[1989] UGSC 7

Justice

IN THE SUPREME COURT OF UGANDA

AT MENGO

(CORAM: MANYINDO, D. C. J.)

CIVIL APPLICATION NO. 2 OF 1988

BETWEEN

REGINA KABATABAZI **APPLICANT**

## A N D

...................................... PAUL MUWANGA (Appeal from the decision of the High Court of Uganda at Kampala (Mr. Justice Kato) dated $7/10/87$ .

## I N

## CIVIL SUIT NO. 1156 OF 1986

## RULING OF MANYINDO, D. C. J.

$\mathcal{L}_{\mathcal{L}}$

This is an application, brought under Rule 4 of the Rules of this Court, for extension of time within which to obtain leave to appeal against the order of Kato J. whereby he refused the applicant leave to appeal to this Court against his own decision not to admit in evidence a document,

The background to this application is, briefly, as follows. The applicant filed a suit against the respondent in the High Court. When the suit came up for hearing before Kato J. on $24/9/87$ , Counsel for the applicant made an oral application for leave to put in evidence a tenancy agreement that had been made or entered into by the applicant and a third party. The application was opposed by Counsel for the respondent on the ground that the document in question had not been listed among the documents to be produced in Court which comission offended against order 7 rule 18 (1) of the Civil Procedure Rules and that in any case the application could not ne made orally but by Chamber Summons.

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The learned trial Judge upheld the objection, holding that the application was incompetent as it had not been made by Chamber Summons, whereupon Counsel for the applicant again verbally applied for leave to amend the plaint by including in it the said document as an annexture. That application was also rejected by the learned trial Judge on the same ground. The Learned Judge then adjourned the case for one week to enable Counsel for the applicant file a formal application on a Chamber Summons which Counsel for the Applicant did. The application was subsequently argued and Kato J. delivered his ruling on $7/10/87$ .

$\mathcal{L}$

In his Ruling the learned trial Judge declined to consider the application on its merits as he thought that he had no jurisdiction in the matter in view of his earlier decision on the first informal application. This is what he said on the issue of jurisdiction.

> "The point which I have in mind concerns the question as to whether the court having decided in an earlier ruling that the document was in admissable in evidence can still turn round in the same proceedings and admit that same piece of evidence ------ My decision whereby earlier rejected the document is still valid, the position would have been different if that ruling or decision had been reviewed or set aside by some other lawful order ......... In these circumstances I find myself bound by my decision of $24/9/87$ whereby I held that the tenancy agreement was not admissable and I feel that I am, by the doctrine of functus

officiol, prevented from altering that decision except possibly by way of a review. For this reason alone this application which is aimed at tendering in evidence a document already rejected, cannot be entertained".

He accordingly dismissed the application with costs to the respondent. Counsel for the applicant was present and immediately and orally sought leave to appeal to this court against the ruling, leave was refused by the court on the ground that the application for same should have been made by Notice of Motion and not orally. The court relied on Order 40 rule 1 (4) of the Civil Procedure Rules. The case was then adjourned to a date to be agreed upon by the parties but before court rose Counsel for the applicant is recorded as having stated that his client intended to appeal to this Court against the order refusing the applicant leave to appeal.

The applicant did not, however, file the intended appeal to this Court. Instead her Counsel filed a Notice of Motion on 21/10/87 in the High Court for an order granting the applicant leave to appeal to this Court against the decision of Kato, J. dismissing the Chamber Summons for want of jurisdiction. The Notice of Motion was heard by Kalanda, J. who on 12/11/87 dismissed it, quite correctly I think, on the ground that as Kato, J. had already entertained the application for leave to appeal to this Court which application he had refused, the only course open to the applicant was to appeal to this Court and not to another Judge of the High Court since all the Judges of the High Court have equal jurisdiction.

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On 28/1/88 Counsel for the applicant brought this application in this court. Mr. Mugenyi who appeared for the applicant at the hearing of this application submitted that after Kalanda, J. had dismissed the application for leave to appeal, Mr. Kateeba Advocate who was representing the applicant on instructions from ther counsel M/S. Mugenyi, and Co. Advocates did not file this application in tit. as Mugenyi of Mugenyi & Co. Advocates who would have given him instructions to file the application was out of Kampala and did not return to Kampala until30/11/87 and did not peruse the case file which Mr. Kateeba had sent back to them until then. By the time Mr. Mugenyi instructed Mr. Kateeba to bring this application here the statutory period for filing same had expired.

In support of this application Mr. Mugenyi relied on his own affidavit which he had sworn on 30/12/87anand filed together with the Notice of Motion. In that affidavit Mr. Mugenyi stated, inter alia, that he had travelled to Hoima from Kampa on 23/11/87 and had remained there until $3\frac{1}{3}$ /11/87 where he returned to Kampala and perused the file and thus learnt of the decision of Kalanda, J. dismissing the applicant's application.

Mr. Mugerwa who has represented the respondent throughout submitted that the applicant had not shown sufficient reason for the delay in bringing the matter to this Court. He submitted that in fact the applicant was to blame for the delay because after Kato, J. had refused to grant leave to appeal to this Court. Counsel for the appellant should have appealed to this Court against that decision right away and not gone to Kalanda, J. who clearly had no jurisdiction in the matter. He thought that it was odd that both Mr. Mugenyi and Mr. Kateeba had not appreciated this point at the cricial moment. He contended that

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both Counsel must have been ignorant of the law on the point which ignorance is no excuse for the failure to act within the prescribed time of 14 days.

In reply Mr. Mugenyi claimed that all along he knew that Kato, J. was wrong in refusing the oral application for leave to appeal to this Court because there is no legal requirement that such an application must be brought by Notice of Motion. On the contray, he submitted, Rules 39, 40, 41 and 42 of the Rules of this court permit such a course of action. He stated that he should have appealed to this court against that Ruiling at once but did not do so "out of respect for the Judge". Be That as it may, I see no good reason why this application was not made in time. I cannot accept Mr. Murenyi's claim that he was not around to give Mr. Kateeba instructions to appeal after the Ruling of Kalanda, J. since that Ruling is not the subject of this application.

I am satistied that the application before Kalanda, J. was misconcieved. The Counsel for the applicant should clearly have come to this court as soon as Kato, J. refused him leave to appeal. It is notenorthy that upon that refusal Mr. Matovu Advocate, who held brief for Mr. Kateeba, Informed Court that the applicant would appeal to this Court and for that matter he requested the Court to adjourn the hearing of the case sine die which the Court did, It is not known why the appeal was not filed in this Court in time thereafter.

In my view the burden is on the applicant to satisfy this court that she had sufficient cause or reason for not appealing in time against the decision of Kato, J. This she has not done. Her Counsel has only tried to justify the delay in appealing to this court after but not against the Ruling of Kalanda, J. which

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is clearly of no consequence. In the result, I see no justification for extending the time within which to seek leave of this court to appeal. This application is accordingly dismissed with costs to the tespondent.

$\mathbf{6}$

Before I take leave of this case I wish to comment on one matter. Mr. Yesero Mugenyi is not only Counsel for the applicant but also her witness. In fact this application arose from the attempt by Mr. Mugenyi to put in evidence the document in question in the course of his giving evilence. He did rell not to personally represent the applicant in the High Court. He should have done the same here.

**联盟**

Dated at Mengo this 24th day of April, 1989.

SIGNED:

S. T. MANYINDO DEPUTY CHIEF JUSTICE.

一座

and different

I CERTIFY THAT THIS IS A 🐛 TRUE COPY OF THE ORIGINAL.

**中国地区中**

BABIGUMIRA, B. F. B. REGISTRAR SUPREME COURT.