Miwanda and 9 Others v Kasule and 2 Others (Civil Application No. 85 of 2021) [2023] UGCA 65 (21 February 2023)

## THE REPUBLIC OF UGANDA

### IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

## **CIVIL APPLICATION NO. 85 OF 2021**

[*Arising out of Civil Appeal No. 83 of 2021*]

- 1. MIWANDA IGNATIUS - 2. KIKABI PAUL - 3. KAZIRAKIEDWARD - 4. JORAM MUSOKE - 5. KAMASHANYU HARRIET - 6. CHRISTIAN FAMILY HELPERS LTD ::::::::::::: APPLICANTS - 7. CHRISTIAN WOMEN CONCERN - 8. CHRISTIAN FAMILY HELPERS LTD T/A ST. BARNABAS PRIMARY SCHOOL - 9. CHRISTIAN FAMILY HELPERS LTD T/A **MAAMA HELEN WAMALA FUND** - $10.$ CHRISTIAN FAMILY HELPERS LTD T/A **MUYENGA HIGH SCHOOL**

## **VERSUS**

- 1. KALULE HENRY LUCKY - 2. LWANGA CHARLES

<table>

3. LILIAN NANFUKA KAGIMU ::::::::::::::::::::::::::::::::::::

CORAM: HON. JUSTICE RICHARD BUTEERA, DCJ HON. JUSTICE CATHERINE BAMUGEMEREIRE, JA HON. JUSTICE STEPHEN MUSOTA, JA

#### **RULING OF COURT**

This application is brought under Rules 5, 43(1) & (2) and 44 of the Judicature (Court of Appeal Rules) Directions S.1 13-10. The applicant is seeking for orders that;

- 1. The time for lodging and serving the Notice of Appeal in Civil Appeal No. 83 of 2021 be extended or that the Notice of Appeal which was filed on the 26th day of October 2O2O in High Court (Family Division) Civil Suit No. 573 of 2O16 be validated; - 2. The time for filing and serving the Record and Memorandum of Appeal and the Appeal in Civil Appeal No. 83 of 2021 be extended or in the alternative, Civil Appeal No. 83 of 2021 which was fiIed on 24thMarch 2O2I and served on the respondents on 25th. March 2O2l be validated; and - 3. The costs of and incidental to this application abide the result of the appeal.

The grounds upon which the application is premised are set out in the Notice of Motion as follows:

- 1. The l"t Notice of Appeal which was lodged on behalf of the Applicants date d 26th October 2O2O was picked from the High Court registry by unknown persons and could thus not be lodged in this court and served within the time prescribed by law; - 2. The 2"d Notice of Appeal which was lodged in the High Court on behalf of the applicants dated 18th November 2O2O was filed out of the time prescribed by law and was not served on the respondents except as part of the Record of Appeal in Civil Appeal No. 83 of2O2l. - 3. In both the 1"t and 2"a Notice of Appeal, the applicants were stated to be appealing against part of the decision of the trial

Judge without specifying the part complained of as required by the Rules of this court;

- 4. The lodgment of the above two Notices of Appeal is attributable to the professional mistakes of the Applicant's former advocates and the loss of the l"t Notice of Appeal is attributable to the negligence of the High Court Registry staff; - 5. The applicants have sufficient reasons for the failure to lodge and file proper Notice of Appeal in the circumstances. - 6. The applicants are not guilty of any dilatory conduct; - 7. Tt:e applicants are desirous of pursuing Civil Appeal No. 83 of 2021; - 8. It is just and equitable that the orders sought herein be granted.

The respondents filed 3 affidavits in reply deponed by Kalule Henry Luclry, Lwanga Charles and Lilian Nanfuka Kagimu. In Kalule Henry Luc1gr's affidavit in reply, he raised a preliminary objection that the applicant herein has no locus to depone an affidavit as a Director of the 6th, 7th, 8tt,,9th and lOth applicants having been expunged off the register of companies by Uganda Registration of Services Bureau.

He stated that the respondents are the duly appointed administrators of the estate of the late Hellen Wamala Darlia Nanfuka and argued that the applicants have not demonstrated sufficient cause for their failure to file the Notice of Appeal within time.

# Background

The respondents are blood relatives to the late Hellen Wamala Darlia Nanfuka; the l"t and 2"d respondents are brothers to the deceased while the 3'd respondent is the deceased's niece and customary heir.

# Representation

At the hearing of the application, Counsel Kibuuka Rashid appeared for the applicants while Counsel T\rmwesirye Francis appeared for the respondent.

# Applicant's submissions

Counsel submitted that this court has inherent powers to make any orders that are necessary for attaining ends of justice and prevent abuse of court process. Counsel submitted that the l"t Notice of Appeal which was lodged on behalf of the applicants dated 26th October 2o2o was picked from the High Court registry by unknown persons and could not be lodged in this court and served within time prescribed by law. The 2"d Notice of Appeal lodged in the High Court on 18th November 2O2O was filed out of time and not served on the respondents. That the l"t Notice of Appeal had been served on the respondents on 27th October 2O2O.

Counsel argued that the lodgment of the two Notices of Appeal is attributable to the applicant's former advocates and the loss of the l"t Notice of Appeal is attributable to the negligence of the High Court registry stuff. That the above irregutarities in filing and service of the Notice of Appeal were discovered by the Applicants in the process of preparing their application for orders of stay of execution. Further, that the applicants' current lawyer also advised the applicants that both their Notices of Appeal were not served on the respondents after endorsement by the registrar and that they indicated that the applicants were appealing against part of the decision without specifying the part complained of, which was a grave omission.

Counsel submitted that this application is intended to address the applicant's former lawyer's mistakes, which the applicants had no hand in. that the specific parts of the judgment which are appealed against are stated clearly in the applicant's Memorandum of Appea1 filed in this court on 24tn March 2O2L and served on the respondents s part of the record of appeal.

# Respondent's submissions

Counsel submitted that the High Court delivered its judgment on the 22"a of October 2O2O and being dissatisfied with the judgment, the first Notice of Appeal was filed and it is dated 26th October 2O2O together with the letter requesting for the record of proceedings. On 27th October 2O2O, the applicants served the Notice of Appeal before the sarne was lodged in the court registry and endorsed by the registrar. The applicants liled a second Notice of Appeal dated 19th Novemb er 2O2O out of time. On 27th Novemb er 2O2O, the respondents filed Civil Application No. 319 of 2O2O to strike out the applicant's Notice of Appeal and hence this application to validate the Notice of Appeal.

Counsel submitted that the law on extension of time was discussed in the case of Tushabe Cris vs Co-operative Bank Ltd (In Liquidation) Supreme Court Civil Application No. 08 of 2018. The Supreme Court emphasized that for court to exercise its inherent powers, the applicant must show sufficient cause to wit inability to take an essential step within the timelines provided in the rules.

Counsel argued that the professional mistake or dilatory conduct of counsel was relied on by the applicants to explain the failure to file and serve a valid Notice of Appeal. That such defence is not available to litigants who try to collude with lawyers against the rules of court. That the applicants are not bonafide litigants and they change and blame lawyers whenever it suits them. The applicant's and their many lawyers are responsible for failure to file a valid Notice of Appeal. Whereas it is true that a mistake of counsel cannot be visited on the litigant, this rule should not be absolute and extension of time should not be granted unless sufficient reason is established.

Counsel submitted that the filing of the present application was an afterthought by the applicants after the respondents filed Civil Application No. 319 of 2o2o to strike out the applicant's appeal. Counsel argued that this application seeks to extend time and validate the applicant's failure to file, lodge and serve a valid Notice of Appeal. That the Notice of Appeal of 26th October 2O2O is defective for reasons that it was not lodged in the court registry and failure to specify the part of the decision intended to be appealed against. Counsel submitted that this court cannot validate a defective Notice of Appeal which does not comply with the law. That the Notice of Appeal was not lodged in the court registry under RuIe 76(L) of the Rules of this court.

Counsel relied on the decision in Global Capital Save 2OO4 Limited and another Vs Alice Okirror and another Supreme Court Civil Application No. 57 of 2o.21 in which the Supreme Court explained that the process of filing a notice of appeal starts with payment of the requisite fees, receiving and stamping the notice at court and culminates in the final act of being dated by the Registrar. That the lodgment of a Notice of Appeal is complete upon being signed and lodged by the registrar.

Counsel submitted that the Notice of Appeal dated 26th October 2O2O which was served on the respondent's counsel on 27th October 2O2O and which the applicants seek to validate, bears a court stamp of the High Court however, it was served without being lodged with the registrar of the High Court. It bears not the Registrar's signature, date and time of lodgment and the seal of court which offended Rule <sup>1</sup>1 of the Rules of this Court and is fatally defective.

In addition, counsel submitted that the same document does not disclose the part of the judgment appealed against which is contrary to Rule 76(3) of the Judicature Court of Appeal Rules Directions S1 13-10.

## Consideration of the application

I have carefully considered the submissions of counsel, the authorities cited and the affidavit evidence on the record. Rule 5 of this court under which the application for extension of time was brought provides:

"The court ffiaA, for su-fficient reason, ertend the time prescribed by these Rules or bg any decision of the court or the Court of Appeal for the doing of ang act authorized or required by these Rules, whether before or afi,er the expiration of that time and whether before or afier 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 so extended." (Emphasis added)

The power given to court under the above rule is discretional. Before it is exercised, court ought to lind that "sufficient reason" has been shown by the applicant for not doing what he was supposed to do after the pronouncement of the judgment of the High Court.

The Supreme Court in Guiliano Gariggio Vs Claudio Casadio Supreme Court Civil Application No. OO1 of zOLg held that sufficient reason must relate to failure to take a particular step in time.

In the case before us, the applicant argues that the l"t Notice of Appeal which was lodged on behalf of the Applicants dated 26th October 2O2O was picked from the High Court registry by unknown persons and could thus not be lodged in this court and served within

the time prescribed by law. The 2"d Notice of Appeal which was lodged in the High Court on behalf of the applicants dated 18th November 2O2O was filed out of the time prescribed by law and was not served on the respondents except as part of the Record of Appeal in Civil Appea1 No. 83 of2021.

In both the 1st and 2"a Notice of Appeal, the applicants were stated to be appealing against part of the decision of the trial Judge without specifying the part complained of as required by the Rules of this court. The applicant's argument is that the defective lodgment of the above two Notices of Appeal is attributable to the professional mistakes of the Applicant's former advocates.

The Supreme Court in Guiliano Gariggio Vs Claudio Casadio (supra) observed that;

"Where an applicant has on the court record complete doanments uhich are in proper form saue for their late filing, ertension of time has the legal effect of ualidating them or excl)sing their late filing."

In the instant case, the Notice of Appeal dated 26th October 2O2O which was served on the respondent's counsel on 27th October 2O2O and which the applicant seeks to validate was served without being lodged with the Registrar of the High Court and was neither signed by the Registrar nor sealed by the High Court. The Notice of Appeal Iiled on 26th October 2O2O appearing on page 733 of the Record of Appeal, which the applicant seeks to validate is defective and cannot, in my view be validated.

In addition, the Notice of Appea1 did not conform to Rule 7613!'of the Judicature Court of Appeal Rules Directions Sl 13-10 by not stating the part of the High Court decision appealed against. Rule 76(3) states;

76. Notice of appeal in ciuil appeals.

(3) Euery notice of appeal shall state whether it is intended to appeal against the uthole or part onlg of the decision; and where it is intended to appeal against a part only of the decision, it shal lained <sup>o</sup> state the address for seruice of the appellant and state the names and addresses of all persons intended to be serued with copies of the notice. (Emphasis added)

In the result, this application is void of merit and is thus dismissed with the following orders;

- 1. Civil Application No. 85 of 2021 is dismissed with costs to the respondent. - 2. The applicant's Notice of Appeal in Civil Appeal No. 83 of 2O2I is hereby struck out. - 3. Civil Application No. 319 of 2O2O by the respondent top strike out the applicant's Notice of Appeal is resolved within this ruling.

Dated this $2^{\circ}$ day of $2^{\circ}$ day of $2^{\circ}$ 2023

$\mathbb{R}$ $\mathbb{R}$ $\mathbb{R}$ **Richard Buteera**

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## DEPUTY CHIEF JUSTICE

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## Catherine Bamugemereire

**JUSTICE OF APPEAL**

Jahmutun

Stephen Musota **JUSTICE OF APPEAL**

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