[2022] UGSC 12

#### THE REPUBLIC OF UGANDA

# IN THE SUPREME COURT OF UGANDA AT KAMPALA CORAM: ARACH-AMOKO, MWONDHA, TUHAISE JJSC **CIVIL APPLICATION NO. 47 OF 2020** (ARISING FROM CIVIL APPLICATION NO.25 OF 2020) (ARISING FROM CACA NO. 128 OF 2017)

# 1. EDITOR IN CHIEF, THE RED PEPPER PUBLICATIONS LIMITED 2. RED PEPPER PUBLICATIONS LIMITED....................................

## **VERSUS**

# RTD CHIEF JUSTICE SAMUEL WILLIAM **WAKO WAMBUZI....................................**

### RULING OF THE COURT

This Application was a Reference to the panel of three Justices of the Supreme Court against the decision of a Single Justice of this Court, the Hon. Justice Muhanguzi, JSC delivered on the 23^rd of December 2020 dismissing Civil Application No. 25 of 2020. The Application sought extension of time within which to file and serve a Notice of Appeal against the decision of the Court of Appeal in Civil Appeal No. 0128 of 2017. $\mathcal{L}$

The applicants by a letter dated 28^th December 2020 addressed to the Registrar of this Court sought to reverse the single Justice decision on the following grounds:

- 1) The learned Judge erred in law when he held that the application was supposed to be filed in Court of Appeal first. - 2) The learned Judge erred in law and fact when he declined to determine the application on its merits.

#### **Background**

The background to this Reference was as follows:

An Application by Notice of Motion was brought under Rules $2(2)$ & 5 of this Court Rules, Section 33 of the Judicature Act, Cap 13 and Section 98 of the Civil Procedure Act. The Application sought for extension of time within which to file and serve a Notice of Appeal against the decision of the Court of Appeal in Civil Appeal No. 128 of 2017. The Application further sought the validation of the filing of the Notice of Appeal out of time. It also sought for costs of the Application to be provided. The grounds of the application were as follows:

- 1. That the applicants filed Civil Appeal No. 0128 of 2017 in the Court of Appeal at Kampala against the High Court decision by Hon. Basaza Wasswa, J delivered on the 4^th day of May 2017 in Civil Suit No. 305 of 2015. - 2. That the decision of the Court of Appeal was delivered on the 20^th July 2020. - 3. Dissatisfied with the Judgment, the Applicants immediately instructed their former counsel Okua & Associates to file an appeal against the same. - 4. That the applicants tried to follow up with the said lawyers for the updates and what they expected from them in form of evidence or otherwise but their silence prompted the applicants to instruct another lawyer to wit their present advocates Allan & Festo Advocates. - 5. That upon inquiry and perusal of the record, the said lawyers informed the applicants that the latter were supposed to file the notice of appeal within 14 days from the date of judgment which notice was never filed and that they were out of time.

$\mathcal{L}$

- 6. That the applicants asked the said lawyers to do whatever they could do legally to challenge the same, if possible. - 7. That on the very date of the communication of the Ruling, to wit $13^th$ August 2020, pursuant to the applicant's instruction, the said lawyers filed a notice of appeal but informed the applicants that they had to apply to Court for extension of time and validation of the same, and the process accordingly commenced. - 8. That there is sufficient cause warranting the grant of the prayers sought. - 9. That the intended appeal raises serious questions of law meriting judicial consideration by this Appellate Court. - 10. That the applicant has strong grounds of appeal as listed in the affidavit in support of the Application.

$\mathsf{2}$

11. That it is in the interest of justice that this Application is granted.

The Application was supported by an affidavit of one Johnson Musinguzi of C/o Allan & Festo Advocates. He deponed and stated among others as follows: -

- 1) That the applicants filed Civil Appeal No.0128 of 2017 in the Court of Appeal at Kampala against the High Court decision by the Hon. Basaza Wasswa J delivered on the 4^th day of May 2017 in Civil Suit No. 305 of 2015 - 2) That the decision of the Court of appeal was delivered on the $20^th$ July 2020. - 3) That dissatisfied with the judgment, on behalf of the applicants, he immediately instructed their former counsel Okua & Associates to file an appeal against the same. - 4) That he tried to follow up with the said lawyers for the updates, and what they expected from him, in form of evidence or otherwise but their silence prompted him to instruct another lawyer, to wit his present advocates, Allan & Festo Advocates. - 5) That upon inquiry and perusal of the record, the said lawyers advised him that they were supposed to file a notice of appeal within 14 days from the date of judgment which notice was never filed and that they were out of time. - 6) That the communication sent him into utter shock, reflecting on the irreparable damage they were going to face consequently. - 7) That he asked the said lawyers to do whatever they could legally to challenge the same, if possible. - 8) That on the very date of the communication, to wit $13^th$ August 2020, pursuant to his instructions, the said lawyers filed a notice of appeal but informed him that they had to apply to court for extension of time and validation of the same, and they accordingly commenced on the process. - 9) That getting the files from their former Counsel initially proved problematic seeing our present counsel take steps to personally access the same. - 10) That with haste he commenced on the preparation of the present application.

- 11) That the applicants are highly desirous of challenging the said decision since it affects their rights and interest. - 12) That as a lay person in matters of law, he did not know the procedure for even timelines for challenging such a decision, thus initially relied on the advice and skills of his former counsel, before he felt he should seek a second opinion, due to the reduced response/communication by the said lawyers. - 13) That as per the advise from our lawyers, Allan & Festo advocates which he believes to be true and has strong grounds warranting the setting aside of the said decision and briefly as follows; - The learned Court of Appeal Justices failed to properly a. evaluate evidence adduced leading to an erroneous decision. - That in the alternative, without prejudice, the learned b. Court of Appeal Justices wrongly applied principles of law governing the grant of damages awarding excessive damages. - That in further alternative, without prejudice, the $C.$ learned Court of Appeal Justices erred in law when they upheld and granted exemplary damages in a case where it was not deserving. $\varphi$ - That it is in the interest of justice that this application is granted. $(14)$ - 15) That this application has been filed without undue delay. - $16)$ That as advised by their lawyers Allan & Festo Advocates, the intended appeal raises serious questions of law that merit judicial consideration by the appellate court. - That if this application is not granted, the applicants shall suffer $17)$ irreparable damage. - 18) That whatever is stated herein above is true and correct to the best of his knowledge and belief save for the information whose sources he has disclosed. - 19) That he swore this affidavit in support of the application for extension of time within which to file a notice of appeal."

## Respondent's Reply

The Application was opposed by the Respondent who fi1ed an affidavit in reply deponed by one David Mukiibi Semzd<ula of C/o MMAKS Advocates. He stated among others a s follows: -

- 1. That on the 2oth July 2O2O, judgment was delivered in the presence of both parties and their lawyers in CACA No. 128 of 2017. That the appeal was arisingout of HCCS No. 128 of 2Ol7 which was before Basazza Wasswa J. The following orders were made; - (I) The Applicants to pay to the Respondent general damages for 1ibel in the sum of Ug. Shs. 150,000,000/= reduced from the trial court's award of UGX 375,O00,000/= - (ll) The trial court's award of Ug. Shs. 50,O0O,O0O7= 1., exemplary damages as against the applicants was maintained. - (III) The Respondent was awarded 7+ of the costs in the Court of Appeal and all the costs in the High Court. - 2. That a preliminary objection on a point of law shal1 be raised at the commencement of the hearing that pursuant to the concurrent jurisdiction provision in rule 41(1) of the Supreme Court Rules S. I 13-11 this application for extension of time to file a notice of appeal ought to have been made to the Court of Appeal first before fi1ing it in this honorable court. Having not done so this application is barred in law and should be dismissed with costs. - 3. That without prejudice to the above preliminary objection, the J-q respondent avers that the applicants filed a notice of appeal on 13th August 202O being ten (10) days after 3rd August 2020 being the last day for filing a notice of appe al in this matter. - 4. That the applicants make bare allcgations of having communicated with its former lawyers and with its current lawyers on various dates without stating the dated and without attaching any proof of that communication - 5. That for a matter of such importance, the applicants ought have been vigilant in challenging the decision of the Court of Appeal if they genuinely intended to do so. It cannot now bltrme such lack of vigilance on its former lawyers. - 6. That applicants have failed to show sufficient cause for extension of time within which to file a notice of appeal.

- 7. That in any event, the intended appeal has little to(sic) no chances of success. - 8. That what is stated herein is true and correct to the best of my knowledge.

## Representation

The Applicants were represented by Mr. Allan Bariyo of $M/s$ Allan & Partners Advocates and the Respondent was represented by Mr. Timothy Lugayizi of M/s MMAKS Advocates.

#### Applicant's submissions

Counsel for the applicants submitted inter alia that the Single Justice erred in law when he held that the application for extension of time was supposed to be filed before the Court of Appeal first. He contended that Rule 5 of this Court's Rules restricts the power for extension of time to the Supreme Court and there is no concurrent jurisdiction with the Court of Appeal.

Counsel submitted that the Supreme Court only has concurrent jurisdiction with the Court of Appeal in applications for stay of execution and not for extension of time to lodge a notice of appeal.

Counsel submitted that the applicants' not filing the notice of appeal in time was a mistake of the applicants' former lawyers which should not be visited on the applicants. He relied on the case of Horizon Coaches Ltd Vs Edward Rurangaranga & anor SCCA No. 18/2009 $+Q$

Counsel argued that this Court being the highest & last court in the land, locking out the applicants from having their appeal heard and determined by this Honorable Court would occasion a miscarriage of justice. He cited Article 126 (2)(e) of the Constitution that substantive justice should administered without undue regard to technicalities. Counsel relied on the cases of **Mohan Musisi** Kiwanuka Vs Asha Chand SCCA No. 14 of 2002, James Bwogi & Sons Enterprises Ltd Vs Kampala City Council & Anor SCCA No. 09 of 2017 and Horizon Coaches Ltd Vs Edward Rurangaranga & anor SCCA No.18/2009 which held that:

Article $126(2)(e)$ of the Constitution enjoins Courts to endeavor to do substantive justice without undue regard to technicalities. This does not mean that Courts should not have regard to technicalities. But where the effect of adherence to technicality may have the effect of denying a party substantive justice, the court should endeavor to invoke this provision of the Constitution. In this matter, it is my view that it would be an injustice to deny the applicant an opportunity to have the matters of contention between the parties on a matter of law finally disposed of by this Court because of errors of his counsel.

Counsel averred that since the notice of appeal and the letter requesting for the record of proceedings are already filed and served, the same should be validated by this Honorable Court.

We note that there were no submissions of the applicants on ground 2 of the Reference as stated in this Ruling.

#### **Respondent's submissions**

Counsel submitted that Rule 41(1) of this Court's Rules confers this Court with concurrent jurisdiction for hearing Applications for extension of time with the Court of Appeal. Counsel contended that since Rules 72(1) & (2) provide that the notice of appeal shall be lodged in the Court of Appeal within 14 days from the date of the decision, it means that one should seek leave to extend time for doing so by applying to the Court of Appeal where the notice of appeal ought to have been lodged first. He relied on the case of Lawrence Musiitwa Kyazze Vs Eunice Busingye Supreme Court Civil Appeal No,18 of 1990 which held that;

The practice that this Court should adopt, is that in general an application for a stay should be made informally to the Judge who decided the case when judgment is delivered. The Judge may direct that a formal motion be presented on notice...after notice of appeal has been filed...if the application is refused, the parties may then apply to the Supreme Court under Rule 5(2)(b) ... where again they should be prepared to meet the conditions...

$\varphi$

However, there may be circumstances when the Court will intervene to preserve the status quo. In cases where the High Court has doubted the jurisdiction or has made some error of law or fact, apparent in the face of the record which is probably wrong, or has been unable to deal with the application in good time to the prejudice of the parties or their suit property, the application may be direct to this Court. It may however be that the Court will direct that the High Court should hear the application first...

Counsel further submitted that judgment in Civil Appeal No. 128 of 2017 was delivered by the Court of Appeal on 20^th July 2020 in the presence of both parties and their lawyers and the applicants ought to have filed the notice of appeal on $3^rd$ August 2020. Counsel submitted that instead, the notice was filed on $13^th$ August 2020, 10 days late without any plausible explanation for the delay.

Counsel argued that Article $126(2)(e)$ is not a blank cheque to litigants to disregard the set procedural timelines as the applicants did in this case. Counsel contended that timelines stipulated by the Supreme Court Rules are not mere technicalities that the applicants may elect to or not to comply with. He relied on the cases of Kasirye Byaruhanga & Co. Advocates Versus Uganda Development Bank Supreme Court Civil Application No. 02 of 1997, Utex ## Industries Limited Vs Attorney General Supreme Court Civil Application No. 52 of 1997 and Mulindwa George William Vs Kisubika Joseph Supreme Court Civil Appeal No.12 of 2014.

Counsel further submitted that the applicants failed to lead any cogent evidence in support of their assertion that their former lawyers had been negligent save for mere sweeping statements made in their affidavit in support of the application that they had instructed their former lawyers to file the notice of appeal. Counsel relied on the case of **Mulindwa George William Versus Kisubika Joseph (supra)** for the position that the applicant seeking extension of time has the burden of proving to the Court's satisfaction that for sufficient reasons, it was not possible to lodge the appeal in the prescribed time.

Counsel argued that where the law prescribes a strict timeline to be complied with, any delay, irrespective of the length of delay cannot wishfully be explained by saying its inordinate delay as the applicants have attempted to do. He submitted that this Reference together with the application from which it stems are prejudicial to the Respondent as they are intended to delay his gratification and enjoyment of the fruits of his judgment.

Counsel prayed that this reference be dismissed with costs to the respondent.

## Consideration of the Application

$\sim$ $\sim$

This Application/ Reference stemmed from the decision of a Single Justice of this Court as stated above whereby Civil Application No. 25 of 2020 seeking for extension of time to file and serve a notice of appeal against the decision of the Court of Appeal in Civil Suit No.0128 of 2017 was dismissed.

$#$

We perused and studied carefully the record of Court before the Single Justice. It was clear that on the 20^th December 2020, Allan & Festo Advocates wrote to the Registrar Supreme Court informing him or her that they were dissatisfied with the Ruling by a Single Justice in Civil Misc. Application No. 25 of 2020 and hence this application for reference of the matter to the panel of three Justices of the Supreme Court. The purpose was to have the Ruling and orders of the learned Judge set aside and grant any other orders that this Court finds expedient and just.

This Application/Reference was brought under Section 8(2) of the Judicature Act and Rule 52 (1)(b) of this Court Rules Directions SI 13-11. The letter requested that the applicants be availed with certified copy of the above-mentioned proceedings for the purposes of this Reference. The grounds of the Reference were as follows: -

1) The learned Judge erred in law when he held that the application was supposed to be filed in Court of Appeal first.

2) The learned Judge erred in law and fact when he declined to determine the application on its merits.

Counsel for the Applicants prayed that this matter be fixed for hearing urgently before a panel of 3 Justices since the orders made by the learned Judge were likely to occasion immense hardship to the applicant $\zeta$

Section $8(2)$ of the Judicature Act provides:

Any person dissatisfied with the decision of a single justice in the exercise of a power under subsection (1) is entitled to have the matter determined by a bench of three justices of the Supreme Court which may confirm, vary or reverse the decision.

Rule $52(1)(b)$ of this Court Rules provides:

Where under section 8(2) of the Act, any person who is dissatisfied with the decision of a single judge of the court,

(b) in any civil matter wishes to have any order, direction or decision of a single judge varied, discharged or reversed by the court,

the applicant may apply for it informally to the judge at the time when the decision is given or by writing to the registrar within seven days after that date.

The Ruling of the Single Judge was delivered on 23^rd December 2020 and the letter was written on 28^th December 2020. $\mathbb{R}$

Under ground 1, the applicants' counsel faulted the learned Judge for holding that since this Court has concurrent jurisdiction with the Court of Appeal for such applications, the Application ought to have been filed in the Court of Appeal first and not the Supreme Court.

The power to enlarge time for doing anything in this Court is specifically provided for by Rule 5 of the Judicature (Supreme Court Rules) Directions. The Rule states as follows:

The Court may, for sufficient reason, extend the time prescribed by these Rules or by any decision of the Court or of the Court of Appeal for the doing of any act authorized or required by these Rules, whether before or after the expiration of that time and whether before or after the doing of the act; and any reference in these Rules to any such time shall be construed as a reference to the time as so extended.

Counsel for the Respondent submitted that the Court of Appeal has concurrent jurisdiction with this Court. Consequently, the application to extend time within

which to file a notice of appeal ought to have been filed in the Court of Appeal first. He relied on Rule 41 (1) of this Court Rules. Rule 41(1) provides:

## Where an application may be made either to the court or to the Court of Appeal, it shall be made to the Court of Appeal first.

Counsel relied on the Lawrence Musitwa Kyazze case (Supra) which held that:

The practice that this Court should adopt, is that in general an application for a stay should be made informally to the Judge who decided the case when judgment is delivered. The Judge may direct that a formal motion be presented on notice...after notice of appeal has been filed...if the application is refused, the parties may then apply to the Supreme Court under Rule $5(2)(b)$ ...where again they should be prepared to meet the conditions...

However, there may be circumstances when the Court will intervene to preserve the status quo. In cases where the High Court has doubted the jurisdiction or has made some error of law or fact, apparent in the face of the record which is probably wrong, or has been unable to deal with the application in good time to the prejudice of the parties or their suit property, the application may be direct to this Court. It may however be that the Court will direct that the High Court should hear the application first... $\mathcal{L}$

We carefully considered the submissions of both counsel on the matter, but it is clear to us that there is nothing to suggest or directly imply that Rule $41(1)$ bestows concurrent jurisdiction of this Court with the Court of Appeal. Rule $72(1)$ & (2) of this Court Rules provides for giving notice in duplicate with the Registrar of Court of Appeal for purposes of providing the record of appeal. This cannot amount to granting concurrent jurisdiction in respect of extension of time to both Court of Appeal and Supreme Court. Neither can Rule 41(1) be mistaken to be granting concurrent jurisdiction on the Courts as above stated.

The Rules of this Court provide procedure on how to proceed with the lodging and hearing of civil, criminal and constitutional matters. See Rule 2(1) Jurisdiction as has been stated over and over again by this Court is a creature of statute. In Baku Raphael Vs Attorney General S. C Civil Appeal No. 1 of 2005, this court held that there is no such thing as inherent appellate jurisdiction. Appellate jurisdiction must be specifically created by law. It cannot be inferred or implied. (emphasis added)

Besides, Rule 2(1) of the Rules is very clear. It provides for the Application of the Rules as follows:

The practice and procedure of the court in connection with appeals and intended appeals from the Court of Appeal and the practice and procedure

## of the Court of Appeal in connection with appeals to the court shall be as set out in these Rules.

It is therefore apparent that the case of Lawrence Kyazze (supra) relied on by counsel for the Respondent is not applicable because the facts of that case are distinguishable from the facts of the instant case. The case dealt with an application for stay of execution which was brought under Rule 41(1) of the Rules of this Court.

The Court of Appeal has no business in the application for extension of time apart from providing the record if the notice is filed there for purposes of appeal in the Supreme Court.

Rule 41(1) of this Court Rules are general and cannot be applicable in this case in our view. Counsel kept a blind eye to Sub Rule (2) of Rule 41 which is so wide and gives this Court unfettered discretion to entertain the applications notwithstanding the fact that no application has first been made to Court of Appeal. Be that as it may, Rule 5 remains the specific provision for extension of time.

We therefore find that the single Judge erred in law to hold that the application ought to have been filed in the Court of Appeal first.

On the second ground, the applicants' counsel faulted the learned Judge for failing to determine the Application on its merits. As we observed earlier, counsel for the Applicant did not substantiate or argue it in the submissions.

However, in the interest of justice, we will proceed to determine the application on its merits by resolving the issue above much as it was not submitted on by the Applicants' counsel.

We carefully perused the record and it is clear that the learned Judge addressed and upheld the respondent's objection on a point of law to the effect that the applicant ought to have first filed this Application in the Court of Appeal first. We quote;

*The applicants in this application did not show whether or not they filed a notice* of appeal nor an application for extension of time in the Court of Appeal first. Further, the applicants did not show that the Court of Appeal denied the application hence the instant application. Therefore, I do not find any special circumstance that warranted the applicants to file this application in this court before filing it at the Court of Appeal. I find and hold that this application is incompetent and barred in law.

Having found that the applicants ought to have first filed this application in the *Court of Appeal, I find no reason to address the merits of the application.*

*In the result, I strike out this application with costs to the respondent.*

Following the above, it is apparent that the application was not determined on its merits because the single Justice accepted and upheld the respondent's counsel objection on a point of law. We stated earlier above in respect of ground one that there is no concurrent jurisdiction of the Court of Appeal with this Court in respect of extension of time.

The issue which was to be determined by the single Judge for completion of the Application was, "whether the applicants had sufficient reason to justify grant of the orders sought."

There was a claim that the Applicants instructed their former lawyers (Okua & Associates) to file an appeal but the lawyers did not do so. That this prompted them to instruct Allan & Festo Advocates their current lawyers. Counsel submitted that the mistake of Counsel should not be visited upon the client.

We have not found evidence on record to support the above assertion to demonstrate that the former lawyers of the Applicants were negligent.

It is trite law that, "the Applicant seeking extension of time has the burden of proving to the Court's satisfaction that for sufficient reasons it was not possible to lodge the appeal in the prescribed time. (See Mulindwa George William v. **Kisubika Joseph** (Supra)

The Applicant's Counsel also relied on Article 126 (2) (e) of the Constitution which provides among others that substantive justice shall be administered without undue regard to technicalities.

This Court has held among others as follows ....... a litigant who relies on the provisions of Article 126 (2)(e) of the Constitution, must satisfy the Court that in the circumstances of the particular case before the Court it was not desirable to pay undue regard to a relevant technicality. Article 126 (2) (e) is not a magic word in the hands of defaulting litigants (See Kasirye Byaruhanga and Co Advocates v. Uganda Development Bank Criminal Appeal No. 2 of 1997)

From the above, it is settled that the principles in Articles $126$ (2) (e) of the Constitution must be applied taking into account & therefore read together with the law which includes Rules of Procedure for justice to prevail.

In the instant case, the Applicants failed to discharge their burden because they failed to adduce evidence to prove sufficient reasons to justify the grant of their application to extend time to lodge a notice of appeal to facilitate lodging the appeal and hearing the same. In the result, the Application is dismissed.

Each party shall bear its own costs.

| Dated at Kampala this | $\mu$ | Ama<br>day of | | |-----------------------|-------|---------------|--| | | | | |

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**ARACH AMOKO** JUSTICE OF THE SUPREME COURT

Municipale

**MWONDHA** JUSTICE OF THE SUPREME COURT

$\Delta$

**TUHAISE** JUSTICE OF THE SUPREME COURT

$24/05/2022$