Batte v Nyanzi (Miscellaneous Application 2597 of 2023) [2024] UGCommC 241 (16 July 2024)

### THE REPUBLIC OF UGANDA

### IN THE HIGH COURT OF UGANDA AT KAMPALA **COMMERCIAL DIVISION**

# **MISCELLANEOUS APPLICATION NO. 2597 OF 2023**

## (ARISING OUT CIVIL SUIT NO. 421 OF 2013)

# BATTE JOHN SANDE ::::::::::::::::::::::::::::::::::::

#### **VERSUS**

# NYANZI CHARLES::::::::::::::::::::::::::::::::::::

## Before Hon. Justice Patricia Kahigi Asiimwe

### **Ruling**

### Introduction:

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- This Application was brought under Order 51 Rule 6 and Order $\mathbf{1} =$ 52 Rules 1 & 3 of the Civil Procedure Rules SI 71-1 seeking orders that time within which to appeal against the tax decision made on 20<sup>th</sup> April 2023 by the taxing master be enlarged and costs of the Application be provided for. - 2. The grounds of the Application are laid down in the Notice of Motion and are further elaborated in the Affidavit in Support deponed by Bate John Sande the Applicant. He stated that: - a) He was the Plaintiff in Civil Suit No. 421 of 2013 and the matter was decided in his favour however court decided that he should pay costs to the Respondent since he was wrongly sued.

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- b) The Respondent filed a bill of costs which was exaggerated and by the time the bill of costs was taxed he was abroad and couldn't be in position to challenge some of the costs. - c) During the taxation he was represented by his former lawyers yet he had withdrawn instructions from them. - d) He tried to find lawyers to institute the appeal in vain and was left with no option but to first return to Uganda and personally find counsel to proceed with the matter. He instructed M/s Ssekandi & Co. Advocates to proceed with challenging the decision from the taxing master. - e) His Advocates advised him that there are sufficient grounds to warrant enlargement of time to appeal against the decision of the taxing master. - The Respondent in his affidavit in Reply stated that: 3. - a) He was the $2^{nd}$ Defendant in the suit filed by the Applicant and the suit against him was dismissed with costs. - b) At the time of filing the bill of costs, the Respondent was using the same advocates as the Plaintiff. The judgment debtor (1<sup>st</sup> Defendant) in Civil Suit No. 421 of 2023 was making payments to the Applicant through his lawyers, Luzige, Lubega, Kavuma & Co. Advocates. - c) The Respondent filed the bill of costs and served it to the then lawyers of the Applicant, M/s Luzige, Lubega, Kavuma & Co. Advocates. Both lawyers appeared before the Learned Registrar, who heard both parties and later delivered the ruling. - d) There is no proof that the Applicant was abroad.

- e) He has been advised by his advocates that the Applicant was free to give powers of attorney to another person and that the Applicant cannot swear an affidavit alone without the authority of the $2^{nd}$ Plaintiff. - In rejoinder, the Applicant stated that he was not permanently $4.$ domiciled in Uganda hence the delay to file in an appeal within the prescribed timeframe.

### <u>Representation:</u>

The Applicant was represented by M/s. Ssekandi & Co. $5.$ Advocates and the Respondent was represented by M/s Maldes Advocates.

### Resolution:

- The issue for resolution is whether the time within which to $6.$ file an appeal against the taxation ruling in Civil Suit No. 421 of 2013. Only the Applicant filed submissions which I have considered - Order 51 Rule 6 of the Civil Procedure Rules provides that: $7.$

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 the case of Hadondi Daniel vs Yolam Egondi Court of 8 Appeal Civil Appeal No 67 of 2003, cited in the case of


Sseruwuge Charles Vs Kinoni Traders' Cooperative Savings Credit Society Misc. Application No. 24 of 2020 and also cited by counsel for the Respondent, it was held that:

It is trite law that time can only be extended if 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 will not be extended.

In the case Deborah Ntanda Versus Dr. D. B. Kyegombe $9.$ (Deceased) & Mrs. B. V. Kyeyune Miscellaneous Application No. 1493 of 2021 Mubiru J stated that:

... when an application is made for enlargement of time, it should not be granted as a matter of course. Grant of extension of time is discretionary and depends on proof of "good cause" showing that the justice of the matter warrants such an extension. The court is required to carefully scrutinize the application to determine whether it presents proper grounds justifying the grant of such enlargement. The evidence in support of the application ought to be very carefully scrutinized, and if that evidence does not make it quite clear that the applicant comes within the terms of the established considerations, then the order ought to be refused. It is only if that evidence makes it absolutely plain that the applicant is entitled to leave that the application should be granted and the order made, for such an order may have the effect of depriving the respondent of a very valuable right to finality of litigation.

10. The Applicant's reason for the failure to file the appeal in time is that he was abroad when the matter was heard and he could not instruct new counsel to represent him in the matter. The Applicant further stated that he was represented by his former lawyer's from whom he had withdrawn instructions.

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11. The Applicant did not provide any evidence to show that he was out of the country at time when the matter was heard. The Application is therefore hereby dismissed with costs to the Respondent.

## Dated this 16<sup>th</sup> day of July 2024

Bay. $\cdots \cdots$

Patricia Kahigi Asiimwe

Judge

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Delivered on ECCMIS