Strabag International GMBT v Kwebiha (Miscellaneous Application 24 of 2023) [2023] UGHC 466 (10 October 2023)

## THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT ARUA

## **MISCELLANIOUS APPLICATION NO. 0024 OF 2023**

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

## COMPENSATION CLAIM NO. 005 OF 2022

STRABAG INTERNATIONAL GMBH:::::::::::::::::::::::::::::::::::: 10

### **VERSUS**

KWEBIIHA FRED::::::::::::::::::::::::::::::::::::

### **RULING**

## BEFORE HIS LORDSHIP HON. MR. JUSTICE COLLINS ACELLAM

#### 15 **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. - 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, 25 (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. - 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 its 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. - 7. That it is in the interest of justice that this application be granted.

## Grounds of opposition

In opposition to the Application, the Respondent, KWEBIIHA FRED, through his affidavit in 10 reply deponed on the 19<sup>TH</sup> day of May 2023 contested the application on the following grounds;

- 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 - 15

$\mathsf{S}$

- 3. That the Applicant's affidavit is full of falsehood and careless assertions because he attended all the four court sittings to which the Applicant's counsel failed to attack his evidence. - 20 4. That it is just, fair and reasonable that the Applicant's application be denied.

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, Both Counsel for the Applicant and Respondent filed their submissions which I have duly put into consideration to come up with this ruling. There was no rejoinder made on record. I shall now proceed to enlist the issue in contention.

I have pursuant to Order 15 CPR, framed the following issues 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**

## 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 35 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.


<sup>2.</sup> That the Applicant cannot claim that it did not know the next court sitting since actual notice was given to it and its lawyer.

It is necessary when considering the scope and value of this hurdle of leave to appeal, to be aware of $\mathsf{S}$ the importance of a right to appeal and its worth to the legal system.

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 10

Leave to appeal from an order in civil proceedings will normally be granted where prima facie it 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 15 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 20 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." 25

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 & 95 of these rules, be lodged within fourteen days after the date of the decision against which it is 30 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: 35 - 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 $\mathsf{S}$ 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 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; 10

> "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. 20

## **Analysis of Court.**

The starting point is to determine whether or not sufficient reason has been shown for the failure to act in time. According to the affidavit sworn by PHILIP PATEMANN especially paragraph 5 that there was no information of no further hearing at all, and they were not a party to any hearing. It was not until January 2023 when they were served with a notice to show cause why execution should not issue. In addition, the Applicant states under paragraph 10 that the ruling is irregular as it refers to an admission that was not made and further that it does not conform with the basic requirements of law in accordance with Order 21 Rule 4 and 5 of the CPR. And further, the ruling fails to state the reasons for the decision and the person who made the purported Admission.

- In response, counsel for the Respondent submits that the above contention of the applicant is 30 inconceivable because the applicant was duly summoned, filed its response to the claimant's claim and attended first court hearing sitting on the 06/07/2022 together with its lawyer within which the adjournment was made to a next convenient date of 7<sup>th</sup> /09/2022 can turn around and claim that it did not attend the next subsequent court hearing because it was never informed of any date - such as next hearing. Counsel submits that in all the hearing, its counsel attended every court sitting 35 throughout the trial which fact is on court record. He further states 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. Counsel concludes that indeed on the date the matter was called, the Applicant's lawyer appeared and was asked to respond to the claimant's claim, but he could not object because - of the glaring evidence as contained in the claim an on the basis of admission of injury and failure 40

$\overline{4}$


$25$

to compensate. Counsel admitted liability and opted to compensate but prayed that costs be $\mathsf{S}$

I want to emphasize that 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 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.

I wish to draw your attention on the Record of proceedings in respect to compensation claim No. 005/2022 specifically from the 6/7/2022, counsel Angualia Daniel appeared for the Respondent,

which is Strabag International GHBH, on that day, the Applicant was present, however, his lawyer 15 was absent on vehicle having mechanical issues, court gave cost of the day to TUNE of Ugx. 1,500,000/=, matter was Adjourned to 7/9/2022, Counsel Kasingye Stuart appeared for the respondent, the Applicant was represented by Niwagaba Moses .

This same matter was later referred for mediation in agreement of both parties and their counsel all before Worship Nantaawo Agnes Shelagh. Matter was adjourned to 19/10/2022. On the 20 19/10/2022 when the matter came up, counsel for both the Applicant and Respondent was present.

On that day, counsel for the Respondent, Mr Kasingye told court that they had a fruitful discussion and admitted paragraph 3(a) of the claim and liability in respect to paragraph 3(a) and (b) and prayed to Court to deny the grant of paragraph 3 (c) &(d) because the Respondent accorded mediation attention to the Applicant. Counsel for the Applicant conceded to the abandonment prayer intimated to court by counsel for the Respondent.

Learned Worship Nantaawo Agness Shelagh then entered a judgment on admission in as far as paragraph 3 (a) and (b) of the claim and costs of the Application and 10% interest per annum from the date of judgment.

The common law recognizes as a fundamental right of the individual to legal advice and legal 30 representation. Legal representation is today regarded as a necessity not a luxury. The necessity flows from two principles of fair trial and equality before the law. The Ugandan judicial system is grossly afflicted with frivolous litigation. One needs to keep in mind that in the process of litigation, there is an innocent sufferer of every irresponsible and senseless claim. He suffers long drawn anxious

period of nervousness and restlessness while litigation is pending. He pays for the litigation from 35 out of his savings or borrowing, worrying that the other side may trick him into defeat for no fault of his own. He spends invaluable time briefing his counsel and preparing them for his claim. Such litigation not only consume court's time but also court's time for the wrong reason.


Courts have always been considered to have an overriding duty to maintain public confidence in the $\mathsf{S}$ Administration of Justice often referred to as the duty to vindicate and uphold the Majesty of Justice.

Truth is the foundation of justice; it must be the endeavor of all judicial officers and judges to ascertain the truth in every matter.

I must emphasize that in legal representation, Advocates/ Lawyers are often looked to by opposing parties, by courts to represent the clients and provide their client's position on legal and factual 10 issues. This is because Advocates generally act as their client's agents, their statements can be legally binding on the client. This is however not absolute, only of the circumstance of the case warrants so. The law of Agency provides the fundamental structure for many of the legal consequences that follow from the relationship between the lawyer and a client as well as relationship between Advocate 15

The lawyer client relation is commonsensical illustration of Agency- a sequence that binds the client. Advocates acts as client's agents in transactional settings as well as litigation. It is unsurprising, then that the legal consequences of those relationships parallel the legal consequence of Agency generally even when they are Not identical.

- I must say, it is quiet unfortunate that on the face of record and from all documents available to 20 court inclusive of affidavit of service, the employer had full knowledge of all circumstances, notice of instructions were duly given and on record, a lawyer represented the Applicant till conclusion of the trial, I am made to believe that this application is merely to frustrate the Respondent; there is no substantial question of law to merit judicial investigation. - In determining whether or not this application for extension of time within which to file notice of 25 appeal should be granted, the paramount consideration is that there must be sufficient cause of failure of the Applicant to file and serve a memorandum of appeal within time.

The expression 'sufficient reason' is not defined anywhere in the rules however in the case of *Rosette* Kizito Vs-Administrator General & Others SCCA No. 9 of 1986 (1993) KALR 5, it was held that sufficient reason must relate to the inability or failure to take the particular step in time.

The applicant for extension of time has the burden of proving to court satisfaction that for sufficient reason it was not possible for the appeal to be lodged in the prescribed manner. This was the position in Devhi Vs-Diamond Concrete Company [1974] EA 493.

In Sabiiti Kachope & 3 Ors Vs- Margrat Kamuje, SCCA No. 31 of 1997, Order JSC (as he then *was)* held that for application of extension of time such as the present one, a mistake or negligence 35 of the Applicant's counsel may be accepted as a proper ground for granting relief such as leave to file out of time. The discretion of court is not fettered as long as sufficient reason has been disclosed to justify court's exercise of its discretion in favor of the Applicant in this application the inordinate


delay was caused by the Applicant's previous Counsel, therefore, the Applicant has shown sufficient 5 reason to justify the court's discretion in his favor.

It would be right to note that both the Applicant and its counsel were negligent of their duties to each other. If eel they undermined the system and were only surprised at the Respondent's seriousness to pursue his grievance when they received Notice to show cause why execution shouldn't issue.

I am alive to the fact that Notice to the Respondent as to the claim was duly issued and served. Attached is an annexure marked A on court record.

However, whether or not to extend time is discretionary. This was the position in *J Hannington* Wasswa Vs-M. Onyango Ochola [1992-1993] HCB 103 (SC) where it was held that the discretion to grant extension of time can be allowed in order for the appeal to be heard on its merits so that the dispute could be settled. The discretion must however be exercised judicially on proper analysis of the facts and the proper application of the law to the facts. (Emphasis is mine)

In the case of Seperia Kyamulesiire Vs-Justine Bikanshire Bagambe, Civil Appeal No. 20 of 1995, where Justice Karokora JSC then was of the view that "it is now settled that errors or omission by

counsel are no longer considered fatal to the Applicant under rule 4 of the rules of this court unless 20 there is evidence that the Applicant was guilty of dilatory conduct in the instructions of his lawyer.

Taking the above into account and in light of the above authorities cited, I find the Applicant was unbothered to make a follow up of his case. I do not know the level of coordination between them for a party who duly instructs a lawyer must use the same effort to find out about his or her case, the

lawyer must also always update his or her client on every step that transpires during the court 25 proceedings.

The question is, must the adverse party suffer at the expense of a negligent opponent? It makes no sense to drag a financially disgruntled poor litigant who suffers physically to such a strain.

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 30 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


| <b>COLLIN</b> | |-------------------| | <b>NS ACELLAM</b> |

**JUDGE**

DATE: $10/10/2023$