Ashiraf v Changa (Miscellaneous Application 14 of 2022) [2023] UGHC 497 (10 October 2023)

# THE REPUBLIC OF UGANDA

### IN THE HIGH COURT OF UGANDA AT ARUA

#### **MISCELLANIOUS APPLICATION NO. 0014 OF 2022**

#### (ARISING FROM THE GRADE 1 MAGISTRATE COURT OF PAKWACH)

## (ARISNG FROM CIVIL SUIT NO .013 OF 2020)

### **ASHIRAF GILE NOAH (Suing through the**

Donee of power of Attorney SWADDIK ONDOGA)::::::::::::::::::::::::::::::::::::

#### **VERSUS**

CHANGA SAFI::::::::::::::::::::: **RESPONDENT**

#### BEFORE HON. JUSTICE COLLINS ACELLAM

#### **RULING**

# **Brief Introduction**

This is an application brought under section 98 of the Civil Procedure Act Cap 71, Order 52 Rule 1 and 3 of the Civil procedure Rules S.171-1, seeking for orders;

- 1. That leave be granted to the Applicants to appeal out of time against the Judgment and Decree of His Worship Asiku Swaleh , Magistrate Grade 1, Moyo in Original Suit No. 010 of 2018 - 2. Costs of this Application be provided for.

**ARIAN**

# Grounds in support of the Application.

The grounds in support of this application are set out in the affidavit of SWADIK ONDOGA (Donee of Power of Attorney of Ashiraf Gile Noah), the Applicant herein, dated 25<sup>th</sup> of February 2022 which briefly states;

- 1. That the Respondent sued the Applicant in civil suit No. 010 of 2018 and judgment was entered against the Applicant. - 2. The Applicant was prevented by his ill health and couldn't file the appeal within time as prescribed by law after delivery of the judgment and to date he is still recovering and can barely speak well. - 3. That Applicant was prevented from appealing within time because of his health condition and the outbreak of COVID-19 pandemic and the lockdown thereto that prevented movement and access to court premises. - 4. That the Application is presented without due delay upon slight recovery of his health and uplift the lockdown by government.

Before I proceed to the merits of the Application, I want to note that I have perused through the application and all their supporting documents/ affidavits. This Application stood unopposed despite service being on the Respondent on the 3<sup>rd</sup> day of February 2023. There was no affidavit in reply, Counsel for the Applicant filed his submission which I have duly put into consideration to come up with this ruling. I shall now proceed to enlist the issue in contention.

This court has, pursuant to Order 15 CPR, framed one issue which is deemed crucial in the determination of the Application to wit;

# Issue

1. Whether the applicant has adduced sufficient reasons to justify the grant of the remedie being sought?

# **Analysis / Determination**

# Position of the law.

An Appeal is a creature of statute and where there is no such right; an appeal shall be by leave of court. An appeal under the civil procedure rules shall not lie from any other orders save with leave of court making the order or of the court to which an appeal would lie if leave were given. See Order 44 (1) of the CPR.

It is necessary when considering the scope and value of this hurdle of leave to appeal, to be aware of the importance of a right to appeal and its worth to the legal system.

According to Sir Jacob, The Reform of the Civil Procedure Law London, Sweet and Maxwell 1982 at page 85, appeal right is necessary to;

- a) To produce a just result in a particular case - b) To compel judges to be judicial, reasonable and to apply the law and not be arbitrary


- c) To provide a powerful corrective to any sense of grievance by the loser at first instance and - d) In a system applying the binding character of judicial precedent to build up a uniform system of law.

So far as achieving a just result is concerned, a right of appeal can perhaps achieve, is avoidance of a 'legal injustice' in other words it can ensure that the law is interpreted and preferably also applied correctly.

The quality of justice, which is the touchstone of a civilized society depends in large measure on the arrangements provided for its due administration. Accordingly, it is appropriate to consider rights of appeal and indeed, leave to appeal, in terms of the 'Justice 'within a system. See Civil Procedure & Practice in Uganda by M. SSEKAANA & S. N. SSEKAANA at page 328

Leave to appeal from an order in civil proceedings will normally be granted where prima facie it appears that there are grounds of appeal which merit serious judicial consideration.

Leave to appeal to the high court from Magistrate court can only be granted where the decision intended to be appealed from involves a substantial question of law or has caused or is likely to cause substantial miscarriage of justice.

The circumstances in which leave should be granted have not been defined. This is a matter left to the discretion of the courts. In fact, the judges have provided few clues, but it is known that leave is

where a case involves "......a question of considered desirable importance upon which further argument and a decision of the court of appeal would be to the public advantage..." See Civil Procedure &Practice in Uganda by M. SSEKAANA & S. N. SSEKAANA at page 328

The rationale behind leave requirement as the courts sees it is to prevent frivolous and needless appeals. It is doing the potential litigant a service to refuse him leave to appeal if this Appeal is clearly doomed to fail. This fetter on appeals helps to keep the Administration of Justice tidy. It is purely as an administrative protection to limit the number of appeals. However, it would be highly undesirable if the administrative convenience interfered with the judicial system.

Section 98 of the CPA Cap 71 provides that "nothing in this Act shall be deemed to limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court."

Order 76 rule 1 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."

Sub rule (2) provides thus; "every notice under sub rule (1) of this rule shall, subject to rules 83 & 95 of these rules, be lodged within fourteen days after the date of the decision against which it is desired to appeal."

The time for appealing begins to run when the judgment or ruling is delivered. Section 79(1) CPA which was well pronounced in the case of Hajji Mohamed Nyanzi Vs- Ali Segane [1992-1993] HCB 21 provides that:

Except as otherwise specifically provided in any other law, every appeal shall be entered:

# a) Within thirty days of the date of the decree or order of court b) Within seven days of the date of the order of a registrar

Section 96 of the CPA Cap 71 and Order 51 rule 6 of CPR provides for a remedy for a litigant who for some peculiar reason fails to abide by the above prescribed timeline. The section provides that;

"Where any period is fixed by the court for doing of any act prescribed or allowed, the court may in its discretion from time to time enlarge such period, even though originally fixed or granted may have expired."

Order 51 rule 6 of CPR provides thus;

"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 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

made on the application shall be borne by the parties making the application, unless the court shall otherwise order."

In Priscilla Wambi Mischek Vs- Samuel Thata & Ors East African Court of Appeal CA No. 30/1976 it was held that the party who seeks the indulgence of court to extend the time must be diligent in applying for it expeditiously and without undue delay.

The starting point is to determine whether or not sufficient reason has been shown for the failure to act in time. According to the affidavit sworn by SWADIK ONDOGA (DONEE), the Applicant herein, especially paragraph 2, where he contends that Ashiraf being dissatisfied with the judgment of the lower court, could not appeal within the prescribed time because of ill health which till date is still affecting him. Attached is a copy of his medical form marked B.

He also contends under paragraph 7 that because of Ashiraf's continued ill health, Ashiraf had to appoint the Applicant (done) and grant him power of Attorney in order to help file his appeal and follow up court proceedings.

In addition, he also contends under paragraph 5 of the affidavit in support that every hearing notice to be served was served on ASHIRAF GILE NOAH was being served on the LC1 chairperson of Rodo Village, Rodo Parish, Obongi District who acknowledged receipt but did not bring to the attention because of Ashiraf Gile Noah's health condition that would bring further due stress on Ashiraf.


In determining whether or not this application for extension of time within which to file notice of appeal should be granted, the paramount consideration is that there must be sufficient cause of failure of the Applicant to file and serve within time.

The expression 'sufficient reason' is not defined anywhere in the rules however in the case of Rosette Kizito Vs- Administrator General & Others SCCA No. 9 of 1986 (1993) KALR 5, it was held that sufficient reason must relate to the inability or failure to take the particular step in time.

The applicant for extension of time has the burden of proving to court satisfaction that for sufficient reason it was not possible for the appeal to be lodged in the prescribed manner. This was the position in **Devhi**

Vs- Diamond Concrete Company [1974] EA 493.

In Sabiiti Kachope & 3 Ors Vs- Margrat Kamuje, SCCA No. 31 of 1997, Order JSC (as he then was) held that for application of extension of time such as the present one, a mistake or negligence of the Applicant's counsel may be accepted as a proper ground for granting relief such as leave to file out of time.

It is trite law that parties are not visited with punishment arising from the mistake or inadvertence or negligence is in respect to procedural matters in which case, the court would lean towards allowing mere accommodating the parties' interests without procedural irregularities brought about to preclude the determination of a case on the merits. The court must however be satisfied that the

# allegation of inadvertence of counsel is true and genuine. SEE Shabin Din versus Ram Parkash Anand (1955)22 EACA at 48

However, whether or not to extend time is discretionary. This was the position in J Hannington Wasswa Vs- M. Onyango Ochola [1992-1993] HCB 103 (SC) where it was held that the discretion to grant extension of time can be allowed in order for the appeal to be heard on its merits so that the dispute could be settled. The discretion must however be exercised judicially on proper analysis of the facts and the proper application of the law to the facts.

Several cases are handled basing on each of its circumstances. In this case, the Actual applicant's ill health was a hindrance to his full participation in his court proceedings. It is only right that a chance be given for him through his Attorney to argue his case on its merits.

The administration of justice normally requires that substance of all disputes should be investigated and decided on their merits and those errors and lapses should not necessarily debar a litigant from pursuit of his rights.

I therefore find sufficient reason to grant leave to file an Appeal out of time. In the circumstances of the case, refusal to grant leave to extend time to file Appeal and subsequently an Appeal would cause an injustice to the Applicant.

I have also considered Section 27 of the Civil Procedure Act cap 71 in as far as the award of costs is concerned, the Applicant shall bear their own costs.


In the final result, an extension of time being sought is hereby granted. The Appeal is to be filed within 7 days from the date hereof.

I so order.

ACELLAM **COLLINS**

**JUDGE HIGH COURT**

10<sup>th</sup> October, 2023