Malinga and 2 Others v Innonget (Civil Miscellaneous Application 19 of 2024) [2024] UGHC 595 (20 June 2024)

The Republic of Uganda

In the High Court of Uganda Holden at Soroti Miscellaneous Application No. 19 of 2024

(Arising from Civil Appeal No. 0035 of 2023)

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(Arising from Civil Suit No. 001 of 2018 of the Chief Magistrate's Court of Kumi at Bukedea)

- 1. Malinga Frederick - 2. Agwang Naume

3. Olupot Alex

Versus

Innonget Robert ::::::::::::::::::::::::::::::::::::

Before: Hon. Justice Dr Henry Peter Adonyo

## Ruling

1. Introduction:

This application was brought by way of a Notice of Motion under Sections 25 79(1)(a), 96, 98 and of the Civil Procedure Act, Cap 71, and Section 33 of the Judicature Act, Cap 13 for orders that the applicants be granted leave to file and serve a memorandum of appeal in cross-appeal out of time against the judgement and decree of the magistrate grade one court of Bukedea issued in

Civil Suit No. 001 of 2018 and the costs of this application be provided for. 30

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2. <u>Grounds of the application:</u>

Malinga Frederick deponed an affidavit supporting the application on his and the $3^{\ensuremath{\text{rd}}}$ applicant's behalf, setting out the grounds upon which this application is

These, in brief, are that,

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a) The applicants were defendants in Civil Suit No. 01 of 2018 in the grade one court of Bukedea, but they filed a counterclaim to declare the respondent's claim over the suit land fraudulent, among other things. (Annexed copy of the written statement of defence with counterclaim marked as "B")

b) At the time of filing the main suit, the written statement of defence, and the counterclaim, Agwang Naume, the second applicant (now deceased), was alive, but they have filed a separate application for rectification of the lower court record.

c) The Grade One magistrate's court on 30<sup>th</sup> January 2023 entered judgment in Civil Suit No. 01 of 2018, but none of the parties were successful. (a copy of the judgement marked as "C").

d) When the respondent instituted the current appeal against the said decision, the applicants instructed Ms. Lulecera and Company Advocates, who represented them in the lower court, to defend the appeal. Lulecera was counsel in personal conduct.

- e) On three occasions when the appeal was called, Counsel Lulecera never appeared in court, although each time, he kept telling the applicants that there were delays and traffic jams on his way to court, which position the applicants kept reporting to the court. - f) On the last court appearance, when the court issued directions to file submissions on appeal, the applicants informed Counsel Lulecera to attend the court and peruse the file as advised by the court, but it was in vain. - g) The applicants instructed their advocates, Ms. Asire and Company Advocates, who advised the applicants to cross-appeal because the applicants had filed a counterclaim, which the trial court did not make a pronouncement on. - h) The time to file a memorandum of appeal in cross appeal elapsed but the applicants are aggrieved with the judgement and decree and wish to cross appeal against it. - i) The cross-appeal is likely to be successful. (A copy of the draft memorandum of appeal in cross-appeal marked as "D"). - j) The applicants could not lodge the cross-appeal in time because their former lawyers misrepresented to them that they would represent them by defending the appeal, whereas they did not.

- k) There was cause for the non-filing of the cross-appeal within the prescribed time. - l) Lapses or delays by the advocate ought not to be visited on the innocent litigant.

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3. Objection:

On the other hand, the respondent deposed an affidavit in reply opposing the application. Here below are the opposing grounds in brief: that,

- a) The suit land was given to the first applicant, the only surviving administrator of the estate of the late Emong Sulaiman, who became the successful litigant in Civil Suit No. 001 of 2018. - b) The 3<sup>rd</sup> applicant is in active and actual possession of the suit land since he was never ordered by the trial court to vacate the suit land, and the $1<sup>st</sup>$ applicant has never taken any step to evict the $3<sup>rd</sup>$ applicant from 30/12/2023 when the lower court delivered its judgement. - c) The applicants have never instructed counsel Lulecera to represent them in Civil Appeal No: 0035 of 2023 because they have never filed any document as proof that the applicants instructed him to represent them or notice of instructions in Civil Appeal No: 0035 of 2023 and with the help of the clerk of this Court, the respondent checked on the court file and found out on 29/2/2024 that the said Counsel Lulecera has never filed notice of instructions or any document in Civil Appeal No:0035 of 2023.

- d) The applicants are fronting and blaming Counsel Lulecera, who represented them in the lower, as a scapegoat. - e) The respondent is reliably informed by his lawyers that it is not automatic for lawyers who represent someone in the lower court to carry such representation to the higher court. - f) The applicants have been representing themselves in Civil Appeal No: 0035 of 2023 until they instructed the current lawyers, who filed their notice of instructions on $30/1/2024$ . (Annexure "A" attached hereto). - g) The applicants kept mentioning Counsel Lulecera as a trick to get adjournments, delaying and frustrating the respondent's appeal. - h) The applicants have never wished to make any appeal since they are the ones in possession of the suit land because the 1<sup>st</sup> applicant supported the 3<sup>rd</sup> applicant to take the suit land at the lower Court. - i) The Lower Court heard and pronounced itself on the applicant's counterclaim, which was dismissed. See annexure "B", pages 13 and 14 of the judgment of the lower Court. - j) Since the applicants' counterclaim was heard and determined by the lower court, now the applicants do not have and did not have a reason to make a cross-appeal which is not allowed at this point or the High Court.

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k) There has been unreasonable delay by the applicants in bringing the current application since this Court gave a schedule and/or timeframe to the parties to file their respective written submissions.

- I) There has been an unreasonable delay by the applicants in making a decision to find a lawyer to represent them in Civil Appeal No: 0035 of 2023. - m) The applicants' intended cross-appeal does not have a chance of success. - n) The delay by the applicants in filing an appeal cannot be blamed on their former lawyer, yet they had not instructed him in Civil Appeal No: 0035 of 2023; the applicants take full responsibility for their matter. - 4. Affidavit in Rejoinder by 1<sup>st</sup> Applicant:

The 1<sup>st</sup> applicant filed an affidavit in rejoinder, which spotlighted that;

- a) None of the parties was successful in Civil Suit No. 001 of 2018. - b) The applicants engaged counsel Lulecera because the first applicant, on the two occasions that the appeal was called, informed the court that their lawyer was on his way to court. - c) There was no delay in instructing the current lawyers, M/s Asire & Co. Advocates, which was effected the second time the appeal came up. - d) The applicant's delay in preferring a cross-appeal resulted from counsel Lulecera's misrepresentation that he was representing them in the appeal. - 5. Representation:

Counsel Mayende Patrick represented the applicants, while Counsel Amulen Hellen represented the respondent. 30

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## 6. <u>Submissions:</u>

The parties filed written submissions to support their respective cases. While they are not reproduced herein, I have studied and grasped what is contained in them so as use them in determining this application.

7. Issues:

One issue suffices in assessing and determining the application thus; 10

Whether there is a proper case for the applicants to be granted leave to file an appeal against Civil Suit No. 001 of 2018 of the Chief Magistrate's Court of Kumi at Bukedea out of time or time?

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## 8. <u>Resolution</u>:

This application was brought under Section 98 of the Civil Procedure Act (CPA), which grants this Honourable Court with the inherent powers to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court and Section 33 of the Judicature Act, Cap 13, which empowers this court to grant absolutely or on such terms and conditions as it thinks just all such remedies as any of the parties to a cause or matter is entitled to in respect of any legal or equitable claim properly brought before it, so that as far as possible all matters in controversy between the parties may be completely

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and finally determined and all multiplicities of legal proceedings concerning any of those matters avoided.

This application was also brought under Section 96 of the Civil Procedure Act (CPA), which enjoins the court with discretion, from time to time, to enlarge a period, even though the period originally fixed or granted may have expired, where any period is fixed or granted by the court for the doing of any act prescribed or allowed by this Act. - Invariably since this application arises from a civil matter, it is trite law that the $\mathsf{S}$ duty and burden of proof lie on the applicants because they seek a decision of this court in their favour. (See: Sections 101 and 102 of the Evidence Act, Cap 6). The applicants seek leave of this court to file a cross-appeal out of time in Civil Appeal No. 0035 of 2023. - The applicants contend that they could not file the cross-appeal on time because 10 their previous counsel, Lulecera, never appeared in court on three occasions when Civil Appeal No. 0035 of 2023 was called, although each time, he kept telling the them that there were delays and or traffic jams on his way to court, which position, the applicants contend made them not to have legal counsel, 15 - though they kept reporting to court. The applicants further averred that their newly instructed advocates, Ms Asire and Company Advocates, advised them to cross-appeal because they had filed a counterclaim in their written statement of defence, which the trial court did not pronounce itself on. - The applicants averred that the delays and lapses to file a memorandum of appeal 20 in cross-appeal should not be visited on them because their advocate, Counsel Lulecera, misrepresented defending their appeal but did not show up.

The further applicants averred that they are aggrieved with the judgement and decree of the lower court and wish to cross-appeal against it.

- In response, the respondent contended that the applicants represented 25 themselves in Civil Appeal No: 0035 of 2023 until they instructed the current lawyers who filed their notice of instructions on 30<sup>th</sup> January 2024 (Annexure "A" attached hereto) though before that they kept mentioning the names of Counsel Lulecera as their counsel who did not turn up in a court at all and this was a trick - to get adjournments, delay and frustrate the respondent's appeal. 30

- The respondent further contended that there had been unreasonable delay $\mathsf{S}$ caused by the applicants in instructing counsel to represent them in Civil Appeal No: 0035 of 2023 and that their intended cross-appeal does not have a chance of success and so this application shold be dismissed with costs. - 9. Determination: - Section 79(1)(a) of the CPA makes provision for time limitation for appeals as it 10 states that except as otherwise specifically provided in any other law, every appeal shall be entered within thirty days of the date of the decree or order of the court.

Further, Section 96 of the CPA enjoins this court with the discretion from time to time to enlarge any period which is fixed or granted by the court for the doing of 15 any act prescribed or allowed by this Act, even though the period originally fixed or granted may have expired.

The discretion of the court is not fettered in such applications as long as sufficient reason is disclosed to justify the court's exercise of its discretion in favour of the

applicant (see: William Odoi Nyandusi Vs Jackson Oyuku Kasendi C/A 0032/2018). 20 The discretion must, however be exercised judicially on proper analysis of the facts and the proper application of the law to the facts (see: J Hannington Wasswa v M Onyango Ochola [1992-1993] HCB 103 (SC))

According to the holding in the case of Hodandi Daniel vs Yolamu Engondi CA. CA

No. 67 of 2003, the applicant, such as the instant ones must show sufficient cause 25 as such applicant for an extension of time has the burden of proving to court satisfaction that, for sufficient reason, it was not possible for the appeal to be lodged in the time prescribed. (see: Delvi v Diamond Concrete Company [1974] EA $493).$

Ordinarilyly, sufficient reason for an extension of time must relate to the inability $5$ or failure to take a particular step. (see: Mugo and others v Wanjiru [1970] EA 481 and also (Rosette Kizito Vs Administrator General and Others SCCA. NO.9/1986). In the case of Mulindwa George William versus Kisubika Joseph SCCA No. 12 of 2014, the Supreme Court observed that;

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"The applicant seeking for extension of time has the burden of proving to the Court's satisfaction that, for sufficient reasons, it was not possible to lodge the appeal in the prescribed time. Sufficient reason must relate to the inability or failure to take a particular step in the proceedings. Each application must be viewed by reference to the criterion of justice, and it is important to bear in mind that time limits are there to be observed, and justice may be defeated if there is laxity. Factors to be considered in an application for an extension of time are:

The length of delay; i.

The reason for delay; ii.

The possibility or chances of success; iii.

The degree of prejudice to the other party. iv. Once a delay is not accounted for, it does not matter the length of the delay. There must always be an explanation for the period of delay."

The applicants have attributed their delay in filing their cross-appeal in Civil Appeal No. 0035 of 2023 to misrepresentations of their lawyer, counsel Lulecera, who they aver had personal conduct of their matter but never showed up on the three occasions when the appeal was being mentioned.

They contended that the mistake of their lawyer should not be visited on them, 30 arguing that when they instructed another lawyer, Ms. Asire and Company

- Advocates, it is when they were advised to cross-appeal because they argued that $\mathsf{S}$ their counterclaim in Civil Suit No. 001 of 2018 had not been considered by the trial magistrate but that at that time of the new lawyers' advice, the time had lapsed for cross-appealing. - I have perused and carefully examined the proceedings in Civil Appeal No. 0035 of 2023 and have not found any documentary proof supporting the applicants' 10 averment that Counsel Lulecera had personal conduct of their matter on appeal. Whereas it is a settled position of the law that the mistake of counsel should not be visited onto the innocent litigant (see Gurdial Singh Dhillion v Sham Kaur [1960] EA 795), in my view, there must be proof that counsel was engaged for such a 15 - mistake to persuasively be attributed to him or her, which if true would absolve the innocent litigants of that mistake.

In the instant case, it is hypothetical and speculative for the applicants to assert that because counsel Lulecera represented them in Civil Suit No. 001 of 2018 in the Chief Magistrate's Court of Kumi at Bukedea, this court should take,

moreover, without any cogent proof that fact as notice of his continued 20 instructions in the appeal before this Honourable Court for his alleged mistake to be sufficient cause for the inability of the litigants to have taken a step in filing a cross-appeal.

I must point out it is important to have proof of advocate instructions as this is

even augmented by Regulation 2 (1) of the Advocates (Professional Conduct) 25 Regulations S.1 267-2, which provides that;

## "No advocate shall act for any person unless he or she has received instructions from that person or his or her duly authorised agent."

In this court there is no evidence on record showing that counsel Lulecera had instructions from the applicants to represent in court. 30


- While it is true that Civil Appeal No. 0035 of 2023 was mentioned in court on $\mathsf{S}$ 21/06/2023, 13/09/2023, 30/10/2023, and 30/01/2024, and the only lawyer mentioned is Mayende Patrick and not Lulecera or any other with the instructions for the new lawyers now on record filed on 29<sup>th</sup> January 2024 and not prior. - Whereas the appellants did not appear in court on all the occasions, for the times they did appear, they never mentioned anything to do with counsel Lulecera's 10 failure to show up in court or that they had instructed him to represent them in court. It is trite that counsel must appear in court upon full instructions and authority from his client.

Failure of an advocate to appear in court with full instructions will mean that such

- counsel is acting on his/her own and would invariably not be entitled to any costs. 15 While it is a common practice that counsel may receive instructions orally, the parties have not provided any such proof since even the court record does not bear their averments out that counsel Lulecera was in the personal conduct of their appeal. - It should be pointed out that the judgement in Civil Suit Number 001 of 2018 of 20 the Chief Magistrate's Court of Kumi at Bukedea was delivered on 30<sup>th</sup> January 2023.

The appeal was filed on 28 February 2023. The notice of change of instructions filed in court on 29<sup>th</sup> January 2024, M/s Asire and Company Advocates and the

new lawyer advised on the cross-appeal. 25 This application was filed on 1<sup>st</sup> February 2024, yet Civil Appeal No. 0035 of 2023 was mentioned in court on 21/06/2023, 13/09/2023, 30/10/2023, and $30/01/2024$ .

From the dates sequenced above, it is clear to me that there has been an inordinate delay in filing a cross-appeal and the applicants have failed on a 30

balance of probabilities, to provide any convincing, persuasive and plausible $\mathsf{S}$ cause for the clearly observable delay.

As a result of the above, I would find and conclude that this application was brought in as an afterthought for no valid reason and as such it is unmerited. It is for that reason dismissed with costs awarded to the respondent.

10 I so order.

Hon. Justice Dr Henry Peter Adonyo

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Judge 20<sup>th</sup> June, 2024

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