Kansiime v Himalaya Traders Limited (Civil Application 60 of 2021) [2022] UGSC 19 (14 February 2022)

Full Case Text

# 5 THE REPUBLIC OF UGANDA

# IN THE SUPREME COURT OF UGANDA AT I{AMPALA

# CIVIL APPLICATION NO. 60 OF 2021

# (ARTSTNG FROM CML AppEAL NO.15 OF 2O2L, NO.17 OF 2O2t & NO.19 OF 2O2Ll

APPLICANT 10 KANSIIME K. ANDREW:::::::::::::

### VERSUS

# 1. HIMALAYA TRADERS LTD 2. KAMUI(AMA ASSOCIATES LTD

- 3. TREASURE TROVE (Ul LTD - 4. JETIVANT SINGH 15 - 5. GULZAR SINGH - 6. JAMIL KIYEMBA: : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : RESPONDENTS

### RULING OF RUBBY OPIO-AWERr, JSC

#### Introduction: 20

Kansiime K. Andrew, hereinafter the applicant brought the instant application under Rules 5, 42 & 43 of the rules of this court, seeking orders that this court be plcased to grant him leave to cross appcal in SCCA No. 15 of 2021 , SCCA No. 17 of 2O2l and

SCCA No. 19 of 2021 , and that costs of the application to follow the event. 25

Thc applicant eiucidates a number of grounds upon which this application should be grantcd and thcy includc;

- i) There is sufficient cause for extension of time - 30 - ii) The applicant is not guilty of dilatory conduct, and that - iii) The orders sought are necessary to attain the ends of justice

5 The application is supported by an affidavit deponed by the applicant which I will briefly highlight.

The applicant avers that on l"t April 2021 , thre Court of Appcal delivered a judgment in Civil Appeal No.52 of 2018 in which he was the appellant and found that the respondents'certihcates of title were obtained illegally and fraudulently. That despite the above hnding, the Court of Appeal did not order the cancellation of the respondents'titles neither did court award him damages. The applicant further contended that upon delivery of the decision by the Court of Appeal, he wantcd to appeal against the Court's failure to make the orders stated herein above but was advised by his lawyers of Waymo Advocates to wait to cross appeal because the respondents had filed their notices of appeal first. That later when he learnt that the respondents had liled their appeals, he immediately instructed his lawyers to cross appeal but unknown to him, the lawyers did not act on instructions in time. That despite the delay, he kept on reminding his lawyers to cross appea-l as evidenced by several correspondences annexed to the application. The applicant further averred that later, his lawyers advised him that he needed thc leave of court to cross appeal as he was out of time to cross appeal as some of the letters of instruction written to the lawyers were kept by the receptionist and not brought to their attention in time. The applicant thus contended that he diligently followed up on his instructions and not guilty of dilatory conduct but rather, was let down by the negligence, carelessness and inadvcrtence of his lawyers to which he should not be blamed. 10 15 20 25 30

#### Reply to the application: 5

I have perused the court record ald I do not find any reply to the application by the l"t respondent. I however note that the l"t respondent filed her submissions in respect of the application and that being so, I will proceed to determine this application on the basis of what is filed.

15 The second and sixth respondents hled a joint affidavit in reply deponed by one Ocitti Samuel, an Advocate with Lwere Lwanyaga & Co. Advocates. In that a-ffidavit, Mr. Ocitti averred that the instant application is bad in law, an abuse of court process and the same ought to be struck on the ground that the applicant has assumed that the appeals, Civil Appeal No. 15, 17 and 19 of 2O2l were consolidatcd whcreas not. To Mr. Ocitti, the applicant ought to have filed different applications arising from each appeal. Mr. Ocitti further averred that there was inordinate delay by the applicant to instruct his lega1 counsel to Iile a notice of cross appeal right from thc time the decree was endorsed by the Court of Appeal. Mr. Ocitti also contended that the applicant has at all material times been represented by two law firms of Godfrey Nangumya & Co. Advocates and Waymo & Co. Advocates and cannot be seen to plead mistake of counsel. Mr. Ocitti prayed that it is only just, fair and equitable that this application is dismissed. 25 20

The 3.d, 4th and Sth respondents equally filed a joint alfidavit in reply deponed by D. S Mubiru of Kalenge, Bwanika, Kisubi & Co. Advocates who averred that he was familiar with matters pertaining the instant application. Mr. Mubiru thus contended that he was aware that judgment in Civii appeal No.52 of 2018 was

5 delivered in favour of the applicant and that the 3'd, 4th and Sth respondents were aggrieved with that decision and accordingly lodged their appeal in this court on 2"d July, 2021 and served the applicant on 3.d August, 2O2l . That the applicant was expected to file his cross appeal within 30 days from the date of receipt of the memorandum which he failed to do but has instead filed an application for extension of time after four months. That being represented by lawyers, the applicant was aware of his right of cross appeal and the filing of the instant application was not only an afterthought but also amounts to dilatory conduct. Mr. Mubiru further averred that the applicant has not given sufficient reason for his lawyer's failure or omission to file the cross appeal in time let alone his failure to instruct other lawyers. That the orders for canceliation of titie intended to bc sought on cross appeal can only be made upon proof of the applicaat's ownership and title which matter was never resolved by the Court of Appeal. Mr. Mubiru concluded his averments asserting that thc instant application is a scheme designed to smuggle the applicant's clearly late and superfluous cross appea-l which is putting the respondents to unnecessary costs. i0 15 20

# 2s Submissions:

On 18th January, 2022 wben this matter carne up lor hearing, I directed all the parties to file written submissions to expedite the determination of the application. I note that all the parties complied with that directive, though, some of them filed their submissions outside the timeframes given. I have however taken a liberal approach and considered a-ll the parties' submissions as

5 frled. The submissions as liled by the parties respectively are on court record and I do not intend to reproduce each party's submissions but will highlight aspects of those submissions where necessary.

# Analysis and determination:

This application was brought under the provisions of Rule 5, 42 & 43 of the rules of this court. Rule 5 in my view is the most applicable lega1 regime in the determination of this matter as rules 42 & 43 simply provide for the form of the application to be commenced. For emphasis purposes, I will highlight rule 5 hereto; 10

Rule 5: 15

> "The Court maA, for sulficient reason, extend time prescribed by these Rules or by ang decision of the Court or of the Court of Appeal for doing of ang act authorized or required bg these Rules, uhether before or afier the expiration of that time and uhether before or afier the doing of the act; and ang reference in these rules to ang such time shall be construed as a reference to the time as so extended".

Counsel for the applicant argued that the above rule gives this court wide discretion to extend time for suffrcient cause. That though the rule does not define what amounts to sufficient cause, the case of F. L. Kaderbhai & Another versus Shamsherali M. Zaver Virji SCCA No.2O of 2OO8, construes sufficient cause to mean the discretion, at the determination of court. Counsel highlighted paragraphs 2 to 17 of the alfidavit in support of the application which he observed raise important grounds for the grant of the instant application to wit negligence, carelessness or 25 30

5 inadvertence of the applicant' counsel, illegality and fraud as found by the Court of Appcal which however, did not make consequential orders. Counsel thus argued that inadvertcnce or negligence ol counsel is sufficient cause in law which should not be visited on the litigant. To buttress this line of argument, counsel cited the case of Capt. Philip Ongom versus Catherine Nyero Owota SCCA No.14 of 2OOl and Godfrey l0.[,agezi versus Sudhir Ruparelia, SCCA No.1O of 1995 wherc this court observed that errors or omissions by counsel is sufficient cause especially when the lawyer had been instructed in time unless there is evidence that the applicant was guilty of dilatory conduct in instructing his lawyer. 10 15

In the applicant's view, he instructed his lawyers in time to file the cross appeal after being served with the respondents'record of appeal on 2"d and 3.d August, 2O2 1 respectively. That going by the provisions of rule 87 of the rules of this court, the applicant ought to have filed his cross appeal within 30 days which elapsed on l.t and 2"d September, 202 1 respectively. The applicant further demonstrated that he instructed his lawyers to file the cross appeal first, on 31"tAugust,2O2l as evidenced by annexure 'A'to the application, and when the lawyers delayed to effect his instructions, hc continued writing to them, to hle his cross appeal. The lawyers responded to the applicant's instruction apologizing for the delay in effecting his instructions because the receptionist who had received his letter of instruction forgot to bring it to their attention on time. The applicant illustrates the continued instruction of his lawyers with a number of letters attached to the application. He thus conciuded that it was thc fault of his lawyers 20 ?.5 30 - 5 not to file the cross appeal in time and as a lay man, he did not know about the timelines as he depended on the skill and expertise of his lawyers and therefore should not be condemned for being guilty of dilatory conduct. - I have taken time to peruse the respondents' submissions and what can be canvassed from each of the submissions is that all the respondents contest the competency of the instant application when they argue that the applicant assumed that the application is consolidated whereas not, as the application arises out of Civil Appeals No.15 of 2021, No.l7 of 2O2l and No.l9 of 2O2l respectivcly. To the respondents, the order of consolidation can only be made under rule 97 of the rules of this court upon a party showing sufficicnt cause. 10 15

To the merits of the application, the respondents argue that the applicant is guilty of inordinate deiay in instructing counsel and cannot plead mistake of counsel as sufficient reason for extension of time. The respondents further argued that inordinate delay on the part of the applicant can be envisaged in the time he took to file the instant application as the szune was filed after four months upon the expiry of the due date. 20

- As to whether the applicant has showed sufficient cause to warrant the grant of the orders sought in the instant application, the respondents were of the view that the applicant did not demonstrate sufficient cause by merely insinuating mistake of counsel. To buttress this argument, the respondents cited the case 25 - of Kananura Kansiime Andrew versus Richard Henry Kaijuka S. C. C Reference No. 15 of 200,6 whcre this court observed thus; 30

"What constitutes sufficient reeson is lefi to the court's unfettered discretion. In this context, the court will accept either e reason that preuented an applicant from taking the essential step in time, or other reasons whg the intended appeal be allowed to proceed though out of time. For example, an application brought promptly will be considered more sympatheticallg than one that is brought afier unexplained inordinate delagi'.

The other argument advanced by the respondents is that the applicant had at all material times been represented by two law firms of M/s Godfrey Nangumya & Co. Advocates as well as Waymo Advocates and if the applicant was vigilant enough, he would not have wasted the court's timc as could have instructed M/s Godfrey Nangumya & Co. Advocates to file his cross appeal in time. They thus prayed that the court finds no merit in the application and consequently dismiss it. 15

I have pcrused and considered all thc parties' pleadings and submissions in the determination of this application. As a way of disposing of what would appear like a preliminary point of law when the respondents argued that the applicant assumed that the instant application was consolidated whereas not; what is not in contention is the fact that this application emanates from three appeals to wit Civil Appeal No. 15, 17 and 19 of 2027. What is also not contested is that, all the above appeals emanate from Court of Appeal Civil Appeal No. 52 of 2018. On the perusal of the application, I note that the applicant filcd his cross appeal in this court on 6,h of Dccember,2021 marked as annexures G1, cross

5 appeal in respect of Civil Appeal No. 19 of 2021 , annexure G2, cross Appeal in regard to Civil Appeal No.15 of2021 and annexure G3 in respect of Civil Appeal No.17 of 2021 . A critical perusal of the grounds of appeal, in what would have been the cross appeals is conclusive that the grounds are similar and generally cut across save for minor variations in regard to which plots the applicant seeks to have the certificate of title cancelled. Naturally, the applicant ought to have filed different applications from the respective appeals herein but what is not in doubt is that by whatever standards, those appiications ought to have been consolidated as in my view, the reliefs that ought to have been sought in each of those applications ought to have been similar and could havc bcen common to all. It would thus have been unnecessary duplication had the applicant filed different applications. In my view, the applicant made a wise decision when he filed a single application as the questions to be addressed were similar. The objection raised by the respondents is thus unsustainable and is accordingly overruled. 10 15 ?.o

As to whether there is sufficient cause to warrant the grant of the orders sought in the instant application, sufficient cause has been variously defined. By and large, sufficient cause is an expression which has been used in a large number of cases. 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 cause embraces no more than that, which provides a platitude which, when the act done suffices to accomplish the purpose intended in the fact and circumstances existing in a case; and duly examined from the view point of a reasonable standard 25 30

- 5 of a curious man. 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 circumsta,ces of cach 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 the decision of the supreme court of India in Parimal versus Veena alias Bhart lz01-1-l 3 SCC 34S. 10 - In the instant application, the applicant illustrates that he variously instructed his lawyers to file the cross appeal but due to inadvertence ol his lawycrs, the instructions were not effccted in time. This can be seen from several correspondences between thc applicant and his lawyers annexed to thc application marked A, B, 15 - C, D, E and F. From these correspondences, it is implicit that the applicant took the initiative to instruct his lawyers to file his cross appeal but the lawyers inadvertently railed to do so in time. The lawyers admitted this fact when they stated that the receptionist had indeed received the letter of instruction from the applicant but delayed to present it to them for action. 20 25

This court is empowered under rule 2(2) of the rules of this court to make such orders as a'e necessary for achieving the ends of justice or to prevent abuse of the process of any such court. Naturally, a party who wishes to present their case when the adversary has the opportunity to controvert that party,s position should not be closed out. what is not in doubt is that the applicant

- 5 wants to present his cross appeal before this court and by whatever standards, the respondents shall have the opportunity to present their respective cascs and it is then, that a Iina-l verdict shall be meted. - 10 15 In this respect therefore, the justice of the case in the instant application would demand that the applicant is allowed to file his cross appeal out of time as he has demonstrated sufficiently that it was the negligence of his legal team that caused the delay in fiiing the cross appeal. As indicated before, the respondents will have the opportunity to present their respective cases at the hearing of their respective appeals.

As to whether the applicant is guilty of inordinate delay, both the applicant and thc respondents agree that the applicant ought to have filed his cross appeal by 1", and 2"d September, 202 1 respectively. The applicant filed the instant application on 14t1, Decembcr, 2O2l . That is roughly three (3) months and two weeks from the date whcn he was expected to have filed his cross appeal. Justly, three (3) months cannot be described as inordinate delay, as in my view, it is reasonable time for any party to be given a benefit ofdoubt to file an action, and the salne cannot be described as dilatory conduct; coupled with the fact that the applicant kept on pursuing his lawyers to hle the cross appeal.

As to costs, it is trite law that costs of and incident to a-11 suits shall be in the discretion of the court or judge, and the court or judge sha-Il have full power to determine as to which party is to mect the costs of any action. I observe that had the applicant and his legal team becn vigilant, this application should have been avoided. By

filing the instant application, the respondents had to incur $\overline{5}$ expenses in defending the same which expenses in my view should be met by the applicant. However, like I observed earlier, the $1^{st}$ respondent did not file a reply to the application but only filed submissions in response. Though I award costs to the respondents, the 1st respondent shall be entitled to only $1/3$ of the 10 taxed costs owing to his failure to fully defend the application. The costs herein awarded to the respondents shall be determined upon the conclusion of the respective main appeals.

In the final result, this application is allowed in the following terms: 15

- 1. The applicant is granted leave to cross appeal in Supreme Court Civil Appeals No.15, 17 and 19 of 2021, out of time. The cross appeal shall be filed within 30 days from the date of this ruling. - 2. Costs of the application are awarded to the respondents save 20 the 1st respondent who will be entitled to only $1/3$ of the taxed costs. - 3. The costs herein awarded shall be determined at the conclusion of the respective main appeals.

Dated at Kampala this... 14 Dated at Kampala this... 14 25

RUBBY OPIO-AWERI JUSTICE OF THE SUPREME COURT