Lukozi v Simba Telecom Limited & Another (Miscellaneous Application No. 235 of 2019) [2020] UGCA 2063 (13 July 2020)


THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA

## AT KAMPALA

# **Miscellaneous Application No. 235 of 2019**

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Nelson Lukozi ::::::::::::::::::::::::::::::::::::

### **Versus**

| 1. Simba Telecom Limited | | |--------------------------------------------------------------------------|--| | <b>2. Meera Investments Limited ::::::::::::::::::::::::::::::::::::</b> | |

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Hon. Justice Remmy Kasule, Ag. JA sitting as a Coram: single Justice

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# **Ruling of the Court**

The applicant seeks extension of time, under Rules 5, 43 and 44 of this Court, within which to re-file and validate the Notice of Appeal which he had filed in Court on 02.10.2017 and then


withdrawn the same on 30.01.2018 and to serve the said Notice of $30$ Appeal upon the respondents out of time.

The application is supported by the affidavit of the applicant and opposed by the respondents.

Learned Counsel Mukwaya Kizito Deo appeared for the applicant and Alex Rezida for both respondents at the hearing.

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use of the same.

The background to the application is that on 13.02.2015, the applicant filed in the High Court at Kampala (Commercial Division) Civil Suit No. 72 of 2015 against both respondents as defendants. In the suit the applicant, as plaintiff, sought from the respondents, as defendants, special and general damages by reason of breach of On 13.12.2000 the applicant had sold and the contract. transferred on 22.01.2001 the ownership of the land property known as "Platinum House" comprised in FRV 4 Folio 2 situate at Plot 19 Market Street, Kampala City, to the 1<sup>st</sup> respondent. The 1<sup>st</sup> respondent had in turn transferred the same on 22.01.2001 to the $2<sup>nd</sup>$ respondent, who at the material time, was in occupation and

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The applicant asserted in the suit that the respondents had acted in breach of the contract of the sale of the suit property as he was never paid in full the agreed upon purchase price.

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The 1<sup>st</sup> respondent in defence to the suit asserted that the full purchase price was paid to the applicant, after which the applicant executed a transfer of the ownership of the suit property to the 1<sup>st</sup> respondent. The $1^{st}$ respondent later transferred the suit property to the $2^{nd}$ respondent and the latter had had no dealings at all with the applicant.

The 2<sup>nd</sup> respondent contended in his defence to the suit that the applicant had no cause of action at all against the $2^{nd}$ respondent.

Through High Court Miscellaneous Applications Nos. 324 of **2015 and 328 of 2015**, the $1^{st}$ and $2^{nd}$ respondents prayed for 60 orders that the applicant furnishes security for costs to each one of them as defendants in HCCS No. 72 of 2015.

On 23.06.2015 the High Court (H/W Opesen Thadeus, Asst. Registrar) allowed the applications for security for costs and made a joint order covering the two applications to the effect that the applicant (plaintiff to the suit) was to deposit in Court, within two months from date of the ruling, a sum of shs. $100,000,000=$ (one

hundred million shillings only) in cash or, in the alternative, he was to provide a bank guarantee from a reputable bank in the same amount in Court, as Security for costs. The applicant dissatisfied with this order lodged a Notice of Appeal on 14.01.2015 intending to appeal the same to the Court of Appeal.

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The applicant failed to deposit the said amount of money or to provide a bank guarantee to Court within the stipulated period of two months from 23.06.2015. On 13.10.2015, on the application $75$ of both respondents, the High Court (H/W Opesen Thadeus, Asst. Registrar) dismissed with costs **Civil Suit No. 72 of 2015** under $0.26$ r. $2(1)$ of the Civil Procedure Rules.

Pursuant to the dismissal of the suit, the applicant then lodged in the High Court, Commercial Division, **Miscellaneous Application** 80 **No. 805 of 2015,** to set aside the order of dismissal of the suit and the orders requiring deposit of security for costs. This application was subsequently dismissed by the same Court. The applicant then also lodged in the same Court a Summary Suit against the respondents namely **HCCS No. 828 of 2015** to recover the said 85 monies he had claimed in the dismissed HCCS No. 72 of 2015. This summary suit was also dismissed with costs by the same Court. In October, 2016 the applicant lodged in the same Court

Miscellaneous Application No. 998 of 2016 to set aside the dismissal of the summary suit **HCCS No. 823 of 2015**. This application was too dismissed with costs on 26.02.2017.

The same applicant then applied against both respondents to the High Court (Commercial Division) through **Miscellaneous Application No. 426 of 2017** seeking orders that the High Court sets aside the dismissal of **HCCS No. 72 of 2015** as well as the 95 orders requiring the applicant to deposit in Court security for costs.

High Court Miscellaneous Application No. 426 of 2017 was determined by His Lordship David Wangututsi of the High Court, Commercial Division, and was dismissed with costs to the

respondents on 20.09.2017.

On 05.10.2017 the applicant, represented by CR Amanya Advocates & Solicitors, lodged a Notice of appeal to the High Court, Registry, at Mbarara, intending to appeal against the ruling in

Miscellaneous Application No. 426 of 2017. 105

The same applicant, this time represented by another firm of Advocates, Messrs. Wamimbi, Advocates & Solicitors, withdrew in writing on 23.01.2018, the Notice of Appeal he had filed in Court

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on 02.10.2017 on the ground that he, the applicant had lost interest to pursue the intended appeal against the decision of His $110$ Lordship Wangutsi, J. in Miscellaneous Application No. 426 of 2017.

However on 23.10.2018, the applicant re-filed a Notice of Appeal against the same decision of His Lordship Wangutsi, J. in Miscellaneous Application No. 426 of 2017. He followed this with $115$ lodgement of a Memorandum of Appeal to this Court of Appeal on 01.04.2019 and the appeal was registered as No. 78 of 2018.

The applicant then lodged this application, the subject of this ruling.

- For the applicant, it is submitted, that this application be allowed, 120 because the mistakes that led to the situation necessitating this application, were mistakes of the lawyers the applicant had engaged to carry out his instructions, and the same ought not to be visited upon him to deny him justice. - It is the case for the applicant that originally he was being $125$ represented in his causes by lawyers Messrs. CR Amanya Advocates and Solicitors, then he switched to Messrs. E. Wamimbi

Advocates and Solicitors, and finally he engaged Messrs. Waiswa & Company, Advocates.

Messrs. E. Wamimbi Advocates and Solicitors, had on 28.01.2018 130 inadvertently withdrawn the Notice of Appeal that had been lodged in Court on 02.10.2017 intending to appeal the Court ruling in Miscellaneous Application No. 426 of 2017. They had instead lodged in the High Court, Commercial Division, Miscellaneous Application No. 60 of 2018 in which the applicant sought to set 135 aside the order dismissing HCCS No. 72 of 2015 on the ground that no security for costs had been deposited within the time set The applicant also prayed Court in the same by Court. Application No. 60 of 2018 to accept the ground that he could not raise the security for costs because he was away from Uganda 140 as he was in Dar-es-salaam, Tanzania, at the material time. The applicant further prayed Court to change the terms of the security for costs, by Court accepting to take a Certificate of Land Title of the land belonging to the applicant's mother, which land had value above the sum of money ordered to be deposited, instead of the 145 original order of requiring a bank guarantee in that sum.

Both respondents opposed the prayers of the applicant in Miscellaneous Application No. 60 of 2018 on the ground that it was

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res judicata, as the very same subject matter had been resolved upon on 20.09.2017 by the High Court in Miscellaneous 150 Application No. 426 of 2017.

The Assistant Registrar, High Court, dismissed Miscellaneous **Application No. 60 of 2018** on the ground that it was res judicata.

The applicant asserts that after having been advised by now his new lawyers, Messrs. Waiswa & Company, Advocates, he agrees 155 that the conduct and advice given to him by his previous lawyers, Messrs. E. Wamimbi Advocates and Solicitors to withdraw the Notice of Appeal of 07.10.2017; but instead pursue Miscellaneous Application No. 60 of 2018, which in fact was res judicata, was advice that was negligent and unprofessional. Yet he had 160 completely relied on their professional skill and knowledge of the law and Court procedures. He thus prays that the mistakes of his then lawyers, Messrs. E. Wamimbi, Advocates and Solicitors, be not visited upon him.

Accordingly the applicant prayed Court to extend the time within 165 which to refile the withdrawn Notice of Appeal, re-lodged in Court on 23.10.2018, and also extend the time within which to serve the said Notice of Appeal unto the respondents.

It was further contended for the applicant that this Court should appreciate the fact that the applicant's original Civil Suit has never 170 been determined on its own merits. This Court should allow this application to enable the applicant pursue the possibility of having his **Civil Suit No. 72 of 2015** determined on its own merits.

The respondents, through their learned Counsel, opposed the application. It was contended for them, that the application did not 175 have any merit at all and that on 07.06.2019, before this application was lodged in this Court on 28.10.2019, the 1<sup>st</sup> respondent had already lodged in this Court **Civil Application No. 174 of 2019;** which is still pending in this Court, to strike our

**Civil Appeal No. 78 of 2018** from which this application arises by 180 reason of the said appeal being incompetent in law.

It was further submitted for the respondents that none of them has ever been served with any proper Notice of Appeal and/or Memorandum of Appeal relating to that Civil Appeal No. 78 of

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> Finally, it was contended of the respondents, that whatever was done in withdrawing the Notice of Appeal filed in this Court on 02.10.2017; and in lodging and pursuing in the High Court Miscellaneous Application No. 60 of 2018, was done with full- knowledge, understanding, consent and participation of the 190 applicant. There was therefore no merit in the applicant asserting that whatever was so done was a mistake of his then Counsel and the same ought not to be visited upon him.

Rule 5 of the Rules of this Court provides that:

## "5. Extension of Time:

The Court may, for sufficient reason, extend the time limited by these Rules or by any decision of the Court or of the High Court 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 extended".*

This Court exercises its judicial discretion in applying this rule to the circumstances laid before the Court. In exercising the said discretion, the Court on the basis of the facts before it, resolves $205\\$ whether or not, to allow or disallow the application. The Court will only allow the application, if it finds on the facts before it, that the applicant has established "sufficient reason" for having failed to do what that applicant was supposed to do within the time

describe by the law. See: Supreme Court of Uganda Civil $210$ Application No. 09 of 2017: James Bwogi & Another vs Kampala City Council & Another (Nshimye, Ag. JSC) (unreported).

What constitutes "sufficient reason" is again decided upon by the court in the exercise of the stated unfettered discretion vested in $215$ the Court. The Court will accept or reject a reason put forward as having prevented the applicant from taking the essential step in time, or other reasons, why time should be extended or not extended, for doing a particular act. An application lodged in Court promptly is most likely to attract the sympathy of the court 220 than the one brought after unexplained inordinate delay. But even where the application is unduly delayed, the Court may grant an extension of time, if shutting out the appeal may appear to cause an injustice. See: Supreme Court Civil Application No. 27 of 2007: Boney M. Katatumba vs Waheed Karim (Administrator 225

of late Suleiti Haji's Estate) (Mulenga, JSC.)(RIP).

It may also be added, that a Court of law, will not exercise its discretion to advance the cause of a party who is committing abuse of Court process in his or her conduct to Court.


It is the case of the applicant, that whatever caused the necessity 230 for him to make this application for extension of time was due to the mistake and/or inadvertence of his then lawyers, Messrs. E. Wamimbi and Company, Advocates, and that he should not be consequences $\quad\text{ of }\quad$ that mistake and/or visited with the For him, he brought his case to Court seeking inadvertence. 235 substantial justice, and he prays to this Court to enable him get that substantial justice.

The mistake of Counsel, alleged by the applicant, is that the said lawyers he had engaged, advised him to withdraw the Notice of Appeal dated 02.10.2017 which he had lodged in Court, intending 240 to appeal the ruling of His Lordship Wangutsi, J delivered on 20.09.2017 in Miscellaneous Application No. 426 of 2017. The said lawyers instead advised him to file and pursue in the High Court Miscellaneous Application No. 60 of 2018 as the most appropriate remedy. The said application was however dismissed 245 for being res judicata on 23.06.2018. It is after the dismissal of that application that the applicant realized that his then Counsel had made a mistake in so advising him.

The Supreme Court of Uganda has held in a number of decisions,

that mistakes of counsel should not be visited on the applicant so 250

as to deny that applicant the right to appeal. This is because of the need for Courts of law to render substantive justice to the parties before those Courts. See: Horizon Coaches Ltd vs Supreme Court Civil Edward Rurangaranga & Another: Application No. 18 of 2009. Mulowooza & Brothers Limited vs $255$ N Shah & Company Limited: Supreme Court Civil Application No. 20 of 2010 and also Tropical Africa Bank Limited vs Grace Were Muhwana: Supreme Court Civil Application No. 03 of **2012.**

- It is however also the law, on the basis of the above quoted case 260 authorities, that before the Court can exercise its discretion, one way or the other, it must be satisfied that the mistake or inadvertence of Counsel is excusable. This is because a mistake as to the provisions of the law, in general, affords one no excuse. Everyone is presumed to know the law. Accordingly, the Court 265 being prayed to exercise its discretion, so as to hold that the mistake or inadvertence of Counsel, should not be visited upon the client, must furnish plausible grounds to Court, as to why Counsel's conduct in the circumstances, is excusable. - In the case of the applicant in this application, the applicant was 270 properly advised by his counsel to pursue an appeal against the

ruling of His Lordship Wangututsi, J. delivered on 20.09.2017 in High Court Miscellaneous Application No. 426 of 2017. Thus the applicant lodged a Notice of Appeal on 02.10.2017 intending to appeal.

The applicant however, did not take steps to pursue the intended appeal for a whole four months from 02.10.2017 up to 23.01.2018. He instead changed from his previous lawyers Messrs. C. R. Amanya Advocates and Solicitors to new lawyers Messrs. E. Wamimbi Advocates & Solicitors, who on 23.01.2018 wrote to the Asst. Registrar, High Court, that the applicant, as the intending appellant:

> *"....................................* in the above matter having lost interest to pursue the same.

Whereof we humbly pray for the same to be withdrawn."

The Registrar accordingly withdrew the Notice of Appeal on 30.01.2018.

The applicant does not assert that the letter withdrawing the Notice of Appeal dated 02.10.2017, was written by his then lawyers, without his instructions or without his consent and 290 knowledge of its contents. The lawyers themselves, Messrs. E.

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Wamimbi Advocates & Solicitors have not in any way supported the assertion of the applicant. That being the case, then the applicant has no basis to assert that his then lawyers "inadvertently withdrew the said Notice of Appeal.........". The Notice of Appeal was withdrawn by the said lawyers on the instructions and participation of their client, the applicant.

With regard to High Court Miscellaneous Application No. 60 of 2018, the same was lodged in Court on 30.01.2018, the very day the Notice of Appeal was withdrawn, again on the instructions, 300 support and participation of the applicant. The applicant did all this after he had appreciated the merits of pursuing the said application. The fact that his then lawyers, Messrs. E. Wamimbi, Advocates & Solicitors, advised him as to the merits of this application cannot be taken to be a mistake of Counsel upon the 305 client. It is not the law that whenever Counsel advises a client on an issue to be adjudicated upon by Court then it becomes a mistake of Counsel, if the Court; decides otherwise than what Counsel advised the client.

In High Court Miscellaneous Application No. 60 of 2018, the 310 same was lodged in Court on the instructions, support and participation of the applicant, as is exemplified by the pleadings in

the application. The applicant in the affidavit in support of the application, set out the fact that he was in Dar-es-salaam at the material time, as the cause of his failure to mobilize the funds to deposit in Court, within the time set by the Court, as security for costs in HCCS No. 72 of 2015.

The applicant further participated in the application by adducing evidence of powers of Attorney executed by the applicant's mother,

- one Namakula, in favour of the applicant allowing him to use the 320 certificate of title of her land, together with the valuation report as to its value, by depositing the same in Court as security for costs, in substitute of the earlier Court Order, requiring the applicant to pay cash as security for costs. - Having given the necessary instructions as well as support and 325 participation in the filing and prosecution, up to the very end of High Court Miscellaneous Application No. 60 of 2018, the applicant cannot be heard to assert that the lawyers, who represented him in the application, acted negligently and unprofessionally, and that their alleged so acting, should not be 330 visited upon him.

On the facts before this Court, the High Court determined, on its merits High Court Miscellaneous Application No. 60 of 018 on

23.06.2018 and the said Court decision, until it is set aside by appeal or other lawful Court process, is binding upon the applicant 335 as a party to that application. The allegation of the applicant that the then his Counsel in this application, Messrs. E. Wamimbi Advocates & Solicitors, acted negligently and unprofessionally in the matter, is no ground for him as the applicant, for not being bound by the decision made by the Court in that application. 340

The applicant, on his own choice, resolved not to pursue the appeal against the ruling in High Court Miscellaneous Application No. 426 of 2017 in respect of which he had lodged the Notice of Appeal on 02.10.2017, which Notice of Appeal the applicant withdrew on 30.01.2018. The applicant, instead opted to pursue High Court 345 Miscellaneous Application No. 60 of 2018 which Court conclusively determined on its own merits on 23.06.2018.

This Court finds it an abuse of Court process, that is abuse of legal procedure, that the applicant should now, after Miscellaneous Application No. 60 of 2018 had been decided against him on 350 merits, be allowed to revert to an appeal process under the purported mistake of his former Counsel. The applicant cannot revert to the Notice of Appeal he filed on 02.10.2017, and then withdrew from Court on 30.01.2018 so that he can pursue his

appeal against the decision of the High Court in Miscellaneous 355 Application No. 426 of 2015 made on 20.09.2017, that is three years ago to date.

I am unable to find merit in this application. The same stands dismissed with costs to the respondents.

Dated at Kampala this $\frac{1}{3}$ day of $\frac{1}{3}$ day of $\frac{1}{3}$ .................................... 360

Remmy Kasule **Ag. Justice of Appeal**