[2018] UGSC 16

Source-derived case information.

Citation: [2018] UGSC 16
Parties: Appellant: Mubeezi James; Appellant: Ntungire Steven; Appellant: Misaki Kaviigi; Respondent: Kasule Samuel
Court: Supreme Court of Uganda
Jurisdiction: Uganda
Case Number: Civil Appeal 10 of 2017
Procedural Posture: Civil Appeal / Final Judgment
Outcome: appeal dismissed
Judges: Mwondha, JSC, Mwangusya, JSC, Arach-Amoko, JSC, Katureebe, CJ, Tumwesigye, JSC
Legal Topics: Notice of Appeal, Extension of Time, Consent Orders, Stay of Execution
Source Language: en

Civil Procedure Notice of Appeal Extension of Time Consent Orders Stay of Execution

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Parties

Mubeezi James

Appellant

Ntungire Steven

Appellant

Misaki Kaviigi

Appellant

Kasule Samuel

Respondent

Procedural Posture

Civil Appeal / Final Judgment

Legal Issues

1 Whether a consent order endorsed by a single judge can overturn a decision of a full bench striking out an appeal and notice of appeal.
2 Whether Civil Appeal No. 10 of 2017 was properly before the Supreme Court after the appeal had been struck out.
3 Whether parties can consent to revive an appeal already determined by the court.

Ratio Decidendi

The Supreme Court held that the consent order endorsed by a single judge, which purported to extend time for filing and serving the Notice of Appeal and revive the appeal, was irregular and could not overturn the prior decision of the full bench striking out the appeal and notice of appeal. The attempt to have Civil Appeal No. 10 of 2017 heard was a disguised effort to circumvent the finality of the earlier decision. The appeal was therefore dismissed as incompetently placed before the Court, with no order as to costs.

Court Disposition

appeal dismissed

Orders

Civil Appeal No. 10 of 2017 is dismissed as incompetently placed before the Supreme Court.
No order as to costs.

Full Case Text

Judgment text and source record

46 paragraphs

**THE REPUBLIC OF UGANDA**

**IN THE SUPREME COURT OF UGANDA AT KAMPALA**

**CIVIL APPEAL NO. 10 OF 2017**

***(*CORAM:*ARACH-AMOKO, MWANGUSYA, OPIO-AWERI, MWONDHA, TIBATEMWA-EKIRIKUBINZA, JJSC)***

**BETWEEN**

**1. MUBEEZI JAMES**

**2. NTUNGIRE STEVEN ....…………….... APPELLANTS**

**3. MISAKI KAVIIGI**

**AND**

**KASULE SAMUEL .................................... RESPONDENT**

**DECISION OF COURT**

The appeal before us was heard on 3rd October 2017. In the course of writing the judgment and on perusal of the Court record, this Court discovered irregularities regarding the filing and cause listing of the appeal. We herein below set out a chronology of events highlighting these anomalies.

The respondentlodgedan application in this Court vide **Supreme Court Miscellaneous Application No. 24 of 2015** for orders that the Notice of Appeal filed by the appellants be struck out for being served out of time. The application was heard byJustices: Katureebe, CJ; Nshimye, Mwangusya, Mwondha and Tibatemwa-Ekirikubinza. The Court found that there was no plausible explanation given for not serving the Notice of Appeal on the applicant’s lawyers within the prescribed time. Furthermore, the Court found that the appellants did not apply for extension of time to remedy the late service of the Notice of Appeal. The Courtheld in favour of the Applicant (**currentrespondent**)and struck out the Notice of Appeal filed by the appellants together with the appeal.

On 13/9/2017, the current second appellant - Ntungire Steven - filed**Supreme Court Miscellaneous Application No. 24 of 2017** for stay of execution of the orders of Court in the ruling that struck out the Notice of Appeal and the appeal. ThisMiscellaneous Application for stay of execution came up for mentionat the pre-hearing conferencebefore a single justice. At the pre-hearing, Counsel appearing for the applicant informed court that:

(i) He had previously filed Civil Application No. 18 of 2015 on behalf of the applicant and others in this court.

(ii) That the applicant had also applied for an interim order vide No. 15 of 2017, an application for stay of execution vide No. 24 of 2017, and an application for extension of time vide No. 19 of 2017.

Furthermore, counsel informed court that the respondent’s counsel had conceded to all the above applications and agreed to file a consent order in Court setting out the above terms.

Counsel concluded by praying that the appeal be fixed for hearing on the 3rd or 4th of October 2017.

In reply to the above submission, Counsel for the respondent informed court that he together with the applicant’s counsel had agreed to file a consent order in court. He however sought guidance from the Court whether the validation of the Notice of Appeal and Memorandum of Appeal will have an effect on the 1st and 3rd appellants.

Counsel for the applicant clarified that Miscellaneous Application No.24 of 2017 was filed in respect to only Steven Ntungire. Counsel for the respondent then stated:“*I have discussed with the applicant and he says he makes the application then the others will join if he succeeds.”*

Courtthen ordered that theconsent order be presented to the Court for endorsement and that the hearing of the appeal be fixed for 3rd October 2017.

Consequently, the second appellant -Ntungire Steven-filed**Supreme Court Miscellaneous Application No. 19 of 2017** for:

1. extension of time within which to file and serve a Notice of Appeal against the decision of the Court of AppealNo. 49 of 2012;and 2. in the alternative validation of the applicant’s Notice and Memorandum of Appeal and the Recordof Appeal which was already filed in court on 4/12/2015 as Civil appeal No. 18 of 2015.

In addition, the second appellant- **Ntungire Steven** alsofiled **Supreme Court Miscellaneous Application No. 25 of 2017** (arising from Civil Application No. 24 of 2017) (itself arising from Civil Application No. 19 of 2017)(arising from Civil Application No. 18 of 2015) for -

(a) An interim order of stay of execution of the orders of the Court of Appeal in Civil Appeal No .49 of 2012.

On 7/9/2017, Counsel filed the consent order vide **Miscellaneous Application No. 19 of 2017.** The consent order indicated that both the applicant’s and respondentcounsel consentedto have the time within which to file and serve the Notice of Appealextended. Furthermore, that the costs of the application be in the main appeal.

On 13th September 2017, the consent order was endorsed bya single Judge.

We are alive to the fact that a full bench had earlier on delivered a decision striking out the appeal and the said Notice of Appeal. We find it irregular for parties to consent on a matter already determined by the Court. It follows that the orders contained in the consent and endorsed by the single judge could not overturn the orders of thefull bench. Civil Appeal No.10 of 2017 is a disguised attempt to have the appeal heard despite the fact that it had been struck out.

We hereby dismiss Civil Appeal No. 10 of 2017 as having been incompetently placed before this Court. We make no order as to costs.

Dated at Kampala the …21st… day of ………May……. 2018.

**………………………………………………**

**HON. JUSTICE STELLA ARACH-AMOKO,**