The Registered Trustees of the Hindu Union v Kagoro & 2 Others (Civil Application 46 of 2021) [2022] UGSC 32 (14 January 2022)

Full Case Text

# THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT KAMPALA CIVIL APPLICATION NO. 46 OF 2O2L

### BETWEEN

### REGISTERED TRUSTDES OF THE HINDU UNION APPLICANTS

### AND

### 1. I{AGORO EPIMAC

### 2. TI;IE' REGISTRAR OF TITLES

## 3. FULGENSIA TUMWESIGYE..... RESIPONDENTS

### 15

### Representation

The applicant was represented bg Counsel Badru Bwango Araali. The applicant appeared in court throughits representatiues- Rajiu and Mukesh Shukla who are the Chairman and Vice Chairman respectiuelg of the applicant.

The 7"t respondent was represented bg Counsel Kibwoijana Richard. The 7"t respondent was not present in Court.

# BEFORE HON. JUSTICE PROF,\_1'IBATE]IIWA-EKIRIKUBINA. JSq

### RULING

This is an application by way of Notice of Motion brought under Rule 5 of the Rules of this Court. The application seeks extension of time within which to file an appeal against the decision of the Court of Appeal in Civil Appeal No. 185 of 2018.

The application further seeks that Civil Appeal No.10 of 2021 which was filed out of time be validated.

The application also seeks that costs be provided for.

The application was supported by the affidavit of Mukesh Shukla which stated as follows: -

- 1. That at the Court of Appeal, the respondents were given judgment in their favour as against the applicant. Dissatisfied with the said judgment, the applicant filed a Notice of Appeal against the judgment in the Supreme Court. - 2. The applicant was unable to file the said appeal within the prescribed time. Hence, civil application No.437 of 2019 was filed in this Court seeking for an extension of time within which to file the appeal. - 3. Through consent of both parties, the application for extension of time was granted by Hon. Lady Justice Dr. Esther Kisaakye (JSC) on the 19th March 2020. The Judge the applicant files that and serves the ordered Memorandum of Appeal as well as the record by 21st April 2020. - 4. Due to the COVID-19 countrywide total lockdown which was effected on 19th March 2020 and restricted movements, the applicant was not able to file and serve the Memorandum of Appeal by 21st April 2020. - 5. That the said lockdown was only lifted towards the end of July 2020. - 6. That the time given by Hon. Justice Kisaakye, JSC within which to file the appeal expired during the lockdown.

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- 7. That in April 2021, the applicant filed Supreme Court Civil Appeal No.10 of 2021 in the registry of the Supreme Court and the same has been served out of time albeit out of time. - 8. That the subject matter of the appeal is a communal burial ground for all persons who profess the Hindu Faith living in Uganda. - 9. That it is in the interest of justice that SCCA No.10 of 2021 be heard on its merits. - 10. That there was sufficient reason why the Memorandum and Record of Appeal were not filed within the time prescribed by Hon. Justice Kisaakye (JSC). - 11. That it is just and equitable that the applicant's application for extension of time and validation of Civil Appeal No.10 of 2021 be granted by this Honourable Court.

#### 12. That it is just and equitable that this Court be pleased to 20 grant the orders sought herein.

The application was opposed by the respondents. The affidavit in reply sworn by Kagoro Epimac stated as follows: -

1. That following the delivery of judgment against the 25 applicant by Court of Appeal in Civil Appeal No.185 of 2018 on the 26th June 2019, the Applicant lodged a Notice of Appeal on 4th July 2019 in the Court of Appeal, Kampala.

2. The applicant was furnished with a copy of the typed proceedings and judgment on 27th September 2019 and with an additional copy of the complete proceedings on 15th October 2019.

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- 3. That the applicant did not institute the appeal within 60 days of receipt of the complete proceedings. - 4. That on 19th March 2020 the Applicant moved this Honourable Court to hear an application for an order extending the time to institute its appeal. - 5. That it is acknowledged that there was a total lockdown from the night of 19th March 2020. - 6. That the said lockdown ended on 4th June 2020 but there was another lockdown for 42 days from 18th June 2021 to 1st August 2021. - 7. That in between the 2 lockdowns as well as from the last lockdown, the Courts of Judicature were open and filing of proceedings was going on. - 8. That during all those many months in which there was no lockdown the applicant did not take any steps to institute the appeal or to apply to file it out of time. - 9. That from June 2020 up to 14th April 2021 when the applicant purportedly filed the appeal, there was free movement of people except during curfew at night. Thereafter from June 2020 up to 14th April 2021 when the Applicant purportedly filed the appeal, there was free movement of people except during the night curfew. - 10. That it is common knowledge that the deponent who is a Registered Trustee and the Applicant's lead person in matters of this appeal was present in Kampala busy campaigning for the Nakawa East Parliamentary seat during the 2021 general elections. - 35 - 11. That the deponent was aware courts were open and functioning because when he lost the said election, he

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filed and prosecuted an election petition in the High Court at Nakawa.

### 12. That it is not true that the subject matter is a communal burial ground and it has never been so.

- 13. That the subject matter is a vacant piece of land which the $1st$ respondent is in possession of and which the Minister of Finance in exercise of his powers under the Expropriated Properties Act sold to his predecessor-intitle (Fulgensia Tumwesigye-3rd respondent). - 14. That the Applicant did not challenge the said decision of the Minister. - 15. That during the last lockdown the Applicant through the deponent filed an unsuccessful ex-parte application to the Court of Appeal for stay of execution vide Court of Appeal Civil Application no. 175 of 2021. - 16. That the Applicant filed its application for extension of time (Civil Application no.46 of 2021) on 1st November, 2021, six months after "filing" the appeal. - 17. That the Applicant has not shown any plausible reason why it did not within reasonable time of the lifting of the 2 lockdowns take necessary steps to institute its intended appeal. - 18. That the Applicant is guilty of dilatory conduct and is 30 using the Notice of Appeal for the intended appeal as a delay tactic to frustrate the $1^{st}$ respondent from developing the property. - The brief background to this application is that the applicant owned 35 land comprised in FRV 62 Folio 1 measuring 2.02 acres of land. Following the expulsion of Asians and Indians in 1972, the said land was expropriated by the Government. Later in 2006, the applicant repossessed 0.081 hectares. The remaining part of the land

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measuring 0.405 hectares was excised and sold to the 3rd respondent- Flugensia Tumwesigye. The said land was registered as FRV 318 Folio 18.

The applicant wanted to repossess the entire piece of land and entered into negotiations with Flugensia to release her interest in $\mathsf{S}$ of another parcel of land. exchange $\mathbf{A}$ Memorandum of Understanding was signed to that effect.

However, unknown to the applicant, Flugensia had already transferred the land to J K Vision Club who later sold to Kagoro Epimac- the $1st$ respondent. When the applicant became aware of this, it instituted a suit against all the three respondents in the High Court on grounds that there was fraudulent transfer of the suit land. The applicant sought to have the 1st respondent's name cancelled from the title and the land transferred back to it.

The High Court dismissed the applicant's case and held in favour of 15 the respondents. Dissatisfied with that decision, the applicant appealed to the Court of Appeal.

The Court of Appeal upheld the trial Judge's finding and dismissed the appeal. The applicant lodged an appeal in the Supreme Court albeit out of time. The applicant filed an application for extension of 20 time to file the appeal before Hon. Justice Kisaakye, JSC which was granted. The extended time expired and the applicant sought a second extension of time which is the application before Court now.

### Applicant's submissions

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- Counsel for the applicant submitted that the imposition of the 25 country wide lockdown made it impossible for the applicant to file the appeal within the time that Hon. Justice Kisaakye, JSC ordered. That this was a sufficient reason cause which prevented the applicant from taking an essential step. In support of this argument, counsel - relied on the authorities of Boney Katatumba vs. Waheed Karim 30 Civil Application No.27 of 2007; Utex Industries Ltd vs. AG Civil Application No.52 of 1995. The principle in the aforementioned authorities is that for delays in taking an essential step to be excused,

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the applicant must show sufficient cause or reason which is not personally or directly attributable.

Counsel further relied on the authorities of Joy Tumushabe vs. Anglo African Limited & another (Civil Application No.14 of 1998) and James Bwogi & sons Enterprises Ltd vs. Kampala City Council & Kampala District Land Board (Civil Application No.09 of 2017) where this Court held that the applicant has to show that he or she has not directly or indirectly contributed to the delay. On the premise of the foregoing authorities, counsel submitted that the delay in filing its appeal was due to the countrywide lockdown following the outbreak of Covid-19.

Counsel therefore prayed that this Court allows the application and validates the Notice of Appeal filed out of time.

### **Respondents' submissions**

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In reply, Counsel for the respondent submitted that in-between the 15 lockdowns and thereafter, courts were operating and that the deponent of the Applicant's affidavit who was also the lead person in prosecuting the appeal was unbothered in prosecuting the matter. Thus, the Applicant failed to show a plausible reason why it failed to lodge the appeal shortly after the lifting of the lockdowns. 20

Furthermore, counsel argued that the Applicant did not give reason why it did not immediately after lodging its Civil Appeal No. 10 of 2021 in court on 21st April, 2021 apply for extension of time. That the Applicant filed its application for extension of time on 1st November, 2021, six (6) months after "filing" the appeal.

Counsel further argued that although the applicant purportedly filed its Memorandum and Record of appeal on 21st April 2021, the respondents were served on 26th October, 2021. Prior to that, the Applicant did not pay for security of costs. That it was only after the

Respondent's application vide Civil Application No.29 of 2020 to 30 strike out the Applicant's Notice of Appeal that the applicant hurriedly paid security for costs, served the Respondent and filed the present application.

In light of the above, counsel argued that the Applicant exhibited dilatory conduct with utmost disregard of the timelines prescribed by the Rules of this Court in prosecuting its appeal as well as the present application.

- In reply to the applicant's averment that the land being claimed is a $\mathsf{S}$ Hindu burial site, counsel argued that this ground was baseless as it was never raised in both the High Court and Court of Appeal. That the Applicant was raising the issue to evoke the Court's sympathies. Counsel argued that to the contrary, the land in question is described - in the certificate of purchase attached to the $1^{st}$ Respondent's 10 affidavit in reply - as a vacant plot.

In conclusion, counsel submitted that the authorities which the Applicant relied on point to the requirement for sufficient reasons to be shown or for satisfactory explanation to be made for any delays to

be excused. Counsel argued that the applicant failed to prove 15 plausible reasons or give satisfactory explanation for it to be granted extension of time. Counsel therefore prayed that this application be dismissed with costs.

### **Consideration**

Rule 5 of this Court's Rules under which this application was 20 brought provides that:

> The Court may, for sufficient reason, extend the time prescribed by these Rules or by any decision of the Court or of the Court of Appeal for the doing of any act authorized or required by these Rules, whether before or after the expiration of that time and whether before or after the doing of the act; and any reference in these Rules to any such time shall be construed as a reference to the time as so extended.

The power given to the Court under **Rule 5 (supra)** is discretional 30 and before it is exercised, the Court ought to find that sufficient reason has been shown by the applicant for failing to act within the time prescribed by the law. (See: **James Bwogi & son's Enterprises**

## Ltd vs. Kampala City Council & Kampala District Land Board, Supreme Court Civil Application No. 9 of 2017).

Sufficient reason was defined in the case of **Rosette Kizito vs. the** Administrator General, Civil Application No. 9 of 1986 (SC) as that which relates to inability or failure to take some particular step within the prescribed time.

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In the present case, the applicant submitted that it is because of the countrywide lockdown which inhibited it from filing its appeal within the time granted by Hon. Justice Kisaakye, JSC.

- The record shows that on 19th March 2020, both the applicant and 10 respondents' counsel appeared in Court before Hon. Justice Kisaakye, JSC. The applicant's counsel informed Court that both parties consented to the applicant's application to file its Memorandum and Record of Appeal out of time. Consequently, the Judge gave the parties filing schedules. The applicant was to file its 15 - documents not later than 20th April 2020 and serve them on the respondents not later than 21st April 2020.

It is also an undisputed fact on record that on the night of 19th March 2020 following the Covid-19 pandemic, a countrywide lockdown was

- imposed. The lockdown remained in place until 4th June 2020. On 20 18th June 2021, a second lockdown was imposed which remained in force until 1st August 2021. It is clear that during this period, the applicant's time for filing its documents as directed by Justice Kisaakye, JSC expired. - Whereas it is true that the applicant and its counsel are not to be 25 blamed for the lockdown, the question is whether any steps were taken by the applicant as soon as the first lockdown was lifted on 4th June 2020. - The record and affidavits filed in respect of this application show that the applicant filed its documents in April 2021. During the 9 months 30 when the lockdown was lifted and before the second one was imposed, the applicant took no action in prosecuting or following up its matter.

It is clear that the filing of the applicant's documents in April 2021 was done out of time and without first seeking the Court's leave to file the said documents. I note that it is on $1^{st}$ November 2021 that the applicant sought the leave of Court to have its documents filed out of time validated. Again the applicant did not account for any $\mathsf{S}$ steps taken between April 2021 - when it filed the documents - and November when it filed its application for extension of time. In the premise, I find that the applicant has been guilty of latches in prosecuting its matter.

I also find that no sufficient reason for the delay was given by the 10 applicant during the period when the lockdowns were lifted to warrant grant of the order for extension of time.

In the result, I strike out this application with costs to the respondent.

Dated at Kampala this $\frac{1}{4}$ day of $\frac{1}{4}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\$

### PROF. LILLIAN TIBATEMWA-EKIRIKUBINZA JUSTICE OF THE SUPREME COURT.