[1997] UGSC 8

# **THE REPUBLIC OF UGANDA**

## **IN THE SUPREME COURT OF UGANDA AT MENGO**

## **(CORAM: ODER, J. S. C., TSEKOOKO, J. S. C. AND KAROKORA, J. S. C.)**

# **CIVIL APPEAL NO. 2 OF 97**

## **BETWEEN**

#### **KASIRYE BYARUHANGA AND CO. ADVOCATES...................... APPELLANT**

#### **AND**

**UGANDA DEVELOPMENT BANK................................................. RESPONDENT**

(An appeal from the Ruling and Order Of the High Court of Uganda at Kampala Ntabgoba, P. J.) Dated 19th July 1995 In H. C. Misc. Application No. 68/1994)

#### **REASONS FOR THE ORDER OF THE COURT:**

On 22nd May 1997 we made an Order striking out the appeal for being incompetent, ordered the appellant to pay costs and promised to give reasons for the Order. We now give our reasons.

The appellants filed against the respondent in the Court below three separate applications (Misc. Application No. 82 of 1994, No. 83 of 1994 and No. 84 of 1994). All the three applications were the appellant's taxation bills in respect of work done by the appellant as advocates for the respondent. before the Deputy Registrar of the High Court could tax the bills, one William Byaruhanga (on behalf of Kasirye, Byaruhanga & Co. Advocates) and Sam Mayanja an officials of the respondent wrote and signed a letter reference KB/67/93 dated 2 nd June 1994 addressing it to the Managing Director of the Respondent Bank. The letter made proposals for "out of Court settlement in respect of Professional Fees".

At the hearing of the applications by the Registrar as taxing officer, Mr. Kateera, on behalf of the respondent objected to the admissibility of the letter which for unknown reason the record.

The Deputy Registrar overruled Mr. Kateera's objection and in effect held that the letter was a settlement agreement and so he made an order that the letter was a consent judgment. The respondent appealed from that order under Section 61 of the Advocates' Act, 1970 and Rule 3 of the Taxation of Costs (Appeals and References) Rules (S. I. 258 - 6). The appeal was heard by the Principal Judge who on 19th July 1995 set aside the ruling and orders of the Deputy Registrar. Although on 19th July 1995 the Learned Principal Judge rejected leave to appeal, the appellant filed in the High Court a notice of appeal from the Principal Judge's judgment on 25th July 1995

and in this Court on 28th July 1995. On or about 21st March, 1997, the appellants filed this appeal.

When the appeal was called for hearing on 22nd May 1997, Mr. Babigumira Counsel for the respondent challenged the competence of the appeal by way of preliminary objection on two points.

First Point: Mr. Babigumira submitted that since the learned Principal Judge gave his judgment on 19th July 1995, the appeal should have been filed within sixty days thereafter, i.e., by about 20th September 1995. Counsel submitted in effect that the appellant could not rely on the proviso to rule 8 1(1) because a letter alleged to have requested for proceedings before the Principal Judge was not served upon the respondent. Mr. Babigumira explained that on this point he sought the explanation and co-operation of the Counsel for the appellant but all was in vain.

Mr. Kiboneka, Counsel for the appellant contended, erroneously in our view, that the objections were misconceived and intended to defeat justice.

On the first point he referred to a copy of his firm's letter re: NNM/CS/OO/69 dated 24th July 1995 which is a letter by which his firm (Nyanzi, Nsibambi and Mbabazi Advocates) requested for the proceedings to be typed and made available. He referred to two signatures appearing on the face of the letter and contended that he had genuinely believed that one of the signatures was found the Chambers of Mr. Babigumira. That is why he never co-operated with the firm of Mr. Babigumira. There and then Mr. Turyamubona, the Registrar of this Court who was present, identified one of the signatures to be his and the other to be that of a member of his Clerical staff. Mr. Manano, our Court clerk was of the same view. We then asked Mr. Kiboneka to produce evidence of service of the document on the Chambers of Mr. Babigumira. Mr. Kiboneka eventually conceded that he had no such evidence. We were surprised by the naïve stand adopted by Mr. Kiboneka on this point. It is clear from submissions of Mr. Babigumira that he drew to the attention of Mr. Kiboneka's Chambers the fact of non-service of the request for proceedings and yet Mr. Kiboneka's Chambers kept quiet until Mr. Babigumira was forced to raise the matter before us. As we pointed out during the hearing of the objection, it is prudent and a matter of good practice for advocates being candid to each other prior to hearing of appeals (or cases) so that questioned aspects of any appeal can be thrashed out between the advocates before the hearing date to minimise delays and costs.

Be that as it may, having conceded lack of service of the written request, Mr. Kiboneka, invoked to his aid the provisions of Article 1126(2) (e) of the Constitution. Learned Counsel contended that since there was an application for proceedings, no injustice would be occasioned by the failure to serve a copy of the application. With respect we do not agree.

Paragraph (e) of Clause (2) of Article 126 reads as follows:

"126(2) in adjudicating cases of both a Civil and Criminal nature, the Courts shall, subject to the law, apply the following principles

(e) Substantive justice shall be administered without undue regard to technicalities".

We have underlined the words "subject to the law". This means that Clause (2) is no licensee for ignoring existing law. Rule 81(1) and 81(2) are existing laws. Rule 81(1) states:-

"81(1) Subject to the provisions of rule 112, an appeal shall be instituted by lodging in the appropriate registry, within sixty days of the date when the notice of appeal was lodged, to (d)

Provided that where an application for a copy of the proceedings in the Court has been made within thirty days of the date of the decision against which it is desired to appeal, there shall, in computing the time within which the appeal is to instituted, be excluded such time as may be certified by the registry of the ................... .court as having been required for the preparation and delivery of the appellant of such copy".

Rule 81(2) states-

"8 1(2) an appellant shall not be entitled to rely on the proviso to sub-rule (1) unless his application was sent to the respondent".

Clearly sub-rule (2) of Rule 81 disentitled the appellant from reliance on the proviso to sub-rule (1) if such appellant fails to serve the respondent with a copy of the application for proceedings. There are many decided cases on this point: See Court of Appeal for Uganda Civil Application No. 6 of 1982 - Robert Kitariko vs. D. Twino-Katama (1982) H. C. B. 97, Supreme Court Civil Application No. 6 of 1986 - P. Nakiwala vs. The Libyan Arab Uganda Bank (unreported) Supreme Court Civil Application No. 15 of 1990 Almeda vs Almeda (unreported). Recently in Civil Application No. 52 of 1995 - Utex industries Ltd. vs. Attorney General (unreported), we observed at page 6 of our ruling in regard to Article 12682)(e) that-

"We are not persuaded that the Constituent Assembly Delegates intended to wipe out the rules of procedure Of our Courts by enacting Article 126(2) (e)".

We adopt the same reasoning here and say that a litigant who relies on the provisions of Article 126(2) (e) 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 wand in the hands of defaulting litigants.

The second point of objection raised by Mr. Babigumira is that the appellant had contravened Rule 104(1) by failing to make provision for security for costs. Security for costs must be deposited at the time the appeal is filed.

Mr. Kiboneka conceded that no security for costs was paid but contended that under Rule 85(1) payment of security for costs is not mandatory. He further contended that this was an advocate's mistake which should not be visited upon his client.

With respect to Mr. Kiboneka, he failed to appreciate the requirements of Rule 81(1) which is pertinent to this matter. Rule 85 is inapplicable here. It is Rule 81(1) which is applicable.

Rule 8 1(1) states that-

"Subject to the provisions of Rule 112, an appeal shall be instituted by lodging in the appropriate registry, within sixty days of the date when the notice of appeal was lodged,

- (a) A memorandum of appeal, in quadruplicate; - (b) The record of appeal, in quadruplicate; - (c) The prescribed fee; and - (d) Security for the costs of the appeal".

Rule 112 is inapplicable in this case because the appellant did not apply for relief from lodging Security for costs.

The provisions of Rule 81(1) (d) are mandatory. Security for costs must be provided by the appellant at the time of lodgment of the memorandum of appeal if no application for relief has been made or relief not granted.

There are decided cases of this Court showing that this Court will exercise its discretion with leniency where leave is sought for extension of time on account of failure by or inadvertence on the art of an advocate to institute a proceeding within time. The application before us did not seek extension of time.

For the foregoing reason, we found the appeal not proper before us and we accordingly struck it out and granted costs to the respondent.

Delivered at Mengo this ........23rd ........day of......... August.......... 1997.

> A. H. Oder, Justice of the Supreme Court.

> J. W. N. Tsekooko, Justice of the Supreme Court.

> A. N. Karokora Justice of the Supreme Court.