Nsambwa v Basudde & 2 Others (Civil Application 1 of 2021) [2021] UGSC 43 (29 April 2021)

Full Case Text

# THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA HOLDEN AT KAMPALA

# CIVIL APPLICATION NO. 001 OF 2021

#### **BETWEEN**

#### NSAMBWA HAM ............... ......................................

#### AND

(1)APOLLO WASWA BASUDDE (2)ISAIAH KALANZI (3) ROSEMARY WANYANA (Administrators of the Estate of the late Sepiriya Rosiko)

.......... RESPONDENTS

$44$

### BEFORE: MWONDHA JSC (SINGLE JUSTICE)

This application was brought under Rules $2(1)$ (2), 5. 42 (1) & (2),

43 (1) of the Judicature (Supreme Court Rules) Directions SI.13-

11 for Orders that,

$(1)(a)$ time be extended to file and serve the Notice of Appeal

## in Civil Appeal No.288 of 2016.

- (b) the Memorandum of Appeal be filed and - (c) file the Record of Appeal

$(2)$ That costs abide by the outcome of the appeal.

The Notice of Motion was supported by an affidavit containing the grounds deponed by Nsambwa Ham on the 13th January, 2021. Briefly the grounds were as follows:-

- (1) The Court of Appeal delivered judgment in Civil Appeal No. 288 of 2016 on 1st November, 2018, notice of which was never communicated to the Applicant by the Court or at all in absence of his Advocate at the time who was Mr. Mushabe David. - (2) The Applicant who was seriously ill at the time having suffered a terrible motor vehicle road accident and admitted at M&S General Clinic since 30/07/2008, only learnt of the decision in Civil Appeal No. 288 of 2016 sometime in the month of November, 2020 from the respondents who were boasting of having won the appeal. - (3) That the applicant repeatedly tried to reach out to his lawyer Mr. Mushabe David to confirm the respondent's assertions but in vain. He attached an accident report and medical record marked B,C and D and Court of Appeal judgment marked "A" (pages 38-69)

$\mathcal{R}$

- (4) That the applicant then engaged new lawyers of Ms Eric Kiingi & Co Advocates to cross check with the Court of Appeal and establish the truthfulness of the matter. He managed to acquire a photocopy of the judgment from a personal friend a one Ejalu David whom he had sent to the Court of Appeal. That it was after that the applicant engaged his new lawyer to file the instant application seeking leave to enlarge time to institute the appeal. - (5) That the intended appeal raises several legal issues among others that the respondents forged none existent letters of

$\overline{2}$

administration vide Administration Cause No. 434 of 2001 dated 8th May 2002 purportedly issued by the late Hon. Justice V. F. Musoke Kibuuka. (which he denied while still alive) still subject of Police Investigations Department in Civil Appeal No 288 of 2016.

That those facts were brought to the attention of Court of Appeal before the judgment was delivered but was not considered.

(6) That it was in the interest of justice that this Court grants the application for ends of justices.

The respondents filed an affidavit in reply and a supplementary affidavit deponed by Isaiah Kalanzi and Namuli Monica respectively

Isaiah Kalanzi interalia deponed as follows:-

- 1. That he was informed by his lawyers which information he believed to be true that on 26th October, 2018, a Court Clerk from the Court of Appeal delivered judgment notices from the Court of Appeal duly addressed to them as lawyers of the appellants to M/s Mushabe Murungu Co. Advocates who had represented the applicant in Misc. Application No.293 of 2016 in the High Court from which the appeal arose in the Court of Appeal. A copy of the said judgment was attached and marked Annexture "B". - 2. That on $1^{st}$ November 2018, the day of delivery of judgment before the Registrar of the Court of Appeal, the applicants

lawyer at the time Mr. David Mushabe together with the applicant appeared in person for delivery of the judgment and they, invited this Court to look at the record of proceedings of that day. The copy of the Decree in Civil Appeal No. 288 of 2016 showing the attendance at the delivery of the said judgment by Mr. David Mushabe was attached and marked annexture "C"

- 3. That though their lawyers Ms Nsubuga & Co Advocates and legal consultants, following service of the application upon them on 1st April 2021 they requested for a copy of the record of proceedings in the Court of Appeal matter for the date of 1st November 2018, as they would be able to avail it to Court as soon as request is granted to them. A copy of the letter requesting for the record of proceedings was annexed and marked Annexture "D" - 4. That after delivery of the said judgment, he met the applicant and he informed the deponent of this affidavit, that he wished them good luck in administering the Estate and he did not have intentions to appeal. $#$ - 5. That in reply to paragraph 3 of the affidavit in support, he stated that the Applicant has never been involved in the said motor accident or if he did, the said accident was not as grave as he states it to be. - 6. That the applicant who is a nephew to the late Sepiriya Rosiko, Kaddu Mukasa and he is his paternal uncle having been a nephew of their great grandfather Sir Appolo Kagwa.

$\overline{4}$

The deponent and other respondents have met the applicant in good health on several occasions during their family meetings in regard to Administration of the Estate of the late Sir Appollo Kagwa some of which times the applicant falsely claims to have been seriously sick and admitted in hospital.

- 7. That in reply to paragraph 6 of the affidavit in support he stated that, the applicant's friend Mr. David Ejalu on several occasions attended Court together with the applicant throughout the proceedings in HCCS No. 198 of 2014 and Civil Appeal No. 288 of 2016 and he also attended Court on the day of delivery of the judgment. - 8. That in reply to paragraph 8 of the affidavit the intended appeal does not raise triable issues to require adjudication by this Court. - 9. That the applicant revoked letters of Administration were discovered to have been fraudulently obtained by the trial Judge in HCCS No. 198 of 2014 which fact was confirmed by the Court of Appeal at pages $19 - 23$ of the its judgment.

$PQ$

That the applicant had falsely claimed to have been a $10.$ grandson of the deceased Sepriya Rosiko Kadumukasa in the application of letters of Administration whereas he was a nephew and had mentioned that none of the deceased's biological children were alive whereas the 3rd respondent, is a biological child of the deceased was still alive amongst

others. That in that regard the applicants claim against the estate have always been based on falsehoods.

- That through an Application No. 541 of 2019 for 11. inter pleader proceedings filed by Uganda National Roads Authority (UNRA) against the respondent and others, for orders to deposit compensation for some of the land subjected of the dispute in HCCS No 44 of 2014 which has been taken over by Kampala Fly Over project, Court ordered that **UNRA** deposits the said compensation $of$ Ugshs7,578,627,000/ $=$ on the account provided by the Deputy Registrar of the Court. - 12. That the applicants application to extend time within which to file the appeal has been brought in bad faith and was financially motivated by the said decision of the High Court Land Division. A copy of the ruling in Misc. Application No. 541 of 2019 is attached and marked as Annexture "F" - That without prejudice, the Applicant has not shown $13.$ sufficient reason why he did not institute the intended appeal in time etc.

$\mathcal{R}$

The second affidavit deponed in reply by Namuli Monica among others stated as follows:-

(1) That the law firm of Ms Nsubuga & Co Advocates represented the respondents in HCCS No. 198 of 2014 and Civil Appeal No. 288 of 2016 against the applicant.

- (2) That at the time of prosecution of Civil Appeal No 288 of 2016, she closely followed up the proceedings in the said appeal as well as doing research for Mr. Richard Nsubuga Legal Assistant who was Counsel and had personal conduct of the case. - (3) That on 26th October, 2018 a Court Clerk from the Court of Appeal delivered judgment notice from the Court of Appeal to both firms representing the parties in the appeal - (4) That on that date the applicant's lawyers by then was Mr. David Mushabe, and together with the applicant came in Court in person and one David Ejalu who was always in the company of the applicant throughout the prosecution of Civil Appeal No 288 of 2016 and whom she came to know that he was the applicant's friend. - (5) That the delivery of judgment was before the Registrar Court of Appeal Her Worship Agnes Nkonge on 1st November 2018. - (6) That as usual, the deponent took note of the record of that day in her notebook. She attached a photocopy of her record which attached on the affidavit and marked as annexture "B".

In the supplementary affidavit by the 2nd respondent Isaiah Kalanzi, he stated as follows:-

(1) That he was a Co-Administrator of the Estate of the Late Sepiriya Rosiko Kadumukasa.

$\overline{7}$

- (2) That through his lawyers Ms Nsubuga and Co Advocates and legal consultant, they obtained a certified copy of the Record of proceedings for the date of 1st November 2018 in Court of Appeal case No. 288 of 2016. That it shows that the lawyer of the applicant and the applicant at the time attended delivery of the judgment. A copy of the said record was attached and marked Annexture "A" - (3) That he swore this affidavit to supplement his earlier affidavit sworn and filed in this Court on the 6th April, 2021.

# Representation:

The applicant was represented by Ms Eric Kiingi of Ms Eric Kiingi & Co. Advocates.

The respondents were represented by Nsubuga and Co Advocates & legal consultants.

$4P$

# Submissions:

Counsel for the applicant submitted that the judgment in Civil Appeal No. 288 of 2016 delivered on 1st November 2016 was never communicated to the applicant and even the applicant's lawyer then Mr. Mushabe David was not present. He stated that the judgment was attached as annexture marked "A". He submitted that the applicant was seriously ill by the time the judgment was delivered as he suffered a terrible motor vehicle road accident and had been admitted at M & S General Clinic since 30/07/2018 and only learnt of the decision in **Civil Appeal**

No 288 of 2016 sometime in the month of November 2020. He learnt from the respondent who was boasting of having won the appeal. He attached a copy of the accident report marked "B" at pages 36 – 37 as well as medical records marked C & D pages 38 - 69 of the application.

He further submitted that efforts to reach out to Mr Mushabe David were futile and so he engaged a new lawyer of Ms Eric Kiingi & Co Advocates. He further submitted that the new lawyer acquired a photocopy of the judgment from a personal friend Mr. Ejalu David which he had sent to Court of Appeal to try and acquire a copy of the said judgment after failing to get in touch with his former lawyer.

He went further and submitted that, the applicant engaged him to file the instant application. He submitted that after the applicant stabilisation he gave him full instructions to file this application to seek leave to enlarge time to institute the necessary appeal in this Court.

He submitted that, the intended appeal raises several legal issues $\cancel{\text{B}}$ as deponed in the affidavit in support of the Notice of Motion pertaining the fraudulent letters of Administration held by the respondents.

Counsel relied on the case of Molly Kyalikunda Turinawe & 4 Others versus Eng. Ephraim Turinawe & Another Civil Application No. 27 of 2010 at page 30.

Where the application was granted because the applicants had shown sufficient cause and the intended Appeal had serious matters to resolve. He relied also on the cases of Joel Kato & Another v. Nuulu Nalwoga Application No. 04 of 2012. And Mbale Growers Tea Factory Ltd v. Noorali Mohamed Civil Application No. 4 of 2015 which found that the applicants have shown sufficient cause and that the intended appeal had serious matters to resolve.

Counsel prayed that in the interest of justice this Court grants the orders sought for the ends of justice.

Counsel for the respondents, submitted that in the case of **Molly** Kyolikunda Turinawe & others supra the Court considered the following issues interalia.

(1) Whether the applicants have established sufficient reasons for this Court to extend the time within which time may be enlarged.

$(2)\ldots\ldots\ldots\ldots\ldots\ldots$

(3) Whether injustice would be caused if the applicants is not granted the orders sought.

He argued that the applicant in the affidavit in support of the application claimed, that neither his lawyer nor the applicant himself were served with the notice of judgment delivery. And that he only learnt about it in November 2020.

That the applicant tried to reach his former lawyer but in vain.

That the applicant was seriously ill all through the whole period since he suffered a motor road accident on 30th July, 2018.

That the file of Court of Appeal No 288 of 2016 had gone missing and all searches proved futile.

Counsel submitted that sufficient cause/reason is determined by Court depending on the circumstances of each case. He relied on Mabale Growers Tea Factory Ltd v. Noorali Supreme Court Application No. 3 of 2015

He submitted that under paragraph 5. 6. 7 and 8 of the $2^{nd}$ respondents affidavit in reply it was not true that neither the applicant nor his lawyer were given hearing notice of judgment delivery as alleged in paragraph 2 and 3 of the applicants affidavit.

The applicant and his lawyer were served with the notice as stated in the $2^{nd}$ respondent's affidavit in reply. He submitted further that according to the documents attached to the affidavit mainly the one deponed by Monica Namuli, the applicant and his lawyer were present at the delivery of the judgment on & $1/11/2018.$ That the copy of the handwritten notes of the deponent made on that day Annexture B showed that the applicant attendance and so was his lawyer.

Counsel further submitted referring to the affidavit of the 2nd respondent in reply para 9 that despite the respondent's lawyers having been served with the application on 1st April 2021 by letter dated 6th April 2021 marked annexture "D" they requested

for a certified copy of the record of proceedings of the Court of Appeal for 1st November, 2018 of Civil Appeal No. 288 of 2016.

That in paragraph 2 of the $2^{nd}$ respondent's supplementary affidavit, the record of proceedings on the 7th April 2021 was granted and was attached on the supplementary affidavit marked Annexture "A".

He affirmed that, that evidence corroborated the $2^{nd}$ respondents' evidence and Monica Namulis' evidence regarding the applicants' attendance of the delivery of the judgment on 1st November 2018 inter alia.

Counsel further submitted that in the 2nd respondents' affidavit in support he stated in paragraph 7 that he met the applicant sometime after delivery of the judgment and he informed him that he was not interested in appealing the matter.

He submitted further that the evidence by the $2^{nd}$ respondent in para 9 and 10 of the affidavit in reply is to the effect that the applicant has never been involved in an accident or if he did it was not as grave as he asserts. The alleged medical records attached by the applicant show that he was an outpatient & preceding delivery of the judgment on 1st November, 2018. The medical notes from M & S General Clinic as attached on the applicant's affidavit points to that. The applicant's affidavit show that from 5th August, 2018 the applicant was an outpatient. Further that this evidence explains the various time lapses between those dates of reviews.

He submitted that the applicant's affidavit is marred with falsehoods and lies which go to the root of the application. And even if the falsehoods are ignored, this Court will have no reason as to why the applicant failed to institute his intended appeal within the stipulated time.

Counsel relied on the case of Joseph Mulenga v. Photo Focus Uganda [1996] IV KLR at the page 19 where it was held, "where an affidavit in support of the application contains falsehoods, such falsehoods render the entire affidavit suspect and an application *based on such affidavit must fail" (sic)*

(3)On the issue whether any injustice would be caused if this application is not granted. Counsel submitted that the applicant has not demonstrated anywhere in the application how he would be prejudiced or what loss he would suffer if the application is not granted especially since he claimed that he had valid letters of Administration.

Counsel affirmed what was deponed by the $2^{nd}$ respondent's, affidavit in reply, that the intended appeal does not raise any triable grounds to justify granting of orders sought.

$\mathscr{F}$

## Consideration of the application

This was an application to extend time within which the applicant may file the Notice of Appeal Memorandum and the record of proceedings.

Rule 5 of the Judicature (Supreme Court Rules) SI 13 - 11 provides "the Court may for sufficient

reason extend the time prescribed by these rules or by any decision of the Court of Appeal for doing of an act authorised or required by these rules whether before or after the expiration of the time and whether before or after 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."

Upon careful perusal of the affidavits for and against the application together with the annextures including the medical records and after careful consideration of the law applicable as stated above the submissions of both learned Counsel and the authorities relied upon, I find the following:-

> (i) That the main issue is whether the applicant established sufficient reason to grant the orders sought.

The evidence on record show that the applicant and his lawyer were in Court when the judgment in Civil Appeal No 288 of **2016** was being delivered. The evidence is contained in the copy of the Decree signed on 12th November, 2018 but the delivery took place on 1st November, 2018. $48$

It states, "this matter coming up for delivery of judgment this $1^{st}$ day of November 2018 before Hon Justice Kasule, Hon Justice Kenneth Kakuru and Hon Justices Lady Hellen Obura, in the presence of Mr. Richard Nsubuga, Counsel for the appellants and Mr. David Mushabe Counsel for the respondents. This was annexture "C" at page 10 of the respondent's affidavit."

Also there was annexture "A" attached on the 2nd respondent supplementary affidavit; this was the record of the proceedings which was made by Court on the 1st November 2018. It was certified by the Court Registry of the Court of Appeal as a true record and dated 7th April 2018.

It reads/states $\frac{1}{2}$

$1 - 112018$

Counsel Richard Nsubuga jointly with Monica Namuli for the appellants

Counsel Mushabe David for the respondent

Respondent in Court

Clerk – Mellisa

Signed Dr. Agnes Nkonge

Registrar Court of Appeal

01-11-2018

On careful analysis of the medical record attached on the affidavit in support of the application, they left a lot to be desired as stated hereunder:-

$4l$

The so called medical record starts as far back as 2010 as per M&S Medical Centre Ltd referring to the applicant Ham Nsambwa allegedly aged 70 years old. This was written by a one Dr. Dabanja M. H. and stated that the patient was under his care and he had been referred to him by his purported colleague in

Kawolo Hospital for further management. The report was dated 9/11/2010. The reference by his colleague was not annexed and neither did he disclose the names of his colleague or what the patient/applicant was suffering from.

Further the document stated that "prior to that he had been diagnosed with acute urinary retention at the Josika Medical Centre Lugazi but the date when this occurred was not indicated. Neither was the cause of the acute urinary retention mentioned. The other dates referred to were 26/07/2019 which was long after the delivery of the judgment. The police officer Cpl Katushabe from CPS Kampala who made the accident report is mentioned as a witness but the contents of the report lack authenticity since he never deponed an affidavit and yet it was a photocopy on which the report ought to have been attached. So the geneuness of the same was left in balance.

The many so called medical record documents which were allegedly generated by M&S General Clinic appeared fabricated on the face of the record and could not show or prove that the applicant was seriously ill as he deponed in the affidavit. Obviously the accident report annexture "B" and the medical po receipts could not satisfy this Court that the applicant has sufficient reason that prevented him from filing the notice of Appeal in time.

The applicant did not attempt to show how he would be prejudiced if this application was not granted. He claimed to have valid letters of administration which letters were found to

have been issued on the basis of misrepresentation to Court before granting them. But even then he had a duty to demonstrate how he would be prejudiced. On the contrary respondents evidence and others according to the $2nd$ demonstrated their commitment to preservation of the Estate in issue when they stated in para 17 of the affidavit in reply, that they instituted **HCCS No 440 of 2013** as Administrators of the Estate of Sepiriya Rosiko Kadumukasa against Government for the recovery of the land of the Estate that was illegally taken over by Government among others.

As a result UNRA filed an application for inter pleader proceedings against the respondents and others and Court ordered UNRA to deposit Shs.7,578,627,000/ $=$ as compensation. On the account given by Deputy Registrar of Court.

The applicant did not controvert that evidence. I therefore believed the averment by the $2^{nd}$ respondent in reply as per para 19, that the Applicant brought this application in bad faith and was financially motivated by the said decision of the High Court in Misc Application No. 54 of 2019 which was attached on the affidavit as annexture "F" The applicant has the burden to prove sufficient reason as provided in Rule 5 of this Court rules.

Some of the basic averments in the Applicants affidavits in support of the application were apparently falsehoods when he stated that he was seriously ill, which the uncontroverted evidence by the respondents as per the affidavits and their annextures the evidence was overwhelming that the applicant

was present together with his lawyer when the judgment on 1st November 2018 was delivered.

The applicant was feeding Court on a pack of lies in the material particular that even if I was to sever or expunge some averments, the main contention of nonattendance on ground of serious illness had been perforated and the application cannot stand.

Considering the above findings I do not find sufficient reason to grant the application for extension of time as sought by the applicant.

In the result I dismiss the application with costs.

Dated at Kampala this $\mathbb{Q}_{\text{sym}}^{\text{th}}$ . April day of 2021

Thuerdee Mwondha JUSTICE OF THE SUPREME COURT