Dr. Rev. Kefa Sempangi v Bernadeta Bampe Nalongo (Civil Application No. 193 of 2015) [2016] UGCA 103 (17 March 2016)

### THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT KAMPALA CIVIL APPLICATION NO. 193 OF 2015

DR. REV. KEFA SEMPANGI ::::::::::::::::::::::::::::::::::::

#### **VERSUS**

BERNADETA BAMPE NALONGO :::::::::::::::::::::::::::::::::::

## (Before Hon. Mr Justice Geoffrey Kiryabwire, JA sitting as a single Justice)

#### **RULING**

This is an application by way of Notice of Motion made under the Rules of this Court cited thereunder.

It seeks orders that:

- "1. Time within which to institute the Appeal be extended." - *2. Costs be provided for...."*

The motion is supported by an affidavit of the applicant dated $6<sup>th</sup>$ July 2015 and a further affidavit in rejoinder dated 31<sup>st</sup> August 2015.

The Motion is opposed by an affidavit Respondent dated 27'h August 2015. 1n reply sworn by the

The background to this motion is fairly straight forward as can be discerned from the motion. On the 8th Januar5r 2015 in the High Court of Uganda at Jinja, in a land dispute presided over by the Hon. Justice Godfrey Namudi Court delivered its Judgment against the applicant in Civil Appeal No10O of 2012.

It is also stated that the applicant failed to file and lodge a Notice of Appeal within the mandatory period hence this application.

Mr. Francis Ogwadu appeared for the Applicant while Mr. Alex Ssekatawa appeared for the Respondent.

Counsel for the applicant submitted that at the time the judgment was delivered the applicant had traveled to USA for a working visit and on return observed that his previous lawyers had not filed a Notice of Appeal within the required time. The motion also states that the certified record of appeal had only recently been obtained at the time of filing this application. The motion also states that the Respondent will not be prejudiced by the grant of this application and that it is in the interest of justice that this application be granted.

Counsel for the applicant referred to Rule 5 of the Judicature (Court of Appeal) Rules (herein after referred to as the "Rules of this Court") which provide for extension of time. He argued that under Rule 5 of the Rules of this Court, this Court may for

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sufhcient reason extend the time limited by the Rules for the doing of any act authorized and required by the Rules.

In this case, counsel for the Applicant submitted that previous counsel to the applicant failed to file a notice of appeal within the time prescribed by law while the applicant was out of the country. The delay in this matter is therefore blamed on previous counsel of the applicant.

He referred me to Supreme Court decisions of Mulowooza and. Brothers Ltd Vs N. Shah & Co Ltd, Civil Application 20 of 2OLO a decision of Bart M. Katureebe, JSC (as he then was). In that case, the learned Justice of the Supreme Court held that Court had consistently decided that mistake and /or lapsed by counsel may constitute "sufficient reason" for Court to exercise its discretion to allow an appeal to be tried on its merits.

Counsel submitted that what occurred in this case, was <sup>a</sup> lapse by counsel to file the notice of motion within the time. Counsel for applicant further submitted that the subject matter was a land dispute that required exhaustive adjudication.

In this regard he referred me to the decision of Hon. Justice Tsekooko (.rSC rrn he u)qs then) in Kqsqo,la Growers Cooperatiue Societg V Jonathan & qnother Civil Appltcqtlon No. 24 oJ 2O1O.

In that case the Supreme Court held that in land cases, it is proper to allow parties to exhaust their legal rights of appeal. In

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that case delay was caused by a party delaying to pay his lawyer's fees hence the motion.

Counsel for the Respondent vehemently opposed the appeal.

He submitted that no significant reason had been provided to Court to exercise its discretion. He argued that even though the applicant was out of the country his lawyer and wife according to the record were in court when Judgment was read so they had knowledge of the Judgment. It therefore followed that the applicant should have got this information from his wife.

However even with that information no evidence has been provided that the applicant instructed his previous lawyer to appeal. Instead the current lawyer one month later hled a notice of appeal out of time.

Counsel for the respondent submitted that the applicant was not interested in filing an appea-l but only did so when execution proceedings were brought against him.

He also submitted that the applicant had paid costs under the judgment and therefore there had been execution. I must point out that was a submission from the Bar as these facts are not borne out in the affidavit in reply.

He agreed with the authorities on record but submitted that no sufficient reason had been given to Court. He prayed that the application be dismissed with costs.

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I have perused the motion and the affidavits for and against it. I have also considered the submissions of both counsel for the parties for which I am grateful.

The law on extension of time as rightly cited by counsel for the applicant is found in Rule 5 of the Rules of this Court.

It is an often cited Rule which I will not quote here. Suffice it to say that Rule 5 is a very broad rule which gives this Court unfettered discretion to extend time.

The test to be applied by Court is settled by the said Rule and many decisions of the Supreme Court and Court of Appeal.

It is the test of sufficient reason. In Court exercising its discretion and guided by the often time cited case of Muloowaza (supra) t}:e Court has to ask the question whether refusing to grant extension of time and shutting out parties to the appeal may itself cause injustice.

In this case it is said that the previous lawyers did not file a notice of appeal in time. Counsel for the respondent does not agree with this being sufficient reason as the applicants wife and lawyer were in Court when the Judgment was read.

He argues that this application is an afterthought after execution proceedings had commenced against the applicant.

The time to file a notice of appeal after a judgment under Rules 76 of the Rules of this Court is very short. It is 14 days. Parties and especially so their lawyers must be very vigilant to comply with

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the Rules. I think a counsel worth his salt would not just sit there waiting for instruction to file a notice of appeal but would actively pursue those instruction from his client and or take any necessary step in the interests of his client. The previous counsel for the applicant did not. This puts this matter within the ambit of reasonable cause as found in the case of Mulowooza (supra).

Furthermore, I note that the intended appeal is going to be <sup>a</sup> second appeal which must rest on a point of law. I agree that this being a land dispute, parties should be allowed to exhaust all legal issues surrounding the dispute so as to settle the ownership question once and for all.

That being my finding, I further find that sufficient cause has been made for Court to extend time to file the notice of motion of appeal.

I therefore order that time be extended by 7 days from the date of this Ruling.

Costs will be in the cause. I so order.

Dated this 17th day of March 2O16

/,? c\*6{nreREY KIRYABWIRE

HON. JUSTI

Justice ofAppeal