[2000] UGCA 38

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

# CORAM: HON. MR. JUSTICE S. T. MANYINDO, DCJ, HON. MR. JUSTICE G. M. OKELLO, J. A. HON. LADY JUSTICE A. E. M. BAHEGEINE, J. A.

## CIVIL APPLICATION (Reference) NO. 55 OF 1999

#### BETWEEN

#### REAMATON LTD.: : : : : : :: :: : : : : : : : : : : : : : : : : : : : : : : : : : :: :: :: :APPLICANT

#### AND

### UGANDA CORPORATION CREAMARIESLTD.:::RESPONDENT AND ANOTHER.

(Reference to a full Court from the decisions of single Juslices (Engwau, JA and Twinomujuni, JA) dated 3'd December 1998 onl 25 June, 1999 and 2\* Septemher, 1999 in Civil Application Na 44 of 1998).

### RULING OF THE COURT

This is a reference brought under rule 54 (l) (b) ofthe Court ofAppeal Rules Directions, 1996. It challenges the decisions of Hon. Justices Engwau, JA and Twinomujuni, JA as single Judges in Civil Application No. 44 of 1998. The decisions of Engwau, JA are dated 3'd December, 1998 and 25fr June, 1999 while that of Twinomujuni, JA is dated 29ft September, 1999.

The applicants were plaintiffs and the respondents were defendants in High Court Civil Suit No. 738 of 1995. The applicants had sued the respondents to recover a total sum of US\$365,000 being the amount they paid to the respondents as a pre-finance loan to buy coffee. At the beginning of the hearing of the suit, a preliminary decree for US\$ 211,200 was entered in favour of the applicants on the respondents' admission. The respondents did not appeal against that preliminary decree within the prescribed period or at all. At the close of the trial, the court found for the applicants and a final decree was on 2917197 entered in their favour for US\$365,000 or its equivalent in local currency.

The respondents were aggrieved by that decision and lodged a Notice of Appeal and wrote to the Registrar of this court requesting for a copy of the record of the proceedings. Both the Notice of Appeal and the written request for proceedings were made within time. However, the respondents did not retain proof of service of the letter requesting for copy of the proceedings as required by rule 82 (3) of the rules of this Court. [n the meantime, when the record of the proceedings was obtained, the respondents filed appeal no. 9 of 1998 after the expiry ofthe required period.

On application by the applicants, the respondents' Notice of Appeal was struck out with costs. Through their Counsel, the respondents filed two Miscellaneous Applications No. 33 of 1998 which sought extension of time within which to file appeal No. 9 of 1998; and No. 34 of 1998 which sought extension of time within which to frle a fresh Notice of appeal to support that appeal No. 9 of 1998. Both these Applications were heard by Engwau, JA separately on l2l10/98 and he dismissed them all.

Later, the respondents filed Misc. Application No. 44 of 1998 for leave to file a fresh Notice of Appeal and the appeal itself. The application first came for hearing before Engwau, JA when a preliminary objection challenging certain paragraphs of the main and supplementary affidavits

of Blaise Namwezi in support of the application for offending 0.17 r 3 (l) of the Civil Procedure Rules was raised. The objection was overruled. A reference to this Court against that decision of the single Judge was dismissed for being premature.

The application again came for further hearing before Engwau, JA when another preliminary objection was raised challenging the same affidavits on the ground that the Commissioner for Oaths did not securely seal and identifu the exhibits as required by rule 8 of the First Schedule to the Commissioner for Oaths (Advocates) Act Cap. 53 The single Judge again overruled this objection. At this stage the Judge (Engwau, JA) declined to proceed with the hearing of the application following his overruling of the two objections.

Then the application was placed before Twinomujuni, JA. He heard it and allowed it on merits. The applicants were aggrieved by the two decisions of Engwau, JA overruling those preliminary objections and the decision of Twinomujuni, JA allowing the application. Hence this reference.

There are seven grounds on which the reference is based. They are:

"l That it was an error for a single judge of this Honourable Court to entertain and determine an application for extension of time within which to file a Notice of Appeal and a fresh appeal when similar applications were dismissed with cost by the same court.

- 2 That the learned single Judge erred in law and fact when he allowed the applicants to appeal against the whole decree and orders of the trial Court, the sum of US\$21 1,200 entered on admission as a preliminary decree inclusive. - That the learned trial Judge (S. G. Engwau, JA) ened in law and fact when he found that paragraphs 4, 12, and 14115 of the main and supplementary affidavits in support of the Notice of Motion did not offend Order l7 R.3 (l) of the CPR. 3 - That the learned trial Judge erred in Law and fact when he found that the contents of paragraphs 4, 12, and l4ll 5 of the main affidavit and the supplementary affidavit in support of the Notice of Motion were just a source of information. 4 - That the learned trial Judge erred in law and fact when he failed to rule that the deponent Blaise M. Namwezi having not served the letter nor disclosed her source of information could not depone to matters relating to the service ofthe said letter. 5 - That the learned single Judge (S. G. Engwau, JA) erred in law and fact and misdirected himself on the interpretation of Rule 8 of the First Schedule to the Commissioners for Oaths (Advocates) Cap. 53, when he held that:- 6 - (a) The annextures to an affidavit are not exhibits in terms of the rule.

- (b) Rule 8, though mandating, is procedural - (c) Failure by the Commissioner for Oaths to seal and identifu the annextures does not render the affidavit incompetent. - 7. That the learned single Judge (A. Twinomujuni, JA) erred in law and fact when:- - (a) he ignored the gamble by the applicants as to the excuse/reason for not complying with the rule. - (b) he failed to consider the contradictions in Namwezi's affidavits regarding when the letter was alleged to have been served. - O he failed to consider the Respondents' authorities in the light of this case, which if he had done he would: - (i) have drawn a difference between negligence by advocates and mere misinterpretation of the law/rules resulting in a mistake and an delay in taking a step. - (iD not have appeared to find that in all cases of negligence/mistake by counsel, the litigant is protected.

- (iii) not have failed to consider the one month's delay before this application was filed. - (iv) have found that a litigant who chooses his lawyer and his lawyer's negligence causes him financial loss can pursue the matter elsewhere and if need be sue the lawyer for indemnity. - (c) he failed to award costs of the application to the Respondents/Applicants at least against the advocates who he openly condemned in negligence."

Mr. Blaise Babigumira, learned Counsel for the applicants, filed written submission to which Mr. Oscar Kihiika, learned Counsel for the respondents made oral submission. Mr. Babigumira later made a brief oral reply to Mr. Kihiika's submission.

On a broader perspective, the submissions of Counsel for the parties crystallised three points: firstly that where a single Judge decides on a matter, the aggrieved party has a remedy only to appeal by way of ^a reference under rule 54 (l) (b) of the Court of Appeal Rules Directions 1996 to the full Court. He cannot bring the matter afresh in another application. Such application cannot be entertained by the same or another single Judge. That is Mr. Babigumira's contention. He submitted that in the instant case, applications No. 33 and 34 both of 1998 which sought extension of time, having been dismissed by a single Judge, the same matter was wrongly brought afresh in application No. 44 of 1998. He further submitted that the single Judge who entertained that application ened in law as they had no jurisdiction over the matter.

(, Mr. Kihiika on the other hand contended that there is nothing to prevent an aggrieved party from bringing the matter in a fresh application particularly when the previous application had not been decided on merit. In Counsel's view, the aggrieved party has the option to bring the matter afresh without challenging the decision ofthe single Judge on appeal and that in such a case, the same or another single Judge has jurisdiction to entertain the matter. He submitted that Mr. Babigumira produced no authority to show that a single judge has no jurisdiction to entertain the matter in a subsequent application.

Rule 54 (l) (b) provides as follows:-

"Where under subsection 2 of Section l3 of the Judicature Statute, 1996, ary person being dissatisfied with the decision of a single Judge of the Court:-

(b) in any civil matter wishes to have any order, direction or decision of a single Judge varied, discharged or reversed by the Court;

the applicant may apply for it informally to the Judge at the time when the decision is given or by writing to the Registrar within seven days after that date."

We think that the above provision of the rule is plain. The effect is that any party who is dissatisfied with the decision of a single Judge has only one remedy: to challenge it on appeal by way of a reference to a full

Court. There is no option to bring the matter afresh in another application as Mr. Kihiika would wish us to believe.

Mr. Kihiika criticised Mr. Babigumira for failure to produce any authority that bars a single Judge from entertaining a matter that has been decided by another or the same single Judge. In our view, that criticism has no basis because rule 54 (l) (b) (supra) provides the needed authority. It provides for a right ofappeal from the decision ofa single Judge by way of a reference to a full Court. No single Judge of this Court has appellate jurisdiction over another. We find merit in this point of complaint.

Secondly, that the single Judge erred in law when he granted to the respondents leave to appeal against the final decree with the preliminary decree inclusive when the respondents had not within the prescribed period appealed against the preliminary decree. This is Mr. Babigumira,s contention. In his view, this violated section 70 of the Civil procedure Act. He also cited and relied on Chqmpion Motor Somes Vs Barclavs D C O and Another 11964l EA 385; l4/illiam lames Baker Vs Joseph Peter Rush 119641 EA 602: Samuel Kenneth Odendeal and The Offrcial Receiver Vs Richard Grav I1960l EA 263.

He submitted that in the instant case, a preliminary decree for US\$21 1,200 was entered in favour of the applicants on the respondents, admission at the beginning of the trial. The respondents did not within the prescribed period appeal against it. Therefore, to allow them to appeal against that preliminary decree when the respondents appeal against the final decree was contrary to the law.

It

Mr Kihiika disagreed with that view. He contended that there was nothing to prevent the respondents from appealing against the preliminary decree in the course oftheir appealing against the final decree. He cited and relied on Noble Builders (Il Ltd. Vs Seitco. Civit Apoeal No. 3I of 1995, Suoreme Court (unreoorteil.

Section 70 of the Civil Procedure Act provides:-

"Where any party aggrieved by a preliminary decree does not appeal from the decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree."

In our view, the above section is clear. It prohibits an aggrieved party that failed to appeal against a preliminary decree within the prescribed period from appealing against it in the course ofhis/her appealing against the final decree. The former East African Court of Anneal in Champion Motor Spares (Sunra) which originated from the High Court of Uganda, held that the appellant who did not appeal against ^a preliminary decree within the prescribed period could not appeal against it at the end of the case when appealing against the final decree. The Court stated that Section 70 of the Civil Procedure Ordinance, ^a predecessor of the present section 70 of the Civil procedure Act Cap ⁶⁵ bars such appeal. The same court made similar holdings in Kenneth Oclendoal and the oflicial Receivers (suora) and in James Baker baprd. Both these cases originated from the Supreme Court of Kenya. The defunct Eastern Africa Court of Appeal held in those cases that section 68 of the Kenya Civil Procedure Ordinance, which is in pari

t)

materia with our section 70 of the Civil Procedure Act, barred such appeal.

We agree with Mr. Babigumira that Noble Builders (Suora) is distinguishablefromtheinstantcaseonitsfactS. In@the issue was whether a party that is aggrieved by an interlocutory order made in the course of the hearing can appeal against it at the end when appealing against the final decree. In the instant case however, the question is whether a party that is aggrieved by a preliminary decree can appeal against it at the end when appealing against the final decree if he had not appealed against that preliminary decree within the prescribed period. The Supreme Court considered the distinction between an interlocutory order and a preliminary decree and it approved the following distinction drawn by the defunct Court of Appeal for Eastern Africa in F. J Mohamedbhai & Co. Vs. Abdul Chai 119521 19 EACA 38:

> "whereas a decree means the formal expression of an adjudication which conclusively determines the rights of parties, an order means the formal expression of any decision of a Civil Court which is not a decree and shall include a rule nisi."

Then it (Suprerne Court) went on to state that:

"We agree with Mr. Katende's submission that the striking out of the counter-claim was ^a relimina decree. It was therefore appealable as of right: therefore in our view an interlocutory order, striking out the counter-claim was rightly brought when the appeal was filed challenging the

l0

final decree for the purpose of avoiding multiplicity of appeals. See J. Hanninston & others Vs Mafia Ochola & 3 others, CA No. 5/l990 SC and Gurdial Sinsh Dahillous Vs Shaun Kaur 119601 EA 795. There the Court held inter alia;

"to hold otherwise might lead to a multiplicity of appeals from incidental orders made in the course of a hearing, when such matters can more conveniently be considered in an appeal from the final decree."

We think that the description that "striking out of the counter-claim" is a 'preliminary decree' above was a slip of the pen as it does not tally with the rest of the text. It should read "an interlocutory order."

In the instant case, entering judgment in favour of the applicant for US\$21 1,200 at the beginning of the trial on admission of respondents is a preliminary decree. It is not an interlocutory order. Therefore, the respondent could not appeal against it in the course of his appealing against the final decree as he had not appealed against it within the prescribed period. Consequently, the single judge who granted leave to the respondents to appeal against the final decree with the preliminary decree inclusive, acted contrary to section 70 of the Civil Procedure Act. there is therefore merit in this complaint.

These two points which cover grounds I and 2 in the Memorandum of the Reference above sufficiently dispose off the reference. We deemed it unnecessary to consider the complaint against the affidavits in support of the application.

\

In the result, the Reference is allowed with costs in favour of the applicants. The order of the single Judge granting to respondents leave to appeal is set aside. In its place, is substituted an order dismissing the application (No. 44 of 1998).

Dated at Kampala this 29 h day of March 2000. Sh ayrido S. T MANYINDO, **DEPUTY CHIEF JUSTICE.** $\mathcal{L}$ G. M. OKELLO JUSTICE OF APPEAL A. E. MPAGI- BAHIGEINE **JUSTICE OF APPEAL.**