THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA
HOLDEN AT MBALE
HCT-04-CV-CA- 0052 OF 2010
(ARISING FROM HMCA NO. 5/2010, HCMA NO. 14/2009 AND ORIGINAL LUNYO LC.III COURT NO. 6/25/9/2006
OPIO CHARLES NYANGWESO :::::::::::::::::::::::::::::: APPELLANT
OUMA ENOS SIBOCHE :::::::::::::::::::::::::::::::RESPONDENT
BEFORE: HON. JUSTICE HENRY I. KAWESA
The appellant in this matter raised one ground of appeal to wit.
“The learned Chief Magistrate did not exercise her judicial discretion properly by refusing to grant extension of time to lodge a Notice of Appeal against a judgment and decision of Lunyo Local Council 111 court in civil appeal 6/25/9/2006 out of time….”
He prayed that the appeal be allowed to reverse the decision and orders of the learned Chief Magistrate grant appellant leave to lodge a Notice of Appeal out of time to the Chief Magistrate’s court against the decision of the Lunyo LC III Court aforesaid and costs of the appeal.
The facts are that parties commenced litigation in the LC courts (1, 2 and 3 of Lunyo). The appellant was the appellant a before the LC III court following a ruling by the then Chief Magistrate Prafff Rutakirwa who had ordered so. The appellant lost the appeal to the High Court vide CA. 107/2008. When he sought services of Counsel, counsel found that it was irregular to appeal from LC III to the High Court. He moved to file miscellaneous application 14/2009 seeking extension of time to file a Notice of appeal out of time. The application was dismissed with no costs by Her Worship Agatonica Mbabazi.
It’s against that decision that appellant now appeals to this court.
“Counsel in presenting the appeal referred to O.51 r.6 of the Civil Procedure Rules which enjoins the court presided over by a Chief Magistrate to have power to enlarge time upon such terms if any, as the justice of the case may require.”
As a first appellate court, this court has a duty to review the evidence and come to its own conclusion.
The grant of extension of time is discretionary under order 51 rule 6 of the Civil Procedure Rules, and depends on proof of “justifiable grounds showing that the justice of the matter warrants such an extension.
Going through the facts as presented by the appellant’s Counsel, and also upon perusal of the pleadings it is my considered opinion that the appellant was hindered by ignorance of the procedures to file the appeal in the right court. He therefore was hindered from taking the vital step on account of such ignorance. He was vigilant, filed his appeal on time (but in a wrong court), engaged Counsel who acted professionally and sought the intervention of court under miscellaneous application 14/2009, to try and salvage the appeal by applying for extension of time.
In my view, sufficient cause was shown to court that the justice of the matter warranted a need to extend the time within which to file the Notice of appeal. This position is covered by Article 126(2) of the constitution that a technicality should never stand in the way of substantive justice. I do find that appellant has proved the ground of appeal.
I grant the appeal with each party bearing its own costs.
Henry I. Kawesa