[2022] UGSC 9

# THE REPUBLIC OF UGANDA

## IN THE SUPREME COURT OF UGANDA AT KAMPALA

## BEFORE: HON JUSTICE MUHANGUZ!, JSC

# crvrt APPUCATToN No. 45 0F 2020

s COFFEE MARKETING BOARD 1TD............... ...... APPLICANT

#### VERSUS

# NATIONAL UNION OF CTERICAL COMMERCIAT PROFESSIONAT & TECHNICAL EMPTOYEES RESPONDENT

(An opplicotion arising from Civil Appeol No. 27 of 2020)

# RULING OF MUHANGUZI JSC

This application was brought by way of notice of motion under section 8 of the Judicature Act and rules 5, 42, 43 and 50(1) of the Judicature (Supreme Court Rules) Directions Sl 13-11. The applicant seeks orders that: -

- a) The time within which the applicant can file its appeal be extended andl or the filed appeal be validated. 15 - b) Costs of this application be provided for.

The grounds of the application are stated in the notice of motion and in the affidavit in support sworn by Mr. Timothy Lugayizi. They are as

- follows: 20 - "Judgment against the applicant was delivered on the 13th July 2020 by the court of appeal in civll appeal no. 60 of 201.4. - . The applicant was dissatisfied with the court's findings and filed ^a notice of appeal and by letter of 23'd July 2020 requested for the - typed record of proceedings and judgment in the appeal. 25

- t. On 21't September 2020, the registrar court of appeal through ^a letter dated 7th September 2020 notified the applicant that the proceedings were ready for collection. - tv. The sixty (60) days within which the appeal ought to have been filed expired on the 20th November 2020. - On 13th November 2020, the record of appeal as prepared by the applicant's counsel was forwarded to the court of appeal for issuance of the registrar's certificate of correctness. - vt. The bank draft for security for costs was obtained on LSth November 2020 and the court filing fees for the court of appeal were paid on 19th November 2020. - v . There were violent demonstrations in some parts of the country, Kampala district inclusive, in the week of 16th to 20th November 2020 arising out of or related to the national election campaigns which paralyzed court business that week resulting in none attendance of the registrar at the court to inter alia peruse the record and issue the requisite certificate of correctness of the record. - v t. The applicant whilst ready with its appeal was unable to lodge the same before or by the 20th November owing to the challenges precipitated by the demonstrations. - tx. The applicant remained committed to pursue its appeal, persisted and was finally able to obtain the court of appeal registrar's certificate of correctness and lodge the appeal on 24th November - 50 2020, issued by court on the 25th November 2020 and serve the same onto the respondent on the same date. - X It is just and equitable that this honorable court be pleased to grant the application."

The respondent opposed the application and filed an affidavit in reply sworn on 2nd November,202t by David Bahige. He states as follows: - 55

- 1. "That I am a male adult of sound mind, an advocate of the high court of Uganda working with Kampala Associated Advocates counsel for the respondent and well conversant with the facts of the matter at hand. I am competent and duly authorized to depose this affidavit. - 2. That I have read and understood the contents of the notice of motion and the affidavit in support of this application. I hereby reply thereto as follows: - - 3. That the memorandum of appeal was signed by counsel for the appellant on 19th November 2020 being the 59th day from date of receipt of the letter from the registrar of the court of appeal indicating that the proceedings were ready for collection. A copy is attached as annexure A. - 4. That the Registrar of the Court of Appeal only signed off the certificate of readiness on 24th November 2020. A copy of the said certificate is attached as annexure B. - 5. That on 24th November 2020, the record of appeal was also lodged in the supreme court. A copy is attached as annexure C. - 6. That the applicant has not disclosed any reason why the Registrar - of the Court of Appeal did not sign off the certificate of readiness between 13th November 2020 when they alleged to have forwarded at and 24th November 2020 when it was eventually signed off. - 7. That it is not true that the applicant forwarded its record of proceedings to the Court of Appeal on 13th November 2020 yet it signed the same off on 19th November 2020. - 8. That I know that the riots that took place during November 2020 only occurred on Wednesday 18th November 2020. Thereafter, the strikes were under control.

9. That Mr. Lugavizi has not availed the source of his information that the Registrar at the court was not in attendance from 16^th November 2020 to 20^th November 2020 when it is alleged that he/she was not in attendance as a result.

- That Registrar being made mention of by Mr. Lugavizi has 10. neither been identified by name nor their station disclosed. - 11. That the Registrar being made mention of has neither deposed an affidavit nor written a letter to confirm his/her nonattendance on account of the reasons alluded to by Mr. Lugavizi. - 12. That it is in the interest of justice and fairness that this application and the appeal be dismissed with costs to the respondent. - That I depone this affidavit in opposition of this application. 13. - That whatever I have stated herein above is true and correct $14.$ to the best of my knowledge."

#### Brief background. 100

The brief background of this application is that the Court of Appeal delivered a judgment against the applicants in Civil Appeal No. 60 of 2014 dated 13^th July 2020. Dissatisfied with the decision, the applicant filed a notice of appeal and a letter requesting for the typed record of proceedings and judgment in the appeal. The applicant did not file the appeal in this court until 25^th November 2020 upon expiration of the statutory time limit. The applicant filed this application for extension of time within which to file/validate its appeal.

#### Representation.

When this application was called for hearing before me on 3^rd November 110 2021, the applicant was represented by Mr. Jeffrey Atwine and Mr. Johnson Natuhwera while the respondent was represented by Mr.

Raymond Mwebesa. Ms. Rachael Niringiye, a Registration and Compliance Officer at URSB was in court.

#### 115 Submissions for the applicant.

Counsel for the applicant submitted that this court has the jurisdiction to grant this application under rule 5 of the rules of this court. Counsel relied on Crane Finance Co. Ltd Vs. Makerere Properties Ltd, SCCA No. 1 of 2001 wherein court cited with approval the case of Executrix of the

- 720 Estate of Christine Mary N. Tebajjukira & Anor Vs. Noel Grace Shalita, SCCA No. 8 of 1998, for the preposition that the legal effect (of extending time for filing) is therefore to validate or excuse the late filing of documents and the applicant need not file fresh documents...if those already filed are complete and in proper form. - 125 Counsel submitted that the applicant has shown sufficient cause for late filing of the appeal. He pointed out that the reason as to why he delayed in filing was due to the demonstrations that occurred in the week of 16th to 20th November 2O2O. ln addition, counsel argued that the delay of 4 days was not inordinate. Counsel argued further that the subject matter - 130 of the intended appeal is worth billions of shillings and that lt is in the interest of justice that the application is allowed so that the applicant exhausts all its rights. Counsel prayed that this court validates Civil Appeal No. 27 of 2020.

#### Submissions for the respondent.

135 Counsel for the respondent opposed the application. Counsel submitted that the affidavit of Mr. Timothy Lugayizi contains falsehoods and it is unreliable. Counsel pointed out that the applicant avers that the record of appeal was not ready until 19th November 2020 and yet the memorandum of appeal and the address of service were signed on same day of 19th November 202O. 1,40

Counsel argued that the fact that the certificate of readiness was signed by the registrar on 24th November 2020 after the certificate of correctness had been signed on 19th November 2020 leads to the conclusion that the record of appeal was not yet ready on 13th November 2020 and could not have therefore been forwarded to the court of appealon 13th November 2020 as stated by the applicant.

150 Counsel further argued that the demonstration mentioned by the applicant did not take a week as alleged but a day. Counsel contended that the situation was brought under control and it did not affect/disrupt business the followlng day. Counsel further argued that the applicant paid fees between 18th and 19th November 2020 from NCBA bank Uganda limited whlch is in the same premises with Court of Appeal but the applicant never filed the appeal. He contended that the applicant's submission that the appeal was ready on 13th November 2020 is false and should therefore render the application dismissible. 155

Counsel submitted that the applicant has failed to prove the allegation that the Registrar Court of Appeal failed to attend to court business due to the demonstrations. According to counsel, the applicant would have attached the Registrar's affidavit in support of the application to prove

- that fact. Counsel argued that the applicant has not disclosed the source of the information and thus the statement that the Registrar was unable to attend to court business due to the demonstrations violate rule 43(1) of the rules of this court that provides that affidavits in support of an any formal applicatlon are to be sworn by the applicant or some other person having knowledge of the facts. 160 - 165

Counsel prayed that the application be dismissed with costs and Civil Appeal No. 27 of 2020 be dismissed for having been filed out of time. ## Consideration of the application

1,10 Rule 5 of the Rules of this Court under which this application was filed reads:

> "The Court moy, for sulficient reoson, extend the time presented by these Rules or by any decision of the Court or of the Court of Appeal for the doing ol any oct authorised or reguired by these Rules, whether before or ofter the expiration of that time ond whether before or after the doinq ol the oct; dny reference in these Rules to deny such time shall be construed as reference to the time so extended."

180 There are many decisions of this Court and of the East African Court of Appeal which have interpreted Rule 4 now 5 of the Rules of this Cou rt. ln Crane Finance Co, Ltd. vs Makerere Properties, Supreme Court CivilApplication No. 7 of 2007, which raised issues similar to those in the instant case as cited by counsel forthe applicant, court stated instances under which rule 5 of the rules of this court applies. These were stated as follows: -

1,75

"The rule envisoges four scenorios in which extension ol time for the doing ol an oct so authorised or required, moy he granted, nomely -

- k0 before expiration of the limited time; - (b) after expiration of the limited time; - (c) before the act is done; - (d) ofter the act is done."

The situation in the instdnt case is a combination of scenario (b) ond (d). the oppellant opplied for, ond Kitumba lA, gronted extension

195 200 205 of time for filing and serving of the record of oppeol, long ofter limited time hod expired, ond qlso ofter the acts of filing ond seruing the record of oppeal hod been done. The bone of contention however, is in respect of scenario (d) namely the effect ol such extension on the acts which had olready been done. We think that it is obvious that the contended effect is to bring qn act within the time os so extended. There would have been no reoson to include that scenario in the rule if an oct done out of time wos on incuroble nullity. lt is because it is not o nullity that under rule 72 of the same Rules, the Registror is required to accept documents filed out ol time, and only to endorse them to thot effect. A reading of rr 4 ond 72 together clearly indicates that while o document filed out of time is voidable, it may be validoted by extension on time.

210 21-5 Secondly, we share the view that it could be futile to construe the provision otherwise. That view was succinctly expressed by the Court of Appeal for Eost Alrica in Shonti - vs - Hindocho [19731E. A. 2A. h that case the Court considered r 9 of its Rules (which was in identical terms as r. 4), and all arguments (similar to that of Mr. Nangwola in the instqnt cose), that the rule empowered the judge to outhorise a future qct not to validate ^a pqst one.

The Court held:

We think thot when the time for lodging a document is extended, the document is duly lodged if lodged within the time as so 220 extended, whether the actual lodging is before or after the order

of extension. To hold otherwise would serve no purpose ond would merely result in further costs beinq incurred. lt is not irrelevont in this connection to note that under r 77 the Registror hos no power to refuse to qccept on appeol on the ground thqt it is out ol time, which cleorly implies thot the delivery of the appeol out of time may be excused or validated."

ln an obiter dictum in The Executrix ol the Estqte of Christine Mory N Teboijuka & Anor - vs - Noel Grqce Sholita, Civil Application No. I of 7999 (S. C), OdokiJSC (as he then was) referring to the same scenario said:

"Lote liling of "The legal effect (of extending time for filing) is therefore, to volidote or excuse the documents. The opplicont need not file fresh documents if those already filed are completed and in proper form."

240 However, for this application to be granted and Civil Appeal No. 27 of 2020 to be validated, the applicant has to prove that there was sufficient reason that prevented it from filing the appeal in time. ln the case of Boney M. Katotumba Vs Woheed Karim lAdministrotor of lote Suleiti Haji's Estate) Supreme Court Civil Applicotion No. 27 of 2007)Justice Joseph Mulenga was dealing with a similar application and he had this to say on what constituted a sufficient reason.

245 "Under r.5 of the Supreme Court Rules, the Court moy, for sufficient reqson, extend time prescribed by the Rules. Whot constitutes "5gll!S!en!\_!egten' is left to the Courts unfettered discretion. ln this context the Court will occept either o redson that prevented an applicdnt from tdking the essential step in time,

²⁵⁰ or other reasons why the intended oppeal should be ollowed to proceed though out ol time. For exaLnple, aO applicotion thot is brouqht promptly will be considered more sympqtheticallv thon one that is brouqht ofter unexplained inordinate delay. But even where the opplication is unduly delaved the Court may qrant the ²⁵⁵ extension if shuttinq out the appeal moy qppeor to couse iniustice." (Underlining is mine)

ln the instant application, the applicant attributed the late filing of the appeal due to the failure by the Court of Appeal Registrar to attend to court business because of the demonstrations that took place in the week of 16th to 20th November 2020.

Secondly, the applicant stated that she filed Civil Appeal No. 27 of 2020 four days after the expiration of the statutory time and thus that the delay in filing was not inordinate. I would agree with this submission that four days' delay is not unreasonable.

265 Although mistake of counsel was not pleaded as submitted by the Counsel for the respondent, when court is considering all the circumstances of the matter, it is not precluded from inferring matters which otherwise appear obscured.

Court, before exercising its discretion ought to lift the veil to see the 270 party who is likely to suffer most if justice is denied on the ground of fault or error of Counsel. See: James Bwogi & son's Enterprises Ltd Vs. Kampala City Council & Anor, SCCA No. 09 of 20L7.

ln that case, Justice A. S Nshimye Ag. JSC went on to state that: -

"ln this case, it is the applicant who would be denied the right to ²⁷⁵ present and prosecute his appeal in the highest court of the

land. She would in addition be condemned to pay exorbitant costs on account of deficiency of Counsel.

I am also alive to the fact that the people in whose name I exercise justice expect me to dispense substantive justice. In consideration of the peculiar circumstances and submission of all counsel (sic)."

Similarly, I find that there was sufficient cause to warrant the grant of this application due to the reasons discussed above. Civil Appeal No 27 of 2020 is hereby validated. Costs shall abide by the outcome of the main appeal.

$\frac{1}{20}$ day of <u>Jan</u> 2022. Dated at Kampala this....... 285

EZEKIEL MUHANGUZI JUSTICE OF THE SUPREME COURT

belivered tody the 2010/1022