Owor v Kanyanya (Civil Application 50 of 2021) [2022] UGSC 29 (17 February 2022)

Full Case Text

### THE REPUBLIC OF UGANDA

# IN THE SUPREME COURT OF UGANDA AT KAMPALA **SUPREME COURT CIVIL APPLICATION NO.50 OF 2021** [ARISING FROM CIVIL APPEAL NO.023 OF 2021] **ARISING FROM COURT OF APPEAL CIVIL APPEAL NO.11 OF** 20131 [ARISING FROM HIGH COURT CIVIL SUIT NO.41 OF 200] PAUL ELVIS OWOR::::::::::::::::::::::::::::::::::: VERSUS

NICHOLAS KANYANYA::::::::::::::::::::::::::::::::

#### RULING OF RUBBY OPIO-AWERI, JSC

#### Introduction:

The applicant, Paul Elvis Owori brought the instant application under Rules 5, 42, 43, 79 and 84 of the rules of this Court, seeking orders that extension of time within which to serve a memorandum of appeal against the judgment and orders entered in Court of Appeal Civil Appeal No.11 of 2013 be granted and that costs of the application abide the outcome of the Appeal.

## Grounds for the application:

The applicant enlists a number of grounds upon which this application should be granted, but briefly, the grounds are that;

- i) The applicant commenced appellate proceedings in this court vide Civil Appeal No.23 of 2021 when he lodged a notice of appeal in the registry of this court. - ii) On 2nd July, 2021, the court Process Server delivered copies of the above Notice of Appeal to the respondent's known

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advocates of Mba-le Law Chambers, but the advocates declined to receive the Notice of Appeal and advised the Court Process Server to serve the respondent in person.

- iii)On the sth day of July 2021, service was effected upon the respondent in person in the presence of the area Local Council 1 Chairperson of the village where the applicant was residing. - iv) That despite receipt of the documents in (iii) abo're, the respondent never took any steps to conlirm the address of his advocates or any other address for purposes of service of Court process. - v) That when the memorandum of appeal was issued by this court, there was no known advocates address for the respondent, where the memorandum could be served and on 1Oth October, 2021, the process server travelled, again to the village of residence of the respondent to effect service of the memorandum of appeal upon the respondent in person. - vi) That on communicating with the respondent on phone while at his residence, the respondent told the Process Server that he had since instructed M/s Jjingo Ssempija & Co. Advocates to represent him in the appeal. - vii) That by the time the applicant's advocates obtained the address of Jjingo Ssempija & Co. advocates, counsel for the respondent, the mandatory statutory period for serving of the memorandum of appeal had lapsed but the process seryer nevertheless delivered a copy to the respondent's advocates.

- viii) That the delay in effecting service was not occasioned by dilatory or negligent conduct of the applicant or his counsel but rather, the applicant is committed to pursue his appeal. - ix)That the interest of justice would warrant the grant of the orders herein sought.

# Reply to the appllcation:

In reply to the applicant's assertions, the respondent filed an a-ffidavit in which he wholly opposed the application. The brief that can be canvassed from that affidavit is that at all materials time the respondent was represented by M/s Jingo, Ssempijja & Co. Advocates. That M/s Jingo, Ssempijja & Co. Advocates filed a notice of change of advocates at the Court of Appeal on 25th Jwe, 2O2O, which fact was well, in the knowledge of the applicant and his lawyers. The respondent denied ever being served with a notice of appeal by the applicant neither did the applicant serve his lawyers as per the applicant's assertions in his affidavit in support of the application. The respondent referred court to Annex A'to the application, the notice of appeal which was allegedly served on the respondent which the respondent refutes as the same does not bear his sig:nature. The respondent further contended that on 12th January, 2022, he filed an application at the Court of Appeal seeking to have the notice of appeal filed by the applicarrt struck out for want of service within the period prescribed by the law. That though his lawyers changed the name of the law firm from N-Mugoda Advocates to Nangulu & Mugoda Advocates, the address

remained the same and that it is the same law firm handling the instant application. Further, the respondent averred that the change of the firm narne was made public by the Uganda Law Society as evidenced by annex 'E' to the affidavit in reply. The respondent deniecl ever communicating with any court process server neither did he ever give any Process Server the telephone contact of his lawyer. In conclusion, the respondent contended that the applicant has not showed sufficient cause to warrant the grant of the instant application and that the same should be dismissed with costs, as in his view, the instant application is a waste of court's time.

# Submissions:

I directed parties to file written submissions on the 2oth day of Januar5r, 2022 when this matter carne up for hearing. I note that the parties complied with that directive and the submissions are on court record. I will thus proceed to determine this application on the basis of the submissions filed.

However, before I delve into the merits of the application, the respondent raised an objection in regard to the submissions filed by the applicant on the ground that the submissions filed by the applicant do not comply with Practice Direction No.2 of 2015, specifically item (A) which limits the number of pages of submissions filed in matters such as the instant one to five (5) pages but the applicant had filed more than the limit provided for under the Practice Direction. The respondent also contended that the submissions were not double spaced.

I have perused the submissions fiied by the applicant and I observe that, indeed, the applicant exceeded the five-page limit of filing submissions in applications of such a nature and the same submissions are not double spaced as required by paragraph 5(a) of Practice Direction No. O2 of 2005 which guides on presentation of both oral and written submissions and arguments in the Supreme Court. A Practice Direction such as the one in reference herein issued by the Chief Justice is important for proper case management in this court. It is therefore important that counsel who practice in this court strictly comply with such Directions otherwise their f:rilure to do so would amount to contempt. Naturally, I shoulcl have rejected the applicant's submissions but for purposes ol justice and fairness, I will consider what is only contained on the hrst five pages and ignore anything beyond the fifth page. Couns<:l for the applicant should take note that the next time he files submissions, they should be in line with the guidelines of this court otherwise they will be rejected. This should not only apply to counsel in the instant application but to all those who practice in this court.

To the merits oI this appiication, counsel for the applicant submitted that bt:fore this court grants orders sought in this application, it mu st be satisfied that sufficient cause has been showed by the applicant for not doing what he is supposed to, after the pronouncement of the judgment of the Court of appeal. Counsel cited James Bwogi & Sons Enterprises Ltd versus Kampala City Council Authority SCCA No. O9 of 2OL7 and. Boney M. Katatumba versus Waheed Karim SCCA No.27 of 2OO7. Counsel thus submitted that service of court process was Page 5 of 12

frustrated by the respondent and his counsel during the trial at the Court of Appeal when he was represented by Mbale Law chambers and when the same Law Firm was served, it refused service as they indicated that they no longer had instructions to represent the respondent. To the applicant, all due diligence was done to ensure that service of the notice of appeal upon the respondent was done including getting the respondent's contact, that of his son and his lawyers and by the time the process server effected server of the Memorandum of appeal on counsel for the respondent on l2th, October,2O2l, time had lapsed but nevertheless proceeded to effect service.

That the above circumstances leading to the delay in effecting service was not occasioned by dilatory or negligent conduct on the part of the applicant or his counsel but rather, the applicant has showed sufficient cause warranting the grant of this application.

However, counsel for the respondent was of the view that the prayer for extension of time to serve the memoraldum of appeal offends rule 84 of the rules of this court which requires that both the memorandum of appeal and record of appeal be served at the same time, and that since the application seeks extension of time to serve only the memorandum, the record of appeal will remain served out of time rendering the instant application incompetent. Counsel for the respondent firrther argued that the applicant has not showed sufficient cause why he failed to serve the memorandum of appeal within the time prescribed by the law as the applicant and his lawyer were aware of the address of counsel for the respondent to serve court process. Counsel emphasized the respondent's denial of ever being served with the notice of appeal on Srh July, 2O2l as there is no evidence to support that line of argument. That the applicant and his counsel are guilty of dilatory conduct and unexplained negligence because they failed to take essential steps. To counsel for the respondent, the application has no merit and the same should be dismissed with costs.

## CONSIDERATION OF THE APPLTCATION

Rule 5 of the rules of this court provides for extension of time as this court, may for sufficient reason extend the time required for doing an act under the rules.

As to u,hether the applicant has showed sufficient cause to warrant the grant of the orders sought herein, sufficient cause is an expression which has been used in a large number of cases. The meaning of the word "strfficient" is adequate or enough in as much as may be necessa-ry to answer the purpose intended. Therefore, the word sufficient cause embraces no more than that, which provides a platitude rvhich, when the act done suffices to accomplish the purpose intended in the fact and circumstances existing in a casei and duly' exarnined from the view point of a reasonable standard of a curious man. In this context, sufficient cause means that a party had not acted in a negligent manner or there was want of bona fide on its part in view of the facts and circumstances of a case; or the party cannot be alleged to have been not acting cliligently or remaining inactive. However, the facts and circumstances of each case must afford sufficient

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ground to enable the court concerned to exercise discretion for the reason that whenever the court exercises discretion, it has to be exercisecl .ludiciously. See the decision of the Supreme Court of India in Parimal versus Veena alias Bhart (20111 3 scc 345.

I have had the opportunity to peruse the application and accompanying documents and under paragraph 5 of the affidavit in support, the applicant avers that he effected service upon the respondent on Sth July 2O27 in person, in the presence of the area L. C.l Chairperson and refers this court to a copy of the notice of appeal annexed to the application and marked A'. A further critical perrrsal of annex A' reveals that the same bears only the signature of a one Prossy Byaruhanga, L. C1 Chairperson South Central East and below that name is a telephone number of the purported 1. C1 chairperson. The process server who served that notice of appeal swore an affidavit in that regard, annex 'B' to the application and in paragraph 4 of the affidavit, he states;

4. That accordingly, on the Stt, daA of Julg 2021, I effected seruice upon the Respondent in person at South Central East Cell, Central Ward, Tororo lt[unicipalitg, Tororo District in the presence of tle area Lo<:al council Chairperson.

The notice of appt:al allegedly served upon the respondent does not bear either his name, signature or even his telephone contact but rather those of the L. Cl chairperson. In the affidavit of service, the process server does not explain why the notice of appeal does not berar the particulars of the respondent but rather those of the L. C1 chairperson who was merely witnessing the

service. Service rr"'as intended for the respondent and not the L. C.1 chairperson. It is instead the applicant who, in paragraph 3 of the affidavit in rejoinder states;

"That in general replg, I insist that the respondent was duly and effectiuely serued utith the notice of appeal in this matter in person".

The applicant's insistency as envisaged above does not amount to proof of effective service on the respondent. Order 5 rule 16 of the Civil Procedure Rr-rles guides on the form of affidavit of service. The rule requires that an alfidavit of service shall in all cases state the time, wh(:n and the manner in which the summons was served, and the name and address of the person, if any, identifying the pr:rson served and witnessing the delivery or tender of the summons. Though the notice complies with the latter requirements of who witnessed the service, service can only be said to be complete when the person served endorses on the document acknou,ledging that he/she was being served o: if the person being served does not acknowledge service, then the process server has to state so in the a-ffidavit of service. This was not the case in t he instant matter and the applicant cannot merely state that he insists! Insisting is not evidence in proof of servlce.

I however note tl-rat there is consistency on the part of the applicant in attr'mpting to serve the respondent when in paragraph 7 of the affidavit in support, he states that when the memorandum of zrppeal was issued by the court and there was no known address of the re spondent's advocates, the process

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server again went back to the home of the respondent in Tororo and when he reached there, the respondent was absent but he spoke to him on phone and it is then that the respondent informed him that he had instructed Jjingo, Ssempija & Co. Advocates to reprr:sent him in the appeal. That by the time he made contact with the lawyers of the respondent above, the mandatory statutory period for service had lapsed but nevertheless, the process server delivered a copy of the memorandum of appeal to the respondent's advocates on 18th October, 2027. The process server confirms this in paragraph 18 of the affidavit of service, ernnex 'B' to the application.

The respondent does not deny the fact of service effected on 18th October, 2O2l as:reen in paragraph 15 and 16 of the affidavit in reply. This is furtfrer aflirrned by the respondent's counsel in his submissions wher,-' he statecl that he first learnt of the appeal for the first time on 18'h October,2O2l when they were served with the record of appeal. What can be deduced from the above is that the applicant still had zeal auld interest in pursuing his appeal despite the several futile attempts in serving the respondent. He can thus not be accused of negligence and or dilatory conduct. In my view, the applicant has showed all the interest in pursuing his appeal and like I have held before in applications of a similar nature, a party who shorvs continuous interest in having their case heard and the opposite party has the opportunity to challenge and or refute that party's assertions should be given the opportunitv to present their case.

This court is also empowered under rule 2(21 of the rules of this court to make such orders as are necessary for achieving the ends of justice or to prevent abuse of the process of any such court. In Kananura Kansiime Andrew versus Richard Henry Kaijuka S. C. C Reference No. 15 of 2OO6, this court observed thus;

" What constitutes sufficient reason is lefi to the court's unfettered discretion. In this t:ontext, the court will accept either a reason thot preuented an applicant from taking the essential step in time, or other reasons whq the ittended appeal be allowed to proceed though out of time'.

The applicant asserts that the appeal he intends to prosecute raises questions ol'lalr.' to be addressed, which questions relate to the role of the Land Boards and their mandate over expired leasehold interest.; on land. The questions of law as expounded by the applicant herein can only be addressed if the applicant is given the opportunity to present his appeal. It would thus be in the interest of jr rstice and for purposes of addressing those substantial questi )ns of law that this application is allowed. On the basis of whr'.t I have addressed herein, I find that the applicalt has shr,wed sufficient cause to warrant extension of time to enable hinr sele the memorandum of appeal against the decision of the Corlrt of Appeal, Civil appeal No.11 of 2O 13.

However, throughout his pleadings and submissions, the applicant has indicated that he served upon the respondent the notice of appeal, memorandum of appeal and the record of appeal. In the ev( nt that, that is the correct position, the said

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documents herein stated are validated. Should there be any variance in regard to the documents herein, the applicant is hereby given 15 drtys to rectify them.

As to costs, it is trite law that costs of any action follow the event, and it is in the discretion of the court or judge to award any such costs. I do not lird it prudent to order that either party to the instant applicatio;r meets the costs of this application at this stage. Consequen tly, costs of this application shall abide the outcome of the main appeal.

In the final result, this application is allowed. Costs shall abide the outcome of tht, main appeal.

Dated at Kampala this.... t? day of... 2022

RUBB'I OPIO. AWERI WSTICE OF THE SUPREME COURT

J. Le-) % q'

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