Kabarole District Local Government Council v Gunn Paper Industries Ltd (Miscellaneous Application No. 103 of 2022) [2022] UGHC 71 (23 December 2022)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT FORT PORTAL MISC. APPLICAION NO. 103 OF 2022 (ARISING FROM HCT – 01 – CV - LD NO. 030 OF 2022)**

#### **KABAROLE DISTRICT LOCAL** 5

# **GOVERNMENT COUNCIL :::::::::::::::::::::::::::::::::::::::APPLICANT VERSUS**

**GUNN PAPER INDUSTRIES LTD ::::::::::::::::::::::::::::: RESPONDENT**

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### **BEFORE: HON. JUSTICE VINCENT WAGONA RULING**

#### **Introduction:**

This application was filed under Sections 98 of the Civil Procedure Act and 33 of the Judicature Act, Order 51 Rule 6 and Order 52 Rules 1, 2 and 3 of the Civil

- Procedure Rules seeking orders that: 15 - (a) Extension of time within which to file a written statement of defense be granted to the applicant. - (b)That costs of taking out the application be made in the cause.

#### **The Grounds:**

- The grounds are contained in the affidavit of Lukwago Anthony Martin, the Chief Administrative Officer of the applicant and are: 20 - (a) That the Respondent filed Civil Suit No. 030 of 2022 against the applicant claiming ownership of land comprised in LRV KB06 Folio 5, Plot 20-22 Mill Lane Fort Portal Municipality at Kabundaire.

- (b)That upon receipt of the summons to file a defense on 16th August 2022 the Applicant had to first investigate the matter before instructing the Attorney General to file a defense. - (c) That by the nature of the Respondent's allegations, the investigations took

- long and could not be concluded within the 15 days within which the applicant was to file a defense. - (d)That the delay was occasioned by the elaborate and bureaucratic administrative procedures which were necessary to allow the applicant ably defend the matter. - (e) That the investigations revealed that the Suitland has always been Government land since the 1970 and it has been occupied by the applicant unchallenged for more than 12 years. 10 - (f) That the applicant has a plausible defense to the suit which raises triable issues that merit adjudication by this Honorable Court. - (g)That the application was brought without unreasonable delay and it was in the interests of justice that the same is allowed. 15

### **Representation:**

The applicant was represented by the Attorney General's Chambers who filed written submissions while the Respondent did not file their affidavit in rely and written submissions by 24th November 2022 as directed by court. I have thus proceeded to determine the application exparte.

## **Issue: Whether the applicant should be granted an extension within which to file her written statement of defense.**

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#### **Applicant's submissions:**

It was submitted for the applicant citing *Kaawa James & Anor Vs. KabodiDanie Misc. Appln No. MBD 101 of 2019* where Justice Mulagira noted that court may for good cause grant an extension of time within which a party can file its pleadings out of time. That the discretion to grant may be exercised so that the suit or matter is heard on merits and the dispute is settled. It was submitted that the discretion must be exercised judicially on proper analysis of the facts and the proper application of the law to the facts. It was further submitted citing *Mary Kyomulabi Vs. Ahmed Zirondemu, Civil Misc. Application No. 41 of 1979* that mistake of counsel should not be visited on the innocent litigant and should not be used as a bar to one obtaining extension of time and administration of justice.

It was further more submitted that sufficient cause for purpose of extension of time relates to the inability or failure to take the particular step in time, relying *Rosette Kizito Vs. Administrator Generel& others SCCA No. 9 of 1996.* Counsel further argued that the Applicant seeks to rely on the decision of *Bishop Jacinto Kibuuka Vs. The Uganda Catholic Lawyers Society & Anor MA 696 of 2018* where *Sekaana J* noted that sufficient cause is an expression which has been used in large number of statutes. That the meaning of the word sufficient is adequate or enough in as much as may be necessary to answer the purposes intended. Therefore, the word *sufficient* embraces no more than that which provides a platitude which when the act is done suffices to accomplish the purpose intended in the facts and circumstances existing in a case and duly examined from the view point of a reasonable standard of a curious man. Counsel submitted that the applicant was prevented by sufficient cause from filing a defense on time on ground that the nature of the accusation by the applicant required thorough investigation which took long to be concluded. 15 20 25

Counsel also cited the decision of *Andrew Bamanya Vs. Shamsherali Zaver, SCCA No. 70 of 2001* where the Supreme Court held that mistakes, faults and lapses should not be visited on the litigant and that disputes should be investigated on merits. That administration of justice normally requires the substance of all disputes to be investigated and decided on their merits and that errors and lapses should not necessarily debar a litigant from pursuit of his rights *(Essaji Vs Solanki (1968) E. A 218* which was cited with approval in *Bishop Jacinto Kibuuka Vs, The Uganda Catholic Lawyers Society & Anor supra).*

Counsel thus submitted relying on the above authorities that the applicant was prevented by sufficient cause from filing the written statement of defense within the statutory 15 days and invited court to invoke its inherent powers under Section 98 of the Civil Procedure Act to extend the time within which to file a defense. That the applicant has a plausible defense to the Respondent's claim as regards ownership of the suit land and it is fair and just that the applicant is granted leave to file their written statement of defense in order to secure locus to prosecute the matter to its logical conclusion. 10 15

#### **Consideration by Court:**

Under Order 51 Rule 6 of the Civil Procedure Rules, *"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* 25

*and of any order made on the application shall be borne by the parties making the application, unless the court shall otherwise order."*

In *Hadondi Daniel vs YolamEgondi Court of Appeal Civil Appeal No 67 of 2003* court held thus: *"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".* 5

- The words *sufficient cause* are not defined under Order 51 of the Civil Procedure Rules or the Civil Procedure Act. In *The Registered Trustees of the Archdiocese of Dar es Salaam Vs The Chairman Bunju Village Government & Others* quoted in *Gideon Mosa Onchwati vs Kenya Oil Co. Ltd & Another [2017] eKLR* the terms was described thus: *"It is difficult to attempt to define the meaning of the words 'sufficient cause'. It is generally accepted however, that the words should receive a liberal construction in order to advance substantial justice, when no* 10 15 - *negligence, or inaction or want of bona fides, is imputed to the appellant."*

In the same Kenyan authority of *Gideon Mosa Onchwati* (supra) reliance was made on the Supreme Court of India case of *Parimal vs Veena* which attempted to describe what amounts to *"Sufficient cause"* thus: *"Sufficient cause" is an expression which has been used in large number of statutes. The meaning of the word "sufficient" is "adequate" or "enough", in as much as may be necessary to answer the purpose intended. Therefore, the word "sufficient" embraces no more* 20

*than that which provides a platitude which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case and duly examined from the view point of a reasonable standard of a curious man.* 25

*In this context, "sufficient cause" means that a party had not acted in a negligent manner or there was want of bona fide on its part in view of the facts and circumstances of a case or the party cannot be alleged to have been "not acting diligently" or "remaining inactive." However, the facts and circumstances of*

- *each case must afford sufficient ground to enable the court concerned to exercise discretion for the reason that whenever the court exercises discretion, it has to be exercised judiciously" (See also Bishop Jacinto Kibuuka Vs. The Uganda Catholic Lawyers Society & 2others, Misc. Appln No. 696 of 2018).* 5 - It is my understanding that whether a particular cause is sufficient or not is a matter for judicial determination taking into account the facts of the case. Each decision would depend entirely on the particular facts of the case. The events occurring before the expiration of the time provided for under the law may be relevant. Where a party has not been grossly negligent or palpably indifferent in prosecuting the case, the delay may be excused to afford granting an extension. It appears to me that in circumstances where the denial to grant an extension would occasion an injustice or lead to multiplicity of suits, or where in the court's consideration justice can be better served after hearing from both side especially in land matters, 10 15 - an extension should be granted. This is intended to ensure that justice is done to all no matter the faults, mistakes, lapses and minor procedural irregularities that do not go to the roots of the administration of justice. 20

In this case it has been demonstrated that the applicant after receipt of the summons, needed time to first investigate the matter before instructing the Attorney General. That the nature of the Respondent's allegations required investigations which took long and thus the applicant was unable to file the defense within time; that the delay was occasioned by the elaborate and bureaucratic 25

administrative procedures which were necessary to obtain information so as to ably address the matter. The suit property is alleged to be public/local government land occupied by tenants whom the Respondent seeks to evict. I find that it is in the interests of justice that this suit is heard on its merits. The failure to hear the case of the applicant would naturally cause an injustice to the applicant and the tax

- payer in whose trust the applicant seeks to protect the suit property. I find that no injustice would be caused to the Respondent since the matter is still quite fresh and no steps have yet been taken by the Respondent to have the case heard. I am inclined to grant the application. 5 - 10

I therefore grant this application with the following Orders:

- 1. The applicant shall file and serve their Written Statement of Defense within 15 days from the date of delivery of this ruling. - 2. The Respondent shall file a Reply to the Written Statement of Defense if any, within 10 days from the date of service by the applicant. - 15 - 3. Each party shall bear their own costs.

I so order.

Vincent Wagona

High Court Judge **FORTPORTAL 23.12.2022** 20