THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA SITTING AT GULU

VERSUS
OKWERA BENSON ……………….………………………………… RESPONDENT
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Before: Hon Justice Stephen Mubiru.

RULING

15 This is an application made under section 98 of The Civil Procedure Act, and Order 52 rules 1
and 3 of The Civil Procedure Rules for extension of time within which appeal to this court. The
applicant states that he only became aware of the judgment and decree he intends to appeal on 8 th
February, 2017 when he was arrested in execution of that decree. The judgment had been
delivered ex-parte two months earlier on 6th December, 2016. He contends that it is in the best
20 interests of justice that he is granted leave to appeal out of time.

The respondent opposes the application. In his affidavit in reply he states that before the
judgment was delivered on 6th December, 2016, the applicant had sought to set aside the ex-parte
proceedings and be allowed to join the proceedings, which application was dismissed by the trial
25 court giving way to the subsequent delivery of the ex-parte judgment. The applicant did not
challenge any of the subsequent proceedings of taxation of costs, and execution. This application
is therefore and abuse of court process and only intended to delay the respondent's enjoyment of
the fruits of the judgment delivered in his favour.

30 In his submissions, counsel for the applicant Mr. Okot Edward David stated that the applicant
was a defendant in that suit where he lost. The judgment was delivered on 6 th December, 2016 in
his absence. He became aware only when execution began on 8th February, 2017. He filed the
application on 17th February, 2017. There was therefore no inordinate delay in seeking the
intervention of this court. The subject matter of the suit is a dispute over land. The applicant has
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 interest in pursuing the matter. It is true that under section 79 (1) (a) of The Civil Procedure Act,
appeals are to be made within thirty days, except where otherwise provided. It is incumbent upon
the applicant to show good reason why they did not appeal within that time. The principle
governing extension of time is that administration of justice requires that all substances of
5 dispute should be heard and decided on merit. It would be a denial of justice considering the
circumstances of the case to shut the applicant out since the court has inherent powers to
administer substantive justice. The applicant and not the lawyer should be considered. The
mistake of counsel should not be visited onto the applicant. He should be heard on appeal.

10 In reply, counsel for the respondent Mr. Geoffrey Boris Enyoru submitted that the respondent
opposes the application. The suit was decided ex-parte. The applicants did not turn up for
hearing in the lower court but before judgment was passed, the applicant appeared in court and
applied under Miscellaneous Application No.106 of 2016 which application sought to set aside
the ex-parte proceedings before the judgment was passed. It was fixed for 6th September, 2016
15 and the applicant served the respondent. On the date it was fixed for hearing, they did not turn up
in court. It was dismissed for want of prosecution. Later judgment was passed as per annexure
"B" to the reply. The subsequent step should have been under O 9 r 27 of The Civil procedure
Rules to set it aside which they did not do. The affidavit in rejoinder in para 5 claims that he
made an application but this is misleading as no document was attached. He should have
20 appealed against dismissal of the application denying him to be heard on merit. He prayed that
the application to appeal a decision to which they were not party and without grounds raised in
support of the application showing how they are aggrieved should be dismissed. It will deny the
respondent the fruits of the judgment of the lower court. It wastes court's time with an appeal that
will not stand. The decree is fully executed already.
25
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, or where the extension will be prejudicial to the respondent or the Court is
30 otherwise satisfied that the intended appeal is not an arguable one. It would be wrong to shut an
applicant out of court and deny him or her the right of appeal unless it can fairly be said that his

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 or her action was in the circumstances inexcusable and his or her opponent was prejudiced by it.
In an application of this nature, the court must balance considerations of access to justice on the
one hand and the desire to have finality to litigation on the other.

5 Therefore, when an application is made for enlargement of time, it should not be granted as a
matter of course. 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. The evidence in support of the application ought to be very carefully
10 scrutinized, and if that evidence does not make it quite clear that the applicant comes within the
terms of the established considerations, then the order ought to be refused. It is only if that
evidence makes it absolutely plain that the applicant is entitled to leave that the application
should be granted and the order made, for such an order may have the effect of depriving the
respondent of a very valuable right to finality of litigation.
15
This requirement was re-echoed in Tight Security Ltd v. Chartis Uganda Insurance Company
Limited and another H.C. Misc Application No 8 of 2014 where it was held that for an
application of this kind to be allowed, the applicant must show good cause. “Good cause” that
justifies the grant of applications of this nature has been the subject of several decisions of courts
20 and the examples include; Mugo v. Wanjiri [1970] EA 481 and Pinnacle Projects Limited v.
Business In Motion Consultants Limited, H.C. Misc. Appl. No 362 of 2010, where it was held that
the sufficient reason must relate to the inability or failure to take a particular step in time;
Roussos v. Gulam Hussein Habib Virani, Nasmudin Habib Virani, S.C. Civil Appeal No. 9 of
1993 in which it was decided that a mistake by an advocate, though negligent, may be accepted
25 as a sufficient cause, ignorance of procedure by an unrepresented defendant may amount to
sufficient cause, illness by a party may also constitute sufficient cause, but failure to instruct an
advocate is not sufficient cause, which principle was further stated in Andrew Bamanya v.
Shamsherali Zaver, C.A Civil Application No. 70 of 2001 that mistakes, faults, lapses and
dilatory conduct of counsel should not be visited on the litigant; and further that where there are
30 serious issues to be tried, the court ought to grant the application (see Sango Bay Estates Ltd v.
Dresdmer Bank [1971] EA 17 and G M Combined (U) Limited v. A. K. Detergents (U) Limited

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 S.C Civil Appeal No. 34 of 1995). However, the application will not be granted if there is
inordinate delay in filing it (see for example Rossette Kizito v. Administrator General and others,
S.C. Civil Application No. 9 of 1986 [1993]5 KALR 4).

5 What constitutes “sufficient reason” will naturally depend on the circumstances of each case. It
was held in Shanti v. Hindocha and others [1973] EA 207, that;
The position of an applicant for an extension of time is entirely different from that of
an applicant for leave to appeal. He is concerned with showing sufficient reason
(read special circumstances) why he should be given more time and the most
10 persuasive reason that he can show is that the delay has not been caused or
contributed to by dilatory conduct on his own part. But there are other reasons and
these are all matters of degree. (Emphasis added).

Although such circumstances ordinarily relate to the inability or failure to take the particular
step within the prescribed time which is considered to be the most persuasive reason, it is not the
15 only acceptable reason. The reasons may not necessarily be restricted to explaining the delay. An
applicant who has been indolent, has not furnished grounds to show that the intended appeal is
meritous may in a particular case yet succeed because of the nature of the subject matter of the
dispute, absence of any significant prejudice likely to be caused to the respondent and the
Court’s constitutional obligation to administer substantive justice without undue regard to
20 technicalities. I am persuaded in this point of view by the principle in National Enterprises
Corporation v. Mukisa Foods, C.A. Civil Appeal No. 42 of 1997 where the Court of Appeal held
that denying a subject a hearing should be the last resort of court.

The considerations which guide courts in arriving at the appropriate decision were outlined in the
case of Tiberio Okeny and another v. The Attorney General and two others C. A. Civil Appeal
25 No. 51 of 2001, where it was held that;

(a)     First and foremost, the application must show sufficient reason related to
the liability or failure to take some particular step within the prescribed
time.  The general requirement notwithstanding each case must be decided
on facts.
30 (b)      The administration of justice normally requires that substance of all
disputes should be investigated and decided on the merits and that error and
lapses should not necessarily debar a litigant from pursuit of his rights.

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 (c)      Whilst mistakes of counsel sometimes may amount to sufficient reason this
is only if they amount to an error of judgment but not inordinate delay or
negligence to observe or ascertain plain requirements of the law.
(d)      Unless the Appellant was guilty dilatory conduct in the instructions of his
5 lawyer, errors or omission on the part of counsel should not be visited on
the litigant.
(e)        Where an Applicant instructed a lawyer in time, his rights should not be
blocked on the grounds of his lawyer’s negligence or omission to comply
with the requirements of the law........it is only after “sufficient reason” has
10 been advanced that a court considers, before exercising its discretion
whether or not to grant extension, the question of prejudice, or the
possibility of success and such other factors …”.

Similarly in Phillip Keipto Chemwolo and another v. Augustine Kubende [1986] KLR 495 the
15 Kenya Court of Appeal held that:
Blunders will continue to be made from time to time and it does not follow
that because a mistake has been made a party should suffer the penalty of not
having his case determined on its merits.

20 Furthermore In Banco Arabe Espanol v. Bank of Uganda [1999] 2 EA 22 by the Supreme Court
of Uganda that:
The  administration of justice should  normally require that the substance of all
disputes  should be  investigated  and decided  on their merits and  that errors or
lapses should not necessarily debar a litigant from the  pursuit  of his rights and
25 unless a  lack of adherence  to rules renders  the appeal process difficult  and 
inoperative, it would seem that the  main purpose of litigation, namely  the hearing
and determination  of disputes,  should be fostered rather  than hindered.

In the instant application, the applicant instructed the advocates on time and indeed they filed the
30 application expeditiously, nine days after he became aware of the ex-parte proceedings. There is
evidence to show that there has been any dilatory conduct on the part of the applicant.

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
35 of success, or if the decision sought to be appealed conclusively determines the rights of the
parties (see Sango Bay Estates Ltd. and others v. Dresdener Bank [1971] EA 17). Contrary to the
submissions of counsel for the respondent, under section 67 (1) of The Civil Procedure Act, an

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 appeal may lie from an original decree passed ex parte. Although the applicant has not disclosed
what the grounds of the intended appeal are, it is not in doubt that the subject matter in issue is
land and that the decision he seeks to appeal was made ex-parte. It is a cardinal principle of
fairness that both parties should be given an opportunity to be heard before court pronounces
5 itself on the matters in controversy between the parties. It is for that reason for example that an
ex-parte judgment will be set aside if there is no proper service (see Okello v. Mudukanya [1993]
I K.A.L.R. 110). The power to deny an applicant extension of time within which to appeal should
be used sparingly with circumspection and in rarest of rare cases with an aim to prevent abuse of
process of Court, but not to stifle legitimate prosecution of claims.
10
Although the applicant had the option of applying to have the judgment set aside, that is not a bar
to seeking to appeal it instead. A litigant, unless estopped by his or her conduct, or by a former
adjudication, or by law, is not foreclosed or otherwise prevented from a determination of the
merits of his or her cause or defence by means of any of the available remedies. Litigants are at
15 liberty of choosing one out of several means afforded by law for the redress of an injury, or one
out of several available forms of action. An election of remedies arises when one having two
coexistent but inconsistent remedies chooses to exercise one, in which event she or he loses the
right to thereafter exercise the other. The doctrine provides that if two or more remedies exist
that are repugnant and inconsistent with one another, a party will be bound if he or she has
20 chosen one of them. The doctrine of election of remedies is only applicable when a choice is
exercised between remedies which proceed upon irreconcilable claims of right, which is not the
case here. since annexure "B" to the affidavit in reply is a copy of the current application and not
a previous application to set aside, as alleged.

25 The application is therefore allowed but in order to bring this prolonged litigation to its finality
as quickly as possible, counsel for the applicants should file and serve the memorandum of
appeal within fourteen days from now and fix that appeal for hearing on a date falling within
three months from the date of this ruling, failure of which the appeal may be dismissed. The
costs of this application will abide the results of the appeal.
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Dated at Gulu this 6th day of September, 2018. ………………………………

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 Stephen Mubiru
Judge
6th September, 2018.