Odendi v Mubiboyi (Miscellaneous Appeal 144 of 2023) [2024] UGHC 771 (20 August 2024)

### THE REPUBLIC OF UGANDA

### IN THE HIGH COURT OF UGANDA AT ARUA

# MISCELLANEOUS CIVIL APPEAL NO.144 OF 2023

# (ARISING FROM CIVIL APPEAL NO.0024 OF 2020)

MARGARET ODENDI ....................................

(Suing on her behalf and as Legal Representing of the Late Apiliga Odendi) 10

### VERSUS

MUBIBOYI FRANCIS ::::::::::::::::::::::::::::::::::::

# BEFORE HON. JUSTICE COLLINS ACELLAM

$\mathsf{S}$

### **Brief Introduction**

This is an application brought by way of Notice of Motion under Sections 79, 98, 27 Civil Procedure Act and Order 50 Rule 8, Order 43 Rule 31, Order 52 Rule 1 & 3 of the Civil Procedure Rules SI 71 – 1 for orders that;

**RULING**

1. The Ruling in Civil Appeal No. 0024 of 2020 dismissing the Appeal be set aside

2. The Appellant be granted leave to appeal out of time against the Ruling and Order of Her Worship Agwero Catherine the then Deputy Registrar of the High Court of Uganda at Arua and or validate Notice of Appeal on court's record and the order of filing Memorandum of Appeal

3. Cost of this Application

### **Background**

It is averred that the Respondent sued the Appellant and his brother now deceased jointly for trespass to land measuring approximately 15 x 50 metres situate at Lajopi Cesia Village, Adjumani Town Council in Adjumani District, entry against the suit land without permission,

an order for vacant possession, a permanent injunction restraining the Appellants, their agents, 30 servants and all those claiming under them, general damages, and exemplary damages and costs of the suit.

The Respondent's case was that he inherited the suit land from his father the late Felix Boyi who customarily owned the suit land and that the Respondent was utilizing the said land for

cultivation, animal grazing and brick laying without any adverse claims and that in November 35 2017, the Appellants entered onto the suit land. And in their Amended Statement of Defence, the Appellants denied the Respondent's claim. They contended that their late father Sam Ogwa Odhendi first occupied the suit land together with the Appellants in 1974 and that the said land


was allocated to their father by the Forestry Department when he was working as a Forest Guard $\mathsf{S}$ in charge of Adjumani Forest Reserve. That the Appellant father occupied, utilized and developed the land until his death in 1997 and he was buried there and that the Appellants as the beneficiaries of their late father's estate have continued to occupy, develop and utilize the suit land to date. The Appellants also raised a counter claim where the Respondent/Counter Defendant had on several occasion trespassed on the suit land without any colour of right and 10

without justifiable cause.

The suit was concluded and the Respondent was the successful party to which the Appellants lodged a Notice of Appeal on the 17th of September 2020 which they did not act on by filing a Memorandum of Appeal. The Respondent then who had filed an application for execution of the decree to which the Appellants filed another application for orders to stay execution vide Miscellaneous Application No.0145 of 2023 arising out of Civil Appeal No. 0024 of 2020 arising from Civil Suit No. 006 of 2018. Her Worship Karungi Loe, the then deputy Registrar found merit in the application for stay of execution pending the outcome of the appeal and were granted an Interim Stay of Execution of the Decree in Civil Suit No. 006 of 2018.

Counsel for the Respondent by way of letter sought that the Notice of Appeal be struck off since 20 there was never a memorandum of appeal filed despite Court granting the Appellant the interim stay of execution of the Decree and giving the parties to the appeal time to file a Memorandum of Appeal and their respective submissions by 21st October 2022 for the Appellants and the Respondents to file their response by 11th November 2022 and rejoinders if any by 18th November 2022. The Appellant did not comply and up to now there is no Memorandum of 25 Appeal on the record.

The respondent avers that the Appellant on 1st October 2020 then changed Counsel to M/s Bandaru and Co. Advocates who filed a Notice of Instructions. That after sometime the 2nd deceased appellant to the suit was substituted with the 1st Appellant as his legal representative on 12th July 2022 at the 1st Appellant's request and the same was granted by Court.

That Her Worship Catherine Agwero the then Deputy Registrar in her wisdom struck off the Notice of Appeal in Civil Appeal No. 0024 of 2020 on request by the Respondent since the Appellant had failed to follow court's directives on filing her Memorandum of Appeal and submissions.

- The Appellant changed Counsel to M/s Okecha Baranyanga &Co. Advocates who advised to 35 seek leave of court to Appeal out of time and or the Appeal be validated in Miscellaneous Civil Appeal No. 0144 of 2023 hence this application for orders that the Ruling in Civil Appeal No. 0024 of 2020 dismissing the Appeal be set aside, that the Appellant be granted leave to appeal out of time against the Ruling and Orders of Her worship Agwero Catherine, the then Deputy - Registrar of the High Court of Uganda holden at Arua and or validate Notice of Appeal on 40 Court's record and the order of filing Memorandum of Appeal and that costs of this application be provided for.


#### 5 **Grounds of the Application**

The grounds on which this Application is based are contained in the Affidavit of Margaret Odendi deponed on 23rd November 2023 where she states briefly that she was sued by the Respondent in Civil Suit No. 006 of 2018 and judgement was entered against her. That she immediately through her former Lawyers of M/s Jombwe & Co. Advocates she filed a notice of appeal in the High Court wherein an appeal number was given vide Civil Appeal No. 0024 of 2020 and attached a Notice of Appeal, that when the appeal was going on her former lawyer of Bandaru & Co. Advocates was ordered to file a Memorandum of Appeal which unfortunately they did not and that it is not her fault as a lay litigant, that when the Appeal was fixed for hearing, it was discovered that her lawyers had not filed a Memorandum of Appeal but the same was not filed by her lawyers, that she got to know all this when she went to pick up her file from her former lawyers. That she was not informed of the hearing dates for the appeal by her former lawyers, that counsel for the Respondent later applied to court by way of letter seeking the Notice of Appeal on court record be struck off as it does not amount to an appeal and the same was struck off on the 19th day of July 2023 in the court's vacation and that the Appellant and her former lawyesr were not aware of the ruling of her worship the Deputy registrar dismissing the Civil Appeal No. 0024 of 2020, that she was prevented by good cause from appealing within the time prescribed by law after delivery of the Ruling because she was not aware.

That the Appellant was represented by M/s Jombwe &Co. Advocates and later M/s Bandaru & Co. Advocates who did not take the necessary steps to appeal against the dismissal of Civil Appeal

No. 0024 of 2020 within the time prescribed by law. That the Appellant has now instructed M/s 25 Okecha Branyanga & Co Advocates who have advised her to seek leave of court to Appeal out of time and or the Appeal be validated. That at all times, the Appellant was assisted in the case by her brother APILIDA LUKA ODENDI who unfortunately passed on in the course of the proceedings in High Court and the Applicant lost track of the case to follow until she realized by way following letters of administration for the late brother only to find that the Civil Appeal 30 was at the verge of being dismissed. That the learned trial Deputy Registrar acted without jurisdiction in dismissing the Appeal, that the subject matter of the Appeal is land which is a source of livelihood for the Applicant and her family. And that the Application is made without undue delay but rather with uttermost due regard to time and that it is in the interest of justice 35

that the Application be granted and the Appeal allowed.

# Grounds in Opposition

In his Affidavit in Reply, the Respondent Mubiboyi Francis stated that he found the Appellant's affidavit in support of the Notice of Motion full of deliberate lies intended to misguide this court as he was advised by his lawyer. That he was advised by his lawyers that the said affidavit in support is materially defective and that they intended to raise a Preliminary Objection, and that he is the successful party in Civil Suit No. 006 of 2018, Judgement and Decree were made on the 09th day September 2020, that the Appellant did not seek to extend the interim order which had lapsed on 29th of September, 2020 and neither did she pursue the main Application for Stay of Execution or the Appeal. That he was informed by his lawyers that the learned Deputy

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Registrar was clothed with jurisdiction to strike out the notice of appeal and rightly did so. That 5 no miscarriage of justice or substantial loss shall occur or result from the dismissal of this Miscellaneous Civil Appeal. That he is opposing the application for leave to appeal out of time and setting aside of the ruling in Civil Appeal No. 0024 of 2020 dismissing the Appeal and prayed that the same be dismissed with costs.

#### **Representation and hearing** 10

During the hearing, the Appellant was represented by M/s Okecha Baranyanga & Advocates while the Respondent was represented by *M/s Kayanja* & *Co Advocates*.

Counsel for both parties filed their written submissions as directed by court. I have carefully read, considered the pleadings and advised myself on the evidence and submissions of both parties.

# **Issues**

- 1. Whether the Trial Deputy Registrar acted without jurisdiction in dismissing the Appeal? - 2. Whether the Appellant has shown good cause for enlargement of time to appeal?

#### Determination of the issues 20

Issue 1: Whether the Trial Deputy Registrar acted without jurisdiction in dismissing the Appeal?

### Submission of the Appellant

Counsel for the Appellant submitted that he was alive to Section 17 (2) of the Judicature Act Cap 13 which provides for the exercise of inherent powers of the High Court to prevent abuse of 25 court process by curtailing delays in trials and delivery of judgement including the power to limit and discontinue delayed prosecutions that however, it has to be exercised by law and counsel cited Order 43 Rule 31 of the CPR to fortify his submission. Counsel further submitted that neither her nor her former lawyers were notified of the dismissal of the appeal.

#### Submits of the Respondent 30

Counsel for the Respondent submitted that the provisions of Order 43 Rule 31 of the CPR do not apply in the instant case because to date there is no Memorandum of Appeal on record since Appeals are commenced by a Memorandum of Appeal and that it was the Notice of Appeal that was struck off and not the Appeal that was dismissed as the Appellant's counsel submitted and

that it follows therefore that it was unnecessary to issue a notice of listing of the Appeal to serve 35 on the Appellant as required by Order 43 Rule 31 since there was no Appeal on record to dismiss. And that therefore the learned Deputy Registrar rightly struck out the Notice of Appeal under Section 98 of CPA and Section 17(2) of the Judicature Act. That therefore the Appellant has no ground to set aside the decision of the Deputy Registrar.

#### 5 Submission of the Appellant in Rejoinder

The Appellant maintained and adopted their earlier submissions and that the Deputy Registrar had no Jurisdiction to dismiss the Appeal.

# Consideration of Court

Order 50 Rule 8 of the Civil Procedure Rules provides that any person aggrieved by any order of a registrar may appeal from the order to the High Court. The Appellant brought this 10 Miscellaneous Appeal No. 0144 of 2023 appealing against the decision of the Deputy Registrar who struck off the Notice of Appeal form court record.

Order 43 Rule 1 of the CPR provides that every Appeal of the High Court shall be preferred in the form of a memorandum signed by the Appellant or his or her Counsel and presented to Court.

In the case of Maria Onyango Ochola & Others vs J. Hannington Wasswa (1996) HCB 43, this Court noted that a Notice of Appeal does not commence an appeal in the High Court from the Judgement of the Magistrate Court and that an appeal is commenced by a memorandum of appeal.

In the instant case the Appellant claims that the Deputy Registrar had no powers to dismiss the 20 Appeal while the Respondent's Counsel avers that there was no appeal lodged and as such there was no appeal to dismiss. The Appellant herself in her Affidavit in support of the Application under paragraphs 5, 6, 7 admitted that she was given timelines to file the Memorandum of Appeal but her former Counsel did not file the same which indeed shows that there was no Appeal lodged since there is no Memorandum of Appeal on file. Counsel for the Appellant $25$ relied on Oder 43 Rule 31 that the Deputy Registrar had no powers to dismiss the Appeal. However, in order for the Appellant to benefit from this rule, there has to be an already lodged Appeal but according to my findings there is no Memorandum of Appeal on court record up to date. This is to say that upon filing the Notice of Appeal, there was in fact no appeal lodged before this court as evidenced in my findings above. 30

Counsel for the Appellant submitted that it was mistake of former Counsel that the Memorandum of Appeal was not filed and that mistake of counsel should not be visited on the litigant. This same principle was stated in the case of Godfrey Magezi & Anor Vs Sudhir Ruparelia Civil Application No. 10 of 2002 where Court noted that it is now settled that an omission or mistake or inadvertence of counsel ought not to be visited on the litigant. However, 35 it is the duty of the intending Appellant to be seen taking active role within the time stipulated by the Rules to prosecute his or her Appeal. after the Appellant knew of the mistake of her former Counsel, she took a step to instruct new Counsel on the same. It would therefore be prudent that new Counsel filed the memorandum of Appeal with this Application at least to show cause as to why the same should not be dismissed or validated. As it is seen in the evidence 40 on record the Appellant changed counsel twice from the original Counsel and now instructed

the now M/s Okecha Baranyanga & Co. Advocates.

- $\mathsf{S}$ The Supreme Court in Capt. Phillip Ongom Vs Catherine Nyero Owota SCCA No. 14 of 2001 stated that it would be absurd or ridiculous that every time an advocate takes a wrong step, thereby losing a case, his client would seek to be exonerated. This is not what litigation is all about. Counsel applied a wrong strategy ..... no sufficient cause has been shown to entitle the applicant's sought relief. - 10 In light of the above decision, the Appellant's Counsel can not claim mistake of Counsel where it had the Opportunity to correct the said mistake upon receiving instructions and attach a Memorandum of Appeal while filing this Application.

If Counsel was prudent and vigilant enough, they would have filed this application with the Memorandum of Appeal but they have not done that. Therefore, the Appellant can not also continue blaming this continued error on former counsel. I have perused the documents on court record and I have not found any Memorandum of Appeal on the file. There fore there is no Appeal to validate.

Unfortunately for the Appellant, a notice of appeal is not a document capable of commencing a Civil Appeal before the High Court, therefore this ground fails.

$20$

# Issue 2: Whether the Appellant has shown good cause for enlargement of time to appeal?

# **Submission of Counsel for the Appellant**

Counsel for the Appellant submitted that Section 96 of the Civil Procedure Act gives Court Discretionary powers to enlarge time within which to do or perform an act. Counsel also relied on the case of *Hadondi Daniel vs Yolam Egondi COA No. 67 of 2003* where court held that: it is trite law that time can only be extended if sufficient cause is shown and that the sufficient cause must relate to the inability or failure to take necessary steps within the prescribed time. It does not relate to taking a wrong decision that if the Applicant is found of dilatory conduct, the time shall not be extended. Counsel then submitted that according to the Appellants affidavit in support of the Application, that immediately after the delivery she instructed her former lawyers to file a Notice of Appeal which they filed plus a letter requesting for the record of proceedings and that it was at the commencement of the hearing that she noticed that the memorandum of the Appeal was not filed to which she instructed her present Counsel. And that negligence of Counsel amounts to sufficient cause to extend time. Counsel relied on various decisions to fortify his arguments. And that she only got to know about the Deputy Registrar's Ruling when she went to pick her file

### Submissions for Counsel for the Respondent

from her former lawyer who had abandoned the case.

Counsel for the Respondent on the other hand submitted that Section 79 of the CPA provides that Appeals from the orders of the Registrar are to be made within seven days of the date of the order as the case maybe appealed through an Appellant, court may for good cause admit an

appeal even after expiration of the period of limitation prescribed by the section that lapsed. He

$\delta$

then submitted that paragraph 4 of the Appellant's affidavit and Paragraph 11 of the $\mathsf{S}$ Respondent's affidavit in reply, it is stated that the Appellant's Notice of Appeal was struck off on 19th July 2023 while the Miscellaneous appeal No. O144 of 2023 was filed out of time on the 30th of November 2023. He further submitted that the Appeal is incompetent since it was filed out of time and the Appellant has no just cause for extension of time and validation at such a late stage can not cure the incompetence. And that mistake of counsel is not sufficient reason 10 to enlarge the time.

### Submissions of the Appellant in rejoinder

Counsel for the Appellant reiterated that the Appellant is not guilty of any dilatory conduct as she duly instructed her former advocates in time to prosecute the appeal and the failure to file the Memorandum of Appeal even after being ordered by Court was entirely mistake of her

### **Consideration by Court**

former counsel.

Section 79(1) (b) of the Civil Procedure Act provides that except as otherwise specifically provided in any other law, every appeal shall be entered within seven (7) days of the date of the order of the Registrar as the case maybe, the court may for a good cause admit an appeal though the period of limitation prescribed by this section elapsed.

Section 96 of the Civil Procedure Act provides that where any period is fixed or granted by court for the doing of any act prescribed or allowed by this Act, the Court may in its discretion, from time to time, enlarge that period, even though the period originally fixed or granted may

have expired. 25

> The legal position in regard to an application of this nature is that an application for enlargement of time to file the appeal should be ordinarily granted unless the Applicant is guilty of unexplained and inordinate delay in seeking the indulgence of the court has not presented a reasonable explanation of his failure to file the appeal within the time prescribed by the law or where extension will be prejudicial to the Respondent or the Court is actually satisfied that the intended Appeal is actually not an arguable one. See; Attorney General & Another vs Okwi Richard Miscellaneous Application No. 0036 of 2019 (Arising out of Civil Suit No. 0013 of $2014)$

First of all, the Appellant filed her Notice of Appeal on 17th September 2020 and abandoned her suit for 3 years until 2023 when the Deputy Registrar struck off her Notice of Appeal from 35 court's record on 19th July 2023 that she now filed this application on 30th November 2023 which on the face of it seems like an afterthought. In the instant case the Appellant's actions are inexcusable and her opponent was prejudiced by it.

When an application is made for enlargement of time, good cause showing that justice warrants such an extension must be proved by the Applicant before Court can exercise its discretionary powers and grant the extension. See; Tight Security Ltd Vs Chartis Uganda Insurance Co. Ltd and Another H. C Misc Application No. 8 of 2014.

$\Delta$


"Good cause" that justifies the grant of an application of this nature has been the subject of $\mathsf{S}$ several decisions like Pinnacle Projects Limited Vs Business in Motion Consultants Limited, HC Misc Application NO. 362 of 2010 where it was held that the sufficient reason must be related to the inability or failure to take a particular step in time.

In this case it must be noted that the Appellant has been represented by Counsel through her process of litigation. Yes, she claims that she did not know when the Notice of Appeal was struck 10 off and that is because she had long abandoned her case for three years and even after finding out the status of her file and instructing new counsel it took her 4 months before filing her appeal against the Deputy Registrar which is supposed to be filed within 7 days. This in its self amounts to inordinate delay.

There is no Memorandum of Appeal up to now even after court giving her instructions to file 15 the same which amounts to a dilatory conduct.

The behaviour of the Appellant is clearly that of an indolent and lethargic party and such conduct where parties take the court process lightly cannot be condoned.

In addition, it is trite law that litigation must come to an end. In the case Brown Vs Dean (1910) AC 373, it was emphasized that in the interest of society as a whole, litigation, must come to an 20 end and when a litigant has obtained judgement in a court justice.........he is by law entitled not to be deprived of that judgement without very solid grounds.

In this respect Court can not continue to deprive the Respondent who was the successful party in Civil Suit No. 006 of 2018.

Given the above conclusion, this application is found to lack merit and it is dismissed with costs 25 to the Respondent.

I so order

$\mathcal{F}$ day of $\mathcal{A}$ $v$ g 2024 Dated this ..

Hon. Justice Collins Acellam Judge

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