[2007] UGSC 29

## THE REPUBLIG OF UGANDA IN THE SUPREME GOURT OF UGA]IDA , AT MENGO

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# CIVIL APPLIGATTON NO.{ 2I2OO7

#### BETWEEN

APPELI,ANT ATTORNEY CENERAI, :::

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A. K. P. N,I. LUTAYA : RESPONDENT

## RULII{G OF THE GOURT

This is an application for extension of time within which to file ^a memorandum of appeal. The application is made by Notice of Motion and brought under Rules 5, 4l(2) 42(2) and 2(2) of The Judicature (Supreme Court Rules) Directions, S.l l3 - ll, but herein referred to as the supreme court Rules. The application is supported by the affidavit of Mr. Joseph Matsiko, the Acting Director of Civil Litigation in the Attorney General's Chambers.

This application has a bit of history behind it, and I believe it is necessary to briefly outline that history for better appreciation of the circumstances under which this application is before this court.

The respondent obtained judgment in his favour fronr the court of Appeal on 21" December 2005 by which he was awarded substa,tial

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damages. The Applicant, the Attorney General, was not happy with the decision and sought to appeal. What followed then appears to have been a series of errors and confusion on the part of the Attorney General's Chambers. The applicant thought that he had not served a Notice of Appeal on the respondent, and filed Civil Application No. l4 of 2006 seeking leave of this court for extension of time within which to serve the Notice of Appeal. The Respondent, in reply, proved that in fact the applicant had served his counsel with a Notice of Appeal. So when the application came before me as a single judge of this court on 24'h January 2007, the applicant withdrew his said application, and court so ordered.

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The applicant then filed Civil application No. I of 2007 seeking extension of time within which to file and serve a memorandum of appeal. That application was purportedly supported by an affidavit by Mr. Joseph Matsiko, Ag. Director of civil Litigation in the Attorney General's Chambers. This application came before me as a single Judge on the 22"d March 2007. Court found, and it was conceded by learned counsel for the applicant Mr. Kalemera, that the supporting affidavit by Mr. Matsiko was not sworn. court therefore ruled that the application was not supported by a valid affidavit and was therefore incompetent and struck it off with costs. That Ruling was delivered on 29'h March 2007, rhe applicant filed the present application, seeking leave for extension of time within which to file and serve a Memorandum of Appeal. This application is once again

supported by the affidavit of Mr. Matsiko, Ag. Director, Civil Litigation. This time, the affidavit is duly sworn before ^a Commissioner for Oaths. The application also came before me as ^a single Judge on 5'h June 2007, and I proceeded to deal with it.

At the hearing of the application, Mr. Kalemera, State Attomey, argued that there was sufficient cause as to why essential steps to file O the memorandum of appeal had not been taken within the time prescribed by the Rules. Basing his arguments on the affidavit of Mr. Matsiko, he contended that the whole problem had come about as ^a result of the resignation of a senior State Attorney, one Wamambe who had resigned from the service a t a time when he had personal conduct of the case file. The affidavit evidence is that wamambe upon resignation, did not hand over the files to the Director of civil Litigation, but merely forwarded all the files he was handring to the Civil Registry. It is stated that these files were not only many and voluminous, but that they took long to be moved from the civil Registry to the office of the Director of civil Litigation who had to peruse them and re-allocate them to other officers. It is stated that when this file was read by the deponent, he did not find any evidence on the file that the Notice of Appeal, although filed, had been served on the respondent; hence the first application for extension o f time within which to serve the Notice of Appeal. It is stated that the staff of the civil Registry in the Attorney General's chambers had not

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returned a copy of the Notice of Appeal which had been served on the respondent's counsel on the applicant's file.

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It is further deponed that when it was discovered that in fact the respondent had been served with the Notice of Appeal, that application was withdrawn, and an Application No.l of 2007 was filed for extension of time within which to file a Memorandum of Appeal. By paragraph 7, the deponent states that that application was filed inadvertently with an unswom affidavit as a result of which it was struck out as being incompetent.

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The deponent goes further to state in paragraph 8 that the appeal has ^a high probability of success, and in paragraph 9, that it is just and equitable that an extension of time be granted within which to file and serve a Memorandum of Appeal.

In summary, counsel's submissions and the affidavit he relies on, are that the necessary steps to execute the appeal were not taken because of lapses and mistakes in the Attorney General's chambers. But Mr. Kalemera cited a number of authorities in support of his submissions. He cited the case of MARy KVAMULABI \_Vs\_ AHAITIAD ZIRONDOMU, Court of Appeal Civit Application No. 4I of 1979, where it was held that a mistake by counsel is not necessarily a bar to his obtaining an extension of time as the administration of justice normally requires that the substance of all disputes should be

investigated and decided on their merits and that errors and lapses should not necessarily debar a litigant from the pursuit of his rights. It is the Litigant who would thereby be penalized for the mistakes of his counsel.

Counsel also cited the case of the EXECUTRIX OF THE ESTATE OF THE LATE CHRISTINE MARY NAMATOVU TEBAJJAKIRA -Vs- NOEL GRACE SHALITA STANANZI, S. C.c.,q/TgT8 which Y also holds that in an application for extension of time, the applicant must show sufficient cause before the court can exercise its discretion in his favour, and the applicant must show that the delay to take the essential steps was not caused by his dilatory conduct, and that ^a mistake by his counsel is not necessarily a bar to his obtaining cxtension of time. He therefore prayed tliat the application be allowed. He asked for costs of the day.

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In reply, Mr. Scmuyaba, counsel for the respondent argued that the application was incompetent and should be disnrissed with costs. He submitted, first, that it should not have come before the same single judge who had heard and struck off the previous application. In his view, tlre judge was/unctus fficio, and the only recourse open to the applicant was to file a reference to a full court of 3 Judges under Rule 52 of the Supreme Court Rules. In so far as the applicant had failed to refer the matter under Rule 52, the application was incompetent and could not be heard by the single Judge. Counsel referred court to the

decision of this court in KABOGERE COFFEE FACTORY LTD AND HAJI TWAIBa KIGONGO, Civil Application No. 1011993. He also referred to the case GODFREY MAGEZI AND BRIAN MABAZIRA -Vs- SUDHIR RUPARECTIA, Miscellaneous Application No 6 of 2003 to support his contention that a single Judge of this court has power to dispose of an application for extension of time, and once he has disposed of it, he becomes functus officio, and the Applicant aggrieved by that decision can only make reference to the full court under Rule 52.

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Mr. Semuyaba further contended that the application was incompetent because the affidavit in support was full of falsehoods and did not raise sufficient grounds. However, counsel could not point out any falsehoods in the affidavit. But he then went on to argue that the affidavit did not show sufficient cause because it was sworn by Mr. Matsiko, the D irector, and not by the o fficials o f the Registry staff who had committed the breaches or lapses that had led to the failure to take the necessary stcps in the case. He cited the decision of this court in the case of TEBEBAGA -Vs- Fr. NARSENSIO BEGUMISA & OTHERS (Civil Applicution No. IB/2002) to support his contention that if the affidavit was not sworn by the individual officers who knew the facts of what had happened, it was incompetent, and the affidavit by Mr. Matsiko was based on hearsay. He therefore, prayed that the application be dismissed with costs. I have carefully gone through the arguments and authorities submitted by both counsel. I must deal first with the matter raised by Mr. Semuyaba that as a single j udge who had heard and struck out the previous application, I was funclu; offcio and could not hear this application. With great respect to counsel, I think he failed to appreciate the distinction between an application being dismissed and one where it is struck off for being incompetent. lndeed even in the KABOGER^E case (supra) which he cites, that distinction is made. At page 6 of that Judgn-rent this court cited with approval part of a text from the Judgment of Odoki, JSC (as he then was) as a single Judge in tlre Namatovu Tebajjukira Case (supra) where he said inter alia'. "I agree witlt Mr. Mulira tlrat a,t appeal which is incontpetent must be struck out and not distrtissed.......".

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Further the court itself had this to say at page l0 of the Judgment:

"The learned single Judge dismissed the applicatiott on a successful objectiott, although they were not heard and determincd on merit. We thtnk that dismissal would huve been justified only if the opplication were fourtd trot to have srfficient reason under Rule 4. As it is, the application should have been struck out. Tltis, we think is wltat the learned single Judge musl lruve meorrt to do.,,

In my view there is a difference between when an application is dismissed and when it is struck out for being incompetent. In the

fonner case, the application is heard on its merits and the judge determines whether or not sufficient cause has been made out from the evidence on record. But the application will have been competent in the first place. A party who is dissatisfied with that decision may then make a reference under Rule 52 of the Supreme Court Rules.

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However, where an application is struck out because it is incompetent, it means that some important matter was missing or there was an obvious error or mistake on the record and the court could not proceed to hear the merits of the application. [n that case, the applicant is free, if he is still within the time allowed, to file a fresh application with the necessary documents. In the case of J.\V. R. KAZZORA -Vs- M. L. S. RUKUBA, S. C,C. A 4/91, this courl had this to say about an application that had been struck out as incompetent.

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"For the above reasons were are unable to adjudicate trpon the applicatiort as presented. It is itrcompetent and thercfora struck out. It is onen to tltc al)Dliccrrtt, if he so lcsires, to re-sultruit his aonlicstion x,ith ttll the releyanl documents. " (emphasis mine).

In this application case, Rule 43(l) requires that every formal application to the court "shall be supported by one or more afJidavits of the applicottt or sofire other persot, or persorts huving knowledge of the focts."

It is common knowledge that a document to be an affidavit must be sworn before a commissioner for oaths. An affidavit which is not swom is not an affidavit. This was indeed as already pointed out, conceded to by counsel for the applicant. It followed therefore that the formal application before court was not supported by an affidavit as required by Rule 43. It was incompetent and struck out. This means there was no application after it was struck out. The effect, to my understanding is that the applicant, provided he is still within time, may file a competent application i.e one supported by a valid affidavit. This would not be done if the application were dismissed. The court would be unctus o Icio.

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Indeed, Mr. Kalemera, for the applicant submitted that the applicant had no quarrel with the decision of the single Judge and could not have made a reference since he was not challenging that decision. I therefore find that Mr. Semuyaba's arguments in this respect were totally misplaced. As a single Judge I had the jurisdiction to entertain this new application and determine it on its own merits.

Having considered the evidence, I do find that there was a lack of coordination in the Civil Registry in the Attorney Ceneral's Chambers. In my view, an officer handling a case ought to hand it over to the responsible officer when he is resigning. There ought to be a written brief explaining the status of the case for necessary follow up by another officer. This was not done, and, according to the

supporting affidavit, the resigning officer merely forwarded in July 2006 a bundle of files to the Civil Registry. The Civil Registry Staff in tum took time to forward the files to the Ag. Director who has testified that he did not see them until lOth October, 2006. Even then a copy showing that service of the Notice of Appeal had been effected on therespondents h ad not been filedonthe file. Allthese steps show there was confusion and serious Iapses in the department of Civil Litigation's Civil Registry, and lack of coordination between that Registry and the Director of Civil Litigation. I am also of the view that Mr. Matsiko is competent to swear an affidavit concerning the state of affairs in his department. In my view, in the circumstances of this case it was not necessary to look for an officer who had resigned, or some junior clerk in the Registry to swear affidavits pertaining to this matter.

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The question is whether the lapses and or failures by the Director of Civil Litigation, his lawyers and staff should be allowed to defeat the appeal of the applicant, i.e The Govemment of Uganda through the Attorney General. In his affidavit Mr. Matsiko has deponed that the appeal would h ave a high chance of success and that it is just and equitable that the extension be given so that the appeal may be heard on its merits.

I am persuaded by the argument and the cited authorities to the effect that a litigant's interests should not be defeated by the mistakes and

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lapses of his counsel. I think that the mistakes and lapses in this particular case constifute sufficient cause, as to why the necessary steps were not taken in time. I must also observe that when the Ag. Director of Civil Litigation discovered that there was no evidence of service of Notice of Appeal on the respondent, he filed an application, albeit unnecessarily since it turned out that in fact the respondent's counsel had been served. These applications also show that the Ag. Director has been trying to take steps, within the Rules, to seek time to try and have the appeal filed and eventually determined on its nrents.

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In terms of Rule 2(2) it is also my considered opinion that the ends of justice necessitate that this application be allowed. The application for extension of time within which to file and serve the Memorandum of Appeal is accordingly hereby granted. However, given that it is the lapses of the applicant's counsel that have necessitated this application, I award the costs of the day to the respondents.

Before I take leave of this matter, I should briefly touch on one issue wlrich was raised, in passing by Mr. Semuyaba. He pointed out that as per paragraph I I of the affidavit of Mr. Lutaaya in reply, there is an application by the respondent pending before a panel of 5 Judges, to strike out the Notice of Appeal. I am cognisant of that fact, but on the basis of the decision of this court in the GODFREY MAGEZI case, (supra), I determined that I could hear and determine this

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application without speculating as to the outcome of the application to strike out the Notice of Appeal by the full court.

Dated at Mengo this....................................

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$\mathbf{L}_{\bullet}$

Bart M. Katureebe Justice of the Supreme Court