Mukasa & 2 Others v Nakyaze & 24 Others (Miscellaneous Application 1979 of 2024) [2024] UGHCLD 238 (8 October 2024)

# **THE REPUBLIC OF UGANDA**

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

# **(LAND DIVISION)**

# **MISC APPLICATION NO 1979 of 2024**

## **(ARISING OUT OF CIVIL SUIT NO.93 OF 2024)**

#### **1. MUKASA NAKAWEERU OLGA**

## **2. KASUMBA AIDAH**

**3. KAWEERU DANIEL ::::::::::::::::::::::::::::: APPLICANTS**

## **VERSUS**

- **1. RUTH NAKYAZE SEREBE** - **2. PATRICIA NAMUGABO MUSISI** - **3. BUSULWA ROBERT** - **4. NAJJA GORETH** - **5. JOHN KAMYA SEREBE** - **6. MAWEJJE SIMON PETER** - **7. MARGARET NTONGO** - **8. WILSON SEMUSU** - **9. NASSOZI JANE** - **10. ALEX OMOLE** - **11. FRANK KATEREGGA**

- **12. HAKIM NAMUGERA** - **13. AGABA HILLARY** - **14. WASSWA MATHIAS** - **15. MUSISI PAUL** - **16. LUKWAGO GODFREY** - **17. MPAWULO JOSEPH PATRICK** - **18. KISEKKA ALEX** - **19. MAGAMBO MUHAMUDU** - **20. NAKATUDDE FARIDAH** - **21. KAWUKI VICENT :::::::::::::::::::::: RESPONDENTS** - **22. NAMULEME RESTY** - **23. KOBUSINGYE NURAH** - **24. NAMYALO FLORENCE** - **25. COMMISSIONER LAND REGISTRATION**

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

#### *Introduction;*

1. This is an application by Notice of Motion brought under Section 98, 96, 76 and 79 of the Civil Procedure Act, Order 51 rules 6 and 8 and Order 52 rules 1, 2 and 3 of the Civil Procedure Rules for orders that;

i) Time within which to lodge a Civil Appeal from the decision of the registrar dated 9th May 2024 in Civil Suit No.93 of 2024 be extended for a good cause. ii) The learned Assistant Registrar order for abatement of Civil Suit No. 93 of 2024 be vacated for a good cause.

iii) Costs of this Application be provided for.

## *Applicant's Evidence;*

- 2. The grounds of the Application are contained in the Application and supporting Affidavit sworn by Kakooza Shamir an Advocate practicing under JM Musisi Advocates and Legal Consultants which briefly are; - i) That the Applicants filed C. S No.93 of 2024 against the Respondents on 20th January, 2024. - ii) That only the 3rd Defendant/Respondent filed a written statement of Defence in the suit on the 22nd day of February 2024. - iii)That the Applicant filed summons for Directions on the 21st March 2024 within the time prescribed under the law. - iv) That the abatement order was made in error as

necessary steps under the law were taken in order for the suit to progress.

- v) That at the time of issuance of the abatement order, the majority of the defendants had not been served with court summons as their addresses were unknown to the Applicants. - vi) That the Applicants applied for and obtained an order for substituted service against the said Defendants. - vii) That it was at this time that the Applicants' counsel was made aware that the court had already issued an order for abatement of the suit. - viii) That the learned Assistant Registrar Kagoda Ntende Samuel M erred in law and fact when he dismissed the Applicants' case vide Civil Suit No. 93 of 2024 on abatement yet summons for directions had been filed on ECCMIS and all the Respondents had been served with summons to file a defence.

#### *1st, 2nd and 5th Respondents' Evidence;*

3. Kibiringe David an Advocate with Kibringe & Kibiringe Advocates filed a reply on behalf of the 1st, 2nd and 5th Respondents in which he stated that;

- i) In reply to the Applicants' Affidavit, the Applicants' said Advocates of M/s J. M Musisi Advocates & Legal Consultants did not take out Summons for Directions within 28 days as required by the Civil Procedure Rules as Amended having been served with the last 3rd Respondent's Written Statement of Defence on the 23rd day of February 2024 and time for filing the said Directions lapsed on 22nd March 2024. - ii) The Eccmis System on the aspect of details of summons for Directions to date does not show that the Applicants' Advocates applied for Summons for Directions and the only summons that were issued by court were summons to File a Defence that were issued on 30th January 2024. - iii)The extract attached as Annexure C on the Applicants' Affidavit showing that the Applicants' Advocate applied for Summons for Directions on 21st March 2024 is not available on the ECCMIS System under the aspect of details of Summons. - iv) The Applicants' Application has no sufficient grounds of appeal which merit judicial discretion of this Honorable Court to grant leave to Appeal and set aside the order

for abatement of the said suit because the ECCMIS System does not show that the Applicants' Advocates applied for Summons for Directions on 21st March, 2022 as alleged.

v) The Applicants' Application be dismissed with costs of being devoid of any merit.

#### *3rd Respondent's Evidence;*

- 4. Busuulwa Robert the 3rd Respondent replied to the Application through his Affidavit and stated that; - i) The instant Application is purely redundant, bad and untenable in law and fact, purely speculative, academic, theoretical, abstract and fatally incurably defective and therefore raises the following preliminary objections; - a) The Application is omni-bus as it purports to seek leave to appeal against the decision of the Assistant Registrar out of time and at the same time appealing against the said decision before the leave sought is granted. - b) The undated Notice of Motion and undated affidavit in support of the Notice of Motion expired a long time

ago and was served out of time (beyond 21 days) from the date of issue, which is 02nd August, 2024 and served on 04th September 2024 without leave of this Honorable court yet it ought to have been served on or before the 22nd day of August 2024.

- c) The instant application is a disguised attempt to resurrect HCCS No.0093 of 2024 against the 4th,6th to 20th Defendants which automatically stood dismissed for failure to serve summons upon the said defendants within 21 days from the date of issue (which is 30th January 2024) and ought to be served not exceeding the 20th day of February 2024. - d) The Application for substituted service against the 4th, 6th to 20th defendants was filed on the 17th day of April 2024 (almost two months after) HCCS No.0093 of 2024 stood dismissed against the 4th, 6th to 20th defendants thus cannot be resurrected using the adopted procedure by the Applicants herein save for filing a fresh suit subject to the law of limitation. - ii) The 3rd Respondent confirms that he was served with summons to file a defence and he duly filed his written

statement of defence to the suit which he also served upon the Applicants' counsel.

- iii)That HCMA No.952 of 2024 was energy in vain as the parties they sought orders for substituted service (4th, 6th to 20th defendants) could not be served with a suit which stood dismissed automatically with or without notice on 20th February 2024 for failure to serve summons to file a defence within 21 days from date of issue. - iv) That the deponent does not appreciate the provisions of 0.11A Rule 1(6) of the CPR which concerns the last reply. The last reply as far as HCCS No.093 of 2024 is concerned was the 3rd Respondent's written statement of defence which was filed on the 22nd day of February 2024. the Applicant's counsel elected not to file a reply to neither the written statement of defence nor that of the 1st, 2nd and 5th defendants thus computation of the 28 days starts from the 22nd day of February 2024 and end on the 20th day of March 2024 and this honorable court confirmed under its ECMIS portal that there were no summons for directions uploaded on its system by the date under its document type, summons.

- v) That HCMA No.952 of 2024 filed after the suit had automatically been dismissed with or without notice of the defendants in that application is inconsequential and the orders issued there from are a nullity as there was no substituting suit against the said defendants. - vi) That the Applicants have been vigilant in pursuing this matter as they have never stepped in this Honorable Court since commencement of this matter and even the Affidavit and affirmation in both interlocutory applications (HCMA NO 952 OF 2024 and HCMA No.1979 of 2024) in this matter have been sworn by either their law clerk and advocate respectively thus this appears no longer to be the Applicant's case.

#### *Representation;*

- 5. The applicants were represented by John Mike Musisi of JM Musisi Advocates & Legal consultants whereas the 3rd respondent was represented by Mukibi Paul of M/S Mukiibi & Kyeyune Advocates. - 6. The applicants,1st 2nd ,3rd and 5th respondents proceeded by way of written submissions which I have considered in

the determination of this matter.

# *Issues for determination*

- i) Whether the appeal is properly brought before this court? - ii) Whether there are any grounds for setting aside the abatement order by the Registrar?

## *Resolution and determination of the issues;*

Issue 1: Whether the appeal is properly brought before this court?

- 7. Counsel for the applicant submitted that an appeal is a creature of statute and by virtue of Order 50 rule 8 a party aggrieved by the decision of the registrar has an automatic right of appeal to the Judge. - 8. However, by virtue of Section 79 (1)(b) of the Civil procedure Act, such appeal must be made within 7 days from the date the decision is made and where such appeal is not filed within 7 days, then leave ought to be sought. - **9.** That the position of the law is that an application seeking leave to appeal the decision of the Registrar out of time must be filed either before the Registrar or the Judge to determine the same on merit before commencing the appeal itself.

- **10.** Counsel for the 1st ,2nd and 5th respondents together with counsel for 3rd respondent submitted that the grounds and evidence in both matters to wit the application for enlargement of time to appeal and a miscellaneous appeal against a decision of a Registrar are equally different, thus cannot be presented by way of an omni-bus application. - **11.** Both counsel invited this honorable court to dismiss the appeal with costs. - *12.* On this point, Counsel for the 3rd respondent submitted that the applicant's application is an omnibus application that seeks orders of extension of time within which to lodge an appeal against the Registrar's decision and appeal itself. - *13.* It is now a settled position of the law that an omnibus application may be brought where applications are of the same nature, have the effect of avoiding a multiplicity of suits, one is a consequence of the other or where no injustice would be occasioned by handling both applications as one. Counsel relied on *Denis Ahairwe v Standard Chartered Bank (U) Limited MA No.1851 of*

# *2023, Dr Sheikh Ahmed Kisule v Greenland Bank Limited HC MA No.2 of 2012*

**14.** On extension of time, Counsel for the applicant submitted that it is now settled that an application for extension of time within which to file an appeal must show good cause before court can exercise its discretion in the applicant's favor. Counsel relied on the decision in

#### **Aloysius Sekungu v Samuel Kasajja MA No.25 of 2022**

**15.** Counsel for the applicant added that an order for enlargement of time to file an appeal should ordinarily be granted unless the applicant is guilty of unexplained and inordinate delay in seeking the indulgence of the Court. Counsel relied on the decision in **Ojara Otto Julius v**

### **Okwera Benson Misc Civil Application No.25 of 2022**

16. Counsel for the applicant prayed that the omnibus application to extend time within which to appeal and the appeal itself should be granted.

#### **Analysis by court;**

*17.* On the application being an omnibus application, it is now trite law that an omnibus application can be brought where applications are of the same nature, have the effect

of mitigating a multiplicity of suits or where no injustice would be occasioned by handling both applications. *(See; Kapiri v International Investment limited & 5 Ors HCMA No.160 of 2014)*

*18.* Additionally, where an application is brought before a court that has jurisdiction to grant both reliefs, and in the procedure that can accommodate all, then the same can be entertained*. (See; Ahairwe vs Standard Chartered*

## *Bank U Limited MA 1851 of 2023)*

- 19. In the instant case, this court has jurisdiction to entertain both orders as sought for in the application and the respondents have not demonstrated in any way the injustice that shall be occasioned as a result of the omnibus application. - 20. This objection therefore fails and cannot be sustained in this matter. - 21. On filing the appeal out of time, Order 50 rule 8 of the Civil Procedure Rules provides thereof that any person aggrieved by any order of a registrar may appeal from the order to the Judge. - 22. Section 79(1) of the Civil Procedure Act reads as follows;

(1) Except as otherwise specifically provided in any other law, every appeal shall be entered,(a) Within thirty days of the date of the decree or order of the court; or (b) within seven days of the date of the order of a registrar, as the case may be, appealed against; but the appellate court may for good cause admit an appeal though the period of limitation prescribed by this section has elapsed.

- 23. In this case, the order of the Registrar appealed against was on the 9th day of May 2024 and an order was extracted on the 13th day of May 2024. - 24. The notice of motion for the appeal to wit the application to extend time within which to appeal and the appeal itself is dated 23rd July 2024. - *25.* It is now trite law that the time limits set by statutes are not mere technicalities and must be strictly complied with. *(See; Kasirye Byaruhanga & Co Advocates v Uganda Development Bank SCCA No.2 of 1997)* - 26. However, I agree with Counsel for the respondent that the court has power to admit an appeal filed out of time for good cause shown. To show good cause, it was submitted for the applicant that the applicant counsel never got to

know that the suit had abated until he was served with taxation notice as reflected under paragraph 9 of the affidavit in support of the application.

- 27. The date on which the applicant's Counsel says they were served with the taxation notice is not mentioned anywhere and leaves a lot of room for speculation. This court cannot rely on the explanation to excuse the delay. - 28. Again, the applicants adduce in evidence under paragraph 21 and 22 of the affidavit in support of the application, that they have been vigilant in pursuing the matter and that is why they even extracted summons for directions before all the defendants were even served. I find this argument and explanation of no use to pursuing the appeal diligently in so far as it relates to the main suit and not this appeal. - *29.* The provision of Section 79(1)(b) of the Civil Procedure Act is couched in mandatory terms and failure to comply with it affects the competence of the appeal that is filed out of time. *(See; Mohammad Majyambere vs Bakhresa Khalil MA No.727 of 2011)* - 30. Accordingly, having established that no sufficient

cause has been demonstrated for the delayed filing of the appeal, this court finds that the appeal was filed out of time and stands dismissed.

31. There are no costs of the application awarded.

# **I SO ORDER.**

## **NALUZZE AISHA BATALA**

## **Ag. JUDGE**

#### **08th/10/2024**

## **Delivered on the 08th of October 2024 electronically via**

#### **ECCMIS.**