Nabukenya v Byabalema (Miscellaneous Application 45 of 2023) [2023] UGHC 416 (11 August 2023)

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

# **IN THE HIGH COURT OF UGANDA AT MASAKA MISCELLANEOUS APPLICATION NO.45 OF 2023 (ARISING FROM CIVIL SUIT NO.37 OF 2022)**

## **NABUKENYA TEOPISTA::::::::::::::::::::::::::::::::::::::::::::::::::APPLICANT**

#### **VERSUS**

#### **BYABALEMA PATRICK::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT**

#### *Before; Hon. Justice Victoria Nakintu Nkwanga Katamba*

### **RULING.**

This Application was brought under Section 33 of the Judicature Act, Section 98 of the Civil Procedure Act and Order 52 Rules 1 and 3 of the Civil Procedure Rules seeking orders that;

- 1. The Applicant be granted leave to file and serve the Memorandum of Appeal out of time. - 2. Costs of the Application be provided for.

The Application is supported by an affidavit deponed by the Applicant, Nabukenya Teopista where she states as follows, that;

- 1. She instituted Civil Suit. No.37 of 2022 against the Respondent in the Sembabule Chief Magistrate Court and Judgement was passed on 23rd November, 2022 where in the suit was dismissed. - 2. She lodged a complaint before the Chief Inspector of Courts on 29th November 2022 which she presumed to be an Appeal. - 3. The Chief Inspector through a letter dated 22nd December 2022 wrote back to her advising her to seek legal remedies from the High Court of Masaka.

- 4. Through the help of the chair person, she wrote a letter to the High Court of Masaka where after, the High Court registry advised her to file a memorandum of Appeal and also file an Application for leave to appeal out of time since the time within which to file an Appeal had elapsed. - 5. She also stated that she has very strong grounds of Appeal that warrant judicial consideration and that the Appeal has a likelihood of success.

An affidavit in reply was deponed by Byabalema Patrick, the Respondent where he stated as follows, that;

- 1. The lower Court's judgement was read and translated in the presence of both Parties by the Magistrate Grade 1 and the Court Clerk respectively. - 2. The parties' rights of Appeal were explained by the trial Court. - 3. The Parties were further informed of the time lines to wit, both Parties understood. - 4. The Applicant never filed a notice of Appeal. - 5. The Applicant granted the Respondent vacant possession soon after the decision of the Court was delivered, where upon the Respondent constructed a house. - 6. The Respondent and his family rely on the suit land for sustenance. - 7. The Applicant has waited almost 3 months to bring the Appeal.

Both Parties filed written submissions which I have read but shall not reproduce. However, I shall refer to the submissions when the need arises in the resolution of this Application.

#### **Resolution of Application.**

This is an Application for extension of time within which to appeal.

*Section 79(1)* of the *Civil Procedure Act Cap 71* provides that an appeal ought to be entered within thirty (30) days from the date of the decree or order of Court however, the Appellate Court may for "*good cause*" admit the appeal though the 30 days have elapsed.


A grant of extension of time is discretionary and depends on proof of good cause showing that the justice of the matter warrants such an extension. (See: *Ojara Otto Julius versus Okwera Benson, HCMA. No.23 of 2017*)

As for what amounts to good cause, in *Tight Security Limited versus Chartis Uganda Insurance Co. Limited and Another, HCMA. No.08 of 2014*, it was held that, "g**ood cause** must relate to and include the factors which caused inability to file the appeal within the prescribed period of 30 days. The phrase "good cause" is however wider and includes other causes other than causes of delay such as the public importance of an appeal and the court should not restrict the meaning of "good cause". It should depend on the facts and circumstances of each case and prior precedents of appellate courts on extension of time."

From a perusal of the Affidavit in support, it is my observation that the cause advanced by the Applicant is that at all times during proceedings before the Trial Court, the Applicant was unrepresented and therefore, she was ignorant of the rules of procedure. As a result, she was unable to lodge the Appeal within the prescribed time limit or lodge the Appeal at all.

It is also my observation that in this Application, while it is not challenged that the Applicant was unrepresented, it was contented that the trial Court duly explained the procedure to the Applicant.

The issue Court seeks to resolve is whether self-representation and being ignorant of procedure of Court, resulting in failure to take a necessary step in litigation amounts to good cause.

The Supreme Court in *Nicholas Roussos versus Gulam Hussein Habib and Another, SCCA. No.9 of 1993* answered the above issue in the affirmative. The Supreme Court held that ignorance of procedure by an unrepresented litigant is sufficient cause to warrant an exercise of discretion to extend time.


In this Application, besides the Applicant being unrepresented at trial, it is also evident that even though the Appeal process might have been explained to the Applicant, the Applicant did not fully appreciate the process.

The Courts are duty bound to ensure that the gates of justice are not closed to unrepresented litigants because justice ought to be administered fairly without regard to wealth or status. Consequently, unrepresented litigants should not be held to the same level as Advocates and in the consideration of matters pertaining to unrepresented litigants, Courts should exercise some leniency. (See: *Odoch Jenasio versus Oyoo Ali and others, HCCA. No.08 of 2018*, for proposition that Court ought to exercise leniency when dealing with unrepresented litigants.)

In *Ojara Otto Julius versus Okwera Benson, HCMA. No.23 of 2017*, while citing the authority of *National Enterprises Corporation v. Mukisa Foods, C. A. Civil Appeal No. 42 of 1997*, it was held that denying a subject a hearing should be a last resort and in absence of any significant prejudice likely to be caused to the Respondent, an Application for extension ought to be allowed.

The Respondent has not indicated that he shall suffer significant prejudice in the instant case. He stated in his affidavit that the suit land is where his family derives sustenance. It is my considered view that allowing this Application shall not interfere with the Respondent's occupation of the land. This Application simply allows the Applicant to challenge the decision of the trial Court.

Although there has been delay in bringing this Application, an explanation for the delay has been given. From the affidavit in support, after pronouncement of the decision of Court, the Applicant did not sit back and relax. The Applicant lodged a complaint to the Chief Inspector Courts within six days and also wrote a letter to the High Court albeit under the mistaken belief that these were appeals, owing to the ignorance of procedure.

In an Application of this nature, the Court is not greatly concerned with whether the Appeal has a probability of success or whether the intended Appellant has an arguable


case. (See: *Kampala Capital City Authority vs Kabandize & Others; SCCA No. 21 of 2014.*)

However, from a perusal of the trial Court record and the intended memorandum of Appeal, it is my observation that the Appeal raises issues that require consideration.

In summation, I find that the Applicant has furnished good cause to warrant a grant of extension of time within which to file and serve the memorandum of Appeal.

#### **Conclusion and orders.**

- 1. The Application is hereby granted. - 2. The Applicant shall file the memorandum of Appeal within 30 days from receipt of this ruling. - 3. Costs shall abide the outcome of the Appeal.

I so order.

Dated and delivered electronically at Masaka 11th day of August 2023.


**Judge.**