Nabco Enterprises Uganda Limited v Registered Trustees of the Jesuit (Civil Application 39 of 2021) [2021] UGSC 40 (7 October 2021)

#### THE REPUBLIC OF UGANDA

### IN THE SUPREME COURT OF UGANDA AT KAMPALA

#### CIVIL APPLICATION NO. 39 OF 2021

# (CORAM: HON. JUSTICE MUGAMBA, JSC, SINGLE JUSTICE)

#### **BETWEEN**

### NABCO ENTERPRISES UGANDA LIMITED :::::::::::::::::APPLICANT

#### AND

REGISTERED TRUSTEES OF THE **JESUIT** (SOCIETY OF **JESUS**):::::::::::::::::::::::::::::::::::

# (Brought under Rules 5, 42(1) & (2) and 43(1) of the Judicature (Supreme Court Rules) Directions SI 13-11)

#### RULING OF THE COURT

This application was instituted by Notice of Motion seeking for orders that:

- a) The time within which to file the Memorandum of Appeal and Record of Appeal in this court be extended and or the Memorandum of Appeal and Record of Appeal filed out of time in this court by the Applicant be validated. - b) The costs of this application be in the cause.

The application is supported by an affidavit sworn by Mr. Charles Odongo, a director in the applicant's company, dated 2<sup>nd</sup> September, 2021. The affidavit in reply was sworn by Ms. Nakasinde Annitah Lucy Kawuma who is a project accountant in the respondent society. It is dated 21<sup>st</sup> September 2021.

# Grounds of the application.

The grounds in support of the Application are contained in the applicant's Notice of Motion and amplified in the affidavit in support. They are as follows:

- 1. That Civil Appeal No. 21 of 2018 filed by the Applicant against the Respondent in the Court of Appeal was heard and determined in favour of the Respondent on the 12th day of March 2021. - 2. That the Applicant being aggrieved with the decision of the Court of Appeal, immediately lodged a Notice of Appeal and a letter requesting for a typed certified copy of the record of proceedings with the Registry of the court of Appeal on the 26<sup>th</sup> h day of March 2021. - 3. The typed certified copy of the record of proceedings was availed to the Applicant's lawyers on the 25<sup>th</sup> of April $2021$ at 3:10pm. - 4. The Memorandum and Record of Appeal should have been filed in this court by the $22^{nd}$ day of June 2021 but due to the nationwide lockdown imposed by the government on the 18<sup>th</sup> day of June 2021, the Applicant was prevented from filing the Memorandum and Record of Appeal in time. - 5. The Applicant was prevented by sufficient cause from filing the Memorandum and Record of Appeal in this court in time. - 6. This application was brought without inordinate delay - 7. The Applicant has already filed the Memorandum and Record of Appeal in this court out of time. - 8. The Applicant has a plausible appeal that raises serious questions of law with a likelihood of success.

- 9. The Respondent will not be prejudiced in anyway if this application is granted and the time for filing the Memorandum and Record is extended and or the Memorandum and Record of Appeal already filed in this court is validated. - It is in the interest of justice that the Applicant's $10.$ application be granted and the substance of the grievances in the Applicant's appeal be heard and determined on their merits.

## **Representation**

At the hearing of the application, the applicant was represented by learned counsel Mr. Amos Mushaija while the respondent was represented by learned counsel, Mr. Joseph Kasozi.

## Submissions of counsel for the applicant

Counsel submitted that the application was brought under Rule 5 seeking for orders that the time within which to file the Memorandum of Appeal and the record of appeal in this court be extended. He prayed also that the Memorandum of Appeal and the record of appeal already filed out of time in this court be validated.

Counsel submitted further that the grounds of the application were contained in the affidavit of Mr. Charles Odong who is the Managing Director of the applicant. He went on to highlight the said grounds. He stated that the applicant instituted High Court Civil Suit No. 893 of 2014 against the respondent and that the said suit was determined in favour of the respondent on 24<sup>th</sup> August, 2017. He added that applicant appealed to the Court of Appeal in Civil Appeal No. 21 of 2018, which appeal was determined on 12<sup>th</sup> March, 2021 in favour of the respondent.

He stated that thereafter the applicant filed a Notice of Appeal and applied to the Court of Appeal for the record of proceedings on 26<sup>th</sup> March, 2021. He conceded that the applicant was supposed to file its record and Memorandum of Appeal on the 22<sup>nd</sup> June, 2021 but was incapacitated. Counsel submitted that the applicant did not have the finances to prepare the record of appeal which covers about 1356 pages. He added that the applicant was affected also by the lockdown imposed by the Government on 18<sup>th</sup> June 2021. Counsel contended however that upon the government easing the lock down, the applicant was able to find the resources and prepare for financing the preparation of the record of proceedings. He added that this application was filed after the applicant secured resources to prepare the voluminous record of appeal which he stated was already filed in this court and that the necessary fees had been paid.

Counsel cited the case of Tushabe Chris vs. Co-operative Bank Ltd (in receivership), Supreme Court Civil Application. No. 8 of 2018, where he submitted it was held by this court that lack of financial ability by the applicant to immediately instruct counsel constituted sufficient reason.

## Submissions of counsel for the respondent

In reply counsel for the respondent submitted that the application lacked merit. He stated that the applicant received the proceedings on 21<sup>st</sup> April 2021 and that 60 days would have elapsed on the 21<sup>st</sup> June 2021. He added that the lockdown was pronounced on the 18<sup>th</sup> June 2021 when the applicant remained with only three of the 60 days left for the statutory time to elapse.

He added that given that the lockdown was lifted on the 31<sup>st</sup> July, 2021 the applicant should have instituted the application at least in the first week of August, 2021. He submitted that this application was filed on 17<sup>th</sup> September, 2021, 48 days after the lifting of the lockdown.

Counsel submitted that the lockdown should not have affected the filing of the application during that time. He cited a circular from the Chief Justice dated $21^{st}$ June 2021. He added that courts were receiving all pleadings that were being filed.

Counsel contended that the applicant failed to give evidence to demonstrate that it did not have the necessary money. He added that the record of proceedings was prepared by the Court of Appeal and that as such the applicant had nothing to do with the alleged preparation of the record.

Counsel submitted that Rule 5 of the Rules of this court requires sufficient reason. He added that the applicant did not take any step to pursue this appeal.

## Consideration of the application

This application was mainly based on Rule 5 of the Rules of this Court, which states as follows:

### "Extension of time

The court may, for sufficient reason, extend the time prescribed by these Rules or by any decision of the court or of the Court of Appeal for the doing of any act authorised or required by these Rules, whether before or after the expiration of that time and whether before or after 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."

In F. L. Kaderbhai & Another v Shamsherali Zaver Virji & Others, Supreme Court Civil Application No.20 of 2008, this court stated as follows:

"Rule 5 of the Supreme Court Rules empowers this court, for sufficient reason, to extend the time prescribed by these In Boney M. Katatumba vs Waheed Karim, Civil Rules. Application No. 27 of 2007, to which I was referred by Mr. Kandeebe, my learned brother Justice Mulenga, JSC, said:

'Under rule 5 of the Supreme Court Rules, the court may, for sufficient reason, extend the time prescribed by the Rules. What constitutes "sufficient reason" is left to the Court's unfettered discretion. In this context, the court will accept

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either a reason that prevented an applicant from taking the essential step in time, or other reasons why the intended appeal should be allowed to proceed though out of time. For example, an application that is brought promptly will be considered more sympathetically than one that is brought after unexplained inordinate delay.

But even where the application is unduly delayed, the court may grant the extension if shutting out the appeal may appear to cause injustice.'

I respectfully agree with that interpretation of rule 5 of the Rules of this court. The question at stake is whether sufficient reason has been shown by the applicants in the instant case to justify grant of the application?"

The above ruling was further emphasised by this court in the case of James Bwogi & Sons Enterprises Ltd v Kampala City Council & Another, Supreme Court Civil Application No.9 of 2017, where it stated as follows:

"Rule 5 of this court under which the application for extension of time was brought provides:

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The power given to court under the above rule is discretional. Before it is exercised, court ought to find 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 Court of Appeal."

Rule 5 and several decisions of this court including the few I have cited above, give discretion to this court to extend the time prescribed by Rules of this court where the said time has lapsed provided the applicant has shown sufficient reason.

I will proceed to determine whether the applicant has shown sufficient reason to warrant the exercise of my discretion to extend time to enable it file its Memorandum of Appeal and record of appeal out of time.

The applicant shows in its grounds and the affidavit in support that Civil Appeal No. 21 of 2018 which it filed against the respondent at the Court of Appeal was heard and determined in favour of the Respondent on 12<sup>th</sup> March 2021. It further stated that it lodged a Notice of Appeal and a letter requesting for a typed certified copy of the record of proceedings with the Registry of the Court of Appeal on 26<sup>th</sup> March 2021 and that it received typed certified copy of the record of proceedings on the 21<sup>st</sup> April 2021.

The above evidence was not contested by the respondent in its affidavit in reply.

The applicant contended that it would have filed its Memorandum and record of appeal in this court on 22<sup>nd</sup> June 2021 but failed owing to the nationwide lockdown imposed by the Government on the 18<sup>th</sup> June 2021. It was submitted that the lockdown prevented the applicant from filing the Memorandum of appeal and the record of appeal in time.

The second reason advanced by the applicant for failure to file the Memorandum of appeal and the record of appeal in time was that the record was voluminous and that it required a substantial amount of money for preparation and filing in this court. It was submitted on behalf of the applicant that it did not have the requisite money since its business was affected by the impact of the lockdown.

The respondent opposed the explanation given by the applicant for failure to meet the timelines. It stated that the applicant had up to 14<sup>th</sup> June 2021 to file its appeal and observed that the lockdown was imposed on 18<sup>th</sup> June 2021, 4 days away from the last date of filing. It was further argued on behalf of the respondent that the applicant was a construction company which had continued operations even during the lockdown and that as such the lockdown could not have affected its operations.

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In paragraph 13 of the affidavit in reply, the respondent stated that the courts were open to receiving court documents. Indeed, this court did not completely close during the said lockdown. The registry was functional and was open to receiving documents from the public. I note that the Chief Justice's circular dated 21st June, 2021 did not completely shut down the operations of the court. It only scaled down court's operations by 10%. I take judicial notice of the fact that this court could even conduct hearing of some applications such as applications for a certificate of urgency.

Another reason advanced by the respondent regarding financial constraints is the stuff comedies are made of. Mentioning lack of money per se without mention of the amount involved in no way assists me or anyone else to appreciate the alleged inadequacy.

Indeed, in Tushabe Chris vs. Co-operative Bank Ltd (in **receivership)** (supra) leave for extension of time was granted after court considered the following factors advanced by the applicant as reasons for his failure to appeal within time:

- 1. Illness - 2. His counsel did not inform him of the outcome in time - 3. Lack of financial ability to immediately instruct another lawyer to appeal as soon as he knew of the judgment.

I totally agree with the respondent that the applicant has not advanced any cogent reason for its failure to file its appeal in this court in time.

Consequently, this application fails. It is dismissed with costs to the respondent.

Dated at this day....................................

Paul Kahaibale Mugamba JUSTICE OF THE SUPREME COURT