Osire Charles vs Bukedea District Local Government and another (Miscellaneous Cause No. 8 of 2022) [2022] UGHC 87 (13 October 2022)

The Republic of Uganda

## In the High Court of Uganda Holden at Soroti

## Miscellaneous Cause 0008 of 2022

Osire Charles ::::::::::::::::::::::::::::::::::::

Versus

1. Bukedea District Local Government

2. Bukedea District Service Commission ::::::::::::::::::::::::::::::::::::

### Before: Hon. Justice Dr Henry Peter Adonyo

#### Ruling.

## 1. Background:

$\mathsf{S}$

The applicant brought this application under sections 96 and 98 of the Civil Procedure Act Order 51 rule 6, Order 52 rules 1 & 2 of the Civil Procedure Rules and rule 5(1) & (3) of the Judicature (Judicial Review) Rules for orders that;

a. Time be extended to file an application for judicial review out of time.

b. Provision be made for the costs to abide by the main application.

The grounds of this application as set out in the application and are further explained in the affidavit in its support sworn by the applicant which is to the effect that on 29<sup>th</sup> February 2020 the applicant went to South Sudan


with the hope of returning within one month to file for judicial review over $\mathsf{S}$ his termination that he had received on 5<sup>th</sup> February 2020 but that. however, due to the Covid-19 pandemic he applicant failed to return because the Elegu Border crossing had been closed and that he only managed to return to Uganda on 16<sup>th</sup> December 2020 through Owiny-Kibul border. Further that the applicant has strong grounds that establish 10 the need for judicial review and that it was just and equitable that time is granted for the applicant to apply for judicial review.

The respondents despite being served did not file an affidavit in reply. The same attitude was exhibited when this court gave a schedule for filing submissions. Only the applicant filed his submissions.

# 2. <u>Submissions by the applicant:</u>

Counsel for the applicant M/s Owori & Co. Advocates submitted that this application was fixed for hearing on 25<sup>th</sup> February, 2022 after the same had been served onto the Respondents on $22^{\rm nd}$ and $23^{\rm rd}$ December, 2021 respectively (an affidavit of service is on court record) but that the respondents failed to file any reply to the application and even when the matter came up for hearing, the Respondents still failed to appear despite being served.

That new hearing notices were issued for 24<sup>th</sup> March, 2022 and the same were served on the Respondents on 21st March, 2022 (an affidavit of 25 service is on court record) yet still the respondents did not appear in court with the court still adjourning the matter to 25<sup>th</sup> May, 2022.

Still on 25<sup>th</sup> May, 2022, the respondents did not appear in court and the same was adjourned to 22<sup>nd</sup> August, 2022 on which date, they still did not also enter appearance in court resulting in an application to this court

before the learned Deputy Registrar for the file to proceed *ex parte* which $\mathsf{S}$ prayer was granted.

Counsel for the applicant in his submission argued that since the Respondents did not file any response to the application and shunned court process on various occasions, despite being served, then it should be taken that the application is found uncontested.

With regard to the merit of the application counsel submitted that Section 96 of the Civil Procedure Act, Cap 71 provides that where any period is fixed or granted by the 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.

Section 98 of the Civil Procedure Act (Supra) is to the effect that nothing in this act shall be deemed to limit or otherwise affect the inherent power of the court to make such orders as may be necessary for ends of justice or to prevent abuse of the process of the court.

And Order 51 r 6 of the Civil Procedure Rules SI 71-1 provides that where a limited time has been fixed for doing any act, the court shall have power to enlarge time upon such terms, if any, as the justice of the case may require.

- Rule 5 (1) of the Judicature (Judicial Review) Rules is to the effect 25 that an application for judicial review shall be made within three months from the date the grounds of the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made. - Counsel relied on *I P Mugumya Vs Attorney General HCMC No.* 30 116 of 2015 where it was held that an application for judicial review filed


after three months, when the grounds of application first arose, shall not $\mathsf{S}$ be allowed unless there is an application for extension of time.

Counsel also relied on Bony M Katatumba Vs Waheed Karim Civil App No: $27/2007$ where it was held that for an application for extension of time to succeed sufficient reasons must be shown and that the applicant must be vigilant.

Further, it was submitted that in *Mugo Vs Wanjiri [1970] EA 481* it was held that sufficient reason must relate to the inability or failure to take a particular step in time.

Counsel submitted that under paragraph 15, 16 and 17 of the applicant's affidavit in support of the Application, the applicant states that on 29<sup>th</sup> 15 February, 2020 he travelled to South Sudan with a hope to return after one month but due to Covid-19 pandemic, he was unable to return since all border points had been closed and that he only subsequently managed to return to Uganda on 16<sup>th</sup> December, 2020 through Owiny-Kibul border.

Further, it was submitted that according averments by the applicant in 20 paragraph 18 and 19 of the affidavit in support, the applicant state that he immediately upon return, he contacted his lawyer who advised him to apply for judicial review out of time and then went back to look for money to file the case but that considering the economic situation at the time and the fact that he was unemployed, it took him time to get money to facilitate 25

the legal process.

Counsel additionally submitted that the Applicant is not guilty of any dilatory conduct and he was very interested in pursuing his rights to have the dispute heard and decided on its merits since at stake was his employment rights which is his only source of livelihood which is of great importance to him.

Counsel relied on Attorney General Vs. Orient Construction Co. $\overline{5}$ Ltd, SC CA No. 7 of 1990, where it was held that rules are made to be observed and where there has been excessive delay the court requires to be satisfied that there is an adequate excuse for the delay or that the interest of justice are such as to require the indulgence of court upon such terms as court considers just.

Counsel then submitted that the Applicant has shown sufficient reasons to warrant this court to grant the application and prayed that this honourable court in the interest of substantial justice putting into consideration Article 126 (2) (e) of the Constitution endeavor to accord substantive justice without undue regard to technicalities.

3. <u>Resolution of this Application:</u>

Counsel for the respondent cited the laws on extension of time to file an application and I do not see the need to repeat them.

However, of particular note is Rule 5(1) of the Judicature (Judicial

Review) Rules which allows for extension of time within which an 20 application for judicial review may be made where the court considers that there is good reason.

A scrutiny of this application, its supporting affidavit and annexures clearly show that the applicant was indeed out of Uganda within the period which he should have made the head application. He was in South Sudan and only returned on $16^{\rm th}$ December 2020 as seen from a copy of his visa document meaning that the period within which he was to file his application for judicial review expired when he was still in South Sudan. This is sufficient reason to warrant an extension of time within which to

file the impugned application. 30

Counsel additionally submitted that due to financial constraints arising $\mathsf{S}$ from the termination of applicant's job and the ensuring economic situation, the applicant was not able to bring the impugned application immediately. This Honourable Court takes judicial notice of the fact of economic difficulties which arise from loss of one's job and genereally the economic hardship which resulted from Covid-19 pandemic lockdown and 10 as such agree that these are reasonable grounds which support this application.

Further, I do note that the respondents did fail to file their affidavits in reply to the head application even after being given sufficient opportunities to do so with no contrary evidence showing any reason for failing to do so. That failure without reasons means the application is uncontested.

Furthermore, it can be seen from the applicant's affidavit that there is need for his application for judicial review to come before this court for proper determination. The interest of justice requires that the impugned application be allowed to be brought before court for its logical determination and as such I would find that this application for the grant of extension of time is valid.

4. Conclusion:

- Arising from the above consideration I would find and conclude that the 25 applicant has provided good reasons for not filing his application for judicial review in time and so this application is allowed with the applicant allowed to within which to file the same. - 5. Orders: - 30

a) This application for extension of time within which to file an application for judicial review out of time is allowed.

- b) The applicant is given one month to bring his application for judicial review - c) The costs of this application to abide by the main application.

I so order.

$10$

$\mathsf{S}$

Hon. Justice Dr Henry Peter Adonyo

$\quad\quad\quad Judge$

$13^{\rm th}$ October 2022