Eriasafani Mudumba v Wilberforce Kuluse (Civil Application No. 34 of 1997) [1997] UGCA 2 (1 October 1997)

Full Case Text

## .. THE HEPUBLIC OF UGANDA

# 'Jo' m THECOURT OF APPEAL OF UGANDA AT KANPALA

CORAM: G. H. OKEU,O1 J . A.

#### CIVIL APPLICATICIJNO. 34/97

#### BE'IWEEN

| ERIASAFANI MUDUMBA | | APPLICANT | |-----------------------|------|------------| | | . AND | | | WILBERFORC'-EKUWSE | | RE3PONDENT |

(AppeaLfrom appellate Judgment of High Court (C. M Kat,l\t J) dated 1/7/93 (at Jinja Appeal No.4 of 1991)

### ,r-- RlJLINGOF G. H. OKRfLO1uJ*. A.* :

This is an application by the applicant brought under :role 4 of the Court of Appeal Rules directions 1996 whereby the *r* Applicant seeks an orner of this court to extend the tina within which to fi~ an appeal against the appellate Judgment of the High . Court passed at Jinja on *1/7/93.*

The undisputed background to the application is as follo'us *r-*

The AppJicanthad sued the present Respondent in the Court; sf a Magistrate Grade II\_.~f Nawonyaoo in Kamuli District uJKibanja. dispute.. In that court, the Applicant lest the case and he appeafed to the Chief Magistrates court of Jinja where his appeal \'18S all\_wed and a retrial was orne red tefore a Magistrate Grade -I"f Kamuli. The court "f the Magistrate Grade I which heard the case again ruled against the Applicant who promptly appealed to the High Court. The appeal was heard by my brother Justice G. M. Kat! as , he then was. He dismissed the appeal on *1/7/93.*

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The Applicant who was not satisfied with that decision - - of the High Court. lodged a N~tice of Appeal in the Supreme Court on *14/7/93.* This was within-the prescribed peri<Xl. He also made a written request for a copy of the proceedings .from the High Court G,n *1517/9'3-. it* was .copied . to the R\$pondent.

'lhts request too was made within the requisite thirty days from the date of the impugned decision. Unfortunately the copy of the proceedings from the High Court *\'las* not availed to the Applicant until on 2g/5/~. This *'"las* a delay of about 3 years.

In July 1996 when the Applicant \-lent to the Supreme Court to file the recoro of his appeal, he was advised to file the appeal -in-the Gourt of Appeal 'ihich had then been established when the constitution of Ugarrla 1995 t-las promulgated on 8/10/95. In October 19~ when he went to the Court of Appeal Registry to file this appeal, the Applicant was told that his appeal vias out of time. Hence this application.

The application set five grourrls which may be summarised as:-

- (1) delay by the court to prepare ani deliver the copy ~ the proceedings to the Applicant. - (2) Poverty. - (3) delay caused by the lawyer one OlutMe who was assigned by the Legal Aid Project to handle the applicant's application.

The affidavit sworn by the applicant in support of the application deponed on the delay caused by the court in preparing an:i delivering the copy of the proceedings to the appligant, on poverty which forced the applicant to seek assistance from ~he Legal Aid Project.- am the subsequent delay caused by the lawyer~ who *\"185*assigned to him by the Pro ject.

The Resporrlent opposed the application as ooing devoid of merits. He filed an affidavit in Reply. !he Resporrlent further filed another affidavit which was deponed to by one Magellan F. Olubwe an Advocate who was instructed earlier by the Legal Aid project to harrlle the applicant Is application for leave to appeal out flf time. futh affidavits averred that the Applicant's affidavit sworn in support of this application is false. Mr. Liiga learned counsel for the Resporrlent on his part challenged the applicant's affidavit as being defective ani false ani prayed for it to be struck out. He sub11i.tted that it is trite law that false an:l defective affidavit cannot be acted upon.

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Jl. U.e 4 of the Mes of this court under ",hich this applicationwas brought empo"lersthis court for sufficient reason, "to extend the time limited by these rules or by any decision of the court or of the High Court for the doing of any act authorised or required by these Rules \'lhether before or after the expiration of that time and whether before or after the doing of the act"

The key words in the above provision of the rule are sufficient re,as°r1I>. That expression had judicial consideration in a number of cases before. It is therefore appropriate to consider some of these earlier cases to determine the scope of the expression, the rationale behind it and what constitutes sufficient reason within the context of these rules.

In National Phamarcy Ltd vs. KCC (1979) HCB132, Ssekarrli J A as he then was while considering a similar application under rule 4 of the court of Appeal Rules (1972) which rule is almost similar to rule 4 of the court of Appeal Rules directions 1996\* held on the scope ('If the expression "sufficient reason" in rule 4 that it "must relate to the in ability or failure to take thy particular steps in tin:te although other considerations may be invo~d". '-', '-', That echoed the --'view which was expressed earlier by Spry VP in M.t,goam others vs "1an.iiru and Another (1970) EA481 at 483. In that case Spry VP was considering rule 9 of the East Africa Court of Appeal Mes 1954 which is almost similar to our rule 4. of the Court of Appeal Rules Directions 1996. On the scope of the expression "sufficient reason" in that rule the learned VP said,

> "Normally I think sufficient reason must relate to the inability or failure to take the particular step in time but I am not prepared to say that nO other considerations may be invoked."

> > **.../4**

It is clear therefore that 1,!h:Lle other considerations may be invoked J the expression "sufficient reason" in rule 4 of the rules of this court must relate to the inability or failure to take the particular steps in time.

7he rationale behin:i that expression "sufficient reason" in rule 4 of the rules of this court was succinctly summedup 1:::lfSir Owen Corrie Ag J A in B B Shah VB. D. Jamnadas Co. Ltd (1959) EA g.38 at page 840 when he said 7

> "'!he object of including rule 9 in the rules of court is to ensure that the st~lct enforcement of the limitations of tiroo for filing docurnents prescribed 1:::lfthe rules shall not result in a manifest denial of justice. It is thus essential, in my vierT, that an applicant for an extension of time un::ler rule 9 should support his application by a sufficient statement of the nature of the judgment 81d his reasons for desiring to appeal against it to enable the court to determine whether or not a refusal of the - application would appear to cauSe'-1.njustice"

In mB vs. Severino Or.veda ('-ivil Application No. .3 of 1986 (('.curt of Appeal) unreported, where the applicant had sought inter alia an extension of time within which to lodge an appeal, Lubogo Ag J . A. as he then was considered what amounts to "sufficient reason" for th3 purpose of rule 4 of the East Africa Court of Ap~ al Rules 1972. In that case the facts were almost the same with the facts of the instant case. '!he applicant had lodged the N=>tice of Apre al within time am made a W1ritten recpest for a copy of record of the proceedings also within time 1:ut there was inordinate delay by the high Court in availing the record to the applicant. Fbr the t applicant it vTas contended that the delay 1:::lfcourt to provide the record applied for constituted sufficient reason. 7hat contention was contested by the Respondent who argued that no sufficient reason was shown.

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illbogo Ag J. A. as he then \'las held that the delay by court in supplying the record applied for constituted sufficient reason to justify grant of extension of time. In corning to that conclusion the late learned judge relied on an earlier case of l.fu,go and other va Wan.iiru and anor. above where Dui'fus P remarked on Page 485 that, "in the case of Ehatt va Te.iwant Singh (1962) E A 497 J this court decided that there was sufficient reason where the delay had been attributed entirely to the court and did not consider the merits of the case".

Delay caused by court to prepare and deliver the copy of the proceedings applied for therefore constitutes a sufficient reason if the applicant did not contribute to the delay.

In the instant case the affidavit of the Applicant revealed that the applicant had applied for a copy of the proceedings from the High Court on 15/7/93 within the requisite thirty days from the date of the impugned decision but that the proceedings were not availed the applicant until 2£5/5/96. That was a delay of about 3 years.

Mr. Liiga learned counsel for the Respbrrlent suhnitted that the apj;licant partly contributed to the delay of th~.court when on . - - 1/9/93, two months after his appeal in the High Court had been dismissed, the applicant described himself to the Registrar Supreme Court as "Basafu" as shown in Annextures C D and E of the applicant's affidavit. '!he learned counsel contended that that misinfonned the Registry and therefore caused a delay.

Mr.' Kafuk~tuyo counsel for the applicant replied that the request for copy of the proceedings was in the right name.

'!he applicant is known as Eriasafani M.1dumba. The written recpest for copy **.f** the proceeding is annexed to the applicant's affidavit as annexture "A". It was authored by one "Kela Safu MJdumba.". the first name surely differs from the applicant's first name rut the serial number of the case \'lhose copy of the proceedings was

*It.*

requested, the date when it was decided and the name of the judge who decided it were stated clearly- The District Registrar in his certificate . Annexture liB" to the applicant 's affidavit did not .iIrlicate that the change of name contributed to the delay of the court. I do not therefore agree that the app1icantc<>nt;ri~ to the court's delay in preparing an:Ldelivering of the copy of the record of the proceedings to the applicant. years is deplorable. A delay of nearly 3

The second reason for the delay canvassed by the applicant was poverty. He deponed in his affid avi t that when he was told by the Supreme Court to file his appeal in the Court ~f Appeal which had then on the promulgation of the Constitution of UgarJda 1995 been established he had run out of money ani eventually contacted the Legal Aid Project which assigned him a ~r a Mr. Olubwe.

Counsel for both parties concurred that poverty does not constitute sufficient reason or excuse for failure to take a particular step in the court proceedings. I agree. Me s 0f procedure for instance R. liO of the Rules of this court make provision for waiver of court fees. 0.41 r 1 + 2 of the CPR also caters for Pauper Appeal. Deserving litig~ts can take advantage of these. These provisions re buts the mYth that court is only asSe'Ssible to by the rich.

The third reason advanced by the applicant for the delay was that the delay was partly caused by a Mr.. Olu1:;Methat lawyer who was assigned by the Legal Aid Project to handle the applicant's case. The applicant deponed that the said, Mr. Olubwe delayed between October 1996 an:! January 1997 and never made the applicant's application. Then the Project assigned to the applicant another lawyer one Mr. Kaf'uko-Ntuyo in March 1997. B.1t that even then the said, Mr. Oluble did not readily release the relevant documents to Mr. Kafuko-Ntuyo thus causing a further delay. Mr. Kafuko-Ntuyo told court from the Bar that he received the relevant documents in August 1997~ He subnitted that the applicant had diligently done all he could in his power to take

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< in time the step to file his appeal wd that the delay 11mBvathout the applicant's fault. He cited BakLtara Transport Eus Co. Ltd vs Birabonv18 (1979) HCB92.

Mr-. Liiga counsel for the respondent responded that the applicant had refused to pay the fees to file the applic2tionand thereby caused the delay. For this the learned counsel relied on Nr. Olubwe's affidavit. The le arned counsel however conceded that he was himself not sure of the Legal Aid Project Policy on court fees. fut he argued that the delay between Harch 1997 'tvhen Mr. Kafuko-Ntuyo was instructed by the Legal aid Project to handle the applicant's case and September 1997 when this application was filed had not been accounted for yet that was a deJ..ey of nearly six months. l1e also challenged the delay between 2.5/5/96 when the applicant received copy of the proceedings arrl March 1997 when the Legal aid Project assigned Mr. Kafuko-Ntuyo to handle the appliccnt's case. The learned counsel contended that that deley could not be flamed on poverty.

In B. N. Bhatt vs 'Iijwant Singh and Anor aoove, Sir T. Gould *Ag* VP s aid at page 49\$ that,

> "If the intending appellant .-has exercised all due diligence and done all in his power to obtain the necessary copies of documents in time but has been prevented from doing so because the Supreme Court has not been able to supply them, i t *~"lould* in the absence of other special circumstances be a denial of Justice not to extern the specified period II .

> > .../8

That meant that if an appellant/applicant has exercised due diligence and done all in his pmrer to take the particular step in time but was prevented by no fault of his own, it would in the absence of special circumstance be a denial of justice not to extend the specified time. In the instant case the affidavit deponed by the applicant in support of the application

showed that the applicant had given Notice of his appeal in time and made a written request for copies of the proceedings in time. The inordinate delay of about 3 years by the court to supply the copies of the proceedings was entirely on the court. The applicant did not contribute to him. When he was told to file his appeal in the new Court of Appeal, he went but was told that his appeal was out of time. Then he contracted the legal Aid Project. He could not be blamed for the delay caused by the lawyer assigned to him by the Legal Aid Project. The argument that he caused a delay by refusing to pay the court fees for the application is untenable. The applicant had declared his impecuniousness and to demand that he pays court fees defeats the very purpose of his seeking assistance from the Legal Aid Project. Failure of the lawyer - one Olubwe to handover the relevant documents to Mr. Kafuko-Ntuyo could not be attributed to the applicant. In my view the applicant had exercised due diligence and had done all that was within his powers to have his appeal filed within time.

The respondent had attacked the applicant's affidavit as being false. Mr. Linga singled out paragraphs 3,8,9,12 and 13 of the said affidavit.

Paragraph 3 is on whether the applicants appeal in the High Court was dismissed in the absence of the applicant and without notice. The respondent averred that the applicant and his lawyer were present on the date of the judgment. I think the correct answer to that question lay in the availability of a certified copy of the minute of the proceedings on the day of Judgment. Only then can one accurately state what transpired on that day. The respondent himself did not avail such evidence. I would not therefore say that the applicant's affidavit is false on this.

Paragraph 8 refers to the applicant's abortive attempt to file his appeal in the Supreme Court because the new court of Appeal had already been established by July 1996.

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Paragraph 9 is <:bout the c'?plic cnt 's failure to file his appeal in the new court of Appeal because he !flaS in October *19'1>* already out of time. Hr. Liiga subnitted that these paragraphs are false because the applicant is an educated person. I find no merits in that sul::mission because the mere fact that the applicant is an educated person did not mean thd he did not go to file his appeal in those two courts and bounced for the reason he gave. There is no evidence that the applicant did not attempt to file his appeal in these two courts.

Paragraph 12 of the applicant's affidavit deponed to *hovl* Mr. Kafuko-Ntuyo *\1a.8* assigned by the Legal Aid Project on the applicant's coffill1aint to handle the applicmt's case in place of Mr. Olu1::we. Paragraph 13 complained of how Mr. Olubwe delayed to handover the relevant documents in respect of the applicant's case to Mr. Yl8.fuko-Ntuyo.

Mr. Liiga subnitted that since I-fr'O)KafU:.l{Q-Ntuyo 't'laS briefed by the Legal Aid Project in March 1997, to handle the applicant's case, the applj\_ca.tion was filed il. 3eptember 1997 giving an inordinate delay of about 6 months and that that rendered paragraphs 12 am 13 of the applicant's affidavit false. I think that delay hoo. been explained to be attributable .t6'~~. Olua.le *trTho*took up to August 1997 to hamover the relevant docmnents in respect of the applicant's case to Mr. Kafuko-Ntuyo. Hithout those documents Mr. Kei'uko-Ntuyo could not possibly file the applicants I application. This only reinforces the contents of paragraph 13 of the applic *ant* Is affid avit. In the end I do not find that the applicant I s ai'fidavit is false.

Mr. Liiga further challenged the applic.?nt's affidavit as being defective for failure to distinguish between facts sworn on the deponent IS kno't'11edge from those deponed on his belief.

> 'Ihe relevant affide.vit concludes in paragraph 16 thus, "'Ihat t'IThatis stated hereinabove is true and correct

> > to the best of my kncMledge a.n::1 belief."

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the instant case there "185 no complaint of failure to disclose the ground for belief. The complaint vIas only against failure to distinguish the paragraphs deponed on knowledge from those deponed on belief. The underlying principle of administration of justice as set out in Article 126 (2) (e) of the Ugand a Constitution 1995 is that

> "Substantive justice shall be ad.m.:i.nistered without undue regal'1s to technicalities."

This is intended that procedural technicalities shall not be allowed to thwart the course of justice.

In the instant case, the applic 2nt had exercised all due diligence to file his Appeal in time bu.t was prevented due to no fault of his Ot'-1rh In the absence of s::>8cial circumstance therefore .'.~ ... . justice demarrls that the specified time must be exten:led. Failure to state which paragraphs were deponed on knowledge arrl which ones were deponed on belief at the end of the affidavit when the grounds of bi3lief are stated does not amount to sDecial circumstance to justify refusing extension. Fbr the reasons given above, I allow the application. Applicant is accordingly given 30 days within which to file his appe81.

Cost of this application shall be cost in the court.

Dated at Kampala this 1st day of October, 1997.

Sgd: G:, M~ *OKEILO*

JUSTICE OF *APPEAI.,~*

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Delivered in the presence of Mr. Ntende Fredrick holding trief for Mr. Kafuko - Ntuyo for the Applicant.

The Respondent in person Mr. Nduhuura Court Clerk.

> Sgd: G. M. OKELLO JUSTICE OF APPEAL. $1/10/1997.$

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I certify that this is a true copy of the original.

J. MURANGIRA REGISTRAR COURT OF APPEAL.

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