Semuddu & 3 Others v Wasswa (Miscellaneous Application 208 of 2024) [2025] UGHC 160 (20 February 2025)

Full Case Text

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT KIBOGA

# **MISC. APPLICATION NO.0208 OF 2024**

#### (ARISING FROM CIVIL SUIT NO.0032 OF 2024)

- 1. SEMUDDU OPOLLO - 2. MOSES KIGGUNDU - 3. KATO SEKIZIYIVU - 4. NAMALA COSTA

**.....................................**

(Administrator of the estate of

the late Luwagga William)

### **VERSUS**

SAMUEL WASSWA:::::::::::::::::::::::::::::::::

## **BEFORE: HON MR. JUSTICE KAREMANI JAMSON. K**

### **RULING**

### **Introduction**

Semuddu Apollo, Moses Kigiddu, Kato Sekiziyivu and Namala Costa (herein after referred to as the applicants) brought this an application under sections 96 and 98 of the Civil Procedure Act (CPA), Rules 5, & 42 of the Judicature Act (Court of Appeal Rules) Directions and Order 52 Rules 1 & 3 of the Civil Procedure Rules (CPR) against Samuel Wasswa (hereinafter referred to as the respondent) for orders that;

- 1. That the notice of Appeal served onto the respondent out of time be validated - 2. Costs of the application be provided for.

Main

#### **Background**

The applicants filed civil suit no. 032 of 2024 against the respondent for trespass, recovery of damages, an eviction order and a permanent injunction. On $28/06/2024$ , the trial court delivered judgment in favour of the respondent. On $08/07/2024$ , the applicant filed a notice of appeal against the same decision.

The applicants filed this application for orders that the notice of appeal served on the respondent out of time be validated.

#### Grounds.

The grounds of this application are contained in the application and affidavit in support sworn by the applicant but briefly are;

- 1. That the applicants being dissatisfied with the decision of this honorable court in C. S 32 of 2024 delivered on 28/06/2024 instructed their lawyers M/S Imran Advocates & Solicitors to immediately appeal against the decision. - 2. That the applicants were informed by the said lawyers that both the notice of appeal and application for a certified record were lodged on $8/07/2024$ . - 3. That the applicants have since learnt from the said lawyers that after lodging the notice of appeal their lawyers did not serve the notice of appeal onto the respondent. - 4. That the applicants have further learnt that the lawyers merely served the respondent with only the application for a certified court record. - 5. That the applicants have engaged other lawyers to wit M/S TAK Advocates to represent them in the appeal who have served the respondent's counsel with the notice of appeal out of time. - 6. That the applicants are very much willing to pursue and prosecute their appeal against the said decision of this honorable court. - 7. That tis application is brought in good faith and has not been brought after inordinate delay. - 8. That the respondent is not in any way prejudiced by the grant of this application.

gan wan

9. That it is only fair and in the interest of justice that this application is granted and the applicants' appeal is heard on its merits.

In opposition to the application, the respondent filed an affidavit in reply on the following grounds;

- 1. That on the 28th of June 2024, court delivered judgment in HCCS no. 32 of 2024 by which it made orders in favor of the respondent and the copies of the judgment and orders are on record. - 2. That he later learnt that the applicant had filed a notice of appeal on 8th July 2024 and it was endorsed the same day. That the applicant also wrote to the court requesting for a certified typed copy of proceedings and that the letter was served on to them. - 3. That the applicants were supposed to serve them with the notice of appeal not later than the 15th July 2024 but opted to serve them with a letter requesting for certified record of proceedings and they have also not followed up to the said record of proceedings to enable them file a memorandum of appeal five months later. - 4. That he is convinced that the appellants have no interest in the prosecution of the said appeal and that are only desirous of keeping the respondent in unnecessary and prolonged litigation as there is no plausible reason as to why the applicants never served the said notice of appeal within time prescribed by law. - 5. That he has been advised by his lawyers that the instant application is clearly based on falsehood and aforethought where the applicants are engaging new lawyers to have the case prolonged.

# Representation.

The applicants were represented by M/S Tak Advocates while M/S Ajju Baleese Bazirake Advocates represented the respondent.

#### Issues.

- 1. Whether the applicants have presented sufficient grounds to warrant the validation of notice of appeal served out of time. - 2. What remedies are available to the parties?

y wann

### **Resolution of issues.**

1. Whether the applicants have presented sufficient grounds to warrant the validation of notice of appeal served out of time.

According to **Rule 76 of Judicature (Court Appeal Rules)** any person who desires to appeal to the court shall give notice in writing which shall be lodged with the registrar of the High Court within fourteen days after the date of the decision against which it is desired to appeal.

Under Rule 78 (supra) the intended appellant is supposed to serve copies of the notice filed on all persons directly affected by the appeal.

However, court may on an application made an ex parte, direct that the service need to not be effected on any person who took no part in the proceedings in the High Court.

According to the record of proceedings in this matter, the decision of this court was delivered on 28th June 2024. On 8th July 2024, a notice of appeal was lodged with the registrar of this court which was within the prescribed time.

It is stated in the affidavit in support of the application that the notice was not served on the respondent within the prescribed time of seven (7) days. It is however not stated as to when it was served.

The affidavit in reply doesn't either state when the respondent was served. It simply state that it was supposed to be served before $15th$ July 2024.

I do find that by virtue of admission by the applicants, the notice of appeal was not served on the respondent within the prescribed time of seven (7) days from the day it was lodged with the registrar of this court. Failure to serve the same in time is the subject of this application.

Section 96 of the Civil Procedure Act gives the court power to enlarge time. It 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."

man wan

**Rule 5 of the Judicature (Court of Appeal Rules) Directions** provide for extension of time limited to do an act.

**Rule 42 of above Rules** provide for the filing of this application for extension of time either in this Court or the Court of Appeal.

The power to grant leave to take any action out of prescribed time is a discretionary one. This power is exercised on a case by case basis and not as a matter of right. The applicant must satisfy court by showing sufficient cause upon which such discretion may be exercised. See: HCMA NO. 24 OF 2013 Muzamil Ayile V Rose Tararke and 6 Ors.

Counsel for the applicant submitted that it was the lawyers of the applicants who did not take action in time. That this was a mistake of counsel which should not be visited on the party. He cited several decided cases.

The learned counsel for the respondent did not file submissions in reply.

I have looked at the circumstances of this case and I concur with learned counsel for the applicant that a mistake of counsel should not be visited on the party.

Article 126 (2) (e) of the Constitution of Uganda 1995 on technicalities is meant to cure such anomalies.

I find that the applicants have shown sufficient cause as to why they served the notice of appeal on the respondent out of time.

In the final result this application is allowed with orders that:

- 1. The service of the notice of appeal on the respondent is validated. - 2. The mistake having come from the applicants' counsel each party will bear its own costs.

nam"

KAREMANI JAMSON. K **JUDGE** $20/2/2025$