Apollo Bright Bweyakye and Others v Professor Sam Tulya-Muhika (Civil Application 239 of 2023) [2025] UGCA 234 (18 July 2025)

Full Case Text

## THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

(Coram: Dr. Asa Mugenyi, Musa Ssekaana, Stella Alibateese, JJA) **CIVIL APPLICATION 239 OF 2023** (Arising From Civil Application 100 & 103 OF 2020)

(Arising From Civil Appeal 1162 of 2023) (Arising From Civil Suit 046 of 2015)

### 1. APOLLLO BRIGHT BWEYAKYE

## 2. CHRISTOPHER NGABIRANO

## 3. FRED ZIRYABAREEBA

4. STANLEY OMWEHANGIRE ::::::::::::::::::::::::::::::: APPLICANTS

### **VERSUS**

### 15

$\mathsf{S}$

# PROFESSOR SAM TULYA-MUHIKA ::::::::::::::::::::::::::::::::RESPONDENT

[An Application for leave to appeal against the decision of the Court of Appeal Buteera, DCJ; Bamugemereire & Gashirabake, JJA in Civil *Application* 100 & 103 of 2020 dated 29th May 2023

## **RULING OF THE COURT**

## **INTRODUCTION**

The applicants filed this application by way of Notice of Motion seeking 25 leave to appeal to the Supreme Court against the ruling and orders of this Honourable court in Civil Applications 100 & 103 of 2020 and costs.

#### 30 **BACKGROUND**

The background of this application is that the respondent filed Civil Suit 046 of 2015 against the applicants at the High Court of Uganda at Kabale seeking among others, orders that the Court orders the

- Applicants to sign fresh transfer and mutation forms in his favour in 35 respect to 27.3 acres of land which form part of the estate of the late Saulo Bweyakye that he purchased from the late Alfonsi Tibandebire, one of the beneficiaries of the estate of the late Saulo Bweyakye. - The civil suit was heard interparty and was dismissed by the High 40 Court on 21st January 2019 on grounds that it was time-barred under O. 7 R. 11 (d) of the Civil Procedure Rules having been filed after over 20 years from the date the cause of action arose. After a lapse of 35 days from date of judgment, the respondent on 25th February 2019

filed a Notice of Appeal out of time with no leave of court and did not apply for extension of time within which to file the same.

On the $30th$ of July 2019, the respondent again filed a fresh suit with the same facts against the applicants at the High Court of Uganda at Kabale vide Civil Suit 024 of 2019 which suit was dismissed upon the applicants moving court under Misc. Application 61 of 2020.

After the dismissal of this 2nd civil suit, the respondent again started pursing his appeal against the applicants earlier filed against Civil Suit $10$ 046 of 2015 by filing Civil Application No. 100 of 2020 after one year and one month from the 2nd May 2019 when the record of proceedings was availed, on the grounds that it was mistake of his former counsel and outbreak of COVID -19 where courts were not operational.

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The said application was heard and on 29th May 2023, this court granted the Respondent leave to file and serve the record of appeal out of time against Civil Suit 046 of 2015. Being aggrieved by the said decision of this Honourable Court, the applicants filed this application seeking leave to appeal to the Supreme Court.

# Affidavit in support of the Application

The application is supported by the affidavit of Apollo Bright Bweyakye, the 1st applicant and briefly, it states that he deponed the 25 affidavit on his own behalf and on behalf of all other applicants having been authorised to do so. He deponed that the applicants are the administrators of the estate of the late Bweyakye Saulo. The respondent filed Civil Suit 046 of 2015 against the applicants at the High Court of Uganda at Kabale seeking orders that the applicants be 30 ordered to sign fresh transfer and mutation forms in favour of the respondent for 27.3 acres that he purchased from the late Alfonsi Tibandebire.

Apollo Bright Bweyakye further deponed that this civil suit was heard 35 interparty and was dismissed on 21st January 2019, by the trial Judge for being time-barred under O. 7. R. 11(d) of the Civil Procedure Rules having been filed after over 20 years from the date the cause of action arose. That after the lapse of 35 days, the respondent filed a Notice of

Appeal on 25th February 2019 without seeking leave of court to file out 40 of time and no validation was done. That the Notice of Appeal filed after 35 days is improper, incompetent and illegal as it offends the law on appeals.

That instead of the respondent pursuing his appeal, he gave new instructions to his lawyers, M/S Kangaho & Co. Advocates to file a fresh suit 024 of 2019 with the same facts as that earlier dismissed. This 2nd suit was also dismissed. That after this dismissal, the respondent woke up to start pursuing his appeal by filing Civil Application No. 100 of 2020 after one year and one month from the $2nd$ May 2019 the time when the record of proceedings was availed to him seeking leave to file and serve the record of appeal out of time against the decision in Civil Suit No. 046 of 2015.

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That this Court granted the respondent's application in disregard of the fact that there was no proper appeal before this Honourable court since the Notice of Appeal was filed after 35 days from the date the decision in Civil Suit No. 046 of 2015 was delivered, and no leave was granted to do so. That this Honourable court failed to properly evaluate the law and evidence concerning appeals from the High Court to Court of Appeal hence reaching a wrong decision which occasioned a miscarriage of justice to the applicants.

The 1st applicant further deponed that the intended appeal discloses 20 grounds of appeal with serious matters of law and fact that merit consideration by the Supreme Court of Uganda and the grant of leave to appeal is necessary to protect the applicant's right to appeal and for attaining the ends of justice.

## Affidavit in opposition

The affidavit in opposition of the application is deponed by Eva Nabitaka of C/o M/s Bwengye & Associated Advocates who represent the respondent. She deponed that she is familiar with the facts of the case and that the application has no valid basis in law and that the application seeks to have the main appeal disregarded on a mere technicality. It was deponed that the applicants have no just reason to appeal to the Supreme Court and their application is frivolous and vexatious.

It was further deponed for the respondent that the intended appeal does not disclose grounds of appeal with serious matters of law for court's consideration but is a tactic to delay hearing of the main appeal and justice. It was deponed that the application has been brought with great delay and is evidently an afterthought, and that the applicants never followed it and did not serve the respondent in time, having served on 19th March 2025, after 528 days from the date it was filed on 8th June 2023.

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That the application is brought with dirty hands, hidden agendas, inequitable, and purposed as a delay tactic with the aim of depriving the respondent of his right to property which he has been in possession, for the last 38 years and that the applicants thus seek a remedy in equity to frustrate an equitable remedy.

Affidavit in Rejoinder

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- In rejoinder, Apollo Bright Bweyakye, the 1st applicant on his own $10$ behalf and on behalf of all other applicants deponed that the respondent's affidavit in reply is incompetent, illegal and an abuse of court process for which he would raise a preliminary objection to have the same struck out on ground that Eva Nabitaka, the deponent of the - affidavit in reply is incompetent to depone the same for reason of the 15 same being argumentative, narrative and deponed on contentious matters. The 1st applicant reiterated his earlier averments in his affidavit in support of the application that this Honourable court granted the Respondent extension of time to file and serve his record of appeal out of time without a valid notice of appeal on court record. 20

That the respondent has never been in possession of the suit land save for a portion of only 1.3 acres which belonged to Alfonsi Tibandebire. That the suit land is occupied by the beneficiaries of the estate of the late Saulo Bweyakye who are in possession of their respective shares $25$ to the suit land and the family burial grounds housing over 100 graves including that of Saulo Bweyakye.

It was further averred that this application was filed in time on the 8th June 2023 and the decision it seeks to challenge was delivered on 29th 30 May 2023. That the application was served in time on the 19th March 2025 the day the Registrar signed this application. That on several occasions the applicants' lawyers made both physical and written follow ups to have this application fixed but in vain and that Civil

Application 1219 of 2023 was served onto the respondent after this 35 Honourable court had issued the conferencing notice.

### **GROUNDS OF THE APPLICATION**

The application is premised on the following grounds;

1. That the applicants' grounds of appeal against the decision of this Honourable Court in Civil Application Nos. 100 & 103 of 2020 merit serious judicial consideration.

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- 2. That the grant of leave is necessary to protect the applicants' right to appeal and for attaining the ends of justice. - 3. That this application discloses sufficient grounds to grant leave to appeal. - 4. That the grounds of appeal have a high chance of success. - 5. That this application has been brought without any reasonable delay. - 6. That it is just, fair and equitable that this application be allowed by giving leave to the applicants to appeal to the Supreme Court.

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$\mathsf{S}$

## REPRESENTATION

At the hearing of this application, the applicants were jointly represented by Mr Kigenyi Emmanuel and Mr Eluk Gerald while the respondent was represented by Mr Andrew Bwengye.

## ANALYSIS AND DETERMINATION

## Applicants' submissions

Counsel for the applicants raised three issues for determination and submitted on them. These are;

- 1. Whether there are good sufficient reasons for leave to be granted to the Applicants to appeal against the ruling and orders of this Honourable court in Civil Application No. 100 & 103 of 2020? - 2. Whether the Respondent's affidavit in reply is defective, incompetent and illegal? - 3. What remedies are available to the parties? - On the 1st issue, counsel for the applicants submitted on the intended 30 grounds of appeal in the Supreme Court and that they merit serious consideration. It was submitted that Rule 76(1) of the Judicature (Court of Appeal Rules) provides that any person who desires to appeal to the court shall give notice in writing which shall be lodged in duplicate with the Registrar of the High Court. 35

Counsel for the applicants submitted that Rule (76)(2) of the Judicature (Court of Appeal Rules) provides that every notice under sub rule 1 shall subject to Rules 83 and 95 of these notices be lodged within 14 days after the date of the decision against which it is desired to appeal. Counsel submitted that the judgement in Civil Suit 046 of 2015 was delivered on the 21st January 2019 in the presence of both parties and the respondent filed his Notice of Appeal on the 25th

February 2019 which is 35 days from the date that the judgement he is appealing against was delivered.

That the respondent did not seek leave of court to do so and there is no application filed to validate the said Notice of Appeal. It was submitted that the Notice of Appeal is thus illegal, incompetent and not proper before this Honourable Court as it offends Rule 76(1) and (2) of the Judicature (Court of Appeal Rules) Directions. Counsel relied on Herbert Semakula Musoke & Anor Vs Lawrence Nsamba & 2 others SCCA No 22 of 2019 to support this argument.

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Counsel further submitted that the Rules of this Court provide for time lines within which essential steps like filing the Notice of Appeal have to be done and they cannot be taken as a mere technicality. Counsel cited the authority of Utex Industries Ltd Vs Attorney General SCCA **No. 52 of 1995** where the Supreme Court held that

"We think the article appears to be a reflection of the saying that rules of procedure are handmaids to justice meaning that they should be applied with regard to the circumstances of each case...and to avoid delays, rules of court provides a timetable within which steps ought to be taken. For any delay to be *excused, it must be explained satisfactorily."*

Counsel submitted that no valid reason was advanced for the late filing of the Notice of Appeal and hence this merits serious judicial 25 consideration by the Supreme Court.

Counsel for the applicants submitted that for over one year and one month from 2nd May 2019 when the record of proceedings was availed to the Respondent, he didn't take any step to pursue his appeal but 30 opted to first abandon his appeal and file a fresh suit vide Civil Suit 024 of 2019 against the applicants with the same facts seeking same remedies as in Civil Suit 46 of 2015 from which his appeal arose and when his Civil Suit 024 of 2019 was dismissed, he then ran back to this Court trying to put blame of his dilatory conduct on negligence of 35 his lawyers and COVID-19 which is an abuse of court process and

totally not tenable.

It was further argued for the applicants that COVID-19 did not cause the closure of courts and Court Registries were always open to receive 40 any new cases, court documents and pleadings generally and by the time COVID-19 broke out in Uganda in March 2020, the respondent was already out of time for filing his record of appeal.

Counsel for the applicants submitted that the conduct of the Respondent filing his Notice of Appeal after 35 days from the date of the Judgement in his presence, the conduct of filing a fresh suit vide Civil Suit 024 of 2019 instead of pursuing his appeal and conduct of filing Civil Application No. 100 of 2020 after one year and one month $\mathsf{S}$ from the time he received the record of proceedings, amount to dilatory conduct within the meaning of the Black's Law Dictionary. Counsel relied on Kananura Andrew Kansiime Vs Richard Henry Kaijuka Supreme Court Civil Reference No. 15 of 2016 to support his argument.

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On the $2^{nd}$ issue framed by counsel for the applicants, counsel submitted that the respondent's affidavit in reply to this application is defective, illegal and incompetent before this Honourable Court as it was deponed by Eva Nabitaka who is a stranger to this case and ought to be struck out. It is submitted that whereas Eva Nabitaka the deponent to the respondent's affidavit in reply purports to be an advocate of the High Court and subordinate courts thereto and competent to swear the affidavit, she did not attach any proof of the purported status. Counsel cited the case of Kabogere Coffee Factory

- $20$ Vs Haji Twalib Kigongo SCCA No. 10/1993 where Court held that documents filed by an advocate without a practicing license beyond the 1st of March of every year are invalid. - Counsel for the applicants further submitted that even if Eva Nabitaka 25 was an advocate, Regulation 9 of the Advocates (Professional Conduct) Regulations S.1.67-2 bars advocates from giving affidavit evidence in contentious matters or facts and that the respondent's affidavit in reply offends the said Regulation and should be struck out. - 30

It was further submitted for the applicants that the application was filed on 08th June 2023 in time but was endorsed by the Registrar on 19th March 2025 and it is the same date when this application was served onto the respondent and this service was done on time. On the issues of remedies, counsel for the applicants submitted that the application be allowed with costs.

# **Respondent's Submissions**

The respondent submitted that the application is devoid of merit and 40 should be dismissed with costs. Counsel cited the case of **Livingstone** Kayaga Kizito Vs Charles Waligo CACA No. 80 of 2012 to establish the grounds for such an instant application which are that the applicant must prove the existence of prima facie grounds of appal which merit serious consideration and that the applicant must prove that he has not been guilty of dilatory conduct.

The respondent in their submission framed three issues and these are;

- 1. Whether the instant application discloses the existence of prima facie grounds of appeal which merit serious consideration? - 2. Whether the applicant is guilty of dilatory conduct? - 3. Whether the respondent's affidavit in reply is defective, incompetent and illegal?

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On the $1^{st}$ issue raised by the respondent, counsel for the respondent submitted that the instant application does not disclose the existence of grounds of appeal because the only grounds were smuggled in from the bar in the applicants' submissions. That the Court of Appeal properly evaluated the law and evidence presented before it and thereby reached the correct conclusion.

Counsel for the respondent further submitted that the court's grant of extension of time in Civil Application Nos. 100 & 103 of 2020 was just and fair rooted in the court's inherent powers to meet the needs of 20 justice. That the power to grant or decline applications for extension of time within which to file an appeal is a discretionary one and the applicants have not shown at any point in their submissions how that discretion was misused or abused.

It was submitted that the applicants are only seeking to have the main appeal disregarded on a mere technicality hoping that the respondent's possession of the land for the past 38 years will be disregarded by this Honourable court. The respondent further submitted that the applicants do not have good or just reason as to why the court's ruling should be appealed to the Supreme Court and the application is frivolous and vexatious.

Counsel for the respondent submitted that the applicants have raised the same grounds as those raised in Civil Applications Nos. 100 & 103 35 of 2020 and the same are mala fide. That the case of **Herbert** Semakula Musoke & another Vs Lawrence Nabamba & others is distinguishable from the instant Application since the appeal in that case was filed without an order of extension of time within which to 40 appeal.

On the $2nd$ issue raised by the respondent, it was submitted that the applicants are guilty of dilatory conduct because the application was brought with great delay and is evidently an afterthought. That the

8|Page application has not been followed up nor did the Applicants render any effort for an abnormally long duration to serve the respondent having effected service on 19th March 2025, 528 days after it was filed on 8th June 2023. That the applicants' application No. 1219 in comparison was filed on 14th November 2023 and served though not signed.

On the 3rd issue framed by the respondent, counsel for the respondent submitted that the respondent's affidavit in reply dated 26th March 2025 is legal and competent as it was deponed by Ms Eva Nabitaka, an advocate practicing with Bwengye & Associated Advocates, the law firm representing the Respondent. That she is cognizant with the facts and circumstances of this case and so competent to depone the affidavit in reply.

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Counsel for the respondent cited the case of **Bank One Limited Vs.** Simbamanyo Estates Limited (Misc. Application No. 645 of 2020) that states that, if one is familiar with the facts of the case, he has the capacity to swear an affidavit for capacity is a question of knowledge.

Counsel also cited Reg. 9 of the Advocates (Professional conduct) $20$ Regulations (S. I 67-2) and argued that it was misread by the Applicants' counsel. It was argued that the Rules never envisaged completely baring an advocate from swearing an affidavit and especially when such an advocate is not even in personal conduct of the case. Counsel submitted that Mr. Andrew Ankunda Bwengye is 25 the counsel in personal conduct of the respondent's case and Ms Eva Nabitaka is only cognizant of the circumstances and was only involved to that extent and she is a recognised agent competent to depone the affidavit on behalf of the respondent.

It was submitted for the respondent that Eva Nabitaka is an advocate and holds a valid practicing certificate beyond March 2025, and a copy was attached. That since the instant application is seeking leave to appeal and involves technical matters of the law, the respondent's advocate is better placed and more uniquely skilled to respond. It was the respondent's prayer that the application is dismissed with costs.

### **Submissions in Rejoinder**

In rejoinder, counsel for the applicants reiterated the earlier 40 submissions in support of the application that there is no valid Notice of Appeal since it was filed 35 days after judgment in Civil Suit 046 of 2015 was delivered. That even when this Honourable court has discretion to extend time to file and serve the Notice of Appeal; this

Honourable court didn't exercise that discretion because the respondent has never filed such an application.

Counsel re-joined that Eva Nabitaka is a stranger to this case and her affidavit in reply is tainted with falsehoods and as such should be struck out. It was further submitted that counsel for the respondent submitted from the bar that Eva Nabitaka is a licensed advocate and that even then the practicing certificate of Eva Nabitaka was not attached to their submissions in reply.

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It was further submitted that counsel for the respondent is intentionally trying to mislead court by misreading **Regulation 9 of** the Advocates (Practicing Conduct) Regulations S1. 67-2. That while counsel for the respondent relied on O.3 R.1 of the Civil Procedure Rules to submit that Eva Nabitaka is a recognised agent, Civil procedure Rules do not apply in this Honourable Court because this Honourable court has its own rules and that even if they are persuasive, the respondent has failed to prove that Eva Nabitaka is an advocate and as such she cannot qualify to be a recognised agent for the respondent.

## **Determination of the Application**

We have comprehensively perused the record and considered the submissions of both parties and have gained a good understanding of 25 the matter at hand. We also read the ruling of this Honourable Court that has resulted into the instant application. In our view, the main questions for determination are;

- 1. Whether the Respondent's affidavit in reply is defective, incompetent and illegal? - 2. Whether the instant application discloses the existence of prima facie grounds of appeal which merit serious consideration by the Supreme Court? - 3. Whether the applicants are guilty of dilatory conduct?

The application is brought under **Section 33 of the Judicature Act** and Rules 40 and 41 of the Judicature (Court of Appeal Rules) Directions S.1 13-10. Section 33 of the Judicature Act, Cap 16 gives general provisions as to remedies parties are entitled to in respect to any legal proceedings. Rule 40 of the Court of Appeal Rules provides for applications for certificate of importance or leave to appeal in civil matters and states that a party should show that the intended Appeal raises one or more matters of public or general importance

which would be proper for the court to review in order to see that justice is done. Rule 41 of the Judicature Court of Appeal Rules **Direction** provides for order of application and notice of appeal.

- Since the applicants raised a preliminary objection in their affidavit in $\mathsf{S}$ rejoinder that the affidavit in reply deponed by Eva Nabitaka is incompetent, argumentative, narrative and deponed on contentious matters and should be struck out, we find it prudent to first resolve this preliminary objection. - $10$

# Issue one; Whether the Respondent's affidavit in reply is defective, incompetent and illegal?

It is a general rule that a preliminary objection once raised has always to be determined first by the court and a court seized with such a 15 preliminary objection is first of all enjoined by law to determine that objection before going into the merits or substance of the case or application before it and failure to do so amounts to an incurable procedural irregularity. See The Attorney General of Uganda Vs

#### Media Legal Defence Initiative (MLD) & 19 other, Appeal No. 3 of 20 2016, East African Court of Justice, Appellate Division at Arusha.

The applicants have prayed that court strikes out the respondent's affidavit in reply deponed by Eve Nabitaka for reason that she is a $25$ stranger to this case and that there is no proof that she is an advocate of the High Court and subordinate courts there to. It has also been argued that even if she is an advocate, she is barred from giving affidavit evidence on contentious matters or fact and her affidavit is narrative and argumentative. 30

We have carefully perused the affidavit in reply deponed by Eva Nabitaka in opposition to this application. In resolving this point of law, we are guided by Regulation 9 of the Advocates (Professional Conduct) Regulations S. I 267-2 that states that;

"No advocate may appear before any court or tribunal in any matter in which he or she has reason to believe that he or she *will be required as a witness to give evidence whether verbally* or by affidavit and if while appearing in any matter, it becomes apparent that he or she will be required as a witness to give evidence whether verbally or by affidavit he or she shall not *continue to appear except that this regulation shall not prevent* an advocate from giving evidence whether verbally or by declaration or affidavit on a former or non-contentious matter or *fact in any matter in which he or she acts or appears.*"

It is clear to us that the above regulation does not bar an advocate from giving evidence on behalf of a client but rather bars an advocate from appearing in court on behalf of a client when the advocate is a witness or a potential witness in the matter. As such, where an advocate depones an affidavit in support of an application in a matter, his or her professional duty is not to at the same time, appear in personal conduct of the matter and where such an advocate doesn't act in personal conduct of the matter, there is no contravention.

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It was thus incumbent on the applicants to avail proof that Ms Eva Nabitaka was in personal conduct of the matter and deponed an affidavit on the contentious matters. It is clear that Eva Nabitaka is not in personal conduct of this case, as it is Mr. Andrew Ankunda Bwengye in personal conduct of the respondent's case.

Counsel for the applicants has argued that Eva Nabitaka is a stranger to the case but has not availed evidence to show that she is not an advocate at the law firm of the respondent's lawyers and that she had no instructions from the respondent. While counsel for the applicants 20 has stated that there is no proof that Eva Nabitaka possesses a valid practicing certificate and no proof that she is an advocate, counsel never adduced evidence to support this argument. On record, a practicing certificate of Eva Nabitaka was annexed to the respondent's submissions in reply and the same will expire on 31st December 2025. 25

We find that Eva Nabitaka was competent to depone the affidavit in reply given that she was not in personal conduct of the matter but was privy to facts that were necessary for the determination of this application. Her affidavit is thus legal and tenable in this Honourable Court. We therefore overrule the preliminary objection for lack of merit.

#### Issue 2: Whether the application discloses the existence of prima facie grounds of appeal which merit serious consideration by the 35 Supreme Court?

There are many authorities that guide this Honourable court on the grounds for grant of leave to appeal. It is a known legal principle that an appeal is a creature of statute. See Shah Vs Attorney General 40 (1971) EA 50. However, where there is no such express right of appeal under the statute, a party ought to seek leave of Court to do so. To avoid frivolous and vexatious appeals and applications, an applicant for leave to appeal must prove that there are serious grounds of appeal

worth consideration by the appellate court. In Sango Bay Estates Ltd & Ors Vs Dresdner Bank A. G (1972) EA 17, Court held that the applicant for leave to appeal must prove the existence of prima facie grounds of appeal which merit serious consideration. The intended memorandum of appeal was attached to the affidavit in support of the application laying down the intended grounds of appeal and this Honourable court has perused the same.

Their Lordships in the case of **Degeya Trading Stores (U) Ltd. Vs**

Uganda Revenue Authority, Court of Appeal Civil Application No. 16 of 1996, held that an applicant seeking leave to appeal must show either that his intended appeal has reasonable chances of success or that he has arguable grounds of appeal and has not been guilty of dilatory conduct.

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The applicants are aggrieved that this Honourable court granted the respondent leave to file and serve the record of appeal out of time in disregard that there was no proper Notice of Appeal, the same having been filed 35 days from date of the decision in Civil Suit No. 046 of 2015 and with no validation of the same.

In determining this issue, we are alive to the fact that this Honourable Court should not delve into the merits of the appeal itself for doing so would not only render this application nugatory but would be usurping the powers of the Supreme Court. Neither is this Honourable 25 Court required to re assess the ruling and orders of this Honourable court from which this application arises as this court risks sitting as an appellate court in its own decision.

It is therefore not the right forum for this Honourable court to question 30 the findings of their Lordships of appeal in Civil Applications 100 and 103 of 2020. What is pertinent is for this court to be satisfied that there exist serious questions to be determined by the Supreme Court and that the intended appeal is not frivolous, vexatious and devoid of any merit. 35

We have thoroughly perused the affidavit in support of this application and all the submissions on record and are of the considered view that the application raises pertinent questions that merit grant of leave to

appeal so that the Supreme Court pronounces itself on the matters 40 raised.

We note that the issues at hand all arise from a land dispute. The main appeal from the decision of the High Court at Kabale in Civil Suit

046 Of 2015 is still pending determination in this Honourable court. However, in Bitamisi Namuddu Vs Rwebuganda Godfrey, SCCA No. 04 of 2015, the Supreme Court held that

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"issues of land justice are pertinent in our society and it is therefore important that we allow the applicant to lodge her intended appeal to enable us determine whether there was any judicial error owing to procedural irregularities or otherwise and *the consequences thereof.*"

The instant matter has far reaching consequences to not only the parties to the case but to the broader community. It is our considered $10$ view that granting leave to appeal the decision of this Honourable court will in essence enable the Supreme Court to correct any legal errors if any or correct any injustice if any. This then will provide the Supreme Court with an opportunity as the apex court to clarify on the issues raised in the intended appeal and to provide guidance for

15 purposes of consistency and predictability in applications of the law in such future cases and prevent any likely miscarriage of justice.

The matter before this court therefore raises significant points of law of considerable public interest and importance and as such, it's 20 reasonable, purposeful and not frivolous.

# Issue 3: Whether the applicants are guilty of dilatory conduct

- An application for leave to appeal will generally be refused where the 25 applicant is guilty of dilatory conduct. See Livingstone Kayaga Kizito Vs Charles Waligo CA No. 80 of 2012. Dilatory means deliberately tending or intended to cause delay or to gain time or to put Law **Dictionary** $at$ The See decision. off $\overline{a}$ https://thelawdictionary.org /dilatory/. Dilatory conduct is an 30 indication to the court that the application is mala fide and not being pursued in good faith and that the applicant is trying to manipulate the court process. - If a party deliberately neglects to or delays in taking essential and 35 necessary steps to pursue an appeal or application including failure to meet deadlines or failure to provide sufficient justification for the delay, such a party is guilty of dilatory conduct and their application will fail even when there exist serious grounds for consideration. - 40

It was submitted by the respondent that the applicants are guilty of dilatory conduct and that the instant application was brought with great delay and is an afterthought. That the applicants took an abnormally long duration to serve the Respondent as the respondent's lawyers were served with the application on the day of hearing on 19th March 2025, 528 days after it was filed on 8th June 2023 vet in Civil Application No. 1219 of 2023 pending before this court, even when not signed, service on the respondent's lawyer was in time.

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The applicants submitted that the application before us was filed on 08th June 2023 challenging the decision of this Honourable court delivered on 29th May 2023 after only 9 days. That service was effected on 19th March 2025 because that is the day the Registrar endorsed her signature on the application and that Civil Application No. 1219 of 2023 was served unsigned because this Honourable court had issued conferencing notices for the same unlike the instant application. Counsel for the applicants also submitted that they made written and physical follow ups to have the instant application signed and fixed in vain until when the same was signed on 19th March 2025.

While the Judicature (Court of Appeal Rules) Directions do not expressly forbid service of unsigned court documents, Rule 38 of these Rules provides that

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"every summon, warrant, order, notice or other formal document issued by the court shall be signed by the judge or by the registrar and shall be sealed with the seal of the court."

It was prudent that the instant application is endorsed by the Registrar before it could be served upon the respondent to ensure completeness.

Endorsing the application by the Registrar of Court would guarantee authenticity of the documents and make them legally binding. We have read the letter on record dated 27th February 2024 written to the Registrar by the applicants' lawyer requesting that court fixes the 30 instant application. The instant application was endorsed by the Registrar on 19th March 2025. The applicants immediately served the respondent with the application the day it was endorsed.

The follow up made by the Applicants to have the application signed 35 and fixed for hearing is indicative of efforts by the applicants to have the matter determined and is therefore not dilatory conduct. The respondent has not proved to this Honourable court that the applicants intended to delay this application by deliberately failing to take an essential step. Based on the above, our considered view is that 40 the applicant is not guilty of dilatory conduct.

With the above considerations, we allow this application and grant leave to the applicants to appeal to the Supreme Court against the ruling and orders of this honourable court in Civil Application No. 100 & 103 of 2020. Costs shall abide the outcome of that Appeal. $\sqrt[8]{\kappa}$

day of

Dated at Kampala this / $\cancel{8}$

JUN 2025

Min

Dr. Asa Mugenyi **JUSTICE OF APPEAL**

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Musa Ssekaana **JUSTICE OF APPEAL**

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**Stella Alibateese JUSTICE OF APPEAL**

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