[2025] UGCA 65

#### THE REPUBLIC OF UGANDA

#### IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

#### CIVIT APPEAL NO. 41 OF 2O2L

(Arising from High Court Civil Application No. 836 o/,2023)

(Arising from High Court of Uganda at Kampalo Misc, Couse No,49 of 2020)

MUKULA GEORGE WILLIAMS APPELLANT

#### VERSUS

LAW DEVELOPMENT CENTRE.. ............. RESPONDENT

(Appeol from the Ruling ond Orders of His Lordship Hon. Justice Michoel Elubu delivered on the 29th doy of October, 2020 ot the Civil Division of the High Court of Ugonda at Kampalo)

Coram: Justice Geoffrey Kiryabwire, JA

Justice Muzamiru M. Kibeedi, JA

Justice Christopher Gashira bake, JA

I

# JUDGMENT

### INTRODUCTION

This appeal arises from the Ruling and orders of His Lordship Hon. Justice Michael Elubu delivered on 29th October 2020 at the Civil Division of the High Court of Uganda at Kampala

# BACKGROUND

The Appellant, Mr. Mukula George Williams, was admitted to the Post Graduate Bar Course for the Academic Year 2017 /201,8 at the Law Development Centre (LDC). While he successfully passed most examinations, he failed Corporate and Commercial Practice, Advanced Alternative Dispute Resolution, and Land Transactions in the fourth term. Upon sitting supplementary examinations, he once again failed Land Transactions (42%). The Appellant then lodged an appeal to the Respondent's Examination Appeals Committee to contest his scores in the examination.

The Appellant in addition, applied for extension of time to lodge his appeal, arguing thatthe deadlineto appealfell on a public holiday. The Respondent's Examination Appeals Committee by letter dated L1th June, 2Ot9 dismisses the application, citing lack of provisions for extensions in the governing rules. Dissatisfied, the Appellant requested verification of his handwritten answer script, which was denied. The matter escalated to the High Court, where the Appellant's application was dismissed, leading to this Appeal.

This is a reconstituted Appeal. The initial Appeal had on its panel the late Justice Kakuru (JA) who has since passed on and now has been replaced by Muzamiru Kebeedi (JA).

On the 19th of July 2023, Mr. Chrysestom Katumba, Lawrence Kabuye, Ssekanjako Barker and Elutu Jonathan appeared as Counsels for that Applicant, and Mr. John Musiime with Kenneth Mugira appeared as Counsel for the Respondent before the newly reconstituted Panel.

#### RULING IN APPLICATION NUMBER 835 OF 2022

Before proceeding to dispose this Appeal, we established that the Appellant had also filed an Application (No. 836 of 20221seeking two reliefs; first, leave to amend his Memorandum of Appeal to include 5 remedies which had been omitted in the origina! document in Court, secondly that costs be provided for. The Respondent opposed this Application on grounds of procedural non-compliance, undue delay, and potential prejudice.

We considered the Application and granted leave to amend the Memorandum of Appeal to add prayers for relief under the said Memorandum of Appeal and the arguments for and against the application. We granted the application and indicated that we would provide our reasons with this Judgment which we shall now proceed to do.

# Reasons for allowing the amendment

Rule 45(2) of the Court of Appeal Rules grants this Court discretion to allow amendments where it serves the interests of justice. We find that the proposed amendment only seeks to include omitted reliefs without introducing any new substantive issues at a late stage that would prejudice the Respondent. We also find that the said amendment is not prejudicial to the Respondents as it expected that appeals of this nature have a provision for reliefs which was not the case in this matter. These proposed amendments do not attempt to cure defects that are fatal in the Appeal.

Furthermore, Article 126(21(e) of the Constitution mandates courts to administer substantive justice without undue regard to technicalities. The omission of ^a provision for reliefs in the original Memorandum of Appeal, we are convinced was inadvertent, and the Appellant acted promptly to address this upon discovering the oversight. Dismissing the Application in these circumstances would elevate procedural technicalities over substantive justice, contrary to constitutional principles.

Finally, we also see no prejudice to the Respondent as the amendment does not alter the core issues under Appeal to which the Respondent has filed comprehensive submissions.

ln light of the above analysis, it was our finding at the time of hearing as it is now that the interests of justice favour allowing the amendment. The amendment will enable the Court to address the substantive issues in the Appealcomprehensively and ensure fairness to both parties. ln the result, the amendment is accordingly allowed.

These are our reasons. We now proceed to resolve the main Appeal.

# DUTY OF THE APPEALATE COURT

Section 10 of the Judicature Act Cap 13 provides that an appeal shall !ie to the Court of Appeal from decisions of the High Court.

Rule 30(1) of the Judicature (Court of Appeal Rules) Directions Sl 13-10, allows this Honorable Court while exercising its appellate jurisdiction to reappraise the evidence at the trial court and draw inferences of fact in arriving at its own conclusion.

The Supreme Court enunciated the above lega! principle in the case of Kifamunte Henry versus Uganda (SCCA No. 10 of L9971wherein the highest court of the land held that:

It ls the dutv of the first aooel te court to reheor the cose o,t appeol bv considerino oll the moterials which were before the triol court ond moke its own mind and failure to no sa qmounts to on error aI! tl

# DETERMINATION OF THE GROUND OF APPEAL

Whether the learned triol tudge erred in law ond fact when he construed tune 77, 2079, and October 77, 2079, os the dotes when the Appellant's couse ol action orose for the purposes of filing a judiciol review application?

Submissions of Counsel for the Appellant

Counsel for the Appellant contends that the trial Court erred in determining which date constituted the date when the Appellant's cause of action arose for the purposes of filing the application for judicial review at the trial Court. He argues that the correct date is 5th December, 2019, when he was informally told that his second Appeal (dated 2nd September, 2019) had not been considered by the Respondent. This was not withstanding an undertaking by the Respondents to give the Appellant a formal response; which they did not.

!n this regard he referred us to Gen. David Sejjusa v Attorney General, Miscellaneous Cause No. 175 of 2015 and Tusiime Doreen v KCCA, Miscellaneous Cause No. 275 of 2OtG to support his argument that the failure to communicate a formal decision constitutes a continuing wrong. The Appellant further contends that the LDC failed to follow its own rules regarding Appeals and extensions, particularly Rule 29(21 of the Rules for Passing the Bar Course, which allows extensions for reasonable cause (in this case, public holidays). lt is therefore the case for the Appellant that silence in itself amounts to a denial decision with regard to his second Appeal on his grades.

Counsel for the Appellant therefore prayed that the decision of the High Court be set aside and his application for judicial review be heard.

## Submissions by Counsel for the Respondent

Counsel for the Respondent argued that the judicial review application was filed out of time. Counsel observed that the dates of lLth June, 2019 (when the Appellant's initialAppealwas dismissed)and Llth October, 2019 (when he received informal communication) as the potential starting points for determining the threemonth limitation period. Counsel further argued that the Appellant's subsequent requests for the verification of his results could not be regarded as proper Appeals. Counsel refuted the Appellant's reliance on the 5th December, 2019, as the starting point, because by that time the Appellant had already on the L4th October, 2019 issued a Notice of lntention to Sue indicating he considered that the cause of action had crystallized. They maintain that the trial judge exercised sound judicial discretion.

#### RESOLUTION OF THE GROUND OF APPEAL

The judicia! review application (Misc. Cause No. 49 of 2O2Ol from which this Appeal arises was commenced at trial Court by Notice of Motion by the Appellant under Article 30 of the Constitution of the Republic of Uganda, 1995 as Amended, Sections 33, 35, 37 and 38 of the Judicature Act Cap 13, Sections 98 of the Civil Procedure Act, Rules 3, 4, 5, 6,7 and 8 of the Judicature (Judicia! Review) Rules, 2009 (herein after referred to as "The Judicial Revie Rules").

The Motion at the High Court sought the following orders: -

'... TAKE NOTTCE that this honouroble court shall be moved on the 23'd day of June 2020 ot 9:00am in the forenoon or thereofter os counsel for the Applicant con be heord on on opplicotion seeking for: -

- o. A decloration thot the Respondent's Examinotions Appeals Committee doted 1Lth June 2019 dismissing the Applicant's opplication for extension of time to file on oppeol on the bosis thot the rules governing possing of bar course do not provide extension of time to lodge on oppeal is not provided for was irrationol, unreosonoble and done in bod faith. - b. A decloration that the conduct of the Respondent's Exomination Appeols Committee is refusing and/or neglecting to heor, consider ond determine the Applicont's oppeol filed on 2nd September 20L9 wos irrotionol, illegol, done in bad foith and violated the Applicant's right to be heord. - c. A declaration thot the conduct of Mr. Nigel Frank Othembi, the Director of the Respondent in rejecting the Applicont's requests to personally verify or look ot the Land Transoction supplementary dnswer sheet to confirm the mork thereon wos irrational, unreosonoble and done in bad foith. - d. An order of mondomus directing the Respondent to ovail the Applicant's handwritten lond tronsoctions supplementory onswer sheet for court's inspection to verify the mark that the Applicant scored in exominotion. - e. ln the olternotive but without prejudice to the foregoing, on order directing the Respondent to nominate independent external examiners from whom court shall appoint one to review and remark the Applicont's Lond Transoctions Supplementary Exam answer sheet. f. An award of generol, punitive and exemplary domoges..."

From the above Motion it is clear that the Appellant sought judicial reviews on four broad areas namely: -

- A declaration on the refusal decision to appeal the Appellant's results dated LLth June 2019 - ii A declaration on what the Appellant calls his second Appeal to the Respondent dated 2nd September, 2019 - iii. A declaration against the Director of the respondent for refusing to personally intervene in the verification of the Appellant's marks - iv. An order to have the Appellant's marks verified.

It is also important to recall Rule 5(1) of the Judicial Review Rules which provide: -

## 5. Time for applying for judiciol review

(1) An application for judicial review sholl be made promptlv ond in dnv event wrthln three months from the date when the qrounds of the applicotion first arose. unless the Court considers thot there is good reoson for extending the period within which the applicotion shall be mode..." (Emphasis ours)

The crux of this Appeal lies in determining the correct date of the Appellant's cause of action for purposes of determining the application for judicial review. The Judicature (Judicial Review) Rules provides a three-month limitation period. The trial Judge identified two dates namely LLth June, 2019 and lLth October, 2019 as potential starting points. The date of lLth June 2Ot9 relates to a letter received by the Appellant while

the date of 11th October, 20L9 relates an informal verbal communication made to the Appellant that no verification will be made of his marks.

The letter of the lLth June, 20L9 relates to the Appellant's initial Appeal against his results informing the Appellant that his Appeal was dismissed. lt is our finding on the evidence that this date amounted to a clear communicated decision. lt is the date when the grounds for judicial review first arose. lt is immediately after this date that the application for judicial review should have been made.

It is the case for the Appellant that the examination Rules of LDC and in particular Rule 29 (2l,allowed for the Committee to extend time within which to file an appeal. The said Rule provides: -

"... The Examinotion Appeols Committee may, where reasonoble cause is shown by the appellont, extend the period for lodging on oppeol under these Rules..."

It would appear that based on the examination Rules of the Respondent LDC, the Appellant may have had an arguable case. This means that that the Appellant should have applied for judicial review at the High Court on or by the L1th September, 2019. The Motion at the High Court was filed on the 28th February,2O2O about five months later. The Appellant instead chose to pursue other avenues to redeem his results including requests for verification of his examination results.

ln Nyeko Smith & 2 Ors v AG Civil Appeal No. 01 of 2016 the Supreme Court while dismissing a similar matter referred to Peter Mangeni T/A Makerere lnstitute of Commerce vs. Departed Asians Property Custodian Board SCCA No. L3 of 1995, wherein Kanyeihamba, JSC, held in his judgment: -

"lt is my opinion thot even where genuine ond active negotiotions are going on or contemplated between porties, it is incumbent upon those who need to file documents

to do so within the time allowed. Thereofter, they ore ot liberty to seek odjournments for purposes of negotiotions. "

ln the High Court matter of Nwoya District Loca! Government Council v John Paul Onyee Civil Application No. 31 of 2019 it was held that: -

"...the couse of oction usually accrues on the dote the injury to the applicant is sustained. The statute of limitotion clock is intended to tick slowly from the time of the wrongful oct, not from the time horm is reolized. The couse of action of oction occrues when the infringement first occurs, regordless of whether the domoge is then ^discove red o r ^di scove roble. "

We agree with the above position/holding.

;

ln our view these subsequent actions did not amount to a fresh appeal or cause of action to redeem his results. We agree with counsel for the Respondent that these subsequent requests were not formal Appeals within the established rules of the LDC. We also agree with the trial Judge that the Appellant's application for judicial review was caught up by time.

Furthermore, the Appellant's argument that public holidays prevented him from filing the initial Appeal on time is also not persuasive. The Appellant's reliance on Gen. David Sejjusa (supra) and Tusiime Doreen (Supra) are distinguishable. The subsequent actions of the Respondent LDC could not have been considered as continuing wrong because a decision had already been made on the 1Lth June, 2Ot9 that the appeal by the Appellant was time barred. The informal communication on lLth October, 2019, merely reiterated the position that verification would not be granted without justifiable cause. This cannot be construed as a new decision or an undertaking to provide ^a formal response that would restart limitation period.

9lilage

The Appellant while aware of the time constraints under the law, rather than file his matter with court or even seek extension of time from Court, instead kept pressing the Respondent for a decision of his alleged Appeal.

We are also alive to the fact that the Appellant's own actions demonstrate that he considered the cause of action had crystalized by 14th October, 20L9, when he issued to the Respondent a notice of intention to sue. This notice indicates that the Appellant himself believed he had exhausted all available remedies and was preparing for litigation. Therefore, the argument that the cause of action arose on the 5th December, 2019, is unsustainable. The notice of intention to sue clearly precedes this date and indicates the Appellant's understanding that an unfavourable decision had been made against him.

We agree with the reasoning of the Trial Judge, and find no merit in the Appeal.

As to costs, ordinarily these should follow the event unless there is good reason to depart from this position. We believe that strong lessons have been learnt in this judgment about how to manage appeals at the Respondent institution which is an educational institution and it would not be in good order for it to extract costs from its student in these circumstances. So we hold that it is right and equitable that each party bears its own costs.

## Disposal and Final Orders

I

- The Appeal is dismissed. 1, - The Ruling of the High Court is upheld. 2 - Each party to bear its own costs. 3

We so Order.

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$t$ $\frac{1}{2025}$ day of ................................... Dated at Kampala this...........


Justice Geoffrey Kiryabwire, JA

risee 5 $\mathbf{r}$

Justice Muzamiru M. Kibeedi, JA

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Justice Christopher Gashirabake, JA