Nabamba and 2 Others v Semakula and 3 Others (Civil Application 16 of 2020) [2021] UGSC 73 (23 September 2021)

Full Case Text

# THE REPUBLIC OF UGANDA

## IN THE SUPREME COURT OF UGANDA AT KAMPALA

[CORAM: ARACH-AMOKO; J. S. C.]

# **CIVIL APPLICATION NO. 16 OF 2020**

### **BETWEEN**

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(An application for extension of time to lodge a notice of appeal.)

### RULING OF HON. JUSTICE M. S ARACH-AMOKO, JSC

The applicants herein filed this application in this Court on 9th July, 2020 by Notice of Motion under Rules $2(2)$ , 5, $40(1)$ and $41(2)$ of the 30 Judicature (Supreme Court) Rules. It seeks orders that:

a) The time for lodgment and service of the Notice of Appeal and letter requesting for a certified copy of the record of proceedings be extended.

b) The Notice of Appeal, the letter requesting for certified record of proceedings and the appeal on the Court record, that is, Supreme Court Civil Appeal No. 9 of 2019 be validated.

c) The costs of the application to abide the result of the appeal.

The grounds of the application are:

- 1. That the applicants are the appellants in Civil Appeal No.09 of 2020. - 2. After the judgment of the Court of Appeal that was delivered on $6th$ June, 2019, the applicants immediately instructed new lawyers to appeal to this Court against the whole decision. - 3. That following the decision of the Court of Appeal, the Notice of Appeal and the letter requesting for a certified copy of the record of proceedings were filed in this Court and in the Court of Appeal on $22^{nd}$ July, 2019. - 4. That the memorandum of Appeal was filed in this Court on $17th$ September, 2019 and served on the respondents on 18th September 2019. - 5. That this appeal involves important questions of law and fact. - 6. That it is in the interest of justice and equity that the orders sought are granted.

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$\mathsf{S}$

The application was supported by the affidavit sworn by the 1st $\mathsf{S}$ applicant on 9th July, 2019.

The respondents filed three affidavits in opposition to the application. The first one was sworn by the $1^{st}$ respondent on $22^{nd}$ October, 2010. The second one was sworn on 26th October, 2020 by Mr. Banada Lawrence from the firm of Birungi & Co. Advocates that represented the 3rd respondent. Lastly, the third affidavit was sworn by the 4th respondent on 26th October, 2020. The 1st applicant filed an affidavit in rejoinder to the aforesaid affidavits on 26th October, 2020. Counsel relied on the affidavits in the submissions.

#### **Background** 15

$\mathcal{E}^{\mathcal{A}}_{\mathcal{A}} = \mathbb{R}^d$

$\gamma = \frac{1}{12}$

From the record filed in Court, the background of the application is briefly the following:

Mr. John Kibuuka, now deceased, instituted **High Court Civil Suit** No.385 of 2008 against the respondents and others in the Land Division of the High Court, claiming ownership of 3 acres of land from $20$ a piece of land formerly known as **Kyaddondo Block 192, Plot 57** seeking recovery of the same from the respondents. and Unfortunately, Kibuuka died before the conclusion of the suit. As a result, the applicants became the administrators of his estate and took over the suit. They amended the plaint and added two other 25 defendants.

In the amended claim, they sought for the following reliefs against the respondents jointly and severally: (a) declaration that the estate

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of late John Kibuuka was the rightful owner of 3 acres of land that is $\mathsf{S}$ part of land formerly known as **Kyaddondo Block 192, Plot 57**. (b) An order that the respondents were entitled to possession and occupation of the suit land. (c) A declaration that the alienation of the suit property by the respondents was illegal and therefore null and void. (d) An order of cancellation of the titles issued to the 10 respondents. (e) General damages. (f) Costs of the suit.

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$\mathcal{L} = \mathcal{L}_{\mathcal{M}}$

The learned High Court judge dismissed the suit with costs and ordered that the applicants receive the certificate of title that belonged to late John Kibuuka which reflected the sub-division that had been made with his full knowledge.

The applicants were dissatisfied with that decision and appealed to the Court of Appeal against it. The respondents opposed the appeal and filed a cross appeal as well.

In its judgment delivered on 6th June, 2019, the Court of Appeal dismissed the appeal for lack of merit with costs. The Court of Appeal, 20 however, allowed the cross appeal but with no order to cost.

The applicants were dissatisfied with the decision of the Court of Appeal and filed a Notice of Appeal in this Court on $22^{nd}$ July, 2019. They also lodged a Memorandum of Appeal on 18th September, 2019.

The respondents then filed Misc. Application No. 22 of 2019 in this 25 Court on 12th March, 2020, seeking for an order for striking out the appeal with costs for being filed out of time. During the hearing of that application, counsel for the applicants brought to the Court's

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attention the fact that the applicant had also filed Civil Application $\mathsf{S}$ No. 16 of 2020 for extension of time to file his appeal and prayed that Court hears that application before determining Misc. Application No. 22 of 2019 since it had a bearing on the appeal. The Justices declined the request since they did not have the file before them and proceeded to give counsel the schedule for filing written submissions 10 which they complied with.

In their ruling, the Justices found that applicants' Notice of Appeal was incompetent for being filed out of time and struck it out with costs to the applicants.

#### **Representation** 15

At the hearing of the application, Mr. Patrick Musiime represented the applicants, while Mr. John Paul Bahingana represented the 1st and $2^{nd}$ respondents, Mr. Wycliff Birungi represented the $3^{rd}$ respondent, and Mr. Cornelius Mukiibi represented the 4th and 5th respondents.

### **Submissions**

# By Counsel for the applicants

In his written submissions and oral highlights, Mr. Musiime submitted that the application was seeking extension of time for the lodgment and service of the Notice of Appeal and letter requesting for 25 certified record of proceedings and that the Notice of Appeal, letter requesting for certified record of proceedings and the appeal on the court record be validated.

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He submitted that the applicants were dissatisfied with the judgment $\mathsf{S}$ of Court of Appeal that was delivered on 6th July 2019 and duly instructed their former lawyers M/S Masanga & Co. Advocates to appeal against it in time. They followed up on their said lawyers to ensure that their appeal was lodged in this Court. However, what they got from their lawyers were assurances that they had filed all 10 the necessary paperwork required for the appeal. The applicants, being lay people, were and are still unaware of the intricacies involved in appealing. They depended on the assurance by their said lawyers that they had filed an appeal. They were therefore surprised to discover that the lawyers did not file the Notice of appeal in time. 15

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He submitted that the applicants were zealous and when they discovered that the respondents had filed Civil Application No.22 of 2019 seeking for orders to strike out their appeal, they wrote letters to the Registrar of the Supreme Court for intervention. This resulted into an internal memo to the Chief Justice informing him that her predecessor had brought the existence of the instant application to the attention of the Justice in charge of cause listing and had requested for a hearing date, but it was not done.

He argued that even during the hearing of the Civil Application No.22 of 2019, the applicants' counsel had brought the matter to the 25 attention of the Justices who heard that application but they ruled that they did not have the file for the instant application before them, and went ahead to give the schedule for filing written submissions and thereafter made the Ruling and struck out the appeal. He argued

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that, had the instant application been brought to the attention of the $\mathsf{S}$ Court in time, it is probable that the hearing of Civil Application No.22 of 2019 would have been stayed subject to its outcome, which would have been in line with the position of this Court in Godfrey Magezi & Anor v Sudhir Ruparelia, Miscallaneous Application No. 06 of 2003 (SC). 10

He conceded that the Notice of Appeal was filed out of time since it was not filed until the 22nd of July 2019, which was 31 working days after delivery of the judgment. He however contended that the delay was due to inadvertence on the part of the applicants' former lawyer who had filed the Notice of Appeal and the letter requesting for certified copies of the record of proceedings within the prescribed time, but failed to serve the said documents on the respondents and also drafted the Notice of Appeal that did not conform to the Rules of this Court. He prayed that these inadvertence and mistakes should not be visited on the applicants based on the principles laid down by this Court in the case of Tropical Africa Bank Ltd v Grace Were Muhwana, Civil Application No. 03 of 2012 (SC).

Based on the foregoing, he submitted that the applicants had shown sufficient cause for the grant of the order sought and prayed that Court grants the same. He relied on the case of F. L. Kaderbhai & 25 Anor vs Shamsherali & Anor, Civil Application No.20 Of 2008 (SC) reported in [2008] HCB for the proposition that inadvertence to serve a Notice of appeal and the letter requesting for a certified copy

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of the record of proceedings on the opposite party constitutes the $\mathsf{S}$ necessary sufficient reason.

He also argued that a matter filed out of time is not an incurable nullity, it can be validated by court. He cited the case of Tropical Africa Bank Ltd v Grace Were Muhwana, Civil Application No. 03 of 2012 (SC) in support of this submission.

He prayed that the application be granted and the Notice of Appeal, the letter requesting for a copy of the record of proceedings and the memorandum of appeal that are already on record be validated by Court.

### By Counsel for the respondents 15

Mr. Baingana opposed the application. He submitted that it was filed after Civil Application No.22 of 2019 that sought the dismissal of the appeal for want of compliance with the mandatory steps in filing the appeal. The appeal was struck off for lack of the said essential steps before a panel of eminent Justices of this Court. The instant application that was filed at the time of hearing the application to strike out the appeal was in utter abuse of the court process and this Court should not allow it.

He also submitted that the High Court decree ordered that the land titles were to be given to the applicants. The land titles were handed 25 over to them through their counsel M/S Lumonya, Bushara & Co. Advocates. As such, the intended appeal is moot. He added that the land titles were handed over in full execution of the decree, therefore

the decree was fully executed, save for recovery of the taxed costs of $\mathsf{S}$ the suit. As such, no prejudice would be occasioned to the applicants if this application is not granted.

He further submitted that the affidavit of the $1^{st}$ respondent where he claimed that the suit land belonged to the applicants is false because they took over the case as the administrators of the estate of the late Kibuuka and not as alleged therein.

He also submitted that the Notice of Appeal and letter requesting for the certified copy of the record of appeal clearly show that the applicants intend to appeal the whole decision, yet they left out some respondents. The Notice of Appeal is defective on that account and this Court cannot invoke its wide discretion to sanction an illegality.

Mr. Birungi associated himself with the above submissions. In addition, he emphasised that the applicants have not furnished any plausible reason in their affidavit whatsoever as to why they had failed to serve the respondents' lawyers with the Notice of Appeal and letter requesting for certified copies of the record of proceedings.

He argued further that although the instant application indicates that it is arising out of Civil Appeal No. 09 of 2019, it does not acknowledge or take into consideration the fact that the applicants' Notice of Appeal and letter requesting for certified record of proceedings were struck out by Court. In the instant application, the applicants are merely requesting for enlargement of time for service of documents that were struck out and validation of the same as if the Court has not struck out the Notice of Appeal. This is

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disrespectful and an abusive of the Supreme Court, and should not $\mathsf{S}$ be allowed.

Regarding the issue of prejudice, he submitted that the respondents stand to suffer more if the judgment of the High Court and Court of Appeal are not executed and the respondents are denied the enjoyment of the fruits of the judgment as a result of the delay or failure to execute the judgment.

He submitted that the averment by the $1^{st}$ applicant that the applicants have ever resided on the said land since 1964 was false.

Lastly, he contended that the applicants have not demonstrated in any manner that the appeal raises important questions of law and fact, apart from merely making the averment.

Mr. Mukiibi associated himself with the above submissions and prayers.

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- Mr. Musiime made a brief rejoinder in which he explained that the instant application was filed during the pendency of Civil Application No.22 of 2019, that is why the grounds are stated as they are without indicating that the Notice of Appeal was struck out by Court. He stated that by then, the situation was different and filing another application would have opened another dilemma for him. - He further submitted that although the decree of the High Court 25 clearly stated that the applicants should receive the certificate of title for the land that belonged to late Kibuuka as a result of the subdivision that took place with his full knowledge, what the

- applicants had actually received was less than 2 acres. He contended $\mathsf{S}$ that what is at stake is ownership of land that is approximately 2 acres. He contended that the land in issue is important and dear to the applicants and their families and they are likely to suffer great loss if their rights and ownership to the land is lost without their appeal being heard. - 10

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He reiterated his earlier submissions and prayers.

## Determination of the application by Court.

I have considered the Notice of Motion, the affidavits in support and against the order being sought. The history of this application is clear: The applicants were dissatisfied with the decision of the Court 15 of Appeal and intended to appeal to this Court. Consequently, on 22nd July 2019, M/s Masanga & Co Advocates filed a Notice of Appeal on their behalf at the Supreme Court and the Court of Appeal. The same law firm also delivered a letter addressed to the Registrar of the Court of Appeal requesting for the certified record of proceedings in respect 20 of the said intended appeal. The said law firm went ahead and filed a Memorandum of Appeal in this Court on 18th September, 2019 and the appeal was numbered Civil Appeal No. 09 of 2019.

Further, the record indicates that the said appeal was actually cause listed for a pre-hearing conference on 9th March, 2020 as per the 25 Notice from the Court dated 5th March, 2020 inviting the parties and their lawyers to attend the same. The record however indicates that the advocates for the respondents received the record of appeal in protest as no Notice of Appeal had been served on them. On 12th

March, 2020, they then filed Civil Application No. 22 of 2019 seeking $\mathsf{S}$ for orders of this Court to strike out the said appeal for being filed out of time and for failure to take the necessary steps under the Rules of this Court.

Court found that the Notice of Appeal was incompetent for being filed out of time and struck out the appeal with costs on 24th September, 10 2020. It is also important to note that the instant application was filed in this Court on 9th July, 2020, during the pendency of the application to strike out the Notice of Appeal, although it bears the Court seal of 16th October, 2020 when the Registrar actually signed it. $15$

Counsel for the applicant has argued that the application is seeking extension of time for the lodgment and service of the Notice of Appeal and letter requesting for certified record of proceedings, and that the Notice of Appeal, letter requesting for certified record of proceedings and the appeal on the court record be extended or validated.

Firstly, I find that the application seeks to vary the order of a full bench of the Court. This is untenable since the Notice of Appeal was struck out. The ruling of the Court is still subsisting and is valid. There is therefore nothing on court record to validate. It is also clear

that a decision made by five Justices of the Supreme Court cannot 25 be overturned by a single Justice. He should have filed a reference if he wanted Court to vary the ruling.

Secondly, the application lacks merit. Rule 5 of the Supreme Court $\mathsf{S}$ Rules under which it was premised provides that sufficient reason must be given by the applicant before an extension of time is granted. Rule 5 provides for extension of time. It reads:

## "5. Extension of time.

The Court may, for sufficient reason, extend the time 10 prescribed by these Rules or by any decision of the court or of the Court of Appeal for doing any act authorized or required by these Rules, whether before or after the expiration of that time and whether before or after the doing of that act; and any reference in these Rules to any such time 15 shall be construed as a reference to the time so extended."

Under Rule 5 of the Supreme Court Rules, this Court has wide powers to extend time for doing any act under the Rules as long as sufficient reason is shown by the applicant. Sufficient reason is not defined in the Rule, but in the case of Rosette Kisito v the Administrator General, Civil Application No. 9 of 1986 (SC), it was held that sufficient reason must relate to the inability or failure to take a particular step in time.

In the instant case I find that no sufficient reason for the delay was given. The 1st applicant merely stated in his affidavit that:

"7. I do not know under what circumstances my lawyer if at all true didn't serve the notice of appeal and the letter requesting for certified record of proceedings on the respondents."

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Therefore, if the applicant does not know the reason for the delay, $\mathsf{S}$ then the Court is placed in even a more difficult position to tell the reason why the applicant's counsel failed to comply with the prescribed time.

Thirdly, the $1^{st}$ applicant also deponed in his affidavit that:

"10. I have been advised by my aforementioned lawyers that my 10 appeal raises very important questions of law and fact"

Counsel for the respondents argued, and I agree with him that this averment is bare without any proof. There are no important questions of law and fact outlined in the said affidavit. If the applicant wanted Court to understand him, he should have been clear and indicated

the important question of law and fact that he intended to base his appeal on.

Lastly, the High Court decree has been executed. According to the 1st respondent, the titles were given to the applicants' lawyers M/S Lumonya & Bushara Advocates who represented them at the High $20$ Court. This averment was not rebutted by the applicants in the affidavit in rejoinder. I therefore accept it as the true position as opposed to the statements from the bar by counsel for the applicants. Further, the 1st applicant deponded in his affidavit in rejoinder that:

"9...our claim is for two acres of land that belonged to the estate of the $\overline{25}$ late John Kibuuka, and the alleged titles to be returned are for less than two acres which we out rightly rejected. Plot 1159 measures 0.047 hectares. Plot 1157 measures 0.107 hectares and plot 1163

measures 0.047 hectares which adds up to 0.201 hectares. $\mathsf{S}$ Approximately only 27 decimals. What is at stake is ownership of the *two acres of land."*

This issue is in my view for the High Court which has to ensure that the land that the late Kibuuka was entitled to was returned to the applicants who are the administrators of his estate. It is not an issue that can be handled at an appellate level since it may require the High Court to review its decision in so far as the size of the land in issue is concerned. We cannot reopen the case at this stage through an appeal.

For the reasons given, I decline the invitation to exercise the 15 discretion to grant the order sought in this application. I accordingly dismiss it with costs to the respondents.

Dated this....................................

**HON. JUSTICE ARACH-AMOKO** JUSTICE OF THE SUPREME COURT

Delivered by Regist 23/9/21 Start