Lunkuse & Another v Nassali (Miscellaneous Application 671 of 2024) [2025] UGHCLD 29 (11 February 2025)

#### **THE REPUBLIC OF UGANDA**

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

### **(LAND DIVISION)**

#### **MISCELLENEAOUS APPLICATION NO.0671 OF 2024**

#### **(ARISING FROM CIVIL APPEAL NO. 021 OF 2020)**

**(ARISING FROM MENGO CIVIL SUIT NO.746 OF 2009)**

**1. LUNKUSE PROSCOVIA**

**2. GRACE KASIRYE ::::::::::::::::::::::::::::::::::::::::::: APPLICANTS**

#### **VERSUS**

**CAROLINE NASSALI :::::::::::::::::::::::::::::::::::::::: RESPONDENT**

# **BEFORE; HON. LADY JUSTICE NALUZZE AISHA BATALA RULING**

#### *Introduction;*

- 1. This was an application by way of Notice of motion for orders that; - **i)** Leave be granted to the applicants to appeal the ruling delivered by Hon. Justice Naluzze Aisha Batala on the 7th July 2024 dismissing the applicant's preliminary objections in Civil Appeal No. 021 of 2020. - **ii)** Costs of this application be borne by the respondent.

## *Applicant's evidence;*

- 2. The application is supported by an affidavit deponed by Sadam Solomon Byoruganda which briefly states as follows; - i) That I have been involved and appeared in court and followed up Civil Appeal No. 021 of 2020 and the Misc. Application arising there under. - ii) That the applicants were successful parties in Mengo Magistrates Court vide Civil Suit No. 746 of 2009 that was delivered on the 26th of march 2012. - iii) That after the delivery of the judgement to the said suit, the respondent never appealed within the stipulated time but instead filed Misc. Application No.671 of 2016 seeking enlargement of time within which to appeal. - iv) That on the 9th of December 2019, court granted the respondent an order for enlargement of time within which to file the said appeal.

- v) The respondent did not file the said appeal until 2nd March 2020. - vi) That when the said appeal came for hearing on the 4th of March 2024, I raised a preliminary objection to the effect that the appeal was filed out of time and should be dismissed - vii) That on the 7th of march 2024, the learned trial judge ruled that the appeal was filed out of time but declined to dismiss it on grounds that the failure to file the appeal within time was due to the negligence of the counsel not the appellant. - viii) That the instant application raised triable grounds of appeal that warrant the grant of leave to appeal the decision of the trial judge.

## *Respondent's evidence;*

- 3. The application is responded to by an affidavit in reply deponed by Mark E. Kamanzi which briefly states as follows; - i) That I am the respondent's counsel in Civil Appeal No. 021 of 2020 and in the instant application well conversant with the facts pertaining to this matter.

- ii) That the main issue in the instant application is whether the trial judge erred in dismissing the applicant's preliminary objection in Civil Appeal No.021 of 2020 can be framed and addressed as one of the issues in the appeal without prejudice to the applicant. - iii) That the respondent filed an application for enlargement of time within which to file an appeal together with the memorandum of appeal that was endorsed by court on the 12th of July 2016. - iv) That the amended memorandum of appeal filed on the 2nd of March 2020 was an addition to the validated memorandum of appeal filed and endorsed by the court on the 12th of July 2016. - v) That the grant of enlargement of time by court on the 9th December 2019 validated by the memorandum of appeal that had been filed served and endorsed by court on the 12th of July 2016. - vi) That the learned trial judge could not dismiss the appeal when leave was granted to appeal out of time and a memorandum of appeal was on court record.

vii) That Civil Appeal No.020 of 2020 involves land or property ownership rights that are constitutional and cannot be dismissed on mere speculative technicalities.

## *Representation;*

4. The applicants were represented by Counsel Amos Matsiko of M/S Ortus Advocates whereas the respondents were represented by Counsel Pacuto Timothy of M/S M. Kamanzi & Co. Advocates. Both counsel filed their respective affidavits and written submissions which I have considered in the determination of this application.

### *Issues for determination;*

*Whether the applicants should be granted leave to appeal the ruling of court dated 7th march 2024?*

## *Resolution and determination of the issues;*

- 5. An order granting leave to file an appeal to the Court of appeal is discretionary in nature and the applicant ought to know that at one moment litigation has to come to an end. - 6. Court in **Across African clearing and forwarding Co. Ltd v Uganda Revenue Authority & Anor MA. No. 0003 of 2012** citing

the authority of **Degeya trading stores (U) ltd v Uganda Revenue**

**Authority CACA No.16 of 1996**, their Lordships of the Court of Appeal observed that an applicant seeking leave to appeal must show either that his intended appeal has reasonable chance of success or that he has arguable grounds of appeal and has not been guilty of dilatory conduct.

- 7. In the instant application, counsel for the applicants submits that he has arguable grounds of appeal which include that; - i) The learned trial judge erred in law and fact when after finding that the appeal was filed out of time, she erroneously relied on un pleaded ground of negligence of counsel and failed to dismiss the appeal. - ii) The learned trial judge erred in law and fact when she held that failure to file an appeal within a stipulated time was due to negligence of counsel. - iii) the learned trial judge erred in law and fact when she failed to dismiss Civil Appeal No. 021 of 2020 with costs. - 8. Counsel for the applicants relied on the decision of *Southern union insurance brokers and Ors vs Niko Insurance(U) ltd HCMA No. 568 of 2022* where court held that leave will normally

be granted where prema facie it appears that there are grounds of appeal which merit serious judicial consideration. an applicant seeking leave must show that he or she has arguable grounds of appeal. the court will only refuse leave if satisfied that the applicant has no realistic prospects of succeeding on appeal.

- 9. In reply counsel for the respondent submitted that the grounds raised by the applicants are not matters of law but rather an objection to the decision of the learned trial judge in exercise of her discretion and as such lack merit to warrant any serious judicial consideration at appeal. - 10. Counsel for the respondent submitted that the applicants' appeal has no prospects of success and relied on the decision in *Olweny Patrick & 2 Ors vs Oyoo Lungino & 3 Ors CA No. 0032 of 2018* where Hon. Justice Stephen Mubiru stated that the appellate court will only interfere with the exercise of discretion in very exceptional circumstances. in cases where the question relates to only exercise of discretion (not involving not a point of law) leave should generally be refused. - 11. The power to grant leave to file an appeal out of time is a discretionary one and the party seeking such discretionary orders

which are only given on a case to case basis, not as a matter of right, must satisfy the court by placing some material before the court upon which such discretion may be exercised.

- 12. I have scrutinized the submissions and evidence in support of the application, the main fact in dispute is that the learned trial judge erred in law and fact when she ruled that the mistake of counsel in filing the appeal should not be vested on the client. - 13. The trial judge based on sounding principles to reach to the said finding as stated by the supreme of Uganda in *Andrew Bamanya*

*v Shamsherali Zaver, S. C. Civil Appn. No. 70 of 2001*, the Supreme Court decided that the mistakes, faults / lapses or dilatory conduct of Counsel should not be visited on the litigant. The Court also held that the other principle governing applications for extension of time is that the administration of justice requires that all substances of disputes should be heard and decided on merit.

14. As to whether the said finding was pleaded or not? courts are aimed at ensuring that justice is served and achieved to the parties before them. Court shall not reach at erroneous findings just because a certain principle was never pleaded by the party, court

is mandated under the Civil Procedure Act to ensure that the ends of justice are met.

- 15. Therefore, I find that the allegation by counsel for the applicants that the trial judge erred in law and fact when she relied on negligence of counsel to reach at a finding to be misplaced. - 16. It is to the finding of this court that the instant application fails and is hereby dismissed with no orders as to costs.

# **I SO ORDER.**

## **NALUZZE AISHA BATALA**

## **Ag. JUDGE**

## **11th/02/2025**

## **Delivered Electronically via ECCMIS on the 11thday of February 2025.**