Strabag International GMBH v Turyahebwa (Miscellaneous Application 43 of 2023) [2024] UGHC 641 (9 July 2024)

#### THE REPUBLIC OF UGANDA

#### IN THE HIGH COURT OF UGANDA AT ARUA

### **MISCELLANIOUS APPLICATION NO. 0043 OF 2023**

# (ARISING FROM THE CHIEF MAGISTRATE COURT OF ADJUMANI AT ADJUMANI)

### **COMPENSATION CLAIM NO. 004 OF 2022**

$10$

# STRABAG INTERNATIONAL GMBH::::::::::::::::::::::::::::::::::::

#### **VERSUS**

TURYAHEBWA LAMECK::::::::::::::::::::::::::::::::::::

#### **RULING**

#### BEFORE HON. JUSTICE COLLINS ACELLAM

#### **Brief Introduction**

This is an application brought under section 16(1), (3) and (5) of Workers compensation Act, Cap 225, section 96 and 98 of the Civil Procedure Act, cap 71, section 33 of the Judicature Act, cap 13, Order 51 Rule 6 and Order 52 rules 1 and 3 of the Civil procedure Rules S. I 71-1 and all other

enabling laws seeking for orders that;

- a) That leave is granted to file an appeal. - b) That the time for filing the appeal in this case is extended and leaves is granted to file and serve the memorandum of appeal out of time.

$25$ c) Each party bears its own costs.

#### Grounds in support of the Application.

The grounds in support of this application are set out in the affidavit of PHILIP PATEMANN, (the country Manager of the Applicant Company), **dated** 9<sup>TH</sup> Of March 2023 which briefly states;

- 1. That the worker's compensation claim was filed by the Respondent against the Applicant Company. The Applicant instructed the lawyers of M/S ANGUALIA BUSIKU & Co. Advocates to defend it in application. - 2. That accordingly, a response to the claim was filed denying the claim. This was a clear position of the Applicant. There was no Admission in the response

$\mathbf{1}$

3. That when the matter came up for hearing, human resource manager attended the court but matter was adjourned.

- 4. That I was not until January 2023 when they were served with notice to show cause why execution should not issue only to be informed that a decree was passed against them. - 5. That it's was only until March $6<sup>th</sup>$ , 2023 that they received a copy of the Ruling. - 6. That on reception of the Ruling, they realized that judgment was made on admission of which they have never attended court nor made any admission in respect of the same. - $10$

- 7. That the ruling is irregular as it refers to a proposal by the lawyer of 30% which was not grounded on any evidence. The ruling fails to state the reasons for the decisions and in any case the person who made the purported admission and where they made them. - 8. That there was no hearing at all and as a consequence the Applicant is denied the right to a fair trial under Article 28 of the 1995constitution of the Republic of Uganda. - 15 9. That it is in the interest of justice that this application be granted.

### Grounds of opposition

In opposition to the Application, the Respondent, TURYAHEBWA LAMECK, through his affidavit in reply deponed on the 17<sup>th day</sup> of May 2023 contested the application on the following grounds;

- 20 1. That they oppose the application and state that the Applicant was served with summons and the applicant and its lawyers were present in court when adjournment to the next convenient date was made by court - 2. That the Applicant cannot claim that it did not know the next court sitting since actual notice as to the Application was given to it and its lawyer who was present in court and an adjournment to the next convenient date (07/09/2022 was made. - 3. That he attended all the four court sittings to which the said counsel for the Applicant attended but as expected, failed to attack his evidence. - 4. That the notice of Appeal and memorandum of appeal must be lodged in the appellate court within 14 days and 30 days respectively after passing the judgment and that the Applicant did not need to first obtain a copy of the ruling in order to file its notice of appeal and so paragraph 8 of the Applicant's affidavit is opposed. - 5. That at the time the ruling was delivered; counsel for the Applicant was present as can be verified from court record and the ruling was never on admission as contended by the Applicant. - That the calculations as to the value of the compensation were consistent with the schedule 6. to the Worker's compensation Act in respect of his two eyes for both total and partial incapacity and the pecuniary jurisdiction of the magistrate is not limited by the amount in the award. - 7. That it is just, fair and reasonable that the Applicant's application be denied.

## Representation

On record, the Applicant was represented by YIGA ADVOCATES whereas the Respondent was represented by M/S Cumberland Advocates.


- $\mathsf{S}$ Before I proceed to the merits of the Application, I want to note that I have perused through the application and all their supporting documents/ affidavits and affidavit in reply, On perusal of record, I found no submissions for the for the Applicant whereas Respondent filed their submissions which I have duly put into consideration to come up with this ruling. There was no rejoinder made on record. - 10 I shall now proceed to enlist the issue in contention.

I have pursuant to Order 15 CPR, framed the following issue which were deemed crucial in the determination of the Application to wit;

## Issue

- - 1. Whether the applicant has adduced sufficient reasons to justify the grant of the remedies being sought? - 2. What are the remedies available to the parties?

## **Analysis / determination**

#### 20 Position of the law.

An Appeal is a creature of statute and where there is no such right; an appeal shall be by leave of court. An appeal under the civil procedure rules shall not lie from any other orders save with leave of court making the order or of the court to which an appeal would lie if leave were given. See Order 44 (1) of the CPR.

It is necessary when considering the scope and value of this hurdle of leave to appeal, to be aware of 25 the importance of a right to appeal and its worth to the legal system.

So Far as achieving a just result is concerned, a right of appeal can perhaps achieve, and avoid a 'legal injustice' in other words it can ensure that the law is interpreted and preferably also applied correctly.

30 The quality of justice, which is the touchstone of a civilized society depends in large measure on the arrangements provided for its due administration. Accordingly, it is appropriate to consider rights of appeal and indeed, leave to APPEAL, in terms of the 'Justice 'within a system. See Civil Procedure & Practice in Uganda by M. SSEKAANA & S. N. SSEKAANA at page 328

Leave to appeal from an order in civil proceedings will normally be granted where prima facie it 35 appears that there are grounds of appeal which merit serious judicial consideration.

The circumstances in which leave should be granted have not been defined. This is a matter left to the discretion of the courts. It is known that leave is considered desirable where a case involves ..." a question of importance upon which further argument and a decision of the court of appeal would be to the public advantage. See Civil Procedure & Practice in Uganda by M. SSEKAANA & S. N. SSEKAANA at page 328

The rationale behind leave requirement as the courts sees it is to prevent frivolous and needless appeals. It is doing the potential litigant a service to refuse him leave to appeal, if this Appeal is

clearly doomed to fail. This fetter on appeals helps to keep the Administration of Justice tidy. It is 5 purely as an administrative protection to limit the number of appeals. However, it would be highly undesirable if the Administrative convenience interfered with the judicial system.

Section 98 of the CPA Cap 71 provides 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 the ends of justice or to prevent abuse of the process of the court."

Order 76 rule 1 Judicature (Court of Appeal) rules provides that "*any person who desires to appeal* to the court shall give notice in writing which shall be lodged in duplicate with the Registrar of the High Court."

Sub rule (2) provides thus; "every notice under sub rule (1) of this rule shall, subject to rules 83 & 15 95 of these rules, be lodged within fourteen days after the date of the decision against which it is desired to appeal."

The time for appealing begins to run when the judgment or ruling is delivered. Section 79(1) CPA which was well pronounced in the case of Hajji Mohamed Nyanzi Vs- Ali Segane [1992-1993] HCB $21$ provides that;

#### Except as otherwise specifically provided in any other law, every appeal shall be entered: 20

## a) Within thirty days of the date of the decree or order of court

b) Within seven days of the date of the order of a registrar

Section 96 of the CPA Cap 71 and Order 51 rule 6 of CPR provides for a remedy for a litigant who for some peculiar reason fails to abide by the above prescribed timeline. The section provides that:

#### "Where any period is fixed by the court for doing of any act prescribed or allowed, the 25 court may in its discretion from time to time enlarge such period, even though originally fixed or granted may have expired."

Order 51 rule 6 of CPR provides thus;

where a limited time has been fixed for doing any act or taking any proceedings under these rules or by order of the court, the court shall have power to enlarge the time upon such terms, if any as the justice of the case may require, and the enlargement may be ordered although the application for it is not made until after the expiration of the time appointed or allowed; except that the costs of any application to extend the time and of any order made on the application shall be borne by the parties making the application, unless the court shall otherwise order."

In Priscilla Wambi Mischek Vs-Samuel Thata & Ors East African Court of Appeal CA No. 30/1976 it was held that the party who seeks the indulgence of court to extend the time must be diligent in applying for it expeditiously and without undue delay.

## **Analysis of Court.**

In submission, counsel for the Applicant contended that there was no hearing conducted in the $\mathsf{S}$ lower court. The right to a fair hearing provided under Article 26 and 44 if the constitution advocates for fair hearing. Counsel further adds that this forms a substantial question of law that warrants an appeal as no hearing was conducted and it is no wonder that the final ruling by the learned Magistrate Grade 1 did not conform with the basic requirements of the law in accordance with Order 21 rule 4 and 5 of the Civil Procedure Rules, S1 71-1. 10

Counsel further submit that section 16 (5) of the worker's compensation Act, Cap 225 stipulates for 30 days from the date of the order as time within which to file an appeal . it further states that court may however extend this time on application.

Counsel says the applicant only learnt of the ruling dated 16<sup>th</sup> October, 2022 on the 6<sup>th</sup> of march, 2023 after they verified from court and this was due to failure of the Applicant's lawyers, M/S 15 Angualia Busiku & Co. Advocates to communicate the ruling or decision that was reached in the matter.

Counsel contends that negligence, oversight, mistake, error of counsel should not be visited on the litigant leading to striking out of the appeal thereby denying him justice.

- In rebuttal, the Respondent in their submission contend that the Applicant's position is 20 misconceived. Counsel adds that it is inconceivable how a party that was duly summoned, filed its response to the claimant/ respondent 's claim, attended the first court sitting on 6<sup>th</sup> /07/2022 together with its lawyer, within which an adjournment was made to the next convenient date of 07/09/2022, can turn around and claim that it did not attend the next and subsequent court - hearing because it was never informed of any date such hearings would occur. Moreover, counsel 25 attended every court sitting throughout the trial and this fact is on record. Counsel further adds that no reason was ever given in court for the absence of the Applicant at the 3 out of 4 appearances.

Counsel further submits that the Applicant's claim is nothing but an exhibition of the highest level of dishonesty and arrogance for which penalty ought to be slapped on it in addition to dismissing its unmerited application.

## Decision of court

I have had the honor of hearing from both parties and their counsel. The right to fair hearing constitutes various safeguards. The underlying concept of fair hearing lies in affording a party a fair and public hearing by an independent and impartial court established by law. It generally comprises the following basic fundamental rights:

The right of access to court and, consequently, to be heard by a competent, independent and impartial tribunal; the right to equality of arms'; the right to a public hearing; the right to be heard within a reasonable time; the right to counsel; and the right to interpretation.

In Uganda Article 28(1) 17 In the determination of civil rights and obligations or any criminal charge, a person shall be entitled to a fair, speedy and public hearing before an independent and 40 impartial court or tribunal established by law and facilities to prepare a defence; the right to a public hearing before a court established under the constitution; the right to have the hearing begin and

$\mathsf{S}$ conclude without unreasonable delay; the right to be present when being tried, unless the conduct of the a Party makes it's impossible for the trial to proceed; the right to choose, and be represented by an advocate and to be informed of this right promptly, the right to adduce and challenge evidence; and the right of appeal or

Without prejudice to the above, it is trite law as emulated in Brown v Dean [1910] AC 373, [1909] 10 2 KB 57 where it was emphasized that: "In the interest of society as a whole, litigation must come to an end, and when a litigant has obtained judgment in a court of justice, he is by law entitled not to be deprived of that judgment without very solid grounds."

#### Order 51 Rule 6 of the Civil Procedure Rules provides that:

"Where a limited time has been fixed for doing any act or taking any proceedings under these Rules or by order of the court, the court shall have power to enlarge the time upon such terms, if any, as the justice of the case may require, and the enlargement may be ordered although the application for it is not made until after the expiration of the time appointed or allowed; except that the costs of any application to extend the time and of any order made on the application shall be borne by the parties making the application, unless the court shall otherwise order."

The power to grant or not to grant an extension of time is discretionary. The primary consideration should be seeing to it that substantive justice is done without undue regard to lapses, mistakes or faults.

In Hadondi Daniel vs Yolam Egondi Court of Appeal Civil Appeal No 67 of 2003 it was held 25 that:

> "it is trite law that time can only be extended if sufficient cause is shown. The sufficient cause must relate to the inability or failure to take necessary step within the prescribed time. It does not relate to taking a wrong decision. If the applicant is found to be guilty of dilatory conduct, the time will not be extended".

#### 30 The term sufficient cause is not defined in the CPR but has been discussed in

decided cases. In The Registered Trustees of the Archdiocese of Dar es Salaam Vs the Chairman Bunju Village Government & Others quoted in Gideon Mosa Onchwati vs Kenya Oil Co. Ltd & Another [2017] eKLR the it was stated that:

"It is difficult to attempt to define the meaning of the words 'sufficient cause'. It is generally accepted however, that the words should receive a liberal construction in order to advance substantial justice, when no negligence, or inaction or want of bona fides, is *imputed to the appellant.*"

In the same Kenyan authority of Gideon Mosa Onchwati (supra) attempted to describe what amounts to "Sufficient cause" thus; "Sufficient cause" is an expression which has been used in large number of statutes. The meaning of the word "sufficient" is "adequate" or "enough", in as much as may be necessary to answer the purpose intended.


- Therefore, the word "sufficient" embraces no more than that which provides a platitude which when $\mathsf{S}$ the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case and duly examined from the viewpoint of a reasonable standard of a curious man. In this context, "sufficient cause" means that 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 diligently" or "remaining inactive." However, the facts and circumstances of 10 each case must afford sufficient ground to enable the court concerned to exercise discretion for the reason that whenever the court exercises discretion, it has to be exercised judiciously" (See also Bishop Jacinto Kibuuka Vs. The Uganda Catholic Lawyers Society & 20thers, Misc. Appln No. 696 of 2018) - The case law appears to leave the meaning of "sufficient cause" to judicial discretion and 15 determination based on the facts, surrounding circumstances and the merits of each particular case and to ensure the ends of justice. The conduct of the parties, for example, whether or not, a party has been grossly negligent, careless, reckless or palpably indifferent in prosecuting the case, would be a consideration. - A delay that is beyond the full control of the party or due to occurrence of facts that could not be 20 contemplated by the party, should favor an extension of time in appropriate cases. Where the denial to grant an extension would occasion an injustice to the applicant or lead to multiplicity of suits or where justice can be better served after hearing from both sides, these factors may favor an extension of time in appropriate cases. - In light of the facts, specifically paragraph 3 and 4 of the affidavit in support of the Application, 25 it's the Applicant's contention that when the matter came up for hearing , human resource manager attended the court, but matter was adjourned and that it was not until January 2023 when they were served with notice to show cause why execution should not issue only to be informed that a decree was passed against them. - The above statement clearly shows that the Applicant was aware of the next date the matter was to 30 come up for hearing but neglected to attend. The human resource and instructed lawyer were present on that day when the matter was adjourned, I see no excuse on this ground to visit negligence on the part of the legal representative of the Applicant as a client who duly instructs his legal counsel must use the same effort to verify where and wat transpired on date of hearing and must promptly follow up on his case. This is labour claim in respect to injury of the eyes which has left the 35 respondent's eyes non-functional, it is only fair and just that the Applicant should not rely on technical issues to challenge a visibly impaired Respondent.

I also want to emphasize more that the rationale of leave to appeal is to prevent frivolous and needless appeals. It is doing the potential litigant a service to refuse him leave to appeal, if this Appeal is clearly doomed to fail. It is purely as an administrative protection to limit the number of appeals.

Before I take leave, I wish to note that on perusal of the file, there is a document which was filed on 19<sup>th</sup> /oct/2022 at Adjumani Magistrate court where parties had decided to partake on mediation , however, based on statement by counsel DANIEL ANGUALIA on 29<sup>th</sup> /09/2022, he made

- mention that his client, Strabag International was open to settlement of the dispute wherein it $\mathsf{S}$ requested the claimants to provide documents requested by their insurance company for computation of the claim but in vein. Counsel adds that the client prefers that court makes a determination of the amount payable which on record, court did make its on determination on the amount pavable. - 10 I must note that court considers circumstances of the case and make orders so as to meet the ends of substantive justice. The physically impaired Respondent should not be allowed to suffer because of the inaction by the Applicant and his counsel because it is not clear why they waited for months before taking the essential steps, I believe if u have a case in court and made a response to it, its only right to follow up till its completion, am not convinced that the application only woke up to the - service of notice to show cause, they just neglected to show seriousness for their case and did not 15 take the issue of timelines very seriously.

On the face of record, I find this application is devoid of merit to grant leave to file an Appeal. In the circumstances of the case, refusal to grant leave to extend time to file memorandum of appeal and subsequently an Appeal would cause an injustice to the Respondent based on their physical incapacity. All in all, litigation must come to an end and justice must be served.

In the final result, leave to appeal and an extension of time being sought is hereby denied with no orders as to costs.

I SO ORDER

25 ACELLAM

**JUDGE**

DATE: 9th July 2024

30