Wakilii

Emalu Benson v Etalu Simon (Miscellaneous Application 95 of 2022)

High Court · [2023] UGHC 258 · 2023 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for leave to file an appeal out of time, arising from judgment in Civil Appeal No. 17 of 2022 (which itself arose from Civil Suit No. 44 of 2015)
Decision
Leave granted to file appeal out of time, subject to depositing security for costs and complying with conditions for filing and service

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court granted leave to file an appeal out of time, finding that wrong procedures had been adopted by the applicant's former counsel. Noting a latent dispute over land ownership following judgment in the underlying suit, the court exercised its inherent powers to grant relief, holding that the applicant should be afforded another chance to be heard to finally resolve the controversy, subject to conditions including depositing security for costs.

Outcome

Leave granted to file appeal out of time, subject to depositing security for costs and complying with conditions for filing and service

Facts

The applicant was unsuccessful in Civil Appeal No. 17 of 2022 decided on 01/04/2022, which arose from Civil Suit No. 44 of 2015 concerning a land dispute. On 11/04/2022, counsel filed a notice of appeal in the lower trial court and requested the record. Thirty days elapsed before a Memorandum of Appeal could be filed in the High Court. The applicant's former lawyers mistakenly filed a memorandum of appeal without first seeking leave to appeal out of time. The applicant then instructed new counsel to take over. The underlying suit concerned ownership of land, and the applicant lost, with orders for vacant possession issued against him. The respondent confirmed he had never been served with any Memorandum of Appeal.

Issues

  1. Whether the court should grant leave to file an appeal out of time.
  2. Whether the court should validate the late filing and service of the Memorandum of Appeal and the process in Civil Appeal No. 17 of 2022.

Orders

  • Application allowed subject to conditions.
  • Applicant to deposit security for costs of Shs. 16,834,000/= as per Certificate of Taxation dated 16/06/2022 within one month from the date of this ruling.
  • Upon depositing security for costs, applicant to file afresh Notice of Appeal and Memorandum of Appeal within 15 days and serve the respondent with an affidavit to that effect.
  • Applicant to cause the intended appeal to be set for hearing no later than two months thereafter.

Rules and key headnotes

Civil Procedure — Appeals — Leave to Appeal Out of Time — Exercise of Discretion
Where an applicant has consistently sought to pursue an appeal but wrong procedures were adopted by counsel, and a latent dispute remains unresolved, the court may exercise its discretion to grant leave to appeal out of time to afford the applicant another chance to be heard and finally determine the matter in controversy.
Civil Procedure — Inherent Powers of Court — Section 33 Judicature Act
The High Court has inherent powers under Section 33 of the Judicature Act to grant remedies to parties so that all matters in controversy between them may be completely and finally determined and multiplicity of legal proceedings avoided.
Civil Procedure — Leave to Appeal Out of Time — Conditions — Security for Costs
Where leave to appeal out of time is granted, the court may impose conditions including depositing security for costs, filing fresh notices and memoranda within specified time limits, and causing the appeal to be set for hearing within a defined period.

Legislation cited (2)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Emalu Benson v Etalu Simon (Miscellaneous Application 95 of 2022) [2023] UGHC 258 (9 November 2023)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.