[1999] UGSC 39

# THE REPUBLIC OF UGANDA

# IN THE SUPREME COURT OF UGANDA

#### **AT MENGO**

## (CORAM: TSEKOOKO, KANYEIHAMBA AND MUKASA-KIKONYOGO, JJSC)

## CIVIL APPLICATION N0.6 OF 1999

#### **BETWEEN**

MOTOR MART (U) LTD. ..................................

AND

YONA KANYOMOZI ....................................

(Reference from the Ruling of Mulenga JSC dated 12th February 1999 in Supreme Court Civil Application No. 8 of 1999)

## **RULING OF THE COURT**

By Notice of Motion dated 29.10.98, the Respondent applied to a single Justice of this court for an order granting him "leave to file an application for restoration of Civil Appeal No. 15/95 out of time".

Civil Appeal No. 15/95 had been dismissed on 19.2.97 by this court for want of prosecution. A single Justice of this court heard the application and granted it on 12/2/1999. The applicant who was the respondent then has referred to us that ruling for review. Normally, since the appeal was dismissed for want of prosecution, the application for the restoration should have been made within 30 days from 19/2/1997: See rule 95 (5). Application for leave to apply for restoration had therefore to be made under Rule 4 of the Rules of the Court.

The following is the background to the application. In 1993 the respondent filed in the High Court a suit against the applicant and two others for breach of contract in respect of repair of his motor vehicie. He claimed special damages in the sum of Shs. 75,515,650/=, together with general damages, interest and costs. The suit was dismissed on 19.1.95 and the respondent instituted Supreme Court Civil Appeal No. 15/95. The appeal was listed for hearing twice and each time it was adjourned by consent. When it came up the third time, on 19.2.97, both parties and their advocates were absent but Mr. Kusiima, an advocate appeared holding brief for Mr. Mulira, Counsel for the Appellant, the present respondent. He applied for adjournment on the ground that Mr. Mulira was appearing in the Constitutional Court. The application was refused. As Mr. Kusiima's brief was limited to applying for adjournment, he could not proceed with the conduct of the appeal. Consequently the appeal was dismissed for want of prosecution. On 5.9.97 the respondent filed in this Court, Civil Application No, 26/97 praying for the appeal to be restored. That application came up for hearing on 1.6.98. Counsel for the present applicant raised objection that the application was incompetent having been filed outside the period of 30 days prescribed by Rule 95(5) of the Rules of this Court. Counsel for the respondent conceded the blunder and thereupon withdrew that application. The application from which this reference emanates was filed on 29.10.98. under r.4 and r. 1(3) of the Supreme Court Rules, 1996. Rule 4 provides in part:

> "4. The court may, for sufficient reason extend the time prescribed by these Rules ........... for the doing of any act authorised or required by these Rules, whether before or after the expiration of that time and whether before or after the doing of that act.........."

The application was supported by an Affidavit sworn by Peter Mulira on 29.10.98. Paragraphs 5 to 9 contain irrelevant and/or misleading averments which the learned single justice would have ignored but for the insistence of Counsel for the Applicant that they be considered by the Justice. The five paragraphs read as follows:-

> That Counsel for the Applicant instructed M/S $"5.$ Kateera & Kagumire Advocates to handle the appeal and more particularly to pursue its reinstatement (see copy of notice of change of Advocates marked "A")

> That M/S Kateera & Kagumire Advocates then 6.

withdrew their conduct of the appeal (see copy of letter dated 20th November, 1996 marked "B")

That at the time of dismissal of the appeal $M/S$ . Mulira & Co Advocates, Counsel for the Applicant 7. had merged with M/S Sebalu, Lule & Co Advocates, Counsel for the Respondents.

The learned Justice heard the application and although he found the application to be deficient in certain aspects, he granted it. The present applicant was dissatisfied with that ruling and has therefore referred it to us for review. The reference is based on the following four grounds:

- The learned Judge erred in law and fact when he gave leave to the respondent to apply for restoration of Civil Appeal No. 1. 15 of 1995 out of time without taking into account the inordinate delay, negligence and dilatory conduct of the Respondent in filing Application No. 8/1998 to restore the said Civil Appeal. - The learned Judge erred in law when he found that the respondent had shown sufficient cause for not filing Civil $2.$ Application 8/98 in time hence justifying court to grant the Respondent leave to restore Civil Appeal No. 15/95 out of time. - The learned Judge erred in law and fact to rely on a false $3.$ affidavit to grant extension of time. - The learned judge erred in law and fact in exercising the judicial discretion in circumstances which had contravened 4. all legal principles in applying for extension of time.

Mr. Mukasa Semugenyi, Counsel for the applicant, in his submissions more or less made the argument which, he raised before the single Justice. He further contended in effect that since the learned single Justice had found that the application before him was deficient having been based on affidavits sworn by Mr. Mulira most of whose contents were false, the learned Justice erred in exercising his discretion by granting the application. He asked us to reverse the decision of our learned brother.

Ms. Charity Nakabuye, counsel for the respondent, also raised some of the arguments which she had argued before the single Justice. She supported the decision of the learned Justice. In her contentions, she argued that the impugned affidavit was capable of severence which the single Justice did, before arriving at his decision.

The E. A Court of Appeal in Meru Farmers v. A. A Sulaiman (1966) E. A 449 suggested, and we agree, that a reference is in the nature of an appeal. In that case the reference was made to the E. A Court of Appeal to review the refusal to grant extension of time by a single Justice of Appeal. The implication in that case is that we should review the evidence and the law which was before the single Justice and decide whether the single Justice properly exercised his discretion in making his decision the way he did.

With care, the learned Justice in his ruling carefully considered the affidavits of both parties and submissions of each counsel. He held that some parts of Mr. Mulira's affidavit were false and that those parts were irrelevant to the application. He also held that allegations in affidavits of both Mr. Muiira and Ms Nakabuye did not explain why after the appeal had been dismissed no application for its restoration was made within the prescribed period. Contrary to the contentions of Mukasa-Semugenyi, the single Justice in fact did consider and found that there was inordinate delay and dilatory conduct.

Thereafter the learned Justice considered, inter alia, two apparent grounds on which the application was based, namely;

- (i) that the mistake or oversight on the part of the counsel should not bar the applicant from pursuit of his rights, and - (ii) that the appeal has a great likelihood of success.

The learned Justice considered a number of decided cases including those decided by this Court and concluded, correctly in our view, that error on the part of counsel is not necessarily a bar to getting extension of time. The cases included Mugo v. Wanjira (1970) E. A 481, Shanti v. Hindocha & others (1973) E. A 120, and Shiv Construction v. Endesha Enterprises Ltd Supreme Court Civil Application 15 of 1992 (unreported); Haji Nurdin Matovu v. Ben Kiwanuka Supreme Court Civil Application 12 of 1991 (unreported) to support the view that if owing to counsels' blunders, a litigation is not finished, it is no sufficient remedy to say that the litigant affected should sue the blundering advocate for damages. The learned Justice concluded his ruling thus:-

"In the instant application, apart from the bold assertion in the Notice of Motion that the appeal has a great likelihood of success, the Applicant did not provide any material "to enable the court to determine whether or not refusal of the application would appear to cause injustice".

In my opinion, however, the court may, for that purpose, use material in its records, where no prejudice to either party is likely to occur. With that in mind, I have perused the record of appeal in the dismissed Civil Appeal No. 15/95, and in particular the High Court judgment from which the appeal had arisen, and the grounds of appeal that had been framed. I would of course not wish to rate the prospects of success of that appeal in the way the applicant has claimed, let alone to discuss the merits.

However, having regard to the natyre of the judgment, I am inclined to the view that this is a case where injustice will appear to be caused if the appeal is not heard on its merits.

I must say that it is with considerable difficulty that $I$ have come to the conclusion that despite the unexplained inordinate delay in bringing this application, I should exercise my discretion, albeit reluctantly, to allow the application. In so doing, I have also taken into consideration the fact that if he is enabled to make a fresh application for restoration of the appeal, the applicant is likely to find less difficulty in view of the explanation for non-appearance when the appeal was called on for hearing."' (underlining ours)

" sufficient reason " in rule 4 quoted earlier in this ruling appears to us to permit the kind of approach made by the single Justice.

It is clear from the above passagc that the learned Justicc wcighed all possible courses of action he could take on the matter. He concluded that to avoid injustice, the rcspondent should be allowed to seek leave to appeal out of time. We have not been persuaded that those conclusions are wrong. Accordingly we are unable to say that the leamed Justice erred in exercise of his discretion. In the result all grounds 1,,2,3 and 4 of the memorandum of reference must fail. The application is dismisscd. In the peculiar circumstances of this matter, we rule that the costs of this application should abide the decision in the anticipated application for leave to appeal out of time.

Delivered at Mengo this...25th ....day of ... August 1999.

### J. W. N. TSEKOOKO . IUSTICE OFTHE SUPREME COT]RT

### G. W. KANYEIHAMBA JUSTICE OF THE SUPREME COURT

### L. E. M. MUKASA-KIKONYOGO . IUSTICE OF THE SUPREME COURT