suffered can be atoned by an award of costs. The application 3 was brought without inordinate delay. I therefore find that this is a proper case for enlargement of time within which to appeal.

- 6 Consequently, this application succeeds with the following orders: - **1. The time within which to file an appeal against the judgment and orders of the Grade I Magistrate at Kyenjojo in Civil Suit No. 28 of 2022, delivered on 25** 9 **th August 2023 is hereby enlarged.** - **2. The applicant shall file a memorandum of appeal within 14 days from the date of delivery of this ruling and have it served upon the Respondent.** - 12 **3. The costs of this application shall abide the outcome of the intended appeal.**

**It is so ordered.**


Vincent Wagona

18 **High Court Judge FORTPORTAL**

21 **DATE: 31/05/2024**