Matovu v Makerere University & 2 Others (Civil Application 11 of 2021) [2022] UGSC 11 (28 July 2022)

Full Case Text

### THE REPUBLIC OF UGANDA

## IN THE SUPREME COURT OF UGANDA AT KAMPALA CIVIL APPLICATION NO. 11 OF 2O2L

(ARTSTNG FROM COURT OF APPEAL CrVrL APPEAL NO. 184 OF 2OL2l

DR. WASSWA JOSEPH MATOVU: : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : :APPLICANT

#### VERSUS

#### 1. MAKERERE UNTVERSITY

- 2. PROF. DDUMBA SSENTAMU - 3. RACHEL MIREMBE: : : : : : : : : I : : : : : : : : : : : : : : : : : : : : : : : : : : : : : RESPONDENTS

#### RULING OF RUBBY OPIO. AU/ERI, JSC

## Introduction:

Dr. Wasswa Joscph Matovu hereinafter the applicant brought the instant application under the provisions of Rule 2(2\, 5, 42(l\ of the Rules of this court seeking orders that he be granted an order extending time within which to appeal the decision of thc Court of Appeal in Civil Appeal No.184 of 2012.

#### Background:

The bricf background to the application is that the applicant is a researcher in thc I"t respondcnt's Faculty of Economics and Management. The applicant won a Post- Doctoral fellowship research grant from the organization for Social Science Rcsearch in Eastern and Southern Africa in 2006. The funds amounting to USD 1499.25 being the last batch of three disbursements was transferred to the I "t respondent's faculty account in Standard Chartered Bank (U) Ltd for onward disbursement to thc applicant. The 2"d and 3.d rcspondents were agents of the l"t respondent authorizcd to administer the 1"t respondent's faculty account and had a duty to transfer the funds to the applicant's account in Stanbic

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Bank. When the duty to act arose, the I"t and 2"d respondents denied knowledge of the whereabouts of the trzrnslerred funds.

After several complaints from the applicant, the respondents informed the applicant that his funds had been returned to the remitter as per the remitter's instructions. To the respondents, the bank was unable to credit the faculty account duc to incorrcct particulars of the account that were furnished by the applicant and that due to the irregularities, the funds were returned to the remitter on 2"a September, 2010. Consequently, the applicant filed I-i. C. M. C No.l45 of 2010 which was dismissed by the trial Judgc on grounds that thcre was no basis for issuing an order of Mandamus to pay the applicant the sum of USD 1499.25 since the funds in issue were returned to thc remitter. Additionally, the High Court also found that there were no proceedings conducted by the respondents nor any decision taken by them in which the applicant was denied a hearing as alleged. Dissatisfred with the High Court decision, the applicant appealed to the Court of Appeal which upheld the decision of the High Court. According to the applicant, he discovcred ayear later that the Court of Appeal had delivered its judgment to which he was aggrieved and since he was out of time to lodge an appeal to this court, he sought the leave of this court for extension of timc within which to lodge his appeal hence the instant application.

## Grounds for the application:

The application is based on thc grounds that on 16th July, 20 19, the Court of Appeal heard Civil Appeal No.184 of 2012 and reserved its judgment that was to be delivered on notice, and on 1 1th November,2Ol9, the Court of Appeal delivered its judgment. However, the applicant was never given noticc of thc judgmcnt datc and on 5th . January, 2021, when hc visited the

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registry of the Court of Appeal to follow up, he discovered that judgment had been delivered which he was dissatisfied with. He immediately lodged a notice o[ appeal and applied for the ccrtified copy of the judgment and proceedings which wcre availed to him on 6th April, 2021. The applicant remains discontcnt with the decision of the Court of Appeal and that the i4 days within which hc could have lodgcd his appeal to this court have expired. Hc is however still intcrested in appezrling against the judgment of the Court of Appeal and that the delay to lodge the appeal was not his fault. The applicant also contended that that he hled the instant application without dclay and in the interest of achieving the ends of justice, the time to appeal should be extended.

The application was also supported by an a,ffidavit in support deponed by the applicant which basically rc echoes the above grounds which I don,t intend to reproduce.

## Reply to the application:

The rcspondents opposed the application through an affidavit deponed by one Yusuf Kiranda, the University Secretary of the 'l"1 respondent.

In that reply, Mr. Kiranda avers that the application is frivolous, vexatious and brought in bad faith with a delibcrate intention to frustrate the respondent's rights as determined by thc High Court and affirmed by the Court of Appeal. It was his further contention that when the appeal at Court of Appeal was heard, thc applicant took no steps to establish the status of the matter for a period of more than a year despite being the appellant in the matter and as a result, thc applicant is guilty of inordinate delay in seeking the indulgcncc of this court. It was thus the contention of the respondcnts that thc application is generally misconceived, lacks merit and does not contain any sufficient grounds to warrant the grant of the

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orders sought therein. Mr. Kiranda further contended that the appeal that the applicant intends to pursue lacks mcrit and is not likely to succeed and that the 1st respondent shall continue to suffer prejudice owing to the applicant's refusal to pay costs awarded by the High Court.

#### Submissions:

When the application came up for hearing, parties were directed to file written submissions. The perusal of the record indicates that it,s only the applicant who complied with that directive as no submissions have been filed by the respondents. That being the position, I will proceed to consider the application on the basis of what has been filed.

It was the applicant's argument that when Civil Appeal No. 184 of 2Ol2 was heard by the Court of Appeal, the court reserved the delivery of the judgment to be delivered on notice. For over a ye€rr, there was no such notice and its then that the applicant chose to cross check with the registry of the Court of Appcal. At thc registry, the applicant discovered that judgment in the appeal had long been delivered to which he was dissatisfied. He immediately lodged a notice of appeal and requested for a ccrtified copy of the judgmcnt and proceedings which were availed on 16rh April, 2021. That though thc applicant filed a notice of appeal, he discovered that the 14 days within which to appeal had expired thus this application. The applicant furthcr argued that the delay was not his fault and that he hled the instant application without delay.

It was also the argument of the applicant that this application is not brought in bad faith neither is it an abuse of court process as he is interested in prosecuting his appeal in this court. The applicant also demonstrated that thc appeal he intcnds to prosecute in this court has merit as it raises important legal issues with a strong likelihood of success.

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He thus prayed that it is in thc interest of justice and preserving his right of appeal that this application should bc allowed.

#### Consideratio n:

In determining this application, i have fully considered the pleadings, the submissions on court record and the law in their entirety.

The instant application was brought under Rules 2(21,5, and 42(1) of the rules of this court. Rule 2(2) basically provides for the inherent powers of this court in as far as the court can make such orders necessar5z for achieving the ends of justice while rule 42( 1 ) provide for the form of application to be frled in this court. It would therefore appeErr that the pertinent iaw and which is of relevancy in the determination of this application is rule 5 of the rules of this court. Rule 5 provides thus;

"The court mag, for sufficient reason, extend the time prescibed bg these rules or by any decision of the court or of the Court of Appeal for the doing of anA act authoised or reEtired by these rules, whether before or after the expiration of that time and whether before or after the doing of the act; and ang reference in lhese rules to ang such time shall be construed as a reference to the time as so extended,',.

Further to the abovc, section 96 of the Civil procedure Act empowers this court to cnlarge time for a party to perform an act required by court if sufficient reasons are showed by such party. If such reasons are showed to the satisfaction of court, then such party can be granted leave or time can be extended by the court to perform such an act that the party ought to have performcd within thc statutory pcriod.

In Hadondi Daniel vs Yolam Egondi, Court ofAppeal Ciwil Appeal No, 67 of 2OO3, the Court of Appcal observcd that time can only be extended

if sufficient cause is shown and that sufficient cause must relate to the inability or failure to takc necessary steps, and that the applicant should not be guilty of dilatory conduct.

# Other circumstances that could amount to sufficient cause include mistake of counsel, illncss and ignorance of liling procedures by a party See, Philip Ongom Vs Catherine Nyero Owoto, SC Civil Appeal No. 14 of 2OO1.

This court has previously found that the principle governing applications for extension of time is that disputcs should be heard and decided on merit and that it would bc a dcnial of justice considering the circumstances of the case to shut the applicant out from exercising his rights. See Andrew Bamanya Vs Shamsherali Zraver SC Civil Application No. 7OI2OOl

To the instant application, it is the applicant's contention that his appeal at the Court of Appeal (Civil Appeal No.184 of 2Ol2) was heard on 16th July, 20 19 and the court reserved delivery of judgment on notice. Unknown to him, thc Court ol Appeal dclivered its judgment on 1 lth Novcmber, 20 19 without giving notice to the applicant. It was on 5th January, 2021 wtren the applicant visited the registry of the Court of Appeal only to be told that the judgment had been delivered in the appeal.

I observc that the time between thc datc of hearing the appeal and the delivery of judgment is roughly three and a half months. The appeal was heard on 16tt July, 20 1 9 and the applicant went to check on the status of his appeal on 5rh January, 2021. That is approximately one and a half years from the date of hearing the appeal! A party that is interested in pursuing their case cannot take more than a year without bothering to hnd out the position of their case. The laxity exhibited by the applicant in

foliowing up his case in my vicw has not been sufficiently explained in his pleadings.

I observe however that the applicant was not represented but a none represented litigant in my view would be more pro-active in establishing thc status of his case since hc/she may not be well grounded in the law and procedure. This is cvident in his application when he states that he was expected to file his appcal within 14 days from the date of judgment which is not the true position of the law. Section 79(1)(a) of the Civil Procedure Act requires that every appeal should be filed within thirty days from the date of the decree or order of the court, except where it is otherwise specifically provided in any other law.

Be that as it may, it is my vicw that the time specifications as provided under the law in performing specific acts are intended to guide parties in taking actions gcared towards the hearing and determination of matters to avoid unneccssary dclays. Conscquently, for any delay to be excused, it must be suffrciently cxplained.

Ordinarily, an order for enlargemcnt of time to file an appeal should be granted unlcss the applicant is guilty of unexplained and inordinate delay in secking the indulgence of thc court, has not presented reasonable explanation of his failurc to file the appeal within the time prescribed by statute or where the extension is prejudicial to the respondent or the court is otherwise satisfied that thc intcnded appeai is not an arguable one.

The other aspcct to consider however is that, it is not obvious that applications of such a nature should always be granted. Grant of extension of time is discrctionary and depends on proof of good cause showing that the justicc of the mattcr warrants such an cxtension. It is incumbent upon the court to carefully consider the materials before it and determine

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whcther it prescnts sufficicnt causc to warrant the grant of the orders sought. What constitutes sufficient cause will naturally depend on the circumstances of each case. See Shanti versus Hindocha and others lr973lDA2O7.

Where however an applicant has been culpable of inordinate delay, has not demonstrated that the intended appeal is meritous and likely to succced and that circumstanccs existed that prevented such a party to act in time, then such application shall not granted.

To the instant application, the applicant took over a year to cross check the status of his appeal only to find that judgment had been delivered. He has not demonstratcd any circumstances in the application that prevented him from following up on his matter in timc. Being a self-represented litigant, he should have taken the necessary effort to follow up his case specifically with the Registrar of the Court of Appeal as to when judgment was to be delivercd in his appeal. Courts of law are not open to only represented litigants. The same duty in my view is imposed on an unrepresented litigant in ensuring that he is timely appraised as to the status of his case. Failure to do so will tantamount to inordinate delay just like the case of thc applicant, to which, I hold him culpable.

As to whether the intended appeal presents good grounds with a possibility of success, at this stage, the only way to assess that possibility of success of the appeal is by perusing the relevant record of proceedings, the judgment of the court from which the appeal emanates and the memorandum of appeal in question.

Though no memorandum of appeal has becn filed as yet, I have taken time to peruse the judgment of thc Court of Appeal attached to the application marked annex'B'. It is evident from that judgment that the subject matter

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that forms the basis of contention between the parties herein were the funds that were sent to the 1st respondcnt for remittance to the applicant which were howcvcr remitted back to thc sender. That was the crux of the matter which is now extinguishcd following the directive by the sender that the funds should be remitted back which directive was complied with. From that background, I see no possibility of success of the appeal, coupled with the dilatory conduct of the applicant in following up his appeal at the court ofAppeal.

Overall, I hnd no merit in this application and accordingly dismiss it. In the premises, i dccline to grant the orders sought.

Each party shall meet its costs.

Dated at Kampala this.. )<\* .....day of Jt-a Ll .........2021

> RUBBY O O. AWERI JUSTICE OF THE SUPREME COURT.

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