Byarufu v Kabiguruka (Civil Appeal 87 of 2004) [2006] UGCA 52 (5 April 2006)

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

# CORAM: HON. JUSTICE L. E. M. MUKASA-KIKONYOGO,DCJ HON. JUSTICE S. G. ENGWAU, JA HON. JUSTICE S. B. K. KAVUMA, JA

### CIVIL APPEAL NO. 87 OF 2004

#### BETWEEN

#### SAMUEL BYARUFU :::::::::::::::::::::::::::::::::::

#### AND

#### YOWASI KABIGURUKA ::::::::::::::::::::::::::::::::::::

[Appeal against the Ruling and Orders of the High **Court at Mbarara (Mugamba, J) arising from** Misc. Application No. HCT-05-CV-MA 0001/2003 **Dated 5<sup>th</sup> June, 2002]**

## THE JUDGMENT OF ENGWAU, JA

This is an appeal against the Ruling/Order of the High Court at Mbarara (Mugamba, J), dated 13<sup>th</sup> February, 2003 in Msc. Application No. HCT-05-CV-MA 0001 of 2003 in which the appellant's application for extension of time within which to appeal against the judgment of Magistrate Grade One in Civil Suit No. MB 106 of 1993 delivered on 5<sup>th</sup> June, 2002 was rejected.

Briefly, the background to this appeal is as follows: The respondent sued the appellant in the Magistrate Grade I Court at Mbarara for a declaration that the land in dispute belongs to him. He also sought

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orders for a permanent injunction restraining the appellant from further trespass, an eviction and general damages for breach of contract and costs of the suit. The respondent contended that he was the registered proprietor of the suit land comprised in LRV 1460, Folio 9, Plot 17, Block 4, Karora, Nyarubungo, Rugundo, Rwampara.

On the sth June, 2002 the learned trial Magistrate entered judgment in favour of the respondent with a declaratory order that the land in dispute is owned by the respondent whom he awarded general damages of Ug. Shs.500,000/= with costs of the suit. Further, the trial Magistrate granted permanent injunction restraining the appellant from further trespass on the suit land. The appellant was also ordered to pay interest of 6% p.a. on the general damages of Shs.500,000/= from the date of judgment till payment in full.

After about 5 - 7 months since the trial IMagistrate had delivered the judgment, the appellant made an application to the High Court at lMbarara for extension of time within which to lodge his appeal. His application included the following grounds, namely:-

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- (a) that he was not aware of the date of judgment due to negligence of his lawyers; - (b) that the substantive suit was incomplete because his witnesses were never given a chance to testify; - (c) that the intended appeal has a high chance of success; and

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# (d) that there was need to visit the locus in quo in the circumstances of the case.

The learned judge heard and dismissed the application with costs to the respondent. lt is upon this background that the appellant brought this appeal on the following grounds, namely:-

- ,l The learned trialjudge erred in law and fact when he held that the appellant's conduct was dilatory and yet he had instructed his counsel to represent him. - 2 The learned trialjudge erred in law and fact when he held that the applicant did not indicate who the available witnesses were. - The learned trialjudge erred in law and fact when he held that the trial Magistrate reached a correct decision on the available evidence when the appellant was denied a chance to fully plead his defence. 3 - 'o

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- 4 The learned trialjudge erred in law and fact when he held that the intended appeal has no chances of success. - The learned trial judge erred in law and fact when he held that there was no need to visit the locus in quo yet the appellant felt that it was pertinent for the court to resolve the case by visiting the locus in quo. 5

tVlr. Richard Mwembezi, learned counsel for the appellant, argued grounds 1 and2 together, thereafter grounds 3,4 and 5 also together. tVlr. Johnson Kwesigabo, learned counsel for the respondent argued grounds 1 and 2 together, 3 and 4 also together leaving out ground 5. <sup>I</sup> shall for convenience deal with ground 1 separately and thereafter grounds 2, 3, 4 and 5 together.

The appellant in his affidavit in support of notice of motion for appllcation for extension of time within which to lodge his appeal stated, inter alia, as follows:-

- lrl - <sup>1</sup> "THAT when ltestified on 16th June, 2000 the case was adjourned till 23'd June, 2000. - THAT that day ! attended court but was informed that the Magistrate was travelling to Kampala. 2 - 3 THAT when I went back to check on my advocate, then Mr. Dhabangi, he told me the hearing of land cases had been suspended in Magistrates' Courts. - 4. THAT in the month of August 2001 I went to the Chambers of my advocate and failed to get him and I went back home with my witnesses. - THAT lwent back to the Chambers of my advocate in the month of October and failed to get him. 5

- 6 THAT on 3'd November,2001 ! came to court but my advocate was absent, and I had witnesses. - 7 THAT I was informed by the Couft Clerk, Moses, that the case had been closed and the Magistrate was waiting for the gubmissions of the lawyers. - 8 THAT I got puzzled and went to the Chambers of my advocate and failed to get him.

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- 9 THAT I went back to court and I was informed by the Court Clerk that the case was fixed for judgment and that I would be informed of the date. - 10. THAT thereafter I went to my advocate's Chambers and on two occasions Mr. Dhabangi told me he did not know what was happening. - 11. THAT I went to couft and consulted Moses, the Court Clerk, during the month of May and he told me that the judgment was not yet ready. - 12. THAT on 15th November, 2002 I went to Chambers of my lawyer and found him absent but his clerks told me the judgment had been delivered against me in my absence and that I was supposed to pay costs.

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- 13. THAT my lawyer conducted my case badly because all along I had witnesses to call but my lawyer was always absent. - 14. THAT ever since the judgment was delivered in his absence, he never bothered to file submissions. - 15. THAT the faults of my lawyer should not be visited on me. - lr) 16. THAT my case is good on the merits because my land is outside the Certificate of Title of the plaintiff. - 17. THAT this fact would have been verified if the Magistrate had visited the locus in quo. - 18. THAT I swear this affidavit in support of my application for leave to appeal out of time. - 19. THAT what is stated herein is true to the best of my knowledge save for paragraphs 7,9, 10,11 and 12 which I depone to information which I believe."

[t/lr. Mwembezi submitted that the appellant in his above affidavit showed how he endeavoured to follow up his case as a layman but was let down by his lawyer. ln support of his line of argument, counsel cited the case of Hajati Safina Nababi vs Yafesi Lule, Givil Appeal No. 9 of 1978, where the then Court of Appeal of Uganda held inter alia:

"lt is axiomatic that if a party instructs counsel he assumes control over the case to conduct it throughout. The party cannot share the conduct of the case with his counsel; he must elect either to conduct it entirely in person or to entrust it to his counsel."

ln the instant case, counsel pointed out that the appellant instructed counsel Dhabangi to conduct hls case in its entirety. He made constant efforts to ensure his counsel appeared in court but all was in vain. ln counsel's view, the negligence on the part of counsel should not be visited on the appellant. However, the learned trial judge had this to say to the contrary:

"There is evidence on the record that applicant's counsel was served on 4th June, 2002 with notice of judgment due the following day. I note also that this application was filed on 7th January, 2003, over seven months after delivery of judgment on sth June, 2002. The conduct of the applicant himself can only be described as dilatory because throughout the record of his conduct stands out as uncaring and lacking in prudence. While his counsel depicted negligence, the applicant also contributed much towards the failure to appeal within time because had he taken initiative doubtless he would have known in time when judgment was delivered by inquiring from court for example."

lo [Mr. tVwembezi contended that the appellant is not a lawyer, he instructed a lawyer (Dhabangi) who was served with notice for judgment but did not attend court nor did he inform his client (appellant). ln counsel's view, that was the fault of the lawyer which should not be visited on the appellant. He cited in support Gofti vs Shoesmith [1939] 3 All ER 915 and Essaji vs Solanki [1968] EA 223 in which it was held that a mistake or negligence by counsel is not necessarily a bar to his obtaining an extension of tlme.

lr) Learned counsel further relied on Order 47 r.6 of the CPR which provides:

> "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 enlarqe such time upon such terms, if anv as the iustice of the case mav require and such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed." [Emphasis].

ln counsel's opinion, the above rule gives Court a wider discretion to enlarge time upon such terms as the justice of the case may require. ln the circumstances of the present case, the learned trial judge should have enlarged time because the appellant was only let down by his lawyer. ln his ruling, the learned trial judge stated generally that the appellant's conduct was dilatory because throughout the record of his

conduct stands out as uncaring and lacking in prudence. lt was the contention of counsel that the statement was not based on any part of the evidence and should be rejected because the judge stated that counsel for appellant depicted negligence in conducting the case. Learned counsel for the respondent even conceded that counsel for the appellant exhibited a lot of negligence and uncaring in the defence of the suit.

ln view of the above, counsel asked this Court to allow grounds 1 and 2 of the appeal.

lVlr. Johnson Kwesigabo, learned counsel for the respondent, conceded that counsel for the appellant exhibited a lot of negligence and uncaring in the defence of the suit. But submitted that the appellant likewise was laxed, indifferent and uncaring in pursuit of the defence of the suit. ln his affidavit, the appellant was informed by the Court Clerk that the case was fixed for judgment, counsel pointed out. He further argued that if the appellant was vigilant, he would have not taken over five months before knowing delivery of the judgment. ln counsel's opinion, the appellant should have engaged another lawyer since Mr. Dhabangi did not help much. Accordingly, the issue of mistake or negligence by counsel does not arise. He pointed out that the appellant sought leave to extend time to file an appeal only after the execution proceedings were served upon him. ln the premises, the application was intended to delay or frustrate the execution proceedings, counsel argued.

Learned counsel further submitted that under section 79 (1) of the Civil Procedure Act (CAP 71 Laws of Uganda, 2000) and Order 47 r. 6 of the

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Civil Procedure Rules, the powers to extend time in which to lodge an appeal is "discretionary" and may only be exercised where "good cause" is shown. ln this case, counsel submitted that the applicant/appellant did not show good cause why Court should have exercised its discretion in his favour. lnstead his conduct was dilatory.

All in all, counsel submitted that grounds 1 and 2 must fail.

It is clear to me from the record of proceedings that the application for leave to file an appeal out of time was adjourned on very many occasions. The trial Magistrate was compelled to close the suit and urged counsel for both parties to file written submisslons. Counsel Dhabangi for the appellant did not file any submissions. He was served with a notice for judgment the following day. He neither attended court nor did he inform his client, the appellant, about the judgment. That conduct is not of a lawyer who cares about the interests of his client. The appellant instructed counsel Dhabangi to conduct his case in its entirety. The appellant was not supposed to share the conduct of his case with the counsel.

ln my view, although the appellant took 5 - 7 months before knowing that the judgment was delivered on 5th June, 2002 against him with costs, the mistake or negligence by his counsel was so fundamental that it should not be visited on the appellant. ln The Executrix of the Estate of the late Ghristine Mary Namatovu Tebajjukira and Mary Namatovu vs Noel Grace Shalita Stananzi, Civil Application No. <sup>8</sup> of 1998 (unreported), Odoki, JSC, (as he then was) held, inter alia, thus:

"l agree with what George CJ said in Essaji vs Solanka (supra) that the administration of justice should normally require that the substance of all disputes should be investigated and decided on their merits and that errors and lapse should not necessarily debar a litigant from the pursuit of his rights."

ln the application before the High Court, the appellant endeavoured to follow up hls case but it was his lawyer (Dhabangl) who let him down. Even counsel for the respondent acknowledged that fact. The learned trial judge should have considered his application sympathetically on that ground alone. Ground 1 would, in my view, dispose off this appeal in that I am satisfied that the applicant has shown sufficient reason for this court to exercise its discretion in extending the time in which to file the appeal.

ln case I am wrong to hold so, I would briefly comment on grounds 2, 3, 4 and 5 as follows.

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On the issue of witnesses raised in ground 2, that is a matter that would be investigated when hearing the appeal on merit. The same is with ground 3, whether the trial Magistrate reached a correct decision or not, I would say in ground 4 that the possibility of the success of an appeal is not a requirement for a Court of Appeal to extend time within which to appeal. On ground 5, the trial Magistrate is entitled to visit the locus in quo depending on the circumstances of the case. lt is not mandatory that the locus in quo must be visited.

In the result, I would allow this appeal on the $1^{st}$ ground alone by exercising the discretion of this Court in extending the time in which to file the intended appeal. As per my comments on grounds 2, 3, 4 and 5 $\frac{1}{2}$ I would decline to give costs. Costs shall abide the results of the appeal.

Dated at Kampala this ....................................

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$\overline{a}$

S. G. Engwau JUSTICE OF APPEAL.

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### THE REPUBLIC OF UGANDA

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

### CORAM: HON. JUSTICE L. E. M. MUKASA-KIKONYOGO, DCJ HON. JUSTICE S. G. ENGWAU, JA HON. JUSTICE S. B. K. KAVUMA, JA

### CIVIL APPEAL NO. 87/2004

#### SAMUEL BYARUFU :::::::::::::::::::::::::::::::::::

#### **VERSUS**

#### YOWASI KABIGURUKA ::::::::::::::::::::::::::::::::::::

(Appeal from the Ruling/Order of the High Court delivered at Mbarara by Hon. Mr. Justice P. K. Mugamba in HCT-05-CV-MA-0001 of 2003 date 13<sup>th</sup> February 2003).

### JUDGMENT OF L. E. M. MUKASA-KIKONYOGO

I have read in draft the judgment prepared by Engwau JA and I agree that for the reasons he gave it should succeed. I have nothing useful to add.

Since Kayuma JA also concurs the appellant's appeal is allowed with the proposed orders and costs.

Dated at Kampala this $\frac{1}{5}$ .........day of April 2006.

L. E. M. Mukasa-Kikonyogo HON. DEPUTY CHIEF JUSTICE

# THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

#### CORAM: HON. LADY JUSTICE L. E. M. MUKASA-KIKONYOGO, DCJ. $\mathsf{S}$ HON. MR. JUSTICE S. G. ENGWAU, JA. HON. MR. JUSTICE S. B. K. KAVUMA, JA.

### CIVIL APPEAL NO. 87 OF 2004

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SAMUEL BYARUFU...................................

### **VERSUS**

YOWASI KABIGURUKA................................... $15$

> [Appeal against the Ruling and Orders of the High Court at Mbarara (Mugamba, J) arising from Misc. Application No. HCT-05-CV-MA 0001/2003 dated $5$ <sup>th</sup> June, 2002]

# JUDGMENT OF HON. MR. JUSTICE S. B. K. KAVUMA, JA.

I have had the benefit of reading in draft the judgment prepared by my brother S. G. Engwau, JA. I concur with the judgment and the

orders proposed therein and have nothing useful to add. $25$

Dated at Kampala this $\frac{1}{2}$ day of $\frac{1}{2}$ April ....................................

$S. B. K$ **Justice of Appeal.**