Musinguzi and Others v Rweru and Another (Miscellaneous Application 3 of 2024) [2024] UGHC 710 (12 July 2024)

#### **THE REPUBLIC OF UGANDA**

#### **IN THE HIGH COURT OF UGANDA AT FORT PORTAL**

#### **MISC. APPLICATION NO. 003 OF 2024**

*(Arising from Civil Suit No. 011 of 2020 Before the Chief Magistrate's Court of Kyenjojo at Kyenjojo)*


## **RULING**

#### **Introduction**

This application was filed by way of notice of motion under section 98 of the Civil Procedure Act Cap. 282 and Order 52 Rules 1, 2 and 3 of the Civil Procedure Rules SI 71-1 seeking the following orders:

- I. Leave be granted to the applicants to appeal Civil Suit No. 011 of 2020 out of time. - II. Costs of this application be provided for.

#### **Background**

The respondents filed Civil Suit No. 11 of 2020 against the applicants before the Chief Magistrate's Court of Kyenjojo at Kyenjojo for a declaration that the suit land belongs to the respondents, a declaration that the applicants are trespassers, an order of permanent injunction, eviction orders, mesne profits, general damages and costs of the suit.

The respondents' claim against the applicants is that the respondents bought the suit land from Angelina Naava in 2009 and the applicants without the consent of the respondents trespassed on the suit land, variously, between 2017 and 2020. The applicants denied the claim and stated that they are the owners of the suit land having been born and raised on it.

In his judgement, delivered on the 30th of June 2023, the learned trial magistrate Grade 1 decreed that the suit land belongs to the respondents, issued a permanent injunction against the applicants, gave an order of vacant possession against the applicants, awarded general damages and mesne profits of UGX. 2,000,000/= and UGX. 500,000/=, respectively, and costs to the respondents.

The applicants are aggrieved with the judgement of the learned trial magistrate and intend to appeal against the same. However, the prescribed time within which to appeal lapsed. This application seeks this court to enlarge the time within which to file the intended Appeal.

## **Grounds in Support of the Application**

The grounds of this application are set out in the affidavit in support of the application deponed by Musinguzi Patrick, the 1st applicant, the gist of which is that:

- a) The applicants were defendants in Civil Suit No. 011 of 2020 before the chief magistrate's court of Kyenjojo at Kyenjojo - b) Civil Suit No. 011 of 2020 was decided on the 30th of June 2023 against the applicants.

- c) The applicants were not given notice as to when the said judgment was to be delivered and the matter was not cause listed for judgment. - d) As such, the applicant did not know that the judgement in Civil Suit No. 011 of 2020 was delivered and the time within which to appeal the said judgement lapsed. - e) This honourable court has the power to grant leave to appeal the said judgement out of time. - f) It is just and fair that this application be granted.

The respondents filed an affidavit in reply, deponed by Asaba Saul, the 2nd respondent, opposing this application on the following grounds:

- a) The application is incurably defective, barred in law, ill-intended and the same should be dismissed with costs. - b) That on the 16th day of May 2023, the applicants were duly served with a judgement notice for the 30th of June 2023 through their lawyers, *Kahwaa, Kafuzi, Bwiruka & Co. Advocates*, who acknowledged receipt of the said notice. A copy of the affidavit of service and judgement notice are attached to the affidavit in reply as annexures "A" & "B", respectively. - c) The judgement was delivered on the 30th of June 2023 in the presence of the 3rd applicant herein who expressed her wish to appeal. - d) The applicants are deliberately untruthful to this honourable court since they were fully aware of the date of judgement and 3rd applicant is on record of having expressed her desire to appeal. - e) The applicant has not disclosed any grounds for this court to grant the orders sought. - f) In the event this court inclines to grant the application, it should do so with costs to the respondents.

## **Hearing and Legal Representation**

The hearing proceeded by way of written submissions. The applicants were represented by Counsel Kamya John while the respondents were represented by Counsel Luleti Robert. Both Counsel filed written submissions which I have considered in this ruling.

### **Issues for determination**

The issue for determination is whether the application raises sufficient grounds for this court to grant leave to the applicants to file an appeal against the judgement in Civil Suit No. 11 of 2020 out of time.

## **Submissions by Counsel for the Applicants**

In arguing the application, counsel for the applicant submitted that in their affidavit in support, the applicants had shown that they had not been given a notice of judgement by the learned trial magistrate and the applicants were not aware that the judgement in issue had been delivered.

Counsel submitted that by delivering the judgement without notifying the applicants, their right to a fair hearing as enshrined in Article 28 of the constitution of the Republic of Uganda was violated.

As to whether the application raises a sufficient cause, counsel submitted that the fact that the applicants were not aware of the judgement amounted to a good cause. Counsel referred this court to the case of *Aloysious Senkubuge Vs. Samuel Kasajja Msc. Application No. 25 of 2022.*

## **Submissions by Counsel for the Respondents**

Counsel for the respondents submitted that under section 71(9)(a) of the Civil Procedure Act, the applicants were supposed to file the appeal within 30 days. Counsel argued that the judgement that the applicants intend to appeal against was delivered on the 30th of June 2023 and the applicants should have filed their appeal by the 31st day of July 2023.

Counsel for the respondents argued that the applicants did not adduce any reason for the delay but instead resorted to perjury. That while the 1st applicant states, in paragraphs 3 and 4 of his affidavit in support of the application, that the applicants did not know the date when the judgement was delivered, a notice of judgement was duly served on the applicants' lawyers and the 3rd applicant was in court on the day the judgement was delivered, and indicated to court that she wished to appeal the said judgement. Counsel argued that the 1st applicant's affidavit in support of the application was full of blatant lies, and this should be discouraged by the court.

Counsel for the respondents also argued that the timelines within which to file an appeal are intended to dictate a schedule within which to take certain steps and any delay must be satisfactorily explained. Counsel referred this court to the case of *Njagi Vs. Munyiri [1975] EA 179.*

In the alternative, counsel for the respondents argued that in the event this court grants the application, then it should do so with costs to the respondents as it was not their fault that the applicants failed to file an appeal within the stipulated period.

#### **Consideration by Court**

The law on limitation of appeals to this court is set out in section 79 of the Civil Procedure Act Cap 71. It proves thus:

## *"79. Limitation of appeals*

- *(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."*

Section 96 of the Civil Procedure Act is to the effect that where any period is fixed or granted by the court for the doing of any act prescribed or allowed by this Act, the court may, in its discretion, from time to time, enlarge that period, even though the period originally fixed or granted may have expired.

In the determination of whether an extension of time within which to file an appeal should be granted, the applicant should first establish whether he has a sufficient cause that prevented him from filing the appeal within the prescribed time. In the case *Hadondi Daniel Vs. Yolam Egondi CACA No. 67 of 2003* Court of Appeal held thus:

> *"It is trite law that time can only be extended if sufficient cause is shown. The sufficient cause must relate to the inability or failure to take the necessary steps within the prescribed time. It does not relate to making a wrong decision. If the applicant is found to be guilty of dilatory conduct, the time will not be extended."*

In *Muzamil Ayile Vs Rose Tarapke & 6 Others (supra)* court held that what constitutes a "sufficient reason" will naturally depend on the

circumstances of each case. Quoting with approval the case of *Shanti v Hindocha and others [1973] EA 207* court went on to state that:

> *"The position of an applicant for an extension of time is entirely different from that of an applicant for leave to appeal. He is concerned with showing sufficient reason why he should be given more time and the most persuasive reason that he can show is that the delay has not been caused or contributed to by dilatory conduct on his own part. But there are other reasons and these are all matters of degree."* (Emphasis added)

In the case of *Parambot Breweries (U)Ltd (In receivership) VS. Standard charted Bank & Another HCMA 380 of 2021* Hon. Justice Duncan Gaswaga relying on *The Registered Trustees of the Archdiocese of Dares Salaam Vs. The Chairman Bunju Village Government & others Civil Appeal No. 147 of 2006* held thus:

> *"Sufficient cause is proven if a party and his advocate show that he and his lawyer did not act in a negligent manner but more importantly that there was want of bonafide on their part in view of the facts and circumstances of a case and the applicant cannot be alleged to have been 'not acting diligently' or "remaining inactive."*

In the case *Abel Balemesa Vs. Yesero Mugenyi (supra),* it was held that:

*"What constitutes sufficient cause is left to the court's discretion. While exercising this discretion, the judge has to decide whether there has been an abuse of process, which amounts to an affront to the public conscience that*

# *requires the proceedings to be stayed. Where there has been a serious abuse of the process the court should express its disproval by refusing to prolong the proceedings any further."*

In the instant case, the applicants aver that they failed to appeal within the prescribed period because they were not aware of the judgement in issue and when it was delivered. However, the evidence on record is to the contrary. The applicants were served with the notice of judgment through their lawyers, *M/S Kaahwa, Kafuzi, Bwiruka & Co. Advocates,* on the 16th of May 2023 for the judgement to be delivered on the 30th of June 2023.

The lower court record further shows that the judgement in issue was delivered on the 30th of June 2023 in the presence of Counsel Elizabeth Nyaketcho for the respondents, the respondents, and the 3rd applicant herein. In fact, the 3rd defendant/ the 3rd applicant herein indicated to the court that she wished to appeal against the judgement.

It is therefore not true that the applicants were not aware of the said judgement and when it was delivered. I note that all the applicants are relatives with the 1st and 3rd applicants being a brother and sister and the 2nd applicant being their nephew, and it is likely that the 3rd applicant shared the status of their case with the rest of the applicants. Besides, the applicants were duly served through their lawyers. Therefore, the applicants were fully aware of the said judgement, and they simply chose not to appeal against the same.

From the affidavit in support of the application, it is evident that the applicants chose to mislead this court by falsely claiming that they were not served with a notice of judgment and were unaware of the same

judgment. If this court were to act on such falsehoods to grant this application, it would offend both its conscience and that of the public. Applying to this court for any order based on such falsehoods constitutes an abuse of the court process and should be condemned, to say the least.

Therefore, the applicants have not established sufficient cause for this application to be granted.

As to whether the applicants are guilty of dilatory conduct, I note that the judgment was delivered on the 30th of June 2023, and this application was filed on the 11th of January 2024, six months after the delivery of the judgment. The applicants never took any steps to file an appeal, only to come to this court six months later to seek leave to appeal based on falsehoods. In the circumstances, the applicants are guilty of dilatory conduct.

It is a well-established principle that litigation must come to an end. There is a need for finality in legal proceedings to ensure that the parties involved can move forward without the burden of ongoing litigation.

In the premises, this application lacks merit and is hereby dismissed with costs to the respondents.

It is so ordered.

This ruling was made ready by 30th June 2024 before the 7th Revised Edition of the Principal Laws was published and therefore sections cited herein apply mutatis mutandis.

Dated at Fort Portal this 12th day of July 2024.

**Vincent Emmy Mugabo Judge**