Olweny and 4 Others v Wokorach Ojok (Miscellaneous Application 81 of 2022) [2024] UGHC 1069 (11 November 2024)

Full Case Text

# **THE REPUBLIC OF UGANDA**

# **IN THE HIGH COURT OF UGANDA HOLDEN AT KITGUM**

# **MISCELLANEOUS APPLICATION No. 081/2022**

### **(Formerly HIGH COURT GULU – MISC. APPLICATION No. 016/2022)**

### 5 **(Arising from HIGH COURT CIVIL APPEAL No. 126 /2020)**

## **(Formerly HIGH COURT GULU - CIVIL APPEAL No. 086/2020)**

## **(ARISING FROM CIVIL SUIT No. 26/2013: MAGISTRATE PATONGO)**

- **1. OLWENY JACKSON** - **2. OTOO WILSON** - 10 **3. OKIDI WILSON** - **4. OKIDI CHARLES** - **5. KIDEGA WILSON APPLICANTS**

**Versus**

## **WOKORACH PATRICK OJOK RESPONDENT**

# 15 **BEFORE HON. MR. JUSTICE PHILIP W. MWAKA.**

# **RULING.**

## **Introduction and Background.**

- [1]. The Applicant seeks Orders from this Court for leave to file an Appeal out of time and for provision of Costs of the Application. - [2]. The Motion instituting the Application was filed on the 12th 20 January, 2022 while the decision of the Lower (Trial) Court was delivered on the 9th December, 2020 – about two (2) years after the decision of the Trial Court and bearing in mind that the period within which to institute such an Appeal is thirty (30) days which would have expired on the 8 th January, 2021.

- 25 [3]. The Application is brought under **Section 98 of the Civil Procedure Act, Cap. 71 (now Cap. 282); Order 51 Rule 6 and Order 52 Rules 1 and 2 of the Civil Procedure Rules, SI 71 - 1.** - [4]. These citations were revised by the **Law Revision Act, Cap. 3 and Statutory Instrument No. 049/2024: The Law Revision (Commencement of the 7** 30 **th Revised Edition) (Principal Laws) Instrument, 2024.** - [5]. Affidavits supporting the Application are attached deponed by the 2 nd, 4th and 5 th Applicants who were the Plaintiff's in the Lower Court. - [6]. The Court observes that the 3rd Applicant is omitted as a Party in the title of the Judgment of the Lower Court much as he features in the Pleadings.

### **The Applicants' Case and Submissions.**

[7]. The Applicants' grounds in the Motion are that: - the Judgment was delivered on the 9th December, 2021 – which is incorrect as the Court Record indicates it was delivered on the **9 th December, 2020** - but copies of the Judgement 40 and Proceedings were not provided to them; the Applicants filed a Notice of Appeal on the 23rd December, 2020 and supposedly served it on the Trial Magistrate on the 25th January – the year is not indicated - therein requesting the Judgment and Proceedings of the Lower Court; the Registrar wrote to the Lower (Trial) Court on the 15th April, 2021 served the next day requesting its 45 Judgment and Proceedings which have not been provided to the Applicants or their Counsel; subsequently, the Nation was afflicted by the COVID 19 pandemic and National lockdown curtailing their movement and affecting their prosecution of the Appeal; the Lower (Trial) Court prepared the Judgement and Proceedings on the 23rd May, 2021 which the Applicants 50 obtained after the lifting of the lockdown in July, 2021 following which they filed a Memorandum of Appeal and Submissions on the 30th August, 2021; and lastly, it is in the interest of Justice that the Applicants are granted leave to Appeal out of time.

- [8]. The Court observes that on Record there is a Notice of Appeal filed on the 23 55 rd December, 2020 issued by the Registrar the same day, a Memorandum of Appeal filed on the 13th July, **2020** not issued by the Registrar the same day, Appellants Written Submissions filed on the 30th August, 2020, Letter from High Court requesting certified copies of Judgment and Proceedings dated 15th April 2021, Letter from Magistrate's Court dated 21st May, 2021 60 forwarding the file together with the Judgment and Proceedings. - [9]. The grounds of the Application are reiterated and substantiated by the deponents of the supporting Affidavits and are essentially the same with the Applicants jointly and severally seeking in addition to the stipulated Orders sought in the Motion that the Court adopts the Memorandum of Appeal and 65 Written Submissions they had already filed and insisting that the Appeal raises triable issues and has a high likelihood of success. In addition, the three (3) deponents of the supporting Affidavits aver that they were afflicted by illness during the COVID 19 pandemic – a ground not stipulated in the Motion. - [10]. The Applicants filed Written Submissions on the 15th May, 2024 and citing, 70 *inter alia*, **Supreme Court Civil Application No. 091/1986: Rosette Kizito Vs. The Administrator General & Others** and **Supreme Court Civil Application No. 27/2007: Boney Katatumba Vs. Waheed Kareem** for the proposition that sufficient cause must relate to inability or failure to take a particular or essential step in the time prescribed or others reasons why an 75 intended Appeal should be allowed to proceed though not filed in time. - [11]. It was their Submission that their grounds constitute and established sufficient cause and justification including – the failure to provide them with the certified Judgment and Proceedings timely following delivery of the Judgment on the 9th December, 2020 and their pursuit of the Judgment and 80 Proceedings coinciding with the COVID 19 National lockdowns which prevented their movement and they only obtained the requisite documents after the National lockdown was lifted - them also being afflicted by illness.

- [12]. The Applicants highlight their filing of a Notice of Appeal on the 23rd December, 2020 and a Memorandum of Appeal on the 13th July, **2020** and Submissions on the 30 85 th August, 2020. It is their Submissions that they took reasonable steps in pursuit of their Appeal. - [13]. It is further their case citing, *inter alia*, **Supreme Court Civil Application No. 2/1999: Joseph Muluta Vs. Sylvano Katama** for the proposition that the major justification for granting extension of time is to preserve the 90 Constitutional right of Appeal and that the administration of justice requires that the substance of disputes should be investigated and decided on their merits and errors and lapses should not necessarily bar a litigant from pursuing their right unless lack of adherence to Rules render the Appeal process difficult and inoperative. To that effect, they prayed that the 95 Application is granted and they are permitted in the interests of Justice to Appeal out of time.

#### **The Respondent's Case and Submissions.**

[14]. The Respondent filed an Affidavit in Reply on the 11th March, 2022 denying 100 the Applicants' allegations and contended that: - his Attorneys informed him that they had been served with the instant Application on the 27th January, 2022 and much as they had instructions in the Lower Court he had not instructed them in the instant Application before this Court which he only became aware of the Application on the 25th February, 2022; the Judgment was delivered on the 9 105 th December, 2020 and he acknowledges that a Notice of Appeal was filed on the 23rd December, 2020 which was served on him on the 22nd January, 2021; he avers that the Applicant did not take reasonable steps in ensuring that the Judgment and Proceedings were processed in the Lower Court and Memorandum of Appeal filed in time; the National 110 lockdown did not considerably affect the functioning of Court Registries –

which were open - in as far as filing documents; the delay in filing the Memorandum of Appeal by more than seven (7) months was unreasonable and it was filed by the Applicants well knowing that it was already out of time amounting to an abuse of process by seeking to have their illegality rubber 115 stamped.

- [15]. The Respondent filed Written Submissions on the 27th July, 2024 and citing, *inter alia*, **Nsubuga Vs. Kavuma [1978] HCB 307** for the proposition that the burden of proof lies on the Applicant to be established to the required standard; **Supreme Court Civil Application No. 22/1993: Maria Onyango** 120 **Ochola & Others Vs. J. Hannington Wasswa** for the proposition that an Appeal filed out of time and without leave of Court is incompetent and will be struck out as such – contended that the Applicant lost the right of Appeal when they failed to file their Memorandum of Appeal within thirty (30) days as stipulated by **Section 79(1)(a) of the Civil Procedure Act** and an Appeal 125 can only be admitted for good cause inspite of lapse of the limitation period. - [16]. It is the Respondents case that the Applicant could have still filed their Appeal during the COVID 19 National lockdown since the Court Registries were opened and operated. The Applicants failed to utilize the opportunity. - [17]. The Respondent contends that the delay in filing the Appeal was due to the 130 Applicants accepting that the suit land is not theirs and they should not rely on the COVID 19 lockdown as their grounds which should be disregarded and treated as a falsehood. Moreover, no documentary evidence of hospitalization was produced and they therefore failed to prove such illness. - [18]. Citing **HCMA No. 853/2019: Mukwano Industries Ltd Vs. Katushabe** - 135 **Amina & Anor** the Respondent submits that the late filing of the Memorandum of Appeal beyond seven (7) months is unreasonable and the lapse of two (2) years from the Judgment before filing this Application is unreasonably long with litigation having to come to an end and in conclusion prayed that the Application is dismissed with costs. No Rejoinders were filed.

#### 140 **Representation.**

- [19]. Counsel, Mr. Ogik Jude, represented the Applicants/intended Appellants. The 2 nd and 5th Applicants were present in Court. - [20]. Counsel, Mr. LoboAkera Stephen, holding brief for Counsel, Ms. Naiga Zakia, represented the Respondent. The Respondent was absent.

### 145 **Proceedings of the Court.**

- [21]. The Proceedings of the Court were on the 11th June, 2024; 23rd May, 2024; 4th April, 2024 and the 29th September, 2023. - [22]. The Court observed that on the file is a Ruling prepared by the Hon. Justice Alex Mackay Ajiji which however was not delivered to the Parties – hence 150 this decision under the current Docket *De Novo*.

### **Issue(s) for Consideration.**

- [23]. The Issue(s) for consideration to be addressed by the Court in regard to the Application is - **Whether the Applicants have shown sufficient cause for the Court to judiciously exercise its discretion to grant them leave to** 155 **Appeal out of time.** - **Considerations and Determination of the Court.** - [24]. **Section 79(1) of the Civil Procedure Act** prescribes the time within which an Appeal may be instituted as thirty (30) days from the date of the Decree or Order sought to be Appealed against. The Appellate Court is empowered 160 upon demonstration of good cause to admit an Appeal even after the period of limitation has elapsed. For the Court to judiciously exercise its discretion in enlarging time or for that matter grant leave to Appeal out of time, an intending Appellant seeking such remedy is required to place before the Court material and facts demonstrating or explaining the reasons for not filing the 165 Appeal timely including any affirmative steps or actions which may have been taken in furtherance of instituting the Appeal or any impediment which may have impaired the intending Appellants ability to institute the Appeal timely.

- [25]. **Section 79(2) of the Civil Procedure Act** stipulates a variable in consideration of the computing or calculating time in as far as an offset is 170 allowed in the time taken by the Court in providing the Record of the Lower (Trial) Court required for the Appeal comprising the certified Judgment and Decree as well as the Proceedings. This Court has recognized the rationale as simply that the duty to provide the Record required for the Appeal ultimately lies with the Courts required to prepare it. That would therefore in and of 175 itself constitute sufficient cause for enlargement of time. The Courts are urged to be diligent in preparing the Record required for an Appeal once requested so that the waiting period does not become inordinately long to the prejudice of the intending Appellant. - [26]. A review of the Record of this Court indicates that following the Judgment on the 9 180 th December, 2020 the Deputy Registrar, High Court wrote to the Lower Court requesting certified Proceedings and Judgment by letter dated 15th April, 2021 and the Lower Court responded by letter dated 21st May, 2021 forwarding the certified Proceedings and Judgment as well as the file. This constitutes the time taken by the Court to provide the intending Appellant 185 the Record of the Lower Court required in preparation of his Memorandum of Appeal and would be discounted in the computation of time. The intending Appellant cannot in fairness be penalized for this time lapse when the onus lay on the Court to provide the requisite materials for an Appeal. - [27]. Regarding the ground of being affected by the COVID 19 pandemic, it is recognized that at the time of delivery of the Judgment on the 9 190 th December, 2020 as well as prior and subsequently total and partial National lockdowns were imposed by Government in response to the pandemic curtailing normal activity and movement. This ground constitutes sufficient cause - much as the Respondent rightly contends that there were options made available for Court 195 filings the intended Appellants could have utilized. However, no evidence was adduced of the Applicants' claimed illness which ground is not established.

**7 |** P a g e

[28]. In respect of the Notice of Appeal filed on the **23rd December, 2020** and the Memorandum of Appeal filed on the **13th July, 2020**; firstly, it is trite that such an Appeal is not instituted by a Notice of Appeal and therefore it would not 200 constitute a valid Appeal – much as a Court filing number was designated albeit wrongly. A valid Appeal herein is only properly instituted by a Memorandum of Appeal as provided by **Order 43 Rule 1 of the Civil Procedure Rules**. Secondly, the Court observes with concern that the purported Memorandum of Appeal is stamped with a date (**13th July, 2020**) 205 indicated as having been filed even prior to delivery of the Judgment on the **9 th December, 2020** – by more than five (5) months. It even predates the impugned Notice of Appeal. Moreover, the copies of the Memorandum of Appeal on the Record are not issued by the Registrar whilst the copy attached to the supporting Affidavits is issued by the Registrar. A Memorandum of 210 Appeal purporting to be instituting an Appeal in respect of a decision of a Lower Court filed before the decision of the Lower Court is even delivered can only be described as premature, incompetent and improperly filed therefore defective in Law since there is no decision to challenge with one unable to at that stage claim to be aggrieved. It is of no consequence. The 215 prayer for validation or adoption of the Memorandum of Appeal is entirely misconceived. In the circumstances, both the Notice of Appeal filed on the 23rd December, 2020 and the Memorandum of Appeal filed on the 13th July, 2020 citing Civil Appeal No. 086/2020 (126/2020) are accordingly stuck out. [29]. In consequence, the Court exercises its discretion on the basis of the grounds 220 established in as far as the delays in providing the intended Appellants with the certified Judgment and Proceedings of the Lower (Trial) Court and impediments resultant of the COVID 19 pandemic with the associated National total and partial lockdown which amount to sufficient cause and allows the Application. The intended Appellants/Applicants are hereby 225 granted leave to Appeal out of time.

- The certified Judgment and Proceedings of the Lower (Trial) Court which it $[30]$ . is observed are already on the Record of this Court shall be availed to the Applicants within one (1) week not later than Monday, 18th November, 2024 and subsequently the Applicants may file a fresh Memorandum of Appeal within a fortnight thereafter not later than Monday, 2nd December, 2024. - [31]. Having carefully given due consideration to the Application with its supporting Affidavits, the responsive Affidavit, the Written Submissions of both the Applicants and the Respondent and upon consideration of the Law Applicable and taking into account all relevant factors the Court finds that the Applicants have established that sufficient cause specified herein-above for grant of the Application and are hereby allowed to Appeal the decision of the Lower (Trial) Court out of time. - $[32]$ . Each Party shall meet their own costs of the Application.

### Orders of the Court.

- [33]. Accordingly, the Court issues the following Orders: -240 - 1. Miscellaneous Application No. 081/2022 is allowed and the Applicants are granted leave to Appeal the decision of the Lower (Trial) Court out of time. - 2. The Deputy Registrar, High Court Kitgum Circuit shall avail the Applicants the certified Judgment and Proceedings of the Lower Court within one (1) week not later than Monday, $18^{th}$ November, 2024. - 3. The Applicants may file a fresh Memorandum of Appeal within a fortnight thereafter not later than Monday, 2nd December, 2024. - 4. The Notice of Appeal filed on the 23rd December, 2020 and Memorandum of Appeal filed on the 13th July, 2020 designated as Civil Appeal No. 086/2020 (Kitgum No. 126/2020) are both struck out. - 5. Each Party shall meet their own costs of this Application.

It is so Ordered.

**Signed and Dated on the 11 th day of November, 2024 at High Court Kitgum**

255 **Circuit.**

**Philip W. Mwaka**

**Acting Judge of the High Court.**

## 260 **Delivery and Attendance.**

This signed and dated Ruling has on the directions of the Presiding Judge been delivered to the Parties electronically on **Monday, 11 th day of November, 2024 at 10:00am** by the Deputy Registrar, High Court Kitgum Circuit.

- 1. Deputy Registrar,

| 265 | Kitgum High Court Circuit: | - Her Worship Suzanne Aisia Musooli. | |-----|-----------------------------------|----------------------------------------------------------| | | 2. Counsel for the Applicant: | - Mr. Jude Ogik. | | | 3. Applicants: | - 2 nd & 5 th (Attended). | | | 4. Counsel for the Respondent: | - Mr. LoboAkera Stephen holding brief for | | | | Ms. Naiga Zakia. | | | | |

- 270 5. Respondent: Mr. Wokorach Patrick Ojok (Absent). - 6. Court Clerk and Interpreter: Mr. Atube Michael. - 7. Interested and Affected Persons and Entities.

**Philip W. Mwaka**

275 **Acting Judge of the High Court.**

**High Court Kitgum Circuit.**

**11 th day of November, 2024.**