Kanyanya v Owori (Civil Reference 10 of 2022) [2024] UGSC 23 (22 February 2024)

Full Case Text

# THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT KAMPALA

# [CORAM: CHIBITA; MUSOKE; MUSOTA; JJ. S. C]

### [CIVIL REFERENCE NO.10 OF 2022]

## [ARISING FROM CIVIL APPLICATION NO.50 OF 2021]

## NICHOLAS KANYANYA ::::::::::::::::::::::::::::::::

#### **VERSUS**

## PAUL ELVIS OWORI ::::::::::::::::::::::::::::::::::::

[Reference arising from the decision of a single Justice (Opio-Aweri, JSC) dated 17th February, 2022 in Civil Application No.50 of 20211 15

#### RULING OF THE COURT.

The applicant, Nicholas Kanyanya filed this Reference from the Ruling of Opio-Aweri, JSC which allowed the respondent's application for extension of time within which to serve his memorandum of appeal in Civil Appeal No. 23 of 2021 to the applicant.

This Reference is brought under section 8(2) of the Judicature Act Cap 13 and Rule 52 of the Rules of this Court, seeking to set aside the said decision and have the respondent's appeal struck out.

#### **Background to the Reference**

The background to this Reference as gathered from the record is that the dispute between the parties involves ownership of land. The respondent successfully instituted a suit against the 30 applicant vide High Court Civil Suit No.0041 of 2008 for declarations inter alia that he was the lawful owner of the land comprised in leasehold Register Volume 3440 Folio 13 Plot 13 Nagongera Road Tororo and that the applicant was a trespasser

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$\mathsf{S}$

$10$

on the same. He prayed for a demolition order of the applicant's structures together with vacant possession and a permanent injunction against the applicant.

Aggrieved by the decision of the trial Judge, the applicant successfully appealed to the Court of Appeal vide Civil Appeal No.11 of 2013 delivered on 24th May, 2021 which overturned the High Court decision.

It should be noted that due to the country's lockdown because of Covid 19, a notice was issued to all advocates handling appeals for the March 2020 civil session to file written submissions. Only counsel for the applicant complied. The appeal was therefore determined on the basis of the applicant's submissions and was subsequently delivered in the absence of the respondent and his advocate. However, upon this discovery, and being dissatisfied with the Court of Appeal judgment, the respondent through his current advocates Nangulu & Mugoda Advocates appealed to the Supreme Court vide Civil Appeal No. 23 of 2021.

The respondent also filed an application for extension of time vide Civil Application No.50 of 2021 to serve the applicant with a memorandum of appeal. The respondent alleged that his attempts to serve the applicant with court documents proved $25$ difficult due to the unknown proper address of the applicant's counsel. Nevertheless, despite the nationwide lock down, the respondent served the applicant with the Notice of Appeal on 5th July, 2021 but was not able to serve him or his advocates with the Memorandum of Appeal and the Record of Appeal within 30 time. The same were served on the applicant's advocates Jingo

SSempija & Co. Advocates on 18th October, 2021, out of time. The applicant on the other hand alleged that through a notice of

change of Advocates filed at the Court of Appeal on 25th June, 2020 by the Applicant's counsel, at all material times, he was 35 represented by Jingo SSempija & Co. Advocate, a fact well known to the respondent and his lawyers. He therefore denied ever being served with any notice of appeal.

The respondent's application for extension of time was allowed by Hon. Justice Opio-Aweri (as he then was) sitting as a single

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$\mathsf{S}$

Judge, hence this Reference by the applicant to set aside the said $\mathsf{S}$ decision and have the appeal struck out on the ground of service out of time.

## Grounds:

The Reference is based on the following grounds:

1, The learned single justice of supreme court erred in law and 10 fact when he held that the respondent had shown sufficient cause for the grant of extension of time for or validation of late service.

2. The learned single justice of the supreme court erred in law and fact when he granted the respondent prayers for validation of 15 service or extension of time of service of notice of appeal and record of appeal that were not prayed for by the respondent in the application.

3. The learned single justice of the supreme court erred in law and fact when he ignored the undisputed or uncontroverted 20 evidence in paragraph 12 and 13 of the affidavits in reply of (Nicholas Kanyanya).

4. That the learned single justice of the supreme court erred in law and fact when he unjustly and injudiciously exercised his discretion in the grant of the application. 25

The applicant prayed that the Reference is allowed and the ruling and order of the single Justice be set aside with costs and that the notice of appeal together with the appeal be struck off.

## **Representation**

At the hearing, there was no representation for the Applicant 30 while Mr. Nangulu Eddie represented the Respondent. The parties had filed written submissions.

## **Submissions**

## **Applicants' Submissions**

Counsel for the applicant argued grounds 1 and 3 together and 35 grounds 2 and 4 together.

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In relation to ground one and three, counsel for the applicant $\mathsf{S}$ submitted that the single Justice erred to find that there was sufficient reason made out by the respondent to grant the application. Counsel relied on Rule 5 of the Rules of this Court and the case of James Bwogi & Sons Enterprises Ltd v Kampala City Council & Anor. Civil Application No.9 of 2017 10 **(SC)** in support of this submission.

Counsel submitted that there was no effort to serve the memorandum of appeal and that what was attempted to be served was only a Notice of Appeal which service of the same was ineffective as rightly found by the single Justice.

Counsel further argued that by the time the memorandum of appeal was issued, counsel for the respondent and the respondent himself were aware of the address of counsel for the applicant. Counsel argued that there was a Notice of change of advocates filed on record at the Court of Appeal which the respondent was fully aware of.

Furthermore, counsel argued that the two firms handled a matter in the High Court vide Misc. Cause No. 64 of 2019 Haji Wesamoyo v Wamayi Amuron & Anor therefore counsel was fully aware of the address and that such evidence was uncontroverted.

Counsel strongly submitted that the respondent and his counsel were guilty of dilatory conduct since they knew the address of service but failed to serve the memorandum of appeal in time.

Lastly, counsel submitted that the single Justice erred to find that the respondent was zealous to pursue his appeal. According 30 to counsel this did not constitute sufficient reason to exonerate the respondent from dilatory conduct.

Regarding grounds two and four, counsel faulted the single Justice for unjustly exercising his discretion when he validated the notice of appeal, memorandum of appeal and record of appeal. Counsel argued that the respondent only prayed for extension of time to serve the memorandum of appeal and in the alternative service of the same effected on 18th October, 2021 be validated. Counsel submitted that a party could not be granted a

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relief not claimed in the pleadings. Counsel relied on the case of $\mathsf{S}$ Ms Fangmin v Belex Tours & Travel. SCCA No. 6 of 2013 in support of this submission.

Counsel submitted that the single Justice therefore misapplied Rule 2(2) as allowing him to grant prayers not sought in the application and therefore his discretion did not extend to granting such prayers. Counsel invited Court to allow the reference and accordingly strike out the notice of appeal and the appeal with costs.

## **Respondent's Submissions**

Counsel for the respondent opposed the reference and submitted 15 that the respondent was not aware of the proceedings in the Court of Appeal but when he discovered that the said appeal was decided against him, he immediately instructed his current advocates to commence appellate proceedings. The advocates established from the record of appeal that the applicant was 20 represented by M/s Mbale Law Chambers and took steps to serve the said Advocates.

Counsel further submitted that neither the respondent nor his previous advocates had ever been served with a notice of change of advocates. He added that the applicant having been served $25$ with the notice of appeal, he did not make any effort to notify the process server of his advocate's address. He further explained attempting to serve the applicant with that upon the memorandum of appeal in person, the applicant notified the process server that he was represented by M/s Jingo, Sempijja & 30 Co. advocates. Counsel contended that the process server made several attempts to reach out to the said advocates but to no avail until 18th October, 2021 when service of the memorandum of appeal together with the record of appeal was effected on them.

Counsel also pointed out that another reason for the delay in 35 effecting service after finally reaching out to counsel for the applicant was due to travel restrictions imposed by the nationwide lockdown.

- Counsel also contended that neither the respondent nor his $\mathsf{S}$ advocates were aware of the applicant's address. The applicant's assertion that the respondent's advocates were aware of the address because the firms handled a matter in the High Court was therefore false and misleading. - Counsel strongly argued that the respondent was prevented by $10$ sufficient cause from serving the memorandum of appeal in time. However, the respondent and his advocates were diligent in their endeavours to effect service of the memorandum of appeal to the applicant. - Regarding the applicant's submission that service of the Notice of 15 Appeal was not effective, counsel argued that it was effectively served on the applicant. He explained that the Notice of Appeal was served on the applicant in person in the presence of the L. C 1 Chairperson on 5th July, 2021 the same having been issued by court on 29th June, 2021, but the applicant declined to endorse 20

on the copy of the Notice of Appeal.

In relation to ground two and four, counsel submitted that the applicant failed to file and serve a Notice of a full and sufficient address for service upon the respondent as per Rule $76(1)(a)$ of the Supreme Court Rules when he was served with the Notice of

Appeal. The applicant therefore lost his right to complain of late service upon him. Counsel relied on Rule 84 of the Rules of this Court.

That notwithstanding, counsel further argued that Rule 84 of the Rules of this Court require both the memorandum and the record 30 of appeal to be served at the same time. Both were served on 18th October, 2021. Counsel also argued that Rule 2(2) of the Supreme Court Rules enabled Court to make such orders as may be necessary to achieve the ends of justice. Counsel submitted

- that having led evidence on service of the record of appeal, it was 35 only proper for the single Justice to pronounce himself on the issue so as to enable court investigate and determine the appeal on merit. Counsel therefore invited Court to dismiss the application. - Applicant's submissions in rejoinder 40

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Counsel reiterated his submissions on ground one and three and $\mathsf{S}$ further submitted that the fact that the respondent's current advocates were instructed to handle the appeal immediately after delivery of the Court of Appeal judgment, Counsel must have read and perused the contents of the Court of Appeal record which contained the Notice of change of advocates. 10

Counsel further submitted that the issue of travel restrictions had no merit since at the time of service of the memorandum of appeal they were lifted.

Regarding ground two and four, counsel reiterated his earlier submissions and added that Rule 76 can only be applied when 15 the Notice of Appeal has been served effectively which was not the case in this matter as rightly found by the single Justice.

Counsel also contended that the single Justice was to exercise his discretion within prayers of the respondent and should not

have validated the Notice of Appeal and Record of Appeal. That 20 the need to determine the merits of appeal could not form the basis for validating the service of the same. No sufficient reason was given for not serving them on time.

## **Court Consideration of the Reference**

We have carefully perused the record of reference, the authorities $25$ and submissions of counsel, as well as the Ruling of the single Justice.

The applicant seeks to set aside an order of the single Justice allowing the respondent time within which to serve his appeal to the applicant. The reason advanced by the applicant was that no 30 sufficient reason was given for the delay to serve the applicant and that the discretion to grant the application was unjudiciuos.

The basis of this reference is hinged on Rule 5 of the Rules of this Court, which provides that:

"The court may, for sufficient reason, extend the time prescribed by these Rules or by any decision of the court or of the Court of Appeal for the doing of any act authorised or required by these Rules, whether before

# or after the expiration of that time and whether before or after the doing of the act; and any reference in these Rules to any such time shall be construed as a reference to the time as so extended."

$\mathsf{S}$

It is well settled that the decision whether or not to extend the time under Rule 5 of the Rules of this Court is essentially discretionary. This discretionary power, however, is judicial in nature and must be confined to the rules of reason and justice taking into account the interests of both parties to the application. Furthermore, in exercise of such discretion, court ought to find that sufficient reason has been shown for not 15 taking the necessary steps in doing any act authorized in time.

This court has in a plethora of cases such as in **F. L. Kaderbhai** & Anor Vs. Shamsherali M. Zaver Virji & 2 Others, SCCA No. 20 of 2008 followed in Kananura Kansiime Andrew v Richard Henry Kaijuka SCCA No. 15 of 2006, James Bwogi 20 & Sons Enterprises Ltd v Kampala City Council & Anor. SCCA No.9 of 2017 and Buyungo Samuel v Nyansiana Talidda Sserwadda & 6 Ors SCCA No. 12 of 2021 & 10 of $2022$ stated that:

"Under Rule 5 of the Supreme Court rules, the Court $25$ may, for sufficient reason, extend the time prescribed by the Rules. What constitutes' sufficient reason' is left to the Court's unfettered discretion. In this context, the Court will accept either a reason that prevented an applicant from taking the essential step in time, or 30 other reasons why the intended appeal should be allowed to proceed though out of time. For example, an application that is brought promptly will be considered more sympathetically than one that is brought after unexplained inordinate delay. But even where the 35 application is unduly delayed, the Court may grant the extension if shutting out the appeal may appear to cause injustice."

In Buyungo Samuel v Nyansiana Talidda Sserwadda & 6 Ors SCCA No. 12 of 2021 & 10 of 2022 Court also stated that: 40

Page 8 of 15 "Rules are made to be observed, and when there has apparently been excessive delay the court requires to be satisfied that there is an adequate excuse for the delay or that the interest of justice is such as to require the indulgence of the court upon such terms as the court considers just."

An applicant for extension of time should therefore show good and substantial reasons for the delay and that it was not contributed to by a dilatory conduct on his/her part, as well as a prima facie good cause why the intended appeal should be heard. However, consideration is to be made on a case to case basis and each case will depend on its peculiar facts and circumstances.

Guided by the principles above, the question therefore is whether the single Justice can be faulted in exercising his discretion to grant the application in the circumstances. We shall deal with 20 the issues in the order they were submitted.

## Ground one and three

The applicant faults the single Justice for finding that there was sufficient reason advanced by the respondent to warrant the grant of the application. The main explanation that counsel for 25 the applicant has given on these grounds is basically that the respondent together with his counsel were aware of the address of service of the applicant and that there was a notice of change of advocates on record at the Court of Appeal.

The respondent on the other hand alleged that he was not aware 30 of the current address of service of the applicant.

In his application, the respondent in Paragraphs 7 of his affidavit in support at page 37 of the record of reference together with paragraph 16 and 17 of his affidavit in rejoinder at page 53 alleged that there was no known advocate's address to effect service on the applicant and that neither him nor his advocate were aware of the applicant's change of Advocates since such change had not been served upon him or his previous counsel.

$\mathsf{S}$

Rule 24 of the Supreme Court Rules and Court of Appeal Rules $\mathsf{S}$ provide that:

> "Where a party to an application or appeal to the court changes his or her advocate or, havina been represented by an advocate, decides to act in person or, having acted in person, engages an advocate, the party shall, as soon as practicable, lodge with the registrar notice of the change and shall serve a copy of the notice on the other party or on each other party appearing in person or separately represented, as the **case may be."** Underlined for emphasis.

As required by the above rules which are couched in mandatory terms, a perusal of the notice of change of advocates attached as annexure B to the applicant's affidavit in reply at page 47 of the record of reference does not show that the same was served on the respondent or his previous counsel. This therefore does not 20 prove that the respondent or his counsel were aware of the applicant's current address at all times as alleged. In the absence of proof of service of the said notice, court cannot assume otherwise.

- It is our observation that this seems to be the reason for the 25 several attempts to serve the applicant in person which proved futile as rightly found by the single Justice since the address of his current advocates was not known. This in our assessment justified the delay in serving the applicant. - Counsel for the applicant further argued that the two firms 30 handled a matter together in the High Court therefore counsel for the applicant was fully aware of the applicant's address.

In our view, the applicant having failed to serve the notice of change of advocates to the respondent or his counsel left the respondent with the choice of guesswork as to which law firm represents him. What was previously on record was Mbale law chambers which allegedly declined service.

Court cannot accept that where counsel's name or his firm appears on some documents on court record in this case a

hearing Notice relied on in paragraph 12 of the applicant's $\mathsf{S}$ affidavit in reply (annexure D at page 50 of the record) which indicated other parties represented by both firms, then court should assume that the respondent or his counsel were aware of the address of service of the applicant in the absence of proof of service of the notice of change of advocates by the applicant as 10 required by the Rules.

Regarding service of the Notice of Appeal, counsel for the applicant argued that it was ineffective but counsel for the respondent strongly argued that it was effectively served on the applicant. We agree with the learned Justice that the service was ineffective though there were attempts to serve it personally to the applicant in the absence of his known Advocates address, an indication that the respondent was intent on pursuing his appeal but was only prevented by the unknown address of the applicant's advocate hence the delayed service of the appeal on the applicant.

Another reason given for the delay to serve was the travel restrictions imposed by the nationwide lockdown. In our view, this was understandable since the country was not fully opened by then.

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We therefore cannot fault the learned Justice who found that there was consistency on the part of the respondent in attempting to serve the applicant despite several futile attempts and that he can thus not be accused of negligence or dilatory conduct. The applicant had zeal and interest in pursuing the appeal.

For the reasons given above we find that the delay is excusable and was sufficiently explained. Therefore, ground three and one fail.

## Ground two and four 35

These grounds relate to the exercise of the single Justice's discretion under rule 2(2). Counsel for the applicant faults the Justice for validating service of the notice of appeal and the record of appeal yet the respondent only prayed for extension of

time to serve the memorandum of appeal. Counsel contended $\mathsf{S}$ that the Justice's discretion did not extend to prayers not sought.

As earlier stated, this discretion is confined to the rules of reason and justice taking into account the interests of both parties to the application considering that each case presents its own peculiar facts.

In exercising his discretion, the Single Justice relied on Rule 2(2) of the Rules of this Court together with the case of Kananura Kansiime Andrew v Richard Henry Kaijuka (Supra). Which gave two scenarios on exercising judicial discretion in such applications as noted above.

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Whilst the first limb requires a satisfactory justification from taking an essential step in time, the second leg only requires one to show reasons why the intended appeal should be heard and that the grounds of appeal are arguable. It is upon satisfaction of both the above that the court will use its discretion to grant the

application.

We also note that Rule 2(2) empowers the Court to make such orders as are necessary for achieving the ends of Justice.

From the evidence adduced, the learned single Justice found that the respondent showed continuous interest to pursue his appeal 25 despite the difficulties in serving the applicant. In addition, he also found that the appeal raised questions of law which needed determination by this Court and therefore in the interest of justice the appeal should be heard. Lastly, he found that throughout the respondent's pleadings and submissions, he 30 indicated that he served the notice of appeal, memorandum of appeal and record of appeal. The single Justice therefore used his discretion and validated the documents on record as the same had been served on the applicant though out of time.

35 From the affidavits of Mr. Paul Elvis Owori both in support of the notice of motion and affidavit in rejoinder, there is evidence of diligence and vigilance to pursue his appeal though it was frustrated by service of the court documents to the applicant in time. The reason for the delay was satisfactorily explained.

In addition, the single Justice further gave reasons why the $\mathsf{S}$ appeal should be allowed to proceed. In our view the single Justice was justified to exercise his discretion to make the orders necessary for achieving the ends of justice. One of the ends of justice is allowing the appeal to proceed hence the validation of service of the notice of appeal and the record of appeal.

Furthermore, we note that in his affidavit in rejoinder under paragraphs 4 and 5 the respondent averred that he was never made aware of the appellate proceedings. That the matter was heard and determined in his absence and that of his Advocate.

They were never served with any court process to enable them file 15 submissions neither were they served with any notice for delivery of judgment. However, when he discovered that the judgment was delivered in his absence, he immediately instructed his current advocates to prosecute the appeal against the said judgment.

We note that this was the time of lock down due to Covid 19 20 restrictions. There is no evidence to show that the respondent and his advocate were served and failed to appear. The rules of natural justice demand that a party shall not be condemned unheard. Having demonstrated the zeal to pursue his appeal, validation of the said documents in our view would not occasion $25$ a miscarriage of Justice. The applicant only seeks to strike out the appeal on grounds of late service but the reasons for the delay are sufficient to allow the appeal proceed.

The Court must also bear in mind Article 126(2)(e) of the Constitution that substantive justice must be administered 30 without undue regard to technicalities. Justice would be defeated when a case that has been through a trial process is defeated by a technicality in the absence of proof that the applicant will suffer any injustice.

The appeal that the respondent intended to lodge involves 35 proprietorship of land together with the role and mandate of land boards over leasehold interests on land. It is important that the respondent's appeal is allowed to proceed and the matter is heard on its merits and finally determined. This is a case where the

ends of justice would be served by hearing both parties on this $\mathsf{S}$ important matter.

It is true that parties are bound by their pleadings because every litigant is entitled to be informed in advance of the case he has to meet, so that he may effectively challenge the same. See Interfreight forwarders (U) ltd v East African Development Bank, SCCA No. 33 of 1992.

However, this matter is at the preliminary stage and the substantial issues between the parties have not yet been heard. As noted earlier, the applicant has not shown or adduced any evidence that he will be seriously prejudiced or that he will not be able to effectively challenge the appeal if the notice of appeal and record of appeal already on court record are validated. In our view this is not fatal.

Validating service of the memorandum of appeal without the entire record of appeal would not meet the ends of justice since 20 the appeal would be hanging because one is hinged on another. A party cannot challenge a case only on a memorandum of appeal and Court cannot give an order in vacuum.

The memorandum of appeal and record of appeal are served together as per Rule 84 of the Supreme Court Rules. Since both $25$ were served on the applicant, it was prudent and necessary for the respondent to also include in his application a prayer to validate service of the record of appeal. However, despite this anomaly and for the reasons given above, we cannot fault the single Justice's discretion under Rule 2(2) validating the same. 30 Court will not allow such an irregularity to frustrate the determination of the case.

We therefore also agree with the single Justice that a party who shows continuous interest in having their case heard and the opposite party has the opportunity to challenge and or refute that party's assertions should be given the opportunity to present their case. In this case the applicant will be able to challenge the appeal.

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Lastly we agree with counsel for the applicant and wish to note $\mathsf{S}$ that having found that service of the notice of appeal was ineffective, Rule 76 of the Rules of this Court does not apply in the circumstances as argued by the respondent.

In the result, our view is that the single Justice rightly exercised his discretion to grant the application. We find that the ends of 10 justice will be better served by considering the appeal on merit and end this protracted litigation. We accordingly dismiss this Reference. Costs shall abide the outcome of the main appeal.

Dated at Kampala this.................................... $\ldots 2024$ 15

ME linkits Mike J Chibits

## JUSTICE OF THE SUPREME COURT

Elizabeth Musoke JUSTICE OF THE SUPREME COURT

Dung (m)

Hon. Stephen Musota JUSTICE OF THE SUPREME COURT

dulivered to the p

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