Kihuku and others v Sabiti and Another (Civil Application 24 of 1995) [1996] UGSC 20 (25 March 1996)

THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT MENGO CIVIL APPLICATION NO. 24 OF 1995 (HCCS NO. 857 OF 1989)

JOHN WILLIAM KIHUKU & OTHERS ........... APPLICANTS VERSUS

| | | 1. PERSONAL REPRESENTATIVE OF<br>RT. REV. ERIC SABITI | | <pre> RESPONDENTS</pre> | |----|-----------------------|-------------------------------------------------------|--|-------------------------| | 2. | MRS. GERALDINE SABITI | | | |

BEFORE: HON. A. N. KAROKORA, JUSTICE SUPREME COURT

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Put on church

This is an application for leave to extend time within which the applicants can lodge an Appeal to this Court against the judgment of High Court. The application is brought under Rule 4 of the Rules of this Court. The applicants were the Plaintiffs in the original suit. The application is supported by an Affidavit swarn by John William Kihungu, the 1st applicant who averred he was making the Affidavit on his own behalf and on behalf of the 2nd and 3rd applicants.

After hearing both parties and after both Counsel had addressed the Court, judgment was reserved to be delivered on notice. On 11/4/95 judgment was delivered, dismissing the suit on two grounds namely; that the action was a res-judicata and secondly that the action was time-barred.

However, when the judgment was delivered, the applicants were absent and their lawyer arrived in Court when the Deputy Registrar had just finished delivering the judgment though he was informed of the gist of the judgment. However, because the Counsel had no instructions to lodge appeal, he could not do so. After the applicants had known that the case had been decided against them, on $20/4/95$ the 1st applicant travelled to Kampala and met their Counsel on $24/4/95$ . He received the judgment on $26/4/95$ when 14 days had already elapsed since the delivery of the judgment on 11/4/95.

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After receiving the judgment on $26/4/95$ , the 1st applicant returned home to consult his co-plaintiffs in the village. When a decision was taken that they should appeal the prescribed time within which to appeal had already expired. So on $8/5/95$ the 1st applicant saw their counsel and gave instructions to him to lodge appeal, and hence this application.

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The application is supported by an Affidavit sworn by John William Kihungu, who averred in part, as $follows :=$

- 2. That I make this affidavit on my own behalf and on behalf of Yusia Bugigi and Ronald Rwekihanda who authorised me to make it on their behalf; - 3. That the 3 of us sued the respondent in the High Court for:- - (a) cancellation of the Certificate of Title issued to respondent in respect of the suit land; - (b) an order that we be issued with a Certificate of Title in respect of the same land; - (c) eviction order; - (d) permanent injunction. - That on $13/3/95$ Counsel for the parties made 4. final addresses to Court and the Judge indicated that he would be proceeding on leave but that judgment would be delivered by the Registrar on notice.

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- 5. That I returned to my home at Butayoga and did not receive notification of the date of judgement; - 6. That my Lawyer, Mr. Ayigihugu, informed me that he received a hearing notice on $7/4/95$ to the effect that judgement would be delivered on $11/4/95$ at 9:00 a.m. - That my Lawyer did not have sufficient time 7. to notify me so that I or my co-plaintiffs be present when judgment was delivered; - That on $20/4/95$ I received information from 8. our Lawyer that judgment had been delivered against us: - 9. That on $24/4/95$ I arrived in Kampala and saw my Lawyer but he did not have a copy of the Judgment: - 10. That on $26/4/95$ I obtained a copy of the judgment and my Lawyer explained the contents therein; - That I could not take a decision done whether 11. or not to appeal against the judgment of the Court; - 12. That I returned home and consulted my co-applicants who also arranged for the judgment to be read to them; - That we all took a decision to appeal against 13. the judgment of the Court and returned to Kampala;

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- 14. That we had not given our Lawyer instructions to appeal in the event of our losing the case; - 15. That we lost the suit on two grounds that the matter was re-judicata and that the suit was time-barred; - 18. That we were prevented to appeal by sufficient cause; - 19. That I make this affidavit in support of application for leave to lodge appeal out of time; - That I depore as to the facts herein from $20.$ my knowledge.

In reply to the above facts Mr. E. K. Muhanguzi, Counsel for respondent, stated in his affidavit sworn on 22nd February, 1996 as follows:-

- That I acted for the respondents herein in 1. HCCS No. $857/89$ and have now received instructions again herein; - 2. Throughout the course of the proceedings in HCCS No. $857/89$ the 2nd and 3rd applicants never prosecuted their case by testifying either personally or by attorney duly authorised by them till judgment was delivered on $11/4/95$ ;

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3. That on $11/4/95$ at 9:00 a.m. judgment was delivered in HCCS No. 857/89 by Mr. David Wangutusi, Deputy Registrar in my presence wherein the plaintiff's case was dismissed on the grounds of Res-Judicata and time-barred;

- That as the Deputy Registrar was signing the 4. judgment on $11/4/95$ after delivering the same counsel for the Plaintiffs then Mr. P. S. Ayiginhugu appeared in the Registrar's Chambers who thereupon was informed by the Registrar of the gist of the judgment in my presence; - 5. That the 1st applicant has never been duly authorised by the 2nd and 3rd applicants to give evidence on their behalf since commencement of the suit till now; - That the 1st applicant is an ordinary Ugandan 6. peasant and in his affidavit of $11/5/95$ deponed in paragraphs No. 7, 15, 16 and 17 thereof to matters purportedly from his knowledge when clearly such matters are not in his knowledge; - That admittedly the 1st applicant, who alone $7.$ prosecuted HCCS No. 857/89 on his sole behalf, knew the date of delivery of the judgment in advance. He obtained a copy thereof within the time to appeal but simply did not appeal for no comprehensible reason other than memo imprudence and dilatory conduct;

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8. That no sufficient reason or at all has been shown to explain any of the applicants' failure to appeal in time.

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At the hearing of this application Mr. P. S. Ayigihugu, Counsel for Applicants, rehearsed the contents of Mr. Kihuku's affidavit and submitted that the facts in the affidavit disclose sufficient reasons why the applicants did not lodge appeal within stipulated time of 14 days.

The reasons include firstly, that the applicants were not present when judgment was delivered. Secondly, although their Lawyer knew of the judgment within the time, he had no instructions to appeal in event of the case being delivered against them. Thirdly, when they knew of the judgment and its effect, they instructed him to lodge appeal and this was after the statutory period for lodging appeal had expired. He therefore invited me to exercise my discretion and extend time for applicants to appeal as 18 days' delay was not inordinate delay.

In reply Mr. E. K. Muhanguzi submitted that the effect of paragraphs 2 and 5 of his affidavit, the application for 2nd and 3rd applicants was incompetent on the ground that, because it is not supported by either their own evidence or evidence of any person duly authorised by them like their advocate or duly appointed agent. He added that ever since he challagged them in his affidavit in reply, they had never answered, controverting the challange. He submitted that 2nd and 3rd applicants never prosecuted the suit before the High Court and were not even prosecuting the application.

$...17$ He referred me to a High Court decision of Kaingana v Dabo Boubou (1986) HCB 59 which decision is not binding on this Court, but which, neverthe less is of persuasive authority. There, a husband claimed he had been duly instructed by his wife to file a suit and make affidavit in matters which were exclusively handled by his wife when the husband was in prison after 1979 Liberation war.

It was held he could not make that affidavit in a representative capacity, because his wife had not authorized him to do so. Therefore since he had neither no power of attorney to act on behalf of his wife and was not a lawyer acting for her, he could not lowfully swear affidavit on behalf of his wife.

Mr. Ayigihugu distinguished the instant case from Kaingana's case, and I think rightly so, because unlike in Kaingana's case, the 1st applicant here averred he was making the affidavit on his own behalf and on behalf of his co-applicants who had authorised him to make it on their behalf. In my view, if the respondent's are saying he was not authorised to do so, when the applicant had stated in his affidavit that he had been authorised by 2nd and 3rd applicants, then the onus was on the respondents to prove that actually the 2nd and 3rd applicants never authorised 1st applicant to handle the suit on their behalf.

However, be that as it may, on full consideration of the contents of both affidevits and submission of both counsel, it does not seem clear from Mr. Muhanguzi's submission whether or not the case was not dismissed as against 1st, 2nd and 3rd applicants. In the circumstances, I am not going to concern myself at this stage with whether or not 2nd and 3rd applicants are parties to this application; when there is no evidence that that issue was raised at the trial before the High Court.

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My concern at this stage is whether or not there is sufficient reason to justify this Court exercise its discretion to extend time within which to lodge an appeal. It seems to be settled, see Shauti v Hindocha & Others (1973) $E$ A 209 at page 209 that:

> The position of an applicant for extension of time is entirely different from that of an applicant for leave to appeal. He is concerned with showing "sufficient reason" why he should be given more time and the most persuasive reason that he can show is that the delay has not been caused or contributed to by dilatory conduct on his part.

He does not necessarily have to show that his appeal has a reasonable prospects of success or even that he has an arguable case but his application is likely to be viewed more sympathetically, if he can do so and if he fails to comply with the requirement set out above he does so at his peril. See also the case of Bhait v Jejwant Singh $(1965)$ E A 797. See also Florence Nabatonzi v Naome Binsobedde SC/Civil Application No. 6 (1987) (unreported) where Mugo v Wanjiru & Anor (1970) EA 481 was cited with approval that normally sufficient reason depends on the circumstances of each case and sufficient reason must relate to the inability or failure to take the particular step in time.

In fact in the case of Nabatanzi (supra) S. T. Manyindo DCJ held inter alia at page 5 of his ruling:

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"There can be no doubt that the applicant and her counsel have not been deligent in handling the intended appeal. Mr. Mugenyi's claim that the file could not be traced in the Civil Registry has not been substantiated and has been contradicted by the record which shows that the file was in place and even Mr. Mugenyi was appearing in the case in pursuit of other matters."

In that case 4 months had elapsed since the ruling was delivered before counsel for applicant applied extension of time. The application was dismissed as no sufficient reasons required under Rule 4 had been established.

I have considered the entire application, affidavits sworn on both side and submissions of both counsel, and have found there is no doubt that when the suit was dismissed by the High Court on $11/4/95$ , the applicants were absent. They cannot be blamed for having been absent, because judgment had been reserved and would be delivered on notice. Counsel for applicant arrived at the Court when judgment had been delivered but was told the gist of the judgment by the Registrar.

However, on $20/4/95$ , the 1st applicant received information from their lawyer that judgment had been delivered against them. On $24/4/95$ he travelled to Kampala and saw. his lawyer but found that his lawyer did not have a copy of the judgment. The applicant got a copy of the judgment on $26/4/95$ . The gist of the judgment was explained to him by their lawyer. It must be noted that by $2\sqrt{4/95}$ they were already too late to appeal in time. He returned home to consult his co-applicants whether or not they should appeal. He returned to Kampala on $8/5/95$ and gave instructions to their lawyer to appeal. On $11/5/95$ this application was filed in Court, just 30 days after the suit was dismissed.

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It must be observed from the arguments of Mr. Muhanguzi, Counsel, for respondents that most of the arguments are grounded on technicalities e.g. how a peasant/applicant would from his own knowledge know that the suit had been dismissed on the grounds of res-judicata and time-bar that they succeeded on the issue of fraud and other related matters such as that the judge misdirected himself on the evidence which showed that the matter was not time-barred.

Mr. Muhanguzi submitted that respondent did not disclose how he came to know these issues or from whom he came to know them. There is no doubt that a good affidavit, if sworn from information, the source of that information must be disclosed. See Kassawali Gulambusein & Co Kenya Ltd v Kyradas Bros Ltd (1968) EA 542, but the affidavit was sworn upon the gist of the judgment which was given against them but not upon information given to them.

Therefore, as full consideration of the whole affidavit sworn by Kihuku, I would not say it was based on information given to him by his layer. It was based on the judgment of the Court. I would not say that it was a dilatory conduct on the part of the 1st applicant to travel back home after he had obtained a judgment on $26/4/95$ to consult his coapplicants and ascertain whether or not they should lodge appeal, especially when instructing a lawyer involves payment of his professional fees coupled with payment of Court fees. In my view, considering peasantry status in society of the 1st applicant and the steps he took to secure a copy of the judgment after he had been notified by their lawyer, I would not say that the delay was caused or contributed to by any dilatory conduct on the part of the 1st applicant; especially when by the time he received a copy of the judgment on $26/4/95$ , they were already out of time. In my view, the 1st applicant was vigilant in the circumstances of the case.

In the result, I am satisfied that sufficient reason required under Rule 4 has been established. The application is accordingly allowed. Time is extended 7 days from the date hereof to enable Applicants to lodge appeal in proper form. Costs of this application must be paid by applicants in any event as the respondents in no way are responsible for these proceedings.

Delivered at Mengo this 25th day of March 1996.

A. N. Karokora JUSTICE OF SUPREME COURT.