Kana v Ezatiru (Miscellaneous Civil Application 149 of 2023) [2024] UGHC 998 (4 October 2024)

# HE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT ARUA MISCELLANIOUS CIVIL APPLICATION NO. 0149 OF 2023 (ARISING FROM CIVIL APPEAL NO. ARU-00-VC-DC-0004-2012

$\mathsf{S}$

# KANA RICHARD::::::::::::::::::::::::::::::::::::

#### **VERSUS**

EZATIRU AGNES::::::::::::::::::::::::::::::::::::

#### **RULING**

## BEFORE HON. JUSTICE COLLINS ACELLAM

#### **Brief Introduction**

This Application was brought by way of Notice of Motion under sections 79, 96,98,27 of the CPA and Order 52 rule 1 & 3 of the CPR SI 71-1) for orders that the Applicant be granted leave to appeal out of time against the Judgment and decree of the Chief Magistrate's court of

$20$ Arua and costs of the Application.

#### Grounds of the Application

The grounds of this Application are contained in the Affidavit of KANA RICHARD, the Applicant herein brief that the Applicant filed a petition for divorce in ARU-00VC-DC-0004-2012 and judgment was entered against him. That he was prevented from reasonable cause 25 from filing the Appeal within time prescribed by law because he was unrepresented and therefore Ignorant about the procedure of appeal. He adds that he also shortly fell sick for a period of 6 months and was admitted at Arua Referral hospital which affected the process filing his Appeal. He also lost his son via accident during all that period thus it is only just and

proper in the interest of justice that this Application is allowed. 30

#### Grounds in Opposition.

In opposition to the Application, the Respondent opposed the Application on grounds that the Application is an abuse of court process, incompetent and a ploy to avert the ends of Justice . That a right of Appeal was expressively explained to the Applicant who took no steps to file his appeal in time . That the claim of hospitalization is false and intended to mislead this

court and the Applicant did not have any biological son who got an accident and even if so, it $\mathsf{S}$ could not have prevented the Applicant from appealing on time.

#### Issue

Whether the Applicant was prevented by sufficient cause from filing his Appeal within the prescribed time.

#### 10 Determination

$25$

### Position of the Law

Enlargement of time is a discretion which must be exercised judicially on proper analysis of the facts and application of the law to the facts. The power to grant leave to file an appeal out of time is a discretionary one and the party seeking such discretionary orders which are only

given on a case to case basis, not as a matter of right, must satisfy the court by placing some 15 material before the court upon which such discretion may be exercised.

Applications for enlargement of time within which to appeal will not be granted if the delay is inexcusably long, where injustice will be caused to the other party or where there is no reasonable justification.

Delay being Inexcusably long means the delay in filing appeal is not founded on any justifiable 20 grounds, in other words, it's too bad to be justified or tolerated.

In this case, the judgment sought to be appealed was delivered on 31<sup>st</sup> day of May 2022, and the application was filed on 22<sup>nd</sup> day of December, 2023, nearly 1 year and 7 months later. On the day the judgment was delivered, the applicant was unrepresented in court. He admits that he was present and time began to run against him from that day.

On record, specifically last paragraph of the Judgement, right of appeal explained to him and he told court that he wishes to have the record of proceedings and he wants to appeal against the decision.

An Appeal is a creature of statute and where there is no such right; an appeal shall be by leave of court. An appeal under the civil procedure rules shall not lie from any other orders save 30 with leave of court making the order or of the court to which an appeal would lie if leave were given. See Order 44 (1) of the CPR.

It is necessary when considering the scope and value of this hurdle of leave to appeal, to be aware of the importance of a right to appeal and its worth to the legal system.


So Far as achieving a just result is concerned, a right of appeal can perhaps achieve, and avoid $\mathsf{S}$ a 'legal injustice' in other words it can ensure that the law is interpreted and preferably also applied correctly.

The quality of justice, which is the touchstone of a civilized society depends in large measure on the arrangements provided for its due administration. Accordingly, it is appropriate to consider

rights of appeal and indeed, leave to APPEAL, in terms of the 'Justice 'within a system. See 10 Civil Procedure & Practice in Uganda by M. SSEKAANA & S. N. SSEKAANA at page 328

Leave to appeal from an order in civil proceedings will normally be granted where prima facie it appears that there are grounds of appeal which merit serious judicial consideration.

Indeed, the applicant has a right of appeal, but now has the added onus of explaining what prevented him from exercising that right within the fourteen days.

The medical forms constitutive of Annexture 'B' from Mixed Day Care Clinic Myara was filed on record. The diagnosis is severe Stomach Pain, constipation and loss of Appetite and a referral was made to Arua Referral Hospital for better management. On record, there is no medical documents for Arua Referral Hospital but just a referral by the said clinic. He adds that he fell sick for a period of 6 months and was admitted at Arua Referral hospital which affected the process filing his Appeal as per his affidavit in support of the Application. He also contends that he lost his son via accident during all that period. On record, there is Annexture 'C' constitutive of Post-mortem Report of a one ASIKU JOSEPH, allegedly the Applicant's son who died as a result of an accident.

25 The applicant has a right to apply for enlargement of time to file the appeal and such order should not be granted unless the applicant is guilty of unexplained and inordinate delay in seeking the indulgence of the Court, has not presented a reasonable explanation of his failure to file the notice of appeal within the time prescribed by the rules, the extension will be prejudicial to the respondent or the Court is otherwise satisfied that his intended appeal is not an arguable appeal. 30

It would be wrong to shut an applicant out of court and deny him the right of appeal unless it can fairly be said that his action was in the circumstances inexcusable and his opponent was prejudiced by it. In an application of this nature, the court must balance considerations of access to justice on the one hand and the desire to have finality to litigation on the other.


$\mathsf{S}$ Section 98 of the CPA Cap 71 provides that "*nothing in this Act shall be deemed to limit or*" otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court."

The time for appealing begins to run when the judgment or ruling is delivered. Section 79(1) CPA which was well pronounced in the case of Hajji Mohamed Nyanzi Vs-Ali Segane [1992-

1993] HCB 21 provides that; 10

Except as otherwise specifically provided in any other law, every appeal shall be entered:

- *a)* Within thirty days of the date of the decree or order of court - b) Within seven days of the date of the order of a registrar

Section 96 of the CPA Cap 71 and Order 51 rule 6 of CPR provides for a remedy for a litigant who for some peculiar reason fails to abide by the above prescribed timeline. The section 15 provides that;

"Where any period is fixed by the court for doing of any act prescribed or allowed, the court may in its discretion from time to time enlarge such period, even though originally fixed or granted may have expired."

Order 51 rule 6 of CPR provides thus; 20

"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 and of any order made 25 on the application shall be borne by the parties making the application, unless the court shall otherwise order."

In Priscilla Wambi Mischek Vs-Samuel Thata & Ors East African Court of Appeal CA No. 30/1976 it was held that the party who seeks the indulgence of court to extend the time must be diligent in applying for it expeditiously and without undue delay.

Therefore, 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 warrants such an extension. The court is required to 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

$\overline{4}$

$\mathcal{A}^{\text{max}}$

- be very carefully scrutinized, and if that evidence does not make it quite clear that the applicant $\mathsf{S}$ comes within the terms of the established considerations, then the order ought to be refused. It is only if that evidence makes it absolutely plain that the applicant is entitled to leave that the application should be granted and the order made, for such an order may have the effect of depriving the respondent of a very valuable right to finality of litigation. - I have scrutinized the evidence in support of the application. The reasons and evidences 10 provided by the Applicant is a justifiable one and it wouldn't be right to lock him out on grounds of technicality of time.

Furthermore, In Banco Arabe Espanol v Bank of Uganda [1999] 2 EA 22 by the Supreme Court of Uganda that:

The administration of justice should normally require that the substance of all disputes 15 should be investigated and decided on their merits and that errors or lapses should not necessarily debar a litigant from the pursuit of his rights and unless a lack of adherence to rules renders the appeal process difficult and inoperative, it would seem that the main purpose of litigation, namely the hearing and determination of disputes, should be fostered rather than hindered. 20

In the application before me, although the applicant has furnished convincing explanations for the delay, the court is therefore hesitant to block the doors of justice in his face. The right of appeal is one of the cornerstones of the rule of law. To deny the applicant that right in the circumstances of this application, would in essence be denying him access to justice and a fair hearing both of which are guaranteed by the Constitution.

I accordingly grant the applicant enlargement of time. The applicant should file the notice of appeal within fourteen days from today. The costs of this application shall be in the cause.

4th day of Defoler I so order. Delivered this....

30 **CELLAM**

**JUDGE**

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