Ssekubunga v Kasajja (Miscellaneous Application No. 25 of 2022) [2022] UGHC 80 (20 September 2022)

# THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA HOLDEN AT MUKONO **MISCELLANEOUS APPLICATION NO. 25 OF 2022**

# (ARISING FROM CIVIL SUIT NO. 005 OF 2017)

ALOYSIUS SSEKUBUNGA ::::::::::::::::::::::::::::::::::::

#### **VERSUS**

SAMUEL KASAJJA **<u>....................................**</u> $\begin{array}{cccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccccc$

### BEFORE HON. LADY JUSTICE FLORENCE NAKACHWA

# **RULING**

- 1. This application was brought by Notice of Motion under Order 52 rules 1, 2 and 3 of Civil Procedure Rules, S. I.71-1 and Sections 98 & 79 (1) (b) of the Civil Procedure Act, Cap 71 seeking for orders $that: -$ - (a) The applicant be granted leave to appeal against the decision of the Magistrate in Civil Suit No. 005 of 2017 notwithstanding expiry of the $30$ days; - (b)Leave for extension of time within which to appeal to this honourable court against the decision of the trial Magistrate in Civil Suit No. 005 of 2017 be granted to the Applicant; - (c)Costs be in the cause.


- 2. The application is based on the grounds set out in the Notice of Motion and amplified by the supporting affidavit sworn by the Applicant on 21<sup>st</sup> March, 2022 and they are as follows: - - (a) That the Applicant filed Civil Suit No. 005 of 2017 against the Respondent for among others a declaration that the Respondent is a trespasser on his land (access) and he was the unsuccessful party in that civil suit; - (b) That the Applicant is a total illiterate with no capacities to knowing written or spoken English and the judgment in the captioned suit was delivered on $21/12/2021$ and he was not informed of his right of appealing within a period of 30 days and got to know it upon consulting a lawyer almost three months after delivery of the judgment; - (c) That the Applicant was a self-represented litigant with no knowledge about the legal procedures of pursuing an appeal and especially the period within which to appeal and the same was not explained to him during the passing of the judgment; - (d) That unfortunately after passage of three days from the date of delivery of judgment, the Applicant's existing hypertension condition got worsened and he got a paralysis, a health condition that made him unconscious for a period of almost three months from the 26<sup>th</sup> December, 2021 and he only recovered around 10<sup>th</sup> March, 2022;


- (e) That upon gaining full consciousness, the Applicant consulted about his Civil Suit No. 005 of 2017 at Nakifuma Court for purposes of pursuing an appeal but it was established that the 30 days had lapsed during a period when he was extremely sick and that there is a need to seek leave of this court for extension of time within which to appeal and actually he is still dissatisfied with the decision of the trial Magistrate in the captioned civil suit; - (f) That the medical condition of the paralysis made the Applicant unable to take an essential step of filing the memorandum of appeal within the required period of time; - (g) That the Applicant made this application without undue delays from the date he regained his consciousness; - (h) That the Applicant's intended appeal has higher chances of success and among others he shall raise the following grounds of appeal if given opportunity to appeal outside the required time and these are: - a. That the learned trial Magistrate erred in law and fact when she relied and put undue weight on the Respondent's evidence and rejecting Appellant's evidence on justifiable cause thereby occasioning miscarriage of justice; - **b.** That the learned trial Magistrate erred in law and fact when she improperly evaluated the evidence on record thereby arriving at a wrong conclusion;


- c. That the learned trial Magistrate erred in law and fact when she conducted locus in quo visit in the manner inconsistent with sound principles regulating to the same thereby arriving at a wrong conclusion: - d. That the learned trial Magistrate erred in law and fact when she held that the Respondent has existing legal interest or interest in the suit land whereas not; - (i) That it would be just and equitable for this honourable court to allow this application.

In the supporting affidavit, the Applicant adduced facts and documentary evidence in support of this application.

- 3. At the hearing of this application, the Applicant was represented by Counsel Serwanga Geoffrey of M/s Zahurah & Co. Advocates. The Applicant was present in court but the Respondent was absent. The court record shows that service of court process was duly effected on the Respondent. However, neither did the Respondent file an affidavit in reply to the application nor did he reply to the Applicant's written submissions. Subsequently, the Applicant's counsel prayed for and was granted leave to proceed ex-parte with the hearing of the application under Order 9 rule 20 (1) of the Civil Procedure Rules. - 4. The Applicant's counsel submitted that the Applicant is the unsuccessful Plaintiff in the Nakifuma Magistrate's Court Civil Suit No. 005 of 2017 for among others: recovery of the access on a kibanja at Kawuku Trading Centre, Kimenyedde Sub-County, Mukono District and that consequently, a judgment was entered in

favor of the Respondent on 21/12/2021. That unfortunately, the Applicant though dissatisfied with the decision of the trial court was hindered to file the appeal within the prescribed 30 days for reasons of ill health.

- 5. In answering the question of whether the Applicant should be granted leave to appeal notwithstanding the expiry of the required 30 days, learned counsel cited Section 79 of the Civil Procedure Act. Cap. 71. The Applicant's counsel further relied on the case of **Oiara Otto Julius v. Okwera Benson, Misc. Civil Application No. 0023 of 2017.** In that case, Justice Stephen Mubiru held that an order for enlargement of time to file the appeal should ordinarily be 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 Act. That it would be wrong to shut the Applicant out of court and deny him or her the right of appeal unless it can fairly be said that his or her action was in the circumstances inexcusable and his or her opponent was prejudiced by it. In addition, that the learned judge held that grant of extension of time is discretionary and depends on proof of good cause showing that the justice of the matter warrants such an extension. - 6. Learned counsel asserted that in the instant application, the affidavit evidence on court record discloses a sufficient cause that disabled the Applicant from filing the appeal within the prescribed time. That from perusal of the said affidavit evidence, it is clearly established that the Applicant was hindered from taking the essential step of filing the memorandum of appeal against the decision of the trial

Magistrate in Civil Suit No. 005 of 2017 on account of ill health and this is backed by a medical report attached to the affidavit. That further, under the cited laws and precedents, ill health also constitutes good cause, a reason this court should consider to allow the Applicant file his appeal though outside the prescribed time.

- 7. Counsel contended that in the case of Ojara Otto Julius v. Okwera Benson (supra), Hon. Justice Stephen Mubiru further held that the general principle is that leave to appeal will be allowed where, prima facie, there are grounds of appeal that merit judicial consideration or the intended appeal has reasonable chance of success, or if the decision sought to be appealed conclusively determines the rights of the parties. It was further submitted for the Applicant that his intended appeal which among others have been included in his affidavit in support of the application has higher chances of success and that the Applicant is raising points of law and fact under his intended grounds of appeal which prima facie merit judicial consideration - 8. Relying on paragraph 7 of the supporting affidavit, counsel averred that this application was made without undue delay from the time the Applicant regained consciousness. That the Applicant recovered from his sickness on 10<sup>th</sup> March, 2022 and filed this application on 21<sup>st</sup> March, 2022. That the lapse of only 10 days is not unreasonable delay. Learned counsel prayed that the application is allowed and further he proposed that to avoid delays, this court gives consequential directives that the Applicant files his memorandum of appeal within seven days from the date of the ruling, parties file

written submissions in a specified timeline and this court fixes the appeal immediately.

#### Issue

Whether there is good cause to merit grant of leave to appeal out of time.

9. Section 79 of the Civil Procedure Act, Cap. 71 is the applicable law in this application. It provides that:

> "Except as otherwise specifically provided in any other law, every appeal shall be entered-

- (a) within thirty days of the date of the decree or order of court: $or$ - (b) within seven days of the date of the order of a registrar. as the case may be, appealed against; but the appellate court may for good cause admit appeal though the period of limitation prescribed by this section has elapsed." - $10.$ It is the law that an application for extension of time within which to file an appeal must show good cause before court can exercise its discretion in the applicant's favour. In other words, the Applicant must satisfy the court that he or she was prevented by good cause from adhering to the time limit set by the law. In this respect, good cause must relate to the inability to take a particular step in the first instance. The applicant can do so by showing that the delay has not been caused by his or her dilatory conduct. Where there is dilatory conduct by the applicant, time for lodging an appeal cannot be extended. The court has discretion to determine each case basing on its circumstances. However, the court's discretion

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must be exercised judicially on proper analysis of the facts and application of the law to the facts.

- $11.$ In the instant case, a medical evidence dated 26<sup>th</sup> December 2021, which was presented to this court, proves that the sickness hindered the Applicant from filing his appeal within the specified time. The illness constitutes good cause. The evidence clearly points to the fact that the Applicant had paralysis and numbness of the right side of the body. In my judgment, granting the Applicant extension of time and leave to file his appeal would not be prejudicial to the Respondent and certainly would not cause any injustice to either party. - 12. Pursuant to the foregoing analysis, this application is allowed and I order that: - (a) The Applicant should file the memorandum of appeal before the 4<sup>th</sup> October, 2022 and serve the Respondent with the Memorandum of appeal and record of proceedings before 11<sup>th</sup> October, 2022:

(b) The applicant shall meet his own costs of this application.

I so rule.

This ruling is delivered this ....................................


**FLORENCE NAKACHWA** JUDGE.

In the presence of:

(1) Counsel Aheebwa Sandrah of M/s Zahurah & Co. Advocates for *the Applicant;*

(2) Ms. Pauline Nakavuma, the Court Clerk.