Nalubowa v Nasazi (Miscellaneous Application 162 of 2024) [2025] UGHC 288 (9 April 2025)

THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT KIBOGA MISC. APPLICATION NO.00162 OF 2024 (ARISING OUT OF CIVIL APPEAL NO.039 OF 2020)

(ALL ARISING OUT OF KIBOGA CIVIL SUIT NO. 016 OF 2019)

NALUBOWA REGINA::::::::::::::::::::::::::::::::::::

VERSUS

FRISTA NASAZI……………………………………………………………………………………………

BEFORE: HON. JUSTICE KAREMANI JAMSON. K

RULING

Introduction

Nalubowa Regina (hereinafter referred to as the applicant) brought this application under Section 98 of the Civil Procedure Act (CPA), Order 51 rule 6 and Order 52 rules 1, 2 & 3 of the Civil Procedure Rules (CPR) against Frista Nasazi (herein after referred to as the respondent). The applicant seeks for orders that:

- a) Court validates the memorandum of appeal vide civil appeal no. 0039 of 2024 and the applicant be granted leave to appeal against the judgment and orders of the chief Magistrate's court of Kiboga at Kiboga dated 7/6/2023. - b) Any other remedy that court deems fit.

The grounds of the application as contained in the application and the supporting affidavit sworn by the applicant are summarized as follows:

1. That the applicant being dissatisfied with the decision of the magistrate grade one delivered on 7/6/2023 vide Civil Suit No. 16 of 2019, she immediately applied to get the record of proceedings in order to enable her lodge her appeal.

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Man

- 2. That however, it took the applicant long to obtain the record of proceedings from the court. - 3. That because of not being represented, the applicant did not know the procedure for lodging an appeal and was unsure of the timelines and documentation necessary. - 4. That the subject matter is a land dispute that requires that the applicant is given an opportunity to be heard on merit. - 5. That the intended appeal has substantive grounds and is likely to succeed - 6. That the respondent will not be prejudiced by this application.

On the other hand, the respondent avers that there is no justifiable reason for granting leave to file an appeal out of time on the following grounds:

- 1. That from the date the judgment was delivered, the applicant did not take any steps to appeal against the decision of court. - 2. That the respondent was advised by her lawyers to file a bill of costs as the applicant had not lodged an appeal and upon being served with the bill of costs, and the hearing notice, the applicant appeared in court on all hearings of the taxation with different lawyers. - 3. That the applicants appeal is an afterthought aimed at denying the respondent fruits of her judgment and realizing that she has to pay and vacate the land. - 4. That the respondent has been advised by her lawyers that the applicant's appeal has no likelihood of success and there has to be an end to litigation

Representation

The applicant was represented by Mr. Sibuta Joseph of $M/S$ Waluku, Mooli & Co. Advocates while the respondent was represented by Mr. Sajja Ismail of M/S Smak Advocates.

Both parties filed written submissions for consideration by this court.

Issues for determination

1. Whether the applicant has sufficient grounds to warrant grant of leave to appeal the decree in Civil Suit no. 16 of 2019 out of time.

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2. What remedies are available to the parties?

Submissions of counsel.

The learned counsel for the applicant submitted that in the instant case, the applicant states that she applied for a certified copy of the record of proceedings but the trial court took long to furnish her with the same coupled with the fact that she was unrepresented hence the delay in filing the appeal. Further that since the subject of the appeal is land, court be pleased to grant the appeal. He referred to the case of Najuma Jesca and 6 Ors V Moses Goloba and anor HCMA No. 770 of 2019 where court held that in handling applications for extension of time to file a notice of appeal, the procedures stipulated under the law are to ensure speedy and effective dispensation of justice. The framers of the constitution placed a burden on courts to ensure that people should not be denied justice because of failure to strictly adhere to a technicality of law especially if court's honor is not in danger. Counsel cited several other authorities to support the argument that justice normally requires that the substance of all disputes should be investigated and decided on merits and that errors and lapses should not necessarily debar a litigant from pursuit of his rights.

The learned counsel for the respondent raised a preliminary object on grounds that the application was served out of time. That the application was endorsed by this court on $10/10/2024$ and served onto the respondent on $7/11/2024$ which was outside the mandatory 21 days within which service was supposed to be done. Counsel cited the case of Bitamisi Namuddu V Rwabuganda Godfrey SCCA No. 016 of 2014.

On the issue of whether the applicant should be granted leave to appeal out of time, counsel for the respondent submitted that judgment in the trial court was delivered on $7/6/2023$ . That the current application was filed on $9/7/2024$ which is over a year later. That the applicant has not furnished court with an explanation for the delay in filing the memorandum of appeal and a delay in securing the record of

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proceedings cannot stop a party from filing a memorandum of appeal. Counsel further prayed that the application be dismissed.

In rejoinder, the learned counsel for the applicant averred that the issue of being served out of time was not raised in the respondent's affidavit in reply therefore counsel is submitting from the bar. He reiterated his prayer that this being a land matter, it would be very important that it is heard on its merits.

Preliminary objection.

On the issue of serving the current application out of time, it was stated by the learned counsel for the respondent that the notice of motion was issued on $10/10/2024$ and served onto the respondent on $7/11/2024$ . There was no contrary evidence furnished to show when the respondent received the application from the applicant. This could have been done through an affidavit of service. This fact was also not denied by the applicant which makes the assertion of the respondent to be true.

It can be seen from the application that it was filed on $9/7/2024$ and it was signed by the Deputy Registrar on $10/10/2024$ . It took over three months for the application to be signed.

However, upon endorsement it took over one month for the respondent to file a reply. The respondent contends that service was after 21 days. The applicant made no explanation as to what the position was. He only embarked on challenging the position citing failure to include it in the affidavit in reply.

It is my finding that this being a point of law it required no affividit averment. It could be raised orally.

I have looked at the delays by this court to endorse the notice of motion, it was filed on 09.07.2024 and endorsed on 10.10.2024 which is over three months. It becomes difficult to enforce timelines against the parties in these circumstances. I will accordingly invoke the inherent powers of this court under section 99 of the CPA and section 37 of the Judicature Act to validate service of the application on the respondent out of time and proceed to determine this application on its merits.

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Mam

Whether the applicant has sufficient grounds to warrant grant of leave to appeal Civil Suit No. 16 of 2019 out of time.

According to Section 79 (1) (b) of the Civil Procedure Act, every appeal shall be entered within thirty days from the of the decree or order of the court.

However, under Section 79 (1) (a) of the Civil Procedure Act court may for good cause admit an appeal though the period of limitation prescribed by that section (30 days) has elapsed.

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. The court is required to carefully scrutinize the application to determine whether it presents proper grounds justifying the grant of such enlargement.

In this case, the applicant stated in the affidavit in support that the delay in filing the appeal and memorandum of appeal was because of the delay in obtaining a certified copy of the record of proceedings from the lower court.

The learned counsel for the respondent submitted that the delay to secure a copy of proceedings is a cause for delay to appeal.

The issue is when did the time to appeal started to running in the instant case.

According the case of Godfrey Tuwangye Kazzora v Georgina Katarikwenda [1992-93] HCB 145, the time for lodgment of an appeal does not begin to run until the appellant receives a copy of the proceedings against which he or she intends to appeal. That the application for leave to appeal out of time was filed before the proceedings in the lower court had been typed and secured by the appellant.

In the instant case the memorandum of appeal was filed on 02.07.2024 and the record of proceedings was certified but no date is indicated for certification. The same was however

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forwarded by the Chief magistrate to the Deputy Registrar on 13^th August 2024. By this time the applicant had filed this application. This application was filed on 09.07.2024 after the memorandum of appeal had already been filed of 02.07.2024. The memorandum of appeal was therefore filed in time. This application was not necessary since the appeal was filed in time.

Based on the above reasons, I accordingly allow the application and find that the memorandum of appeal filed in this matter is valid and the appeal will be heard on its merit. Costs

Given the fact that this application was actually not necessary each party will bear its own costs.

Remedies available

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- 1. The application is allowed - 2. Each party to bear its own costs.

I so order.

KAREMANI JAMSON. K JUDGE $9/4/2025$

Court: Dated, signed and delivered via email this 9^th day of April. 2025

Mann

KAREMANI JAMSON. K JUDGE $9/4/2025$