Wakilii

Erabu v Ewiu and Another (Miscellaneous Application 11 of 2023)

High Court · [2023] UGHCCD 244 · 2023 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for leave to file Notice of Appeal and Memorandum of Appeal out of time, arising from execution proceedings following judgment in Civil Suit No. 39 of 2014 of the Chief Magistrate's Court of Kaberamaido
Decision
Applicant granted leave to file Notice of Appeal and Memorandum of Appeal out of time; directed to file by end of August 2023

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court granted the applicant leave to file a Notice of Appeal and Memorandum of Appeal out of time. The court held that the delay in obtaining certified court proceedings from the lower court constituted sufficient reason under section 79(2) of the Civil Procedure Act for the extension. The court overruled the respondent's preliminary objection that failure to extract a decree renders an appeal incompetent, following Court of Appeal precedent that an appeal lies against the judgment not the decree, and extraction is a mere technicality under Article 126(2)(e) of the Constitution requiring substantive justice without undue regard to technicalities.

Outcome

Applicant granted leave to file Notice of Appeal and Memorandum of Appeal out of time; directed to file by end of August 2023

Facts

The applicant sued the respondents in Civil Suit No. 39 of 2014 for a declaration of ownership of land. Judgment was delivered against him on 4 February 2021. His application for review was dismissed. Execution proceedings followed and he was committed to civil prison for non-payment of a taxed bill of costs of UGX 7,985,000. After partial payment, he was recommitted on 15 February 2023 for the balance of UGX 2,985,000 for six months. He applied for leave to appeal out of time, claiming that despite repeated requests beginning 15 February 2021, the lower court had not availed him certified proceedings. The proceedings were eventually ready for collection on 5 May 2023. He filed this application on 6 April 2023 seeking extension of time to file his appeal documents.

Issues

  1. Whether the applicant has shown sufficient cause for the delay in filing the Notice of Appeal and Memorandum of Appeal.
  2. Whether the applicant should be granted leave to file the Notice of Appeal and Memorandum of Appeal out of time.
  3. Whether the preliminary objection that the appeal is incompetent for lack of an extracted decree is sustainable.

Orders

  • Application allowed.
  • No order as to costs.
  • Applicant directed to lodge Notice of Appeal and Memorandum of Appeal with the court registrar not later than the last working day of August 2023.

Rules and key headnotes

Civil Procedure — Appeals — Extension of Time — Delay in obtaining court proceedings as sufficient reason
Where an intended appellant has requested certified court proceedings from the lower court and experienced delay in obtaining them, this delay constitutes sufficient reason under section 79(2) of the Civil Procedure Act for an extension of time to file a Notice of Appeal and Memorandum of Appeal, as the limitation period is suspended during the time taken by the court to prepare the record.
Civil Procedure — Appeals — Requirements for extension of time — Test to be applied
An applicant seeking extension of time to file an appeal must prove to the court's satisfaction that for sufficient reasons it was not possible to lodge the appeal in the prescribed time. Factors to consider include: the length of delay; the reason for delay; the possibility or chances of success; and the degree of prejudice to the other party. The sufficient reason must relate to the inability or failure to take the particular step in the proceedings.
Civil Procedure — Appeals — Extraction of decree — Not a requirement for filing an appeal
The extraction of a formal decree embodying the decision complained of is not a legal requirement for the institution of an appeal. An appeal by its nature is against the judgment or reasoned order and not the decree extracted from it. The extraction of a decree is a mere technicality which cannot co-exist with Article 126(2)(e) of the Constitution which enjoins courts to administer substantive justice without undue regard to technicalities.
Civil Procedure — Extension of Time — Application for leave to appeal versus extension of time — Distinction
An application for extension of time to file an appeal is distinguishable from an application for leave to appeal a default judgment. The requirements for showing arguable grounds of appeal and likelihood of success applicable to applications for leave to appeal default judgments do not necessarily apply with the same force to applications for extension of time where the focus is on sufficient reason for the delay.

Legislation cited (12)

Cases cited (15)

  • Lawrence Musiitwa Kyazze v Eunice Busingye (Supreme Court Civil Appeal No. 18 of 1990)
  • Theodore Ssekikubo and Others v Attorney General and Others (Constitutional Application No. 3 of 2014)
  • Kyambogo University v Prof Isaiah Omolo Ndiege (Court of Appeal Civil Appeal No. 341 of 2013)
  • Degeya Trading Stores (U) Ltd versus Uganda Revenue Authority No. 16 of 1996
  • Kenganzi Angella v Metl (U) Ltd (Miscellaneous Application No. 471 of 2017)
  • Mambu Stella v Minday Nicholas (High Court Civil Appeal No. 1 of 2016)
  • Ruryabeita Frank v Beyunga Kenneth and 3 Others (Civil Appeal No. 59 of 2020)
  • Kibuuka Musoke William v Dr Apollo Kaggwa (Court of Appeal Civil Appeal No. 46 of 1997)
  • Banco Arabe Espanol v Bank of Uganda (Court of Appeal Civil Appeal No. 42 of 1998)
  • Hodandi Daniel v Yolamu Engondi (Court of Appeal Civil Appeal No. 67 of 2003)
  • Mulindwa George William v Kisubika Joseph (Supreme Court Civil Appeal No. 12 of 2014)
  • Delvi v Diamond Concrete Company [1974] EA 493
  • Mugo and Others v Wanjiru [1970] EA 481
  • Delia Almeida v C Almeida (Supreme Court Civil Appeal No. 15 of 1990)
  • Ujagar Singh vs Runda Coffee Estates Ltd

Full judgment

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Erabu v Ewiu and Another (Miscellaneous Application 11 of 2023) [2023] UGHCCD 244 (27 July 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.