Nguge & 3 Others v Tumushime & Another (Miscellaneous Application 27 of 2023) [2024] UGHC 831 (5 September 2024)

Full Case Text

| 5 | THE REPUBLIC OF UGANDA | |----|-------------------------------------------------------------------------------------| | | IN THE HIGH COURT OF UGANDA AT KABALE | | 10 | Miscellaneous application No.0027 of 2023 | | | (Arising from Civil Suit No. 0021 of 2021) | | | 1. NGUGE RICHARD | | 15 | 2. KICONCO ALLEN | | | 3. ATUHEIRE ALEX | | | 4. AINEMBABAZI BOSCO::::::::::::::::::::::::::::::::::::::::::::::::::APPLICANTS | | | VERSUS | | | 1. TUMUSHIME SAM | | 20 | 2. NKURUNZIZA KENNETH::::::::::::::::::::::::::::::::::::::::::RESPONDENTS | | | |

## **BEFORE: HON. JUSTICE SAMUEL EMOKOR**

### **RULING**

- 25 The Applicant brings this application by Notice of Motion under **Section 33 (**now **Section 37) Judicature Act, Section 79** and **98 Civil Procedure Act** and **Order 51 Rule 6** of the **Civil Procedure Rules** seeking orders that the Applicants be granted leave of Court to file an appeal out of time and provision be made for costs. - 30 The application is premised on the grounds that the Applicants were the Defendants in Civil Suit No. 0021 of 2021 and the Respondents were successful Plaintiffs in the said Suit.

That the Applicants are dissatisfied with the whole judgment and orders of the trial Court and desirous of appealing against the same to this honourable Court

35 but the Applicants are outside the 30 days period within which to appeal.

5 That the Applicants were prevented by sufficient cause from filing an appeal within the time in which they were required to file an appeal.

The application is supported by the affidavit of the first Applicant who interalia avers that the Applicants were dissatisfied with the judgment in Civil Suit No. 0021 of 2021 delivered on the 17/10/2022 and are desirous of appealing against

- 10 the same to this Court but were prevented by sufficient cause from filing the same within the 30 days period due to lack of proper legal advice. That by the time the Applicants contacted Counsel Tugume K. B Moses in April, 2023 to lodge an appeal they were already out of time within which to lodge an appeal hence the instant application seeking leave of this honourable Court to file an appeal out of time. - The 2nd 15 Respondent filed an affidavit in reply to the application averring interalia that the current application was presented to frustrate execution which the Applicants had commenced. That the Applicants have not disclosed sufficient cause to warrant an admission of the appeal against the decision of Court in Civil Suit No. 0021 of 2021. That the Applicants were informed by the trial Magistrate 20 while in Court that if they intended to appeal against the decision they had 30 days within which to appeal but that the Applicants delayed by almost 7 months which is unreasonable and prays that the application is not granted.

#### **Representation.**

At the hearing of this application the Applicant was represented by Messrs 25 Tugume Byensi & Co. Advocates while the Respondents were represented by M/s Lawtons Advocates. Counsel proceeded by way of written submissions.

#### 5 **Preliminary objection.**

The Applicants in their submissions raised a preliminary objection to the Respondents affidavit in reply stating that the same did not name the deponent therein.

According to the Applicants' Counsel failure to name the deponent is a serious 10 incurable defect under **Rule 7** of the **Commissioner** for **Oaths Rules** in the schedule to the Commissioner for oaths (Advocates) Act.

Counsel therefore prays that the affidavit in reply is struck out.

The Respondents in their submissions in reply contend that Rule 7 cited by the Applicants emphasizes personal presence of the person making the oath before

- 15 the Commissioner for the Commissioner to confirm that indeed the person named in the affidavit is the person before him and that he is in full possession of his mental faculties and he or she knows what they are doing. It is the argument of the Respondents' Counsel that the 2nd Respondent in the opening paragraph indicates that he is Nkurunziza Kenneth and depones the affidavit in that capacity - 20 therefore the deponent is ascertainable from the affidavit itself.

#### **Decision on preliminary objection.**

#### **Rule 7** of the **Commissioner of Oaths Rules** provides that:

*"A commissioner before taking oath must satisfy himself or herself that the person named as the deponent and the person before him or her are the same and that the* 25 *person is outwardly in a fit state so as to understand what he or she is doing"*

I would agree with the Respondents' Counsel that the 2nd 5 Respondent on the first line of his affidavit introduces himself as *"Nkurunziza Kenneth"* and as the person making the oath.

The deponent in the second page appends his signature to the affidavit that is commissioned by the commissioner for oaths one Muhangi Justus.

10 The Applicant does not attack the affidavit on the basis that the signature there on did not belong to the deponent. There is no legal requirement that the deponent must add their names below their signature to an affidavit. That is just a matter of form. The 2nd Respondent properly introduces himself at the commencement of his affidavit and is therefore sufficiently identified. The 15 preliminary objection is therefore overruled.

I will now proceed to determine the substance of the application.

#### **Submissions.**

Counsel for the Applicants submits that judgment against the Applicants was delivered on the 17/10/2022 and certified on 13/02/2023 when the 30 days from 20 the date of judgment had elapsed. That the Applicants secured services of an Advocate in April 2023 after the period for lodging the appeal had lapsed. It is the contention of Counsel that during the trial the Applicants were unrepresented and whereas the record shows that the right of appeal was explained the time line within which to appeal was not explained.

25 Counsel also argues that the intended appeal has a high chance of success arguing that the suit property was their father's residential holding to which all the parties as children of the late Muge Barijane are entitled to access and occupancy rights.

5 That the trial Court found that the will of the late Muge Barijane to be invalid but then overlooked the fact that all the Respondents benefited from the bequests in the will and disposed of the same basing themselves on the very will and after reaping the benefits of the will.

That the Applicants intend to rely on the principles of probation and approbation 10 as well as the doctrine of estoppel.

It is therefore the prayer of the Applicants' Counsel that the instant application is allowed.

Counsel for the Respondents in his Written Submissions contends that the Applicants have not demonstrated sufficient cause to warrant grant of leave to 15 appeal out of time and that the Applicants were fully aware of the time within which to appeal and did not do so. Counsel also argues that there is inordinate delay on the part of the Applicants and that the appeal is a mere ploy to deny the Respondents the fruits of their judgment.

Counsel also prays that in the unlikely event that this application is granted costs 20 be awarded to the Respondents.

#### **Determination.**

**Section 79 (1) (a)** of the **Civil Procedure Act** provides that an appeal to the High Court shall be within 30 days of the date of the decree or order of the Court. However, under **Subsection (b)** the Appellate Court may for good cause admit an 25 appeal though the period of limitation prescribed has elapsed.

5 It is trite law that applications of this nature for an order of enlargement of time to file an appeal should ordinarily be granted unless the Applicant is guilty of unexplained and inordinate delay in seeking the indulgence of the Court and has not presented a reasonable explanation on his failure to file the appeal within the time prescribed by law or where extension will be prejudicial to the Respondent 10 or the Court is otherwise satisfied that the intended appeal is not an arguable one.

In **Tight Security Ltd versus Chartis Uganda Insurance Company Limited & another HCMA No. 0008 of 2014** it was held that for an application of this kind to be allowed, the Applicant must show good cause.

Judgment in Civil Suit No. 0021 of 2021 which is the subject of the intended appeal 15 was delivered on the 17/10/2021 and the instant application was filed on 26/05/2023. This is 19 months after the said judgment and 18 months after the statutory limit of 30 days.

The thrust of the Applicants reasoning for this delay is that the Applicants had no legal representation at the trial and therefore did not understand the strict 20 timelines for filing of their appeal. This argument in itself is not attractive or plausible. This is because it could be unduly taken advantage of by unrepresented litigants who make up the majority in the lower Courts.

I am however alive to decisions that have taken this into consideration as amounting to sufficient cause.

25 **See Ojara Otto versus Okwera Benson HCMA No. 0023 of 2017, Sentamu Moses & 04 other versus Kenansi Jackline HCMA No. 0681 of 2021, Obonyo Peter versus Otto Alex Atik & 02 others HCMA No. 0140 of 2023.**

5 It is not in dispute that the Applicants in this case were self-represented at the lower Court and this does lay credence to their claim to being laymen in as far as the law and procedure is concerned.

The above fact not withstanding Courts have taken note of the fact that where there are serious issues to be tried, then a Court ought to grant an application of

10 this nature.

# **See Sango Bay Estates Ltd versus Dresdner Bank [1971] EA 17.**

I have studied the affidavit of the Applicants and the draft Memorandum of Appeal that is annexed to the instant application. I have also taken note in favour of the Applicants that they have obtained the certified record of the proceedings and

15 judgment of the lower Court and shall not therefore require more time to obtain the record.

It is therefore my finding that the Applicants have met the legal test for grant of an extension of time within which to file an appeal. The instant application is therefore hereby allowed and the Applicants are given 14 days within which to

20 file and serve the Memorandum of Appeal. The costs of this application shall be awarded to the Respondents owing to the fact that this application would have been avoided if the Applicants had acted within the statutory time limits.

It is so ordered.

Before me,

25 ……………………………………

**Samuel Emokor Judge 05/09/2024**