Kalisa and 3 Others v Baala and 4 Others (Miscellaneous Application 7 of 2023) [2024] UGHC 869 (2 August 2024)

## THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT HOIMA

#### MISC. APPLICATION NO. 007 OF 2023

(Formerly Masindi Misc. Application No. 006 of 2019)

### 1. KALISA KENNETH

- 2. MPONDA STEPHEN - 3. KATUSABE DAN - 4. WAMARA JULIUS:::::::::::::::::::::::::::::::::::

#### **VERSUS**

- 1. BAALA JOHN - 2. BYONABYE RASHID - 3. BIGIRWENKYA. K. NAPHTALI - 4. BALYESIMA ISAAC - 5. BYAMANI PATRICK::::::::::::::::::::::::::::::::::::

#### BEFORE: HON. JUSTICE BYARUHANGA JESSE RUGYEMA

# **RULING**

- $\lceil 1 \rceil$ This is an application brought under **Ss. 79 (1) (b) & 98 CPA, 0.51** r 6 & $0.52$ rr 1,2,3 CPR for orders that: - That time be enlarged/extended within which to allow the $\mathbf{1}$ Applicants to file an appeal against the ruling and orders of Assistant Registrar dated 12/9/2019 in Misc. Cause No. 9 of 2019. - $\overline{2}$ . Costs of the application be granted.

## **Background:**

$[2]$ The Respondents filed Misc. Application No. 9 of 2010 against the Applicants seeking court orders that the Applicants produce before court their documentary evidence if any, of ownership of **Bugungu Hunting area/and or land stretching from River Waiga**

to River Waisoke situated at Kabolwa Village, Buliisa Sub-**County, Buliisa District,** within a period specified by court, and failure to do so, the Applicants be stopped from interfering in anyway with the Respondents' land located at Kabolwa Village and that the costs of the application be provided for.

The matter was heard and determined by the Assistant Registrar $[3]$ who did not grant the prayers of the Respondents and ordered each party to bear his own costs. Being aggrieved with the decision of the Assistant Registrar in not awarding them costs, the Applicants intend to appeal against the denial to award them costs thus the present application to appeal out of time.

## **Determination of the Application**

Appeals from the decision of Registrar are provided for under the $[4]$ provisions of **0.50 r.8 CPR** thus:

> "Any person who is aggrieved by any order of a registrar may appeal from the order to the High Court...."

The time within which to appeal from an order of the registrar is provided for under $S.79$ (1) (b) CPR as 7 days from the date of the order of the registrar but the appellate court may for good reasons grant leave to appeal out of time.

- In the instant case, the Registrar delivered the impugned ruling on $[5]$ $12/9/2019$ and the record of the ruling was certified on The present application for enlargement of time $18/9/2019.$ within which to file an appeal against the ruling was filed on $20/10/2019$ , a month from the date of the ruling. Therefore, in order for the Applicants to succeed in the application, it is incumbent upon them to show **good/sufficient cause**. - "Good reason" or "sufficient cause" has been explained in the case $[6]$ of William Odoi Nyadusi Vs Jackson Oyuko Kasendi M. A. No. 032 of 2018 (C. A) as follows: "sufficient reason must relate to the inability or failure to take a particular step in time."

In the case of Mugo and Ors Vs Wanjiru and Anor [1970] E. A 481 $[7]$ at page 484, Duff p. held that:

> "Each application must be decided in the particular circumstances of each case but as a general rule, the applicant must satisfactory explain the reasons for the delay and should also satisfy the court as to whether or not there will be a denial of justice by the refusal of grant of the application."

- "Good reason" or "sufficient cause" advanced by the Applicants in $[8]$ the application as per the affidavit of **Wandera Julius**, the $4<sup>th</sup>$ Applicant deposed in support of the application is that: - (a) When the ruling was delivered on the $12/9/2019$ , the Applicants tasked the 1<sup>st</sup> Applicant to deliver a copy of the ruling to their lawyer for advice but unfortunately the 1<sup>st</sup> Applicant became so ill from that date until the $25/10/2019$ when he was admitted at IHK hospital and was therefore unable to deliver the said ruling to their lawyers. - (b) That being semi illiterate the Applicants did not comprehend the ruling delivered by the Assistant Registrar because the translation was not proper and they could not immediately know where the costs of the application fell. - Counsel for the Applicants submitted that sufficient cause has $[9]$ been shown as the illness of the $1^{st}$ Applicant who was entrusted to deliver a copy of the ruling of Assistant Registrar which they intend to appeal against to their lawyer. That the Applicants were prevented by the illness of the $1^{st}$ Applicant which is sufficient cause, from taking an essential step to file an appeal within the required 7 days. - [10] In Ojara Otto Julius Vs Okwere Benson H. C. M. A. No. 023 of 2017, as regards the application of this nature, Court observed as follows:

"When an application is made for enlargement of time, it should not be granted as a matter of course. Grant of extension of time is discretionary and depends on proof

of "good cause" showing that the justice of the matter The court is required to warrants such an extension. carefully scrutinize the application to determine whether it presents proper grounds justifying the grant of such enlargement. The evidence in support of the application ought to be very carefully scrutinised, and if that evidence does not make it quite clear that the applicant comes within the terms of the established considerations, then the order ought to be refused."

[11] In the instant case, as rightly submitted by Mr. Lubega Willy, Counsel for the Respondents, illness of the $1^{st}$ Applicant cannot be used as good cause to cover up the Applicants' inordinate delay in filing their appeal since they are many applicants and all concerned in the same matter implying that any of them, if they had interest or intended to appeal would have delivered a copy of the ruling to their advocate to file the appeal in time and not to wait for a month without knowledge of whether their lawyers got a ruling or not for purposes of appeal. The claim by the Applicants that the $1^{st}$ Applicant was considered to be the particular one to deliver the copy of the ruling to their lawyer because he was a resident of Masindi which is near the chambers of the lawyer in Hoima, hold no water. The $1^{st}$ Applicant's alleged sickness ought to have been communicated to his Co-applicants in time so that they are able to devise other means of delivery of the copy of the ruling to the lawyer. Besides, in this modern error of communication, the Applicants needed not to physically deliver the ruling to their lawyer. It could easily have been sent to the lawyer by either whatsapp or e-mail.

[12]Secondly, the Applicants do not reveal what illness the $1^{st}$ Applicant was suffering from that prevented him from delivering a copy of the ruling to their lawyer though the medical documents attached to the affidavit in support of the application appear to suggest a "stroke." The medical forms show that the $1^{st}$ Applicant who the Applicants claim was tasked to deliver a copy of the ruling to their advocate was admitted in the hospital on the $25/9/2019$ .

The ruling they intend to appeal against was however delivered on the $12/9/2019$ and certified on $18/9/2019$ . The ruling was delivered before the sickness of the $1^{st}$ Applicant (2 weeks before the alleged sickness). The Applicants have not accounted for these 2 weeks in view of the fact that the appeal ought to have been filed within 7 days from the date of the ruling. I find that the Applicants have not satisfactorily explained the reasons of delay to justify an order for extension of time to file an appeal.

[13] The Assistant Registrar in denying the parties costs of the ruling in question observed thus:

> "The $4^{th}$ to $9^{th}$ Respondents (present Applicants) in their *affidavits in reply stated that the suit land is customary and* communal land owned and utilised jointly by the communities of Kabolwa Village and have been in occupation and use of the land.... and did not attach any documentary proof of ownership. The Applicants (present Respondents) fully attached evidence of allocation and documentary proof.... Granting this application however would not solve the land dispute between the applicants (present Respondents) and the $4<sup>th</sup> - 9<sup>th</sup>$ Respondents (present Applicants) as the claim is under customary law and the Applicant (present Respondents) allege them to be trespassers and this requires evidence through a full trial.... The parties are advised to file a formal suit for declaration of ownership for the court to determine the rights of each party. In the circumstances, the application is not granted and each party to bear its own costs."

#### [14] Under S. $27(1)$ CPA.

"Costs of and incident to all suits, shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent those costs are to be paid...."

Under $S.27$ , (2), costs follow the event unless the court or judge for good reason otherwise order. In this case, the Applicants seek to appeal against the discretionary orders of the Assistant

Registrar. As was held in Candiru Vs Amandua & 2 Ors H. C. C. S. No. 19/2014, public policy favours promotion of quick and amicable settlement of disputes. In circumstances such as this where some of the parties compromised the substantive matter in controversy i.e. the prayer for production of documents of ownership by a consent, to award costs to the successful party would amount to an unjust result. In the instant case, the present Respondents, in M. A. No. 9/2010 entered into a consent with **Buliisa District Local Government, Buliisa Sub-County Local Government** and **Balemesa Rogers** but who are not parties to this appeal. Secondly, it was and it is evident that the Applicants in this case did not have the sought for documents of ownership of the Bugungu Hunting area since their claim was based on customary ownership that is devoid of documentation. On the other hand, the Respondents had documents of allocation of the The Assistant Registrar's ruling therefore relieved the land. present Applicants of the "order" to produce documents they never had. Court advised the parties to file a formal suit for declaration of ownership for the court to determine the rights of the parties and the present Respondents filed one under C. S. No. **53 of 2019.** This was not controverted by the present applicants.

[15] Though in this case the Assistant Registrar did not give reasons as to why each party was to bear his costs, the reason is implied. The present application was not sufficient to determine the rights of the parties. He could not condemn a party to costs when his respective rights have not been determined. In the premises, I would have no reason to fault the way the Assistant Registrar exercised his discretionary powers. In Tiberio Okeny & Anor Vs. A. G & 2 Ors C. A. C. A. No. 51 of 2001, it was held inter alia, that:

"... It is only after "sufficient reason" has been advanced that a court considers before exercising its discretion whether or not to grant extension, the question of prejudice, or the possibility of success and the other factors."

- [16] In this case, since the Applicants are seeking to appeal against the discretionary orders of the Assistant Registrar of this Court regarding his refusal to grant them costs, yet the reasons are clear from his ruling, it appears to me pretty that in addition to the Applicants failing to adduce sufficient reasons for their inability to file the appeal in time, from the discussion above, the appeal regarding where costs fell appears to have no likelihood of success. - [17] The claim that the Applicants are semi illiterate and therefore did not comprehend the ruling as to where the costs fell is baseless. It is a cardinal principle and procedure in our courts that interpreters are availed to parties who are illiterate in the language of court, English. It has not been shown by the Applicants that in this case, no translation of the ruling was offered. Besides, there is no evidence that the Applicants are illiterate. Wamara Julius, (the $4<sup>th</sup>$ Applicant who deposed the affidavit in support of the application did so in English. There is no certificate of translation attached to the affidavit. This signifies and is evidence that the said Wamara **Julius** is well conversant in English. - [18] All in all, for the reasons given above, I find that this application is devoid of any merit. There is no sufficient reason the Applicants have shown to warrant court to grant the reliefs sought i.e. an extension of time to appeal against the orders of the Assistant Registrar out of time. The Appellant has not shown that the appeal itself has a likelihood of success. In the premises, I dismiss the application/appeal with costs to the Respondents.

Dated at Hoima this $2^{nd}$ day of August, 2024.

**Byaruhanga Jesse Rugyema IUDGE**