Muhimbise v Mohammed & Another (Civil Application 48 of 2021) [2022] UGSC 20 (11 February 2022)

Full Case Text

# THE REPUBLIC OF UGANDA

# IN THE SUPREME COURT OF UGANDA AT KAMPALA

Before: Hon. Justice Muhonguzi, JSC

## CIVIT APPLICATION NO. 48 OF 2O2L

KELLEN MUHIMBISE APPLICANT

### VERSUS

### 1. MOHAMMED SATEH ALI

2. GEORGE BEGUMISA.. RESPONDENT

(An opplication for extension of time within which to file o Notice of Appeol ogoinst the decision of the Court of Appeal in Civil Appeol No. 222 of 201j) 10

## RUIING OF MUHANGUZI, JSC

This application was brought by way of a notice of motion under rule 2(2), 5, 41,(2), 42 and 43 of the Judicature (Supreme Court Directions) Rules Sl No. 13-11. The applicant seeks orders that: -

- 1. The applicant be granted an order of extension/enlargement of time within which to file a notice of appeal against the decision passed by the Court of Appeal in Civil Appeal No. 222 of 2013 or the applicant's notice of appeal that was filed out of time be validated by this honorable court. 15 - 2. Costs of the application be provided for. 20

The grounds of the application are stated in the notice of motion and substantiated in the affidavit in support of the applicant sworn on 1st November, 2O2L by Kellen Muhimbise. They are stated as follows: -

1. "The decision of the Court of Appeal in Civil Appeal No.222 oi 2013 is appealable as of right within 14 days after the date of the decision.

- 2. The applicant was prevented by sufficient cause from taking the necessary step of filing the notice of appeal within the prescribed time to wit; - a) The applicant and her lawyers were unware of the judgment in the above matter as the same was read by the learned registrar of the Court of Appeal in the absence of both the applicant and her lawyers/counsel. - b) Neither the applicant nor her lawyers were ever served with a judgment notice. - c) The applicant only got to learn that the judgment in the above matter had been read on the 28th day of October 2021 when she was served with a notice to show cause why execution should not issue. - 3. Prima facie, the intended appeal is meritorious and the applicant should be allowed to exercise her right of appeal. - 4. This court has discretion to grant an order of extension of time/enlargement of time within which the said notice of appeal may be lodged or to validate the notice of appeal that has been filed out of time. - 5. The application has been brought in good faith without delay and it will not be prejudicial to the respondents. - 5. That it is just, equitable and in the interest of justice that the applicant be granted an extension/enlargement of time within which to appeal or to validate the notice of appeal that has been filed out of time."

The 1't respondent opposed the application and filed an affidavit in reply sworn on 3'd December 2O2l by Muhammed Saleh Ali. He stated as follows: -

55 1. "That I am the 1't respondent herein and make this affirmation in that capacity.

- 2. That I was also the 1't respondent in Civil Appeal No.222 of 2013 from which the instant application arises. - 3. That I was also the I't defendant in Civil Suit No. 09 of 2009 from which this instant application arises. - 4. That in civil suit No. 09 of 2009 the applicant sued me together with Cairo lnternational Bank [td which sold to me the suit property comprised in Plot 10 Lugard Road, Fort Portal. - 5. That Cairo lnternational Bank Ltd sold to me the suit property and I was registered as the proprietor thereof in March of 2009. A copy of the Certificate of title is attached hereto and marked "A". - 5. That the applicant caveated my land in 2014 and has maintained a caveat on my land since. I am not able to transact with the land. - 7. That in Civil Suit No. 09 of 2009 the applicant accused me of procuring registration of the suit property in my name by fraud and also alleged that I fraudulently acquired the property from Cairo lnternational Bank Ltd. However, the High Court found that I was a bonafide purchaser for valuable consideration and without notice of any fraud. That finding is correct on the facts. A copy of the judgment of the High Court is attached hereto and marked "B". - 8. That before the High Court absolved me of any wrong doing in purchasing the suit property from Cairo lnternational Bank Ltd, the applicant by her own consent in HCT-01-CV-MA-035 of 2009 arising from Civil Suit No. 09 of 2009, was ordered to deposit in Court Shs. 75O,OOO/= (seven hundred fifty thousand only) effective August 2010, being mean(sic) profits in respect of the suit property, but has failed or refused to do so since. A copy of the consent order is attached hereto and marked "C". - 85

9. That the applicant has not deposited any mesne profits in the High Court as ordered. lnstead she has engaged in endless

litigation with endless appeals. This is the motivation behind the instant application because the applicant continues to occupy and derive economic benefit from the suit property, by way of rental income, something she has been doing since 2009 when I acquired the property.

- 10. That I am advised by my lawyers that the applicant having failed to deposit mesne profit in court as ordered, since 2009, is in contempt of court and cannot be heard on appeal and in the instant application until she has purged herself of the contempt. The application should be dismissed with costs. - 11. That I know that the applicant has arrears of mesne profits not deposited in court in excess of shs. 108,000,000/=. She has no known sources of income other than rental income from the suit property which is mine. This means if her intended appeal is dismissed I shall not be able to recover any money from the applicant and shall suffer irreparable damage and a miscarriage of justice. - L2. That I have been advised by my lawyers, whose advice ! verily believe to be correct that the conduct of the applicant amounts to abuse of the court process and disentitles her from remedies ordinarily available such as the orders sought in the instant application. - 13. That the Court of Appeal informed the parties and their counsel of the judgment date in Civil Appeal No.222 of 2013, by phone call because of the Covid-19 pandemic. That is how I knew of the judgment date. The applicant has not demonstrated any reason for anybody to conclude that she and her lawyers were not called in the same way ! was called by staff at the registry of the Court of Appeal.

- L4. That I know the applicant is guilty of dilatory conduct and lack of vigilance. - 15. That I am advised by my lawyers whose advice I believe to be correct that the intended appeal has no merit because the applicant has not demonstrated the point of law that she wishes the supreme court to consider capable of overturning the judgment of the Court of Appeal. There is no legal basis for exercise of discretion of the court to trant the application. - 15. That I make this affirmation in opposition of the instant application. - L7. That what is stated herein is true to the best of my knowledge save for the contents of paragraphs 10, 12 and 15 of source of which is disclosed therein."

### Brief background.

130 The back ground of this application is stated in the Court of Appeal judgment that; the appellant(applicant) was, until 31't day of December 2008 registered as proprietor of land comprised in LRV 3658 Folio 13 Plot 10 Lugard Road, Fort Portal, Kabarole District.

135 The case for the applicant was that she started residing in the suit property in 2005 as a tenant after which she bought it from the then registered owner M/s Begumisa Enterprises Limited.

Sometime in December 2008, a one Begumisa George stole her duplicate certificate of title and took it to Cairo lnternational Bank ostensibly to settle the indebtedness which M/s Begumisa Enterprises Limited had with the said Bank.

On or about the 7th day of April 2009, the applicant was served with a notice to vacate the premises and this is when she discovered that her title had been stolen.

1,20

745 When she conducted her searches at the land registry, she discovered that her name had been cancelled out as the registered proprietor and that of the Bank had been entered as the registered proprietor on 31st December 2008. Subsequently, it was also cancelled and that of the 1't respondent was reflected on the title as the registered proprietor in March 2009.

- 150 Upon this discovery, the appellant filed Civil Suit No. 009 of 2009 seeking among others a cancelation of the 1s respondent's name as a registered proprietor of the suit land and a declaration that Cairo lnternational Bank acquired interest in the suit property fraudulently and sold it to the Lst respondent through fraud. She also prayed for an interim order and a - 155 temporary injunction to thwart the immediate threat of eviction she was facing at the time.

At the commencement of the suit, the 3'd defendant (2nd respondent) filed a written statement of defense but in the course of the proceedlngs, he wrote a letter to court admitting to the theft of the applicant's title and the fraudulent transactions he did with the respondent and accordingly deposited UGX 140,000,000/= to act as a refund of the funds allegedly paid by the 1't respondent to Cairo lnternational Bank as the purchase price of the suit premises.

On the 15th day of May 2013, court entered a judgment on admission of the fraud against the 2nd respondent. 165

The learned trial Judge however in the final result found that the L't respondent was a bonafide purchaser of the suit premises for value without notice of any fraud and that the l-'t respondent and Cairo lnternational Bank were not f raudulently registered as proprietors of the

1,70 suit premises. Accordingly, the trial Judge ordered that the applicant immediately vacates the suit premises, hence the appeal at the Court of Appeal which dismissed the appeal and upheld the decision of the trial

Court with costs to the 1't respondent and Cairo lnternational Bank. Dissatisfied with the decision of the Court of Appeal, the applicant filed a notice of appeal on 29th of October 2021 after the expiration of statutory time limit. She thus filed this application to extend time within which to file her appeal/validate the notice of appeal.

#### Representation.

180 At the hearing of this application, the applicant was represented by senior counsel Mr. John Mary Mugisha and learned counsel Mr. Emmanuel Emoru while learned counsel Mr. Okello Oryem Alfred represented the 1't respondent. The applicant was in court. The respondents were absent.

#### Submissions for the applicant.

- 185 Counsel for the applicant relied on Rule 5 of the Rules of this Court and James Bwogi & son's Enterprises Ltd Vs. Kampala City Council & Anor SCCA No. 9 ol 2OL7 and submitted that this court has wide discretion to grant this application upon establishment that the applicant has proved sufficient reason. - 190 195 Counsel submitted that the applicant has sufficient reason for the delay in filing the notice of appeal. Counsel pointed out that the Court of Appealjudgment was delivered in absence of both the applicant and her lawyers. He added that the applicant only got to know of the existence of a judgment in her appeal when she was served with a notice to show cause why execution shouldn't issue 32 days afterthe delivery of the said judgment and in his view, this constituted sufficient reason as defined in Rosette Kizito Vs. Administrator General & Ors, SCCA No. 9 of 1985.

Further, counsel relied on Guliano Gariggo Vs. Claudio Casadio, SCCA No. 1of 2013 for the preposition that where an applicant has on court record complete documents which are in proper form save for their late

filing, extension of time has a legal effect of validating them or excusing their late filing.

Counsel argued that the intended appeal has the possibility of success. He pointed out the applicant's intended appeal is based on points of law that need this court's determination. That is; principle of bonafide purchaser for value without notice and the principle of corporate persona lity.

Counsel added that the respondents will suffer no prejudice if this application is granted because the appellant has been at all material times been in possession of the suit property. Counsel prayed that this application be granted with costs.

### Submissions for the 1st respondent.

21,0

Counsel for the respondent opposed the application on the basis that the applicant has acted in contempt of the consent order she procured in the

- 215 High Court regarding the proceeds of the rental income from the suit property. Counsel argued that the applicant cannot be heard or granted remedies in this application unless she purges herself of the contempt. Counsel added that the applicant is guilty of a dilatory conduct and that she has not demonstrated a legal basis for grant of this application. - 220 225 Counsel submitted that a person who has acted in contempt of a court order of which they were party or were aware of cannot be heard unless or until they purged themselves of the contempt. ln support of this argument, counsel relied on Francis Drake Lubega Vs. Attorney General & 2 Ors, Consolidated Miscellaneous Application Nos. 31 and 32 of aOLL.

Counsel contended that this application has no merit. He argued that both parties were notified of the judgment date by a phone call due to corona pandemic and never showed up on the judgment delivery date

and thus guilty of dilatory conduct. He added that the applicant has not 230 proved that she was not called.

Further, counsel submitted that the applicant has not proved that the intended appeal has a likelihood of success. He argued that the applicant has not demonstrated any point of law that she wishes this court to consider that is capable of overturning the Court of Appeal decision. 23s Counsel prayed court to dismlss this application with costs.

### Rejoinder.

ln rejoinder, counsel for the applicant submitted that the consent order relied on by counsel for the respondent to submit that the applicant is in contempt of court was neither signed by both parties nor their lawyers. 240 Counsel argued that the said consent order was signed and sealed long

after the judgment of court was delivered and a decree extracted. Counsel further argued that the applicant was not in court on the date

the consent order was obtained. He added that the respondent never instituted contempt of court proceedings against the applicant. He 24s therefore submitted that a person cannot be held in contempt where there is no valid subsisting order and that person was aware of the court order unlike in this case. He pointed out that the consent order was extracted seven months after the delivery of the judgment and thus was overtaken by events. Counsel asked court to find the allegations of 2so contempt of court unproved.

Counsel contended that the applicant is not guilty of a dilatory conduct as submitted by the respondent. Counsel argued that the respondent's submissions are speculative because he did not prove his allegations. Counsel added that there is no affidavit of service on record to prove that

2ss the applicant was served with the judgment notice nor has the respondent mentioned the name of the said clerk who called him.

Counsel reiterated his earlier submissions and prayed court to grant this application.

#### Consideration of the grounds of the application.

260 Rule 5 of the Rules of this Court under which this application was filed reads:

> '"The court may, for sufficient reoson, extend the time prescribed by these Rules or by ony decision ol the court or oI the Court of Appeal for the doing of ony dct authorised or required by these Rules, whether belore or ofier the expiration of thot time qnd whether before or after the doin o o the act and ony reference in these Rules to ony such time sholl be construed os o reference to the time ds so extended." f

270 There are many decisions of this Court and of the East African Court of Appeal which have interpreted Rule 4 now 5 of the Rules of this Cou rt. ln Crone Finonce Co. Ltd. vs Mokerere Properties, Supreme Court Civil Application No. 7 of 2007, court stated instances under which rule 5 of the rules of this court applies. These were stated as follows: -

275 "The rule envisoges four scenorios in which extension of time for the doing ol on oct so authorised or required, may he granted, namely -

a). before expiration of the limited time;

b). after expiration ol the limited time;

c). before the oct is done;

d). ofter the oct is done.

The situotion in the instant case is a combinotion of scenorio (b) and (d). the appellant opplied for, qnd Kitumbo lA, granted extension of time for filing ond serving of the record of appeol, long after

limited time had expired, and also after the acts of filing ond serving the record of appeal hod been done. The bone of contention however, is in respect of scenario (d) namely the effect of such extension on the acts which had olready been done. We think that it is obvious thdt the contended elfect is to bring dn dct within the time as so extended, There would have been no redson to include thot scenario in the rule il on oct done out of time wos on incurable nullity. lt is because it is not o nullity that under rule 72 of the same Rules, the Registror is required to qccept documents filed out of time, and only to endorse them to that effect. A reoding of rr 4 and 72 together clearly indicates thqt while a document filed out of time is voidoble, it moy be volidated by extension on time.

Secondly, we share the view that it could be futile to construe the provision otherwise. Thdt view was succinctly expressed by the Court of Appeal for Eost Alrico in Shanti - vs - Hindocha [1973I. E. A. 300 2\_A. h that cqse the Court considered r 9 of its

Rules (which wos in identicol terms os r. 4), ond all arguments (similor to thot of Mr. Nongwalo in the instant cose), that the rule empowered the judge to outhorise a future oct not to validate a post one."

The Cou rt held:

"We think that when the time for lodging a document is extended, the document is duly lodged if lodged within the time as so extende whether the octual lodging is before or ofter the order of extension. To hold otherwise would serve no purpose and would merelv result in further costs beinq incurred. lt is not irrelevont in this connection to note thot under r 77 the Registror hos no power to refuse to occept an appeal on the ground that it is out of time, which clearly implies that the delivery of the appeal out of time may be excused or volidated."

ln an obiter dictum in The Executrix of the Estote of Christine Mory N Tebajjukiro & Anor - vs - Noel Grace Shdlita, Civil Application No. 8 ol 1988 (S. C), Odoki JSC (as he then was) referring to the same scenario said:

# "The legol effect (of extending time lor filing) is therefore, to volidate or excuse the documents. The applicont need not file fresh documents if those alreody filed are completed qnd in proper form."

- 32s However, forthis application to be granted and the notice of appeal to be validated, the applicant has to prove that there was sufficient reason that prevented her from filing the appeal in time. ln the case of Boney M. Katotumba Vs Waheed Korim lAdministrator of lote Suleiti Hoji's Estate) Supreme Court Civil Application No. 27 of 2007) Justice 330 Joseph Mulenga was dealing with a similar application and he had this - to say on what constituted a sufficient reason.

"Under r.5 of the Supreme Court Rules, the Court may, for sufficient reoson, extend time prescribed by the Rules, What constitutes "s\_gll!S!sn!\_!e.gSon' is left to the Courts unfettered discretion. ln this context the Court will occept either d reqson thot prevented an opplicant from taking the essentiol step in time, or other reosons why the intended oppeol should be qllowed to proceed though out of time. For exdmple, on o pplicotion that is

## one that is brouqht after unexploined inordinate dela y. But even where the application is unduly deloyed the Court moy qrant the extgnsion if shuttinq out the appeol may appear to couse iniustice." (Underlining is mine) brought promptlv will be considered more svmpdtheticollv thon

ln the instant application, the applicant attributed the late filing of the notice of appeal due to failure by Court of Appeal Registrar to serve her with the judgment notice and that the judgment was delivered in her absence. The relevant paragraphs in her affidavit in support of the notice of motion state as follows: -

- ,,2 That I filed Civil Application No.222 of 2013 in the Court of Appeal against the whole of the judgment of His Lordship Justice Mike Chibita which was delivered on the 24th day of September 2013 and after hearing the parties, the court ruled that it would give judgment on notice. - 3. That I was however shocked on the 28th day of October 2021, when I was approached by unknown persons at my residence on Plot 10 Lugard Road, Fort Portal, Kabarole District (the suit property) who served me with a notice to show cause why execution should not issue. - 4. That I immediately contacted my lawyers M/s Emoru & Co. Advocates to help me establish what exactly was going on since to my knowledge my Civil Appeal No.222 of 2013 had never been determined. - 5. That I was subsequently reliably informed by my lawyers M/s Emoru & Co. Advocates which information I verily believe to be true that they perused the file and established among others that: 360 - a) there was a judgment in Civil Appeal No. 222of 2013 handed down by a Coram consisting of Hon. Justice Geoffrey Kiryabwire, JA, Hon. Lady Justice Monica K. Mugyenyi, JA and Hon. Justice Remmy Kasule Ag. JA and it bore the date the 3'd of September 2O2L as the date on which it was delivered by the learned Registrar of the Court of Appeal. - b) .........

- c) The notice of change of advocates filed by my lawyers on the 16th of August 2021 was on record. - d) No affidavit of service was on record showing that any of the parties to the appea I was ever served with the judgment notice."

The respondent submitted that the applicant was informed of the judgment date through a phone call. This was not proved. I am therefore, persuaded by the applicant's submissions and I find that she has

established sufficient reason.

It is in the interest of justice that this application be granted. lexercise my inherent powers in favor of the applicant by granting the application as prayed.

380 The notice of appealfiled by the applicant out of time is hereby validated. The appllcant should therefore serve the respondents with the said notice within 7 days from the date of delivery of this ruling.

Costs of this application shall abide by the outcome of the main appeal.

Before ltake leave of this matter, I note that the respondent had alleged

385 that the applicant was in contempt of court due to dishonor of the consent order on record. lfind that this is a matter of trial and I will not derive into this issue.

Dated at Kampala this \\ day of Fe-U 2027

EZEKIEL MUHANGUZI JUSTICE OF THE SUPREME COURT.