Nakyomu v Kasalina and Another (Miscellaneous Application 145 of 2003) [2004] UGCA 24 (27 January 2004)

Full Case Text

# THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA

## AT KAMPALA

*COBAM: HON. LADYJUSTICE C. K. BYAMUGISHA,JA*

MISCELLANEOUS APPLICATION NO.145 OF 2003

(ARISING OUT OF CIVIL SUIT NO.451 OF 1995)

#### BETWEEN

GRACE NAKYOMU APPLICANT

VERSUS

1. KASALINA ZAWEDDE

5 j

2. GRACE BONABANA RESPONDENTS

### RULING OF BYAMUGISHA. JA

This is an application filed by the applicant in person seeking two orders from this court. The first order is seeking leave for enlargement oftime within which to lodge an appeal. The second order is seeking costs of and **20** incidental to the application.

The grounds upon which it is based are the following: -

1. That she instructed her counsel to file the appeal in time, but that the same counsel had fooled her when he lied to her that the appeal had been filed.

2. The subject matter being the source of income, it is in the interest

- 5 ofjustice that the applicant be heard and the appeal determined as the applicant has grounds to support her appeal. - 3. The respondents will not be prejudiced if the applicant is allowed to file her memorandum of appeal out of time. - 4. The applicant has recently discovered in the proceedings and - 10 judgment that there was an error in recording her evidence as regards to who won the case with Masaka Co-operative Union Ltd and also more particularly as to whether the machinery belonged to her or fell under the Ministry of Finance as per the Expropriated Properties Act 1982. (now Cap 87 Laws of Uganda 15 2000 Edition) - witness to verify the authenticity of the signature they allege was mine. 5. The defendant failed to bring a handwriting expert, as their - 6. The applicant has recently discovered and found out that she has - **20** all along been misled, fooled hence the need to file this application. The above grounds were supported by the affidavit ofthe applicant. The first respondent filed ah affidavit deponed by Mr Mathias Ssekatawa an

advocate with M/s Mugerwa & Masembe advocates opposing the application.

A brief background to the application appears to be the following. The 5 applicant together with her two sisters Elena Nakabiri(now deceased) and Maria Gorette Nalugoti filed a suit in the High Court claiming recovery 29 measuring 4.05 hectares at Kyabakuza estate Masaka District. It of land. It is comprised in former Mailo Register Buddu Block 369 Plot

belonged to their late father Emmanuel Mukasa Buggala and the trio were 10 his heirs and administrix ofhis estate. They become registered as such in 1985.

The applicant alleged that after their registration, the late Paulo Muwanga, a former Vice President ofUganda fraudulently registered himself as proprietor hence the suit against the first respondent as his legal representative. She denied the allegations offraud and claimed that the late Paulo Muwanga was a bona fide purchaser for value ofthe suit a former ChiefRegistrar ofTitles was that she connived with the late **I15** property without notice. The allegations against the second respondent as

**20** Paulo Muwanga to effect the transfer.

At the trial, two issues were framed for court's determination and they were answered in the negative by Bossa J. who dismissed the suit on

12/01/02. It should also be mentioned here that the two sisters ofthe applicant at the trial disassociated themselves from.the suit. They claimed' that they did not instruct Mr Kulumba- Kiingi to file the suit on their behalf. As a matter offact one ofthem testified as a witness for the

**5** defence. **j**

When the matter came before me for disposal the applicant made **I** submissions on the application. She stated that after the suit had been determined in the High Court, she gave instructions to her counsel to file **10** an appeal. He told her that he had done so. She further stated that she used to visit his chambers almost every month to check on him until one day he shouted at her and demanded 2 million shillings. In November '03 a friend ofhers advised her to. check with the registry and on doing so she discovered that there was no notice of appeal. She also stated that the respondent would not suffer any injustice ifher application is allowed. She made a prayer that the application be allowed. **>15**

In reply, Mr David Mulumba, learned counsel for the first respondent, submitted that the applicant has not offered a satisfactory explanation as **20** to why she did not file her appeal in the time stipulated by the rules. He stated that the delay is too long and it has not been satisfactorily

explained. He cited some authorities namely The Attorney General v

Oriental Construction Co. Ltd (SCCA No.7/90) which addressed the issue of delay. In that application the delay was 14 months whereas in the instant application there is a delay of almost 24 months.

# The Attorney General V Madatali Nazarali Mulji Huda & Others

**5** £SCSA No.5/88) which addressed the issue ofsufficient reason for extension oftime that must relate to failure or inability to take a particular--—

Florence Nabatanzi v Naome Binsobede (SCCA No.6/87). This case is authority for the legal proposition that the fact that an appeal is likely to

**i**

**10** succeed cannot ofitself amount to sufficient cause.

Rule 75(1) ofRules ofthis Court state that any person who desires to appeal to this Court

"shall give notice in writing, which shall be lodged in duplicate with

**15** the Registrar of the High Court".

step in time.

Sub rule 2 states that the notice which commences the appeal has to be lodged within 14 days after the date ofthe decision against which it is desired to appeal. The judgment which the applicant desires to appeal against was delivered on 12/01/02. Therefore the notice of appeal ought **20** to have been lodged with the High Court Registrar on or before the

27/01/02.

In the case of Utex Industries Ltd v Attorney General (Civil

application for enlargement oftime had this to say with the regard to the timetable laid down in the rules: Application No.52/95) the Supreme Court while dealing with an

*"To avoid delays, rules ofCourtprovide a timetable within which certain steps ought to be taken. For any delay to be excused, it must be explained satisfactorily".*

The case of Attorney General v Oriental Construction Co Ltd (supra)

10 is authority for the legal proposition that where a period of delay is great, the court must.scrutinise the facts more carefully to be sure that a sufficient reason can be given for the extension oftime. Therefore, in order for the court to exercise its discretion in favour ofthe party applying for enlargement oftime, it must be satisfied that there is

)15 adequate excuse for the delay or that the interest ofjustice is such as to require the indulgence of court to enlarge time.

Rule 4 ofthe Court ofAppeal Rules Directions, 1996 which governs applications for enlargement oftime, gives this Court wide discretionary **20** powers to enlarge time on sufficient cause being shown. The rule has received judicial consideration in the Supreme Court and in this Court. Counsel for the first respondent has cited some ofthose authorities to me.

In a nutshell, for an application for enlargement oftime to succeed, the applicant has to show that she was prevented from taking the right step at the right time for *sufficient reason.* It has also been held in many cases that mistake, faults, lapses or dilatory conduct of counsel should not be

5 visited on a litigant except in exceptional circumstances.

In the matter now before me, the applicant has stated that she gave instructions to her counsel to file the appeal in time but he did nothing. She also claimed that she used to visit his chambers almost every month

10 to check on the progress ofthe appeal and he assured her that everything was fine. According to her affidavit, in November '03 a friend of hers advised her to check with the High Court Registry and when she did, she found that no notice of appeal had been filed. She lodged her application on 18th December '03.

The excuse that the applicant has advanced for the delay of almost two years was that her counsel whom she instructed to file a notice of appeal did not do so. She too did nothing to find out whether her instructions had been carried out. She could have done this by visiting the High Court **20** Registry to check for herself or to demand to see a copy ofthe notice of appeal filed by her counsel. The period of delay in this application is inexcusable. The applicant has not, in my view satisfactorily explained

why a notice of appeal was not filed within a period of 14 days as provided by the Rules ofthis Court. The applicant attached a copy ofthe High Court judgment to her application. The learned trial Judge had. occasion to comment on the conduct ofMr Kulumba- Kiingi as an

- **5** advocate and the numerous unwarranted adjournments which he constantly requested in order to delay the disposal ofthe.suit.. It.is therefore not accidental that he did not take any steps to file the notice of appeal if at all any instructions were given to him to file the same. - **10** I have carefully examined the circumstances ofthis application. lam aware that people come to court seeking justice. Therefore a party should not be driven from the judgment seat without being given an opportunity of being heard. Unfortunately the delay in this application has not been satisfactorily explained. In the result, the sufficient reason required under - the rules ofthis Court has not been established. The application is dismissed with costs to the first respondent. **I 15**

**th'** Dated at Kampala this.zZL.day ofAT?\*\2004.

C. K^D^In^^ha Justice of Appeal