Buyungo v Nyansiano and 6 Others (Civil Application 10 of 2022; Civil Application 12 of 2021) [2023] UGSC 41 (5 October 2023)

Full Case Text

## THE REPUBLIC OF UGANDA

# IN THE SUPREME COURT OF UGANDA AT KAMPALA

Coram: Owiny-Dollo, CJ, Mwondha, Tibatemwa-Ekirikubinza, Tuhaise, Chibita, JJ. SC

# CIVIL APPLICATIONS NO. I2 OF 2O2I AND NO. IO OF 2022

#### (Arising from Civil Appeal No. 05 of 2016)

# BUYUNGO SAMUEL:::::::::::::::::::::::::::::::::::::::::::::::::::::APPLICANT

#### VE,RSUS

- I. NYANSIANA TALIDDA SSERWADDA - 2, LEONARD KISUULE - 3. BERNAGUTTABINGI - 4. JESEPH MAYOBA ::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENTS - 5. SARAH NAMUGAMBWA - 6. WASSWA PETER - 7. STEVEN KALEMA

(Arising from the jutlgment and decision of the Court of Appeal ot Kmpola in Civil Appeat No. 05 of 2016 before Egonda-Ntende, Musota, Kasule, JIA dated tAt' September,2020)

### RULING OF THE COURT

We have to state on the onset that, the two Applications No. l2 ol202l, Buyungo Samuel V. Nyasiano Talidda Sserwadda and 6 others and Application No. l0 of 2022, Bema Guttabingi and 6 others V. Buyungo Samuel were consolidated under Order XI r (l) (a) of the Civil Procedure Rules, it provides: "where two or more suits are pending in the same Court in which the same or similar questions of law or lact are involved. the Court may either upon the application of one of the parties or of its own motion, at its discretion and upon such terms may order a consolidation of those suits..."

From perusal of the two Applications, Application No. l2 of 2021, Buyungo Samuel was for striking out the appeal and was against the respondents who were the Applicants in Application No. l0 of 2022 seeking lor extension of time where Buyungo Samuel was the respondent in the application for cxtension of time. We shall consider them together but shall dispose of Application No. I 2 of 202 I first.

Application NO. 12 of 2021 was brought under rules 78,79 and 80 of the Judicature (Supreme Court Rules) Directions S. I I 3- I 1 seeking for orders that;

- a) The Notice of Appeal be struck out and the appeal be dismissed for being incompetent. - b) Costs be provided for.

The application was supported by the grounds in the affidavit deponed by one Daisy Oketcho. Briefly the grounds were as follows:

- 1. That the applicant was the successful party in the Court ofAppeal and High Court in Civil Appeal No.05 of 2016 and Civil Suit No. 0l ol20l2 respectively. - 2. That lhe respondents filed a notice of appeal within the prescribed time but have since then not taken any steps to institute the appeal within the required time. - 3. That it is in the interest ofjustice that the application is granted.

The respondents filed an affidavit in reply opposing the application deponed by one Sarah Namugambwa of C/o M/s Kitimbo Associated Advocates, Plot No.35 Kampala Road, Kuteesa Plaza, 1sl Floor, P. O Box 72384, Masaka, inter alia as follows:

- l. That the applicant instituted Civil Suit No. 0l of 2012 against the respondents including the deponent, Nyansiana Talidda Sserwadda(deceased), Leonard Kisuule (deceased), Joseph Mayoba, Maria ll/ebuuzawaaki, Wasswa Peter and Steven Kalema in the High Court of Uganda at Masaka, seeking among others, a declaration that he is the owner of land comprised in Buddu Block 369 Plot 194 at Kyabakuza, Masaka District. - 2. That on the 28th day of November, 2014, the High Court delivered judgment in favor of the plaintiff (applicant herein) but struck out the suit against Nyansiana Talidda Sserwadda and Steven Kalema for not disclosing a cause of action against them. - 3. That thereafter the respondents aggrieved with the judgment ofthe High Court preferred an appeal to the Court of Appeal vide Civil Appeal No. 05 of 2016 againsl lhe applicant.

- 4. That on the I0'h day of September, 2020 the Court of Appeal presided over by Hon. Mr. Justice F. M. S Egonda Ntende, Hon. Mr. Justice Stephen Musota, Hon. Mr. Justice Remmy Kasule, JJA, delivered judgment dismissing the appeal and upholding the orders of the High Court. - 5. That following the delivery of the judgment by the Court of Appeal, the respondents immediately instructed their former lawyers M/s Nyanzi Kiboneka & Co-Advocates to commence the appeal process to the Supreme Court and the said lawyers filed a Notice of Appeal against the whole decision and orders of the Court, and duly served lhe same on the applicant.

- 6. That the former lawyers of the respondents Ms Nyanzi Kiboneka & Co. Advocates duly requested in writingfor a record ofproceedings to enable them formulate the grounds of appeal and a copy of the letter was served upon the applicant's. - 7. That on the l5th and 22'd October, 2020, the deponent (5th respondent) in company of the 4th respondent proceeded to the Court of Appeal registry to follow up on the file and find out the progress of the preparation of the record ofproceedings requestedfor by their lawyers but were advised by the court staff in the registry that court would inform their lawyers lutr/s Nyanzi Kiboneka & Co. Advocates when the record is ready. - 8. That aJter some time the deponent (5th respondent), the 3'd and 4th respondents again went back to the Court of Appeal registry on the lTth November 2020 to find out the progress of the preparation of the record of proceedings requested for by their lawyers but were again advised by the court staff in the registry that court would inform their lawyers Ws Nyanzi Kiboneka & Co. Advocates when the record is ready. - 9. That the deponent (5th respondent), the 3'd and 4th respondents continued to follow up with Ms. Patricia Nyangoma, counsel with personal conduct of the matter in the law firm of l s Nyanzi Kiboneka & Co. Advocates via telephone communications to establish whether or not the record ofproceedings had been availed to her in order to pursue the appeal and but advised us that as soon as the record is ready, she would inform them so that she files the appeal to the Supreme Court. - 10. That, unknown to the respondents, it was discovered on the l4th day of March 2022 that the record ofproceedings was typed and availed to the law firm of lul/s Nyanzi Kiboneka & Co. Advocates but to their surprise their lawyers did not notify them that the record was availed to them on the 27th of January 2021 . 4 - II . That following the breakdown of communication \uith the respondents' former lawyers the respondents decided to engage new lawyers M/s Kitimbo Associated Advocates on the I lth day of March 2022 in order to follow up on their case at the Supreme Court and advise them on the way forward. - I2. That the information in paragraph I0 above was revealed to them by their newly instructed lawyers who visited the registry at Court of Appeal and Supreme Court on the I 5th and I6th March 2022 respectively and informed them that the record ofproceedings had been typed and availed to their former lawyers.

I3. That their new lawyers further informed that despite receiving the record

- $\mathcal{L}$ That their omission to file the memory and the record of appeal and the record of appeal $\mathcal{L}$ . of appeal to the Supreme Court within the time stipulated by law. $p$ - ρα τοπ bluods sans shi ban εγεγωνί γρατι το προίτη το μοι μοι μοι μοι μοι μοι μοι μοι μοι μο hiw vigmos of noissimo no sonsgilgs in sou sou sou sou sing bediversity of noissimo no sonsgilgs in the source of the source of the source of the source of the source of the source of the source of the source of the source - $\Delta$ had the appeal within the required time filed Civil Application No. 17 ιλλας Ιμσι ιρμι τριμι τρυμεία Ισμλολογία μεταλίνται κριπία τησα τρομιτική που πολλική που πολλική του Πολλικό monisive no them. - .2202 lingh to $v^{h}$ do $v^{h}$ do $v^{h}$ do $v^{h}$ do $v^{h}$ do $v^{h}$ do $v^{h}$ do $v^{h}$ do $v^{h}$ do $v^{h}$ do $v^{h}$ do $v^{h}$ do $v^{h}$ do $v^{h}$ do $v^{h}$ do $v^{h}$ do $v^{h}$ do $v^{h}$ do $v^{h}$ do $v^{h}$ do $v^{h}$ $\frac{1}{2}$ consults and possible of the set of the set of the set of the set of the set of the set of the set of the set of the set of the set of the set of the set of the set of the set of the set of the set of the set of - $\mathcal{L}$ uoisisəp pips əyı fo əlo $\mathcal{L}$ w əyı isninga labada oi bnəmi bip nəqdə bips əyı fo əlo $\mathcal{L}$ w əyi isninga və bips əyi fo əlo $\mathcal{L}$ w əyi isninga və bips əyi fo əlo $\mathcal{L}$ w əyi isninga və bips əyi fo əlo $\mathcal{$ $\beta$ O That the respondents are seriously dissatisfied with the judgment of the Court of

in the Supreme Court.

- to the Supreme Court raises a number of issues that this Court will have to λαλοςσιες αυα ίγει, ααλίες ίγελ λειίζλ ρείιενε το ρε τιπε ίγαι της ευαθά αβρεσί $\mathbb{R}^7$ . That the respondents have been advised by lawyers $\mathbb{M}^8$ Kitimbo Associates - Magistrate's Court in Administration Cause No. 83 of 1991, to the effect a) Whether the Court of Appeal was correct in ignoring the fluid of the $\mathcal{C}$ יופ: $\mathcal{L}$ ענס: $\mathcal{L}$ ישנה על ענסוי $\mathcal{L}$ ישנה: $\mathcal{L}$ ישנה אסער ענס - b) Whether or not the late Charles Sserujusa obtained the same by purchase $\mathcal{O}$ οξιρε *[αξε Σενεεξε Σωαυ*ρα *Μαυασαυγα* states and fo avotavisinimal shi to that land to show the administrators of the set ates of the solution of the solution of the solution of the solution of the solution of the solution of the solution of the solution of th that the late Charles Sserufusa through whom the respondent claims the - Charles Sserufusa or Serete Lwanga Mumaanya. $\mathcal{M}$ ) whether or not the suit land forms part and parcel of the estate of the late $\mathcal{L}$ work to be a set of the polynomial $\mathcal{L}$ in the polynomial $\mathcal{L}$ is a polynomial $\mathcal{L}$ in the polynomial $\mathcal{L}$ is a polynomial $\mathcal{L}$ in the polynomial $\mathcal{L}$ is a polynomial $\mathcal{L}$ in the polyn - lpəddp əyi əlif ion bib ohw zvəywal vəmvof viəhi ya nwob iəl əvəw iud əmas əhi no $\partial$ the Court of Appeal and $\partial$ value of the matrix $\partial$ in $\partial$ in $\partial$ in $\partial$ in $\partial$ in $\partial$ $\mathcal{S}$ . That the respondents are very much interested in appealing against the decision - investigated and decided on their merits. ρος το soving γίπας 'family burial sites and raised assists having γίπας γραφίας το be 91. That sint land comprised in Buddu Block 369 Plot 494 forms part of the *Somit beyinper the time.* - application seeking to strike out the respondents notice of appeal in this court. 20. That it is just and fair that this court exercises its discretion to dismiss this

2l. That whatever was stated herein is true and correct to be best of the 5'h respondent's (deponent) knowledge and belief save for information whose source have been disclosed".

The applicant filed an affidavit in rejoinder opposing the averments in the respondents' affidavit in reply to this application.

# Background.

The background of this application is that the applicant sued the respondents and a one Maria Webuuzawaaki in the High Court at Masaka seeking a declaration that he is the rightful owner of the Certificate of Title and the land comprised in Buddu, Block 369, Plot 494, an order directing the Commissioner, Land Registration to register the suit property in his names and an order for costs.

At the conclusion of the trial, the learned trial Judge entered judgment in favour ol the applicant. Dissatisfied with the decision ofthe trial Judge, the respondents appealed to the Court ofAppeal against the whole decision. The Court ofAppeal dismissed the appeal and upheld the lower court's judgment, decision and orders.

The respondents were dissatisfied with the judgment and decision of the Court olAppeal and filed a Notice ofAppeal on 24th Septemb er,2020 and served it on the applicant on the same date but did not file their appeal within the prescribed time of 60 days. The respondents filed an Application lor Extension of time within which to appeal on 23'd March2022.

## Representation.

At the hearing, Mr. Urban Tibamanya represented the Applicant while Mr. Kalani Sekyewa represented lhe Respondenls.

### Submissions of the Applicant.

Counsel relied on rule 78 ofthe rules olthe Judicature (Supreme Court Rules) Directions SI l3-l I and submitted that the respondents failed to take the essential steps to file their appeal within the stipulated time. Counsel argued that rule 79 provides that the intended appellant should lodge their appeal within 60 days after the date of filing a notice ofappeal which the respondents did not do for over 7t/z lears.

Counsel pointed out that the applicant served copies of the proceedings and judgment to the respondents' lawyers by the letter dated 27th January 2021 and that by the time this application was filed, the Respondcnts had not taken any steps to file their appeal thus fell short ofthe mandatory requirement under rule 79 of the rules ofthis Court. Counsel argued

that the respondents' inordinate delay is inexcusable considering the fact that the respondents have been in possession ofthe land the subject matter olthis case.

Counsel cited rule 80 of the rules olthis Court and asked court to strike out the Notice of Appeal with costs.

## Submissions of the Respondents.

Counsel submitted that by the time this application was called for hearing, the respondents had filed an Application lor extension oltime within which to file the appeal.

Counsel submitted that it is in the interest ol justice that this court determines the application for extension oltime first before the applicant's application for striking out the Notice of Appeal. Counsel submitted that this application should not bar the respondents' application for extension of time and it does not divest the court of its j urisdiction to extend time. For this argument, Counsel cited the case of Godfrey Magezi & Another Vs. Sudhir Ruparelia, SCMA No. 6 of 2003, lor the proposition that the Rules of this Court grant it jurisdiction to hear and determine applications for extension of time.

Counsel cited rule 5 of the rules olthis court and submitted that this court is empowered to extend time prescribed by the rules on finding that there was sulficient reason why the applicant did not take steps to file their appeal in time.

In addition, counsel argued that the respondents' former lawyers neglected their case and failed to file the appeal in time. He relied on Molly Kyalikunda Turinawe & 4 Others Vs. Engineer Ephraim Turinawe & Another, Civil Application No. 27 of 2010 for the proposition that the mistake of counsel should not be vested on the applicant as has been held by this court in other similar applications.

Counsel further, contended that the respondents got to know that their appeal had not been filed by their former lawyers on the l4'h March 2022, having been inlormed by their new lawyers. That therefore the respondents are not guilty of dilatory conduct because they at all times been desirous ol appealing against the decision of the lower courts and that the applicant shall not be prejudiced if the respondents are granted time within which to file their appeal.

Counsel argued that the intended appeal raises a number of triable issues which ought to be dealt with in a full hearing between the parties. Counsel submitted that the suit land forms part of the respondents' family burial sites and it would be unjust to dismiss their application without consideration of the issues on merit. Lastly, Counsel submitted that the respondents would suffer injustice and great loss if their rights in the subject matter is lost without their appeal being heard and decided on its merits by this Court. Counsel prayed that the Court denies the applicant's prayer to strike out the Notice of Appeal and prayed that it extends time within which to lodge the respondents' appeal.

#### Submissions of the applicant in rejoinder.

$\cdot \cdot \cdot$

Counsel reiterated his earlier submissions and added that it's not true that the respondents lost contact with their former lawyers because they still use the same lawyers in the same subject matter as shown by annexure A1 on record. He pointed out that the respondents have a tendency of delaying court proceedings to defeat the applicants' rights since they are the ones in possession of the suit land, and have since then sold parts of it and as such the applicant will be prejudiced if this application is not granted.

Counsel submitted that the case of Godfrey Magezi & Another Vs. Sudhir Ruparelia, (supra) is distinguishable from the instant case because in that case the appeal had been filed and the issue was whether a single Judge can hear an application for extension of time where there is a pending application to strike out the appeal.

$\mathcal{R}$

Further, counsel distinguished the case of Molly K. Turinawe, supra and contended that the respondents in that case had been displaced from Kampala to up-country and they never heard from their lawyers until they were informed that an application to strike out the appeal had been filed.

### **Consideration of the application.**

This is an application brought under Rules 78, 79 and 80 of the Judicature (Supreme Court Rules) Directions S I 13-11, seeking to strike out the Notice of Appeal of the respondents for failure to take necessary steps to file the appeal. The respondents filed an application No. 17 of 2022 seeking for extension of time within which to file the appeal. The two applications were consolidated.

The rules relied on by the applicant expressly provide as follows:

### 78. Application to strike out notice of appeal or appeal.

"A person on whom a notice of appeal has been served may at any time, either" *before or after the institution of the appeal, apply to the court to strike out the notice* or the appeal, as the case may be, on the ground that no appeal lies or that some Essential step in the proceedings have not been taken with the prescribed June

## 79. lnstitution of appeals.

"(l) Subject to rule 109 ofthese Rules and subrule (4) of this rule, an appeal shall be instituted in the court by lodging in the registry, within sixty days after the date when the notice ofappeal was lodged-

(a) a memorandum ofappeal:

(b) the record ofappeal

(d) security \_for the costs of the appeal" .

# 80. Effect ofdefault in instituting appeal.

" lf a party who hos lodged a notice of appeal fails to institute an appeal within the prescribed time-

(o) he or she sholl be taken to have wilhdrawn his or her notice ofappeol ond shall, unless the court olherwise orders, be liable lo pay the costs arisingfrom the notice of any persons on whom the notice ofoppeal wos served"

It is trite law that "Rules arc made to be observed, and when there has apparently been excessive delay thc court requires to be satistied that there is an adequate excuse for the delay or that the interest of.iustice is such as to require the indulgence of the court upon such terms as the court considers just". See: Shah Bharmal Vs Santosh Kumari (1961) EA 679 and Attorney General Vs Oriental Construction Co. Ltd, SCCA No. 7 of 1990.

The Court of Appeal case olKitariko Vs Twino Katama lt 9821 HCB 97 states that "rales of Court must Prima facie, be obeyed ond, in order lo juslify o court in ertending the time during which some slep in procedure requires to be laken, lhere musl be some malerial on which the court can exercise ils discretion, If the law were otherwise o parly in breach would hove tn unqualijied right to on exlension of time which would defeol the purpose of the rules which is lo provide t time lable for the conducl of liligolion."

A reading ofrules 79 and 80. indicates that they are coached in mandatory terms. but rule 5 gives Court the parameters in which to apply them. It is evident that the respondents did not take steps to institutc the appeal in time. However. rule 5 of this Court's Rules provides tbr extension oltime if therc is sufllcient reason lbr not taking the necessary steps. There arc vanous

decisions on this point. In Kaderbhai & N. H Vatiji Vs. Shamasherali M. Zaver Virji & 2Others, Supreme Court Civil Application No. 20 of 2008, the applicants had instructed their lawyer to prefer an appeal against the.iudgmenl of the Court of Appeal. Thc Notice of Appeal was llled but the applicants' larvyers inadvertently t'ailed to serve the opposite party rvithin the required time and ncither did the lawyers file an appeal within time. Okello. JSC (as he then was) found that "it would, in my view. be a grave iniustice to deny an applicant such as this one. to pursue his rights of appeal simply because of the negligence of his lawyers when it is tairly well settleslnow. that an error of counsel should not necessarily bc visited on his client".

'fhe question is whether the averments in paragraphs 10, I I , l2 and I 3 as reproduced in the ruling raise sutlicient reason.

ln F. L. Kaderbhai & Anor Vs. Shamshersli M. Zover Virii & 2 Others, Szpra, Okello, JSC (as hc then rvas) citcd u'ith approval Boney M. Kalotumba Vs, Woheed Korim, Supreme Court Civil Application No. 27 ol'2007, who observed as fbllows with regard to the meaning ol"sulllcient reason' under Rule 5.

"Llnder Rule 5 of the Supreme Court Rules, the Coart moy, for sufJicienl reoson, extend lhe time prescribed by lhe Rules. Whol conslilules 'sufJicienl reason' is left to the Court's unfettered discretion, In lhis conlexl, the Courl will accept either a reason lhal prevenled on opplicanl from taking lhe essentiol step in lime, or other reasons why the intended appeal should be allowed to proceed though out of time. For example, an opplication lhat is brought promplly will be considered more sympathelically lhan one lhal is brought ofler unexpluined inordin e delo1,. Bul even where lhe ooplication is undult' deln ved. lhe Court mot'sranl the exlension if shullins out lhe aooeal mav qDDeor lo couse miuslice." a

As the above authorities indicate. sulficient reason amounts to thejustification for the delay or inability to cornply with the time limits prescribed by law.

The question is rvhether by the averrncnts, in paragraphs 10. I l. 12 and 13 of the afldavit of the respondents, proved sufllcient reasons.

The applicant's counsel submittcd that the respondents have had a tendency of delaying this matter and that it is not truc that the), lost contact with their lbrmer lawyers because the applicants still use the same lawyers in the same subject matter as per the notice of motion on record marked as annexure A I . We have considered that submission but according to the evidence as per the affidavit in reply, the respondents averred that there was a break in communication with their former lawyers which is not the same thing as loss olcontact as the applicant stated. Break down is wider than loss of contact.

There are various decisions of this Court which provide that a mistake or omission of counsel should not be visited on his/her client and that counsel's negligence, omission or mistake can constitute sufficient reason under Rule 5 of this Court rules. See: F. L. Kaderbhai & Anor Vs. Shamsherali M. Zaver Virji & Anor, (Supra) and Molly Kyalukinda Turinawe & 4 others Vs. Eng. Ephraim Turinawe & Another, (Supra).

In Capt. Philip Ongom Vs. Catherine Nyero Owota, Supreme Court Civil Appeal No. 14 of 2001, Mulenga, JSC held as follows:

"A litigant ought nol to bear the consequences of lhe advocale's default, unless lhe litigant is privy to the defaull, or the default results from failure, on lhe part of lhe litigant, lo give to lhe advocale due inslruclions." d

In Sepiriya Kyamulesire Vs. Justine Bikanchurika Bagambe, Supreme Court Civil Appeal No. 20 of 1995 Karokora, JSC also held as lollows:

"In my considered opinion, considering the decided cases of lhis Courl and other Courts on this point, it is now settled lhat errors of omission by counsel (ore) no longer considered lo be fatal to an applicalion under Rule 4 of the Rules of this Courl unless there is evidence that the applicant was guilty of dilalory conducl in lhe instruction of his lawyer."

In Mulindwa George William Vs. Kisubika, SCCA NO. 12 of 2014, this Court stated that the applicant seeking for extension of time has the burden of proving to Court's satisfaction that for sulficient reason it was not possible to lodge the appeal in the prescribed time.

Upon careful perusal of the record and carelul consideration of the submissions of both counsel and the authorities relied on, it was due to the lawyers' negligence that the respondents failed to file their appeal in time. we are therefore satisfied that the respondents have proved sufficient reason for the extension of time within which to file the appeal and therefore it follows that the application for striking out the Notice of Appeal is denied to facilitate the resolving olthe issues surrounding the subject matter, which is land, on merit as the justice of the case demands.

In the result, we allow the application for extension of time and the respondents are ordered to file the record of Appeal within 7 days from the date of delivery of this ruling without fail. Each party shall bear its own costs.

tfr Dated at Kampala this . . .. auv or.,.9.6bu .....2023.

\ \ Owiny-Dollo

CHIEF JUSTICE

Mwondha JUSTICE OF THE SUPREME COURT

U...,..to

Prof. Tibatemwa-Ekirikubinza JUSTICE OF THE SUPREME COURT

Tuhaise JUSTICE OF'IHE SUPREME COURT

Chibita JUSTICE OF THE SUPR-EME COURT