Kironde and Another v Balintuma (Miscellaneous Cause 35 of 2003) [2004] UGCA 28 (3 March 2004)

## **THE REPUBLIC OF UGANDA**

**i**

### **IN THE COURT OF APPEAL OF UGANDA AT KAMPALA**

### **CORAM: HON. JUSTICE A. TWINOMUJUNI, JA (SINGLE JUDGE)**

### MISCELLANEOUS CAUSE NO.35 OF 2003 (ARISING FROM H. C. C. S. NO.467 OF 2002)

#### **<sup>15</sup> APPLICANTS 1. SAMUEL KIRONDE 2. FLY WAY CONSTRUCTION LTD**

# **VERSUS**

### **<sup>20</sup> JAMES E. K. BALINTUMA RESPONDENT**

# **RULING:**

**5**

- **25** This is an application by Notice of Motion for extension of time for lodgement of a Notice of Appeal against a decree which was passed by the High Court of Uganda on 24th February 2003. The reasons given in the motion for the motion is that:- - **30** (a) the first applicant was out of the Country at the time judgment was passed against him and was not available to instruct counsel to file a Notice of Appeal. - (b)there is a high likelihood ofsuccess.

The application is supported by the affidavit of the 1st applicant dated 24th April 2003 and that of his counsel, Mr. Byrd Ssebuliba sworn on the same day. The gist of the affidavits is that at the time judgment was delivered against the applicants in February 2003, the 1st applicant was in Kigali,

- **5** Rwanda and could not give his counsel the necessary instructions to appeal. There is also an averment to the effect that the intended appeal has a high chance of success. No travel documents are attached nor is there a copy of the judgment ofthe High Court. - **10 15** The respondent filed an affidavit in reply. The affidavit was sworn on 8th January 2004. In the affidavit, he states that he was served with this application, which he had not been aware of, on 7/01/2004. He states that it is not true that the applicant was in Kigali. That all he has been doing since the Civil Suit was filed in the High Court has been to use delaying tactics in order to defeat his claim for payment of a liquidated decretal sum of shs.39,900,000/=.

**I 20** This application came up before me for hearing on 21st January 2004. Both counsel were given full opportunity to argue out in support of their case. I have now carefully studied all the pleadings on record and arguments of counsel. I have reached the conclusion that this application cannot succeed because ofthe following reasons:-

**25** 1) Rule 41(1) ofthe rules ofthis court requires that whenever an application may be made, it must be made in the High Court first before it is made in this court. There is a host of authorities of the Supreme Court and those of this Court to the effect that despite the provision in Rule 41(2), the

requirement is mandatory and it is only in very exceptional circumstances that this court can entertain an application of this nature when it has not been made first and refused in the High Court. In the instant case, it has not been shown that this application was made and refused in the High

**5** Court. No special circumstances have been shown to justify this court entertaining the application here before it is made in the High Court.

**10**

**15**

**20**

**25**

- as 2) The applicants totally failed to produce any **"sufficient reason"** required by rule 4 of this court's rules as to why they failed to appeal or file a Notice ofAppeal in time:- - (a)They failed to produce any tangible proof that the 1st respondent was in Rwanda in February 2002. They could have produced the travel document containing the proof. Despite the fact that the respondent challenged the claim, no attempt was ever made to produce the evidence. - (b)With modem advances in telecommunication and transport technologies, Kigali is just a minute away form Kampala. Even assuming that the 1st applicant was there, he was not out of reach by any standards. - (c)The past conduct of the 1st applicant revealed in the documents filed by the respondent shows that he has tried very hard to use delaying tactics to defeat the decree against him. The latest example is the fact that since he filed this application in this court in April 2003, he failed or neglected to serve the respondent till in January 2004, a delay of

nine months! Yet at the same time he was working very hard to defeat execution of a decree!

(d)The 2nd applicant, whom it is claimed is wholly owned by the 1st applicant, is nevertheless a Limited Liability Company, which cannot be owned and operated by one person. Unless the 1st applicant went ""with" it ifThis "brief case to wherever he wentT'i'f'at'all,There was no' reason why it could not instruct counsel to appeal. Moreover, in law, it is a separate entity from the 1st applicant.

**10**

**5**

- 3) The applicants did not produce any evidence that they have a good chance ofsuccess in the intended appeal. It is true that in Grindlays Bank vs. Katende and Brothers [19801 HCB 10 it was held that:- - **15 "showing that there is merit in the appeal is not a mandatory requirement on an applicant who seeks extension of time although it could be relevant."** - i **20 25** However, the Court of Appeal followed the decision in Shanti vs Hindocha & Others 1973 E. A. 207 in which the Court of Appeal for Eastern Africa had held that an applicant for extension oftime **"does not necessarily have to show that his appeal has a reasonable prospect ofsuccess 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".** [Emphasis added]

In this case, I have held above that the applicants failed to sho>v "sufficient reason" why they should be granted extension. It was very important that they at least show that the intended appeal had any merits. By their failure or refusal to attach a copy ofthe judgment they intend to appeal from, it can

- **5** be inferred that if produced, it would not have assisted their claim that the intended appeal had any merits. On the other had, the respondent attached 'documentary evidence Tb hiF'affidavit showing that the judgment was granted in his favour because: - **10** (a) The applicants were advanced by him shs.3 9,900,000/=. - (b) They failed to pay as agreed in writing. - (c) They signed three cheques to settle the debt all ofwhich bounced. - (d) The debt is still outstanding. - **15** Before me, and on the record ofthis application, there is no evidence that the claim was false or that the applicants had a good defence to it.

merits in this application, which I dismiss For all these reasons, I find no with costs to the respondent.

Dated at Kampala this day of ...2004. **/**

PEAL.