Koyunga v Ochama & Another (Miscellaneous Application 58 of 2022) [2023] UGHC 496 (10 October 2023)

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT ARUA **MISCELLANIOUS APPLICATION NO. 0058 OF 2022** (ARISING FROM THE GRADE 1 MAGISTRATE COURT OF PAKWACH (CIVIL SUIT NO .013 OF 2020)

1. KOYUNGA ALFRED OMOK:::::::::::::::::::::::::::::::::::

#### **VERSUS**

1. OCHAMA EDMON 2. OCHAMA OKETHI::::::::::::::::::::::::::::::::::::

#### **RULING**

## BEFORE HIS LORDSHIP HON. JUSTICE COLLINS ACELLAM

#### **Brief Introduction**

This is an application brought under section 98 Of the Civil Procedure Act Cap 71, Order 52 Rule 1 and 3 of the Civil procedure Rules S. I 71-1, seeking for orders;

- 1. That leave be granted to the Applicants to appeal out of time against the Decree in Original Suit No. 013 of 2020 - 2. Costs of this Application be provided for

## Grounds in support of the Application.

The grounds in support of this application are set out in the affidavit of KOYUNGA ALFRED OMOK, the Applicant herein, dated 7<sup>th</sup> of June 2022 which briefly states;

- 1. That this honorable court entered judgment on a decree against the Applicant in Civil Suit No. 013 of 2020. - 2. That immediately after the judgment was read against the Applicants, they instructed lawyers from Wetaka, Kibirango & Co. Advocates to institute an Appeal on their behalf but unfortunately the Applicant realized later that the Lawyer did not file the Appeal within time. - 3. That this Application is brought without any dilatory conduct on part of the Applicant. - 4. That the Applicant is being threatened with execution by way of evicting him and has commenced Taxation of Bill of Costs proceeding against me to that effect and the same had been served upon the Applicants. That was when upon inquiring the Applicants realized that there was no appeal filed in the high court. - 5. That this being a land matter where I have vested interest, derive my livelihood from and the appeal has a high likelihood of success. - 6. That it is just, equitable and in the interest of justice that this Application be granted.

**Grounds of opposition**

In opposition to the Application, the Respondent, OCHAMA EDMOND, through his affidavit in reply deponed on the 8<sup>th</sup> day of August 2022 contested the application on the following grounds;

- 1. That the Applicant has not shown any sufficient grounds for leave to appeal out of time against the Pakwach Magistrate Grade 1 Judgment and decree in Original Civil Suit No. 0013/2020. - 2. That the judgment was delivered on the $19<sup>th</sup>$ day of August 2021 about a year to the date of service of taxation hearing notice upon the Applicant / Plaintiff which transpired on the 2<sup>nd</sup> day of **July 2022.** - 3. That the right to appeal to the High Court against the whole judgment was duly explained by the Trial Magistrate to both parties. - 4. That the Applicant has been losing right from the local council courts and he believes no miracle may change the trend of defeat mentioned above. - 5. That the Applicant only thought of the Appeal when they were served with bill of cost. - 6. That it is just, fair, and reasonable that the Applicant's application be denied.

Before I proceed to the merits of the Application, I want to note that I have perused through the application and all their supporting documents/ affidavits and affidavit in reply, both Counsel for the Applicant and Respondent filed their submissions which I have duly put into consideration to come up with this ruling. There was no rejoinder made on record. I shall now proceed to enlist the issue in contention.

I have pursuant to Order 15 CPR, framed the following issues which were deemed crucial in the determination of the Application to wit;

#### Issue

1. Whether the applicant has adduced sufficient reasons to justify the grant of the remedy sought?

## **Analysis / Determination**

### Position of the law.

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 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.

According to Sir Jacob, The Reform of the Civil Procedure Law London , Sweet and Maxwell 1982 t page 85, appeal right is necessary to;

a) To produce a just result in a particular case.

- b) To compel judges to be judicial, reasonable and to apply the law and not be arbitrary. - c) To provide a powerful corrective to any sense of grievance by the loser at first instance, and - d) In a system applying the binding character of judicial precedent to build up a uniform system of law.

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 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.

The circumstances in which leave should be granted have not been defined. This is a matter left to the discretion of the courts. See Civil Procedure & Practice in Uganda by M. SSEKAANA & S. N. SSEKAANA at page 328

The rationale behind leave requirement as the courts sees it is to prevent frivolous and needless appeals. It is doing the potential litigant a service to refuse him leave to appeal if this Appeal is clearly doomed to fail. This fetter on appeals helps to keep the Administration of Justice tidy. It is purely as an administrative protection to limit the


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number of appeals. However, it would be highly undesirable if the administrative convenience interfered with the judicial system.

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."

Order 76 Rule 1 Judicature (Court of Appeal) Rules provides that "any person who desires to appeal to the court shall give notice in writing which shall be lodged in duplicate with the Registrar of the High Court."

Sub rule (2) provides thus; "every notice under sub rule (1) of this rule shall, subject to rules 83 & 95 of these rules, be lodged within fourteen days after the date of the decision against which it is desired to appeal."

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;

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 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 the period originally fixed or granted may have expired."

Order 51 rule 6 of CPR provides thus;

"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 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.

The starting point is to determine whether or not sufficient reason has been shown for the failure to act in time. According to the affidavit

sworn by KOYUNGA ALFRED OMOK, the Applicant herein, especially paragraph 4, he contends that being dissatisfied with the judgment of the lower court, he instructed a lawyer from Wetaka, Kibirango & Co. Advocates to institute an appeal but failed to do so within the prescribed time without giving a clear reason. Annexure A & B requesting typed record of proceeding was adduced and filed on court record.

In addition, the Applicant states under paragraph 7 that negligence of the counsel from Wetaka, Kibirango & Co. Advocates failing to file an appeal on his behalf within the time prescribed by law shouldn't be visited on him as he is a lay person who still has an interest in prosecuting the Appeal.

In determining whether or not this application for extension of time within which to file Notice of Appeal should be granted, the paramount consideration is that there must be sufficient cause of failure of the Applicant to file and serve a memorandum of appeal within time.

The expression 'sufficient reason' is not defined anywhere in the rules however in the case of Rosette Kizito Vs- Administrator General & Others SCCA No. 9 of 1986 (1993) KALR 5, it was held that sufficient reason must relate to the inability or failure to take the particular step in time.

The applicant for extension of time has the burden of proving to court's satisfaction that for sufficient reason it was not possible for the

appeal to be lodged in the prescribed manner. This was the position in Devhi Vs- Diamond Concrete Company [1974] EA 493.

In Sabiiti Kachope & 3 Ors Vs- Margrat Kamuje, SCCA No. 31 of 1997, Order JSC (as he then was) held that for application of extension of time such as the present one, a mistake or negligence of the Applicant's counsel may be accepted as a proper ground for granting relief such as leave to file out of time.

It is trite law that parties are not visited with punishment arising from the mistake or inadvertence or negligence is in respect to procedural in which case ,the court would lean towards matters allowing mere accommodating the parties' interests without procedural irregularities brought about by counsel to preclude the determination of a case on the merits. The court must however be satisfied that the allegation of inadvertence of counsel is true and genuine. SEE Shabin Din versus Ram Parkash Anand (1955)22 EACA at 48

However, whether or not to extend time is discretionary. This was the position in J Hannington Wasswa Vs- M. Onyango Ochola [1992-1993] HCB 103 (SC) where it was held that the discretion to grant extension of time can be allowed in order for the appeal to be heard on its merits so that the dispute could be settled. The discretion must however be exercised judicially on proper analysis of the facts and the proper application of the law to the facts.

The grounds for extension of time as was illustrated in Shiv Construction Co. Ltd Vs- Endesha Enterprise SCCA No. 15/92 (UR); Delia Almeida Vs- Almeida SCCA No. 15/1990 (UR) and Gurdial Sing Dhillion Vs-Sham Kaur [1960] EA 795 (UR) the grounds include;

- a) Delay through counsel's absence. - b) Delay in obtaining court proceedings, which are subject of an intended appeal - c) Lack of stationary to prepare record - d) Mistake by counsel

In the case of Seperia Kyamulesiire Vs- Justine Bikanshire Bagambe, Civil Appeal No. 20 of 1995, where Justice Karokora JSC was of the view that "it is now settled that errors or omission by counsel are no longer considered fatal to the Applicant under rule 4 of the rules of this court unless there is evidence that the Applicant was guilty of dilatory conduct in the instructions of his lawyer.

I would like to point that judgment in the lower court was delivered on the 19th /08/2021, a letter requesting for certified, typed record of proceedings and judgment in Civil Suit No. 13 of 2020 was filed on the 25/08/2021. A difference of 6 days which in my opinion would amount to an exhibited interest in instituting an appeal and not inordinate delay. It was not an afterthought as intimated by the Respondent.

I also want to add that administration of justice normally requires that substance of all disputes should be investigated and decided

on their merits and those errors and lapses should not necessarily debar a litigant from pursuit of his rights. Where an applicant instructed a lawyer in time, his rights should not be blocked on the grounds of his lawyers' negligence /omission to comply with the requirement of the law.

However, several pertinent questions arose in the proposed memorandum of appeal filed on the 15th of July 2022 that desired further judicial investigations such that the matter is resolved till finality. In the interest of justice, such factors ought to be put into consideration.

I therefore find sufficient reason to grant leave to file an Appeal. In the circumstances of the case, refusal to grant leave to extend time to file Appeal and subsequently an Appeal would cause an injustice to the Applicant.

I have also considered Section 27 of the Civil Procedure Act cap 71 in as far as the award of costs is concerned, cost of this application shall abide the outcome of the main suit.

In the final result, an extension of time being sought is hereby granted. The Appeal is to be filed within 7 days from the date hereof.

I so order.


**JUDGE**

10/10/2023