[2020] UGSC 55

# **THE REPUBLIC OF UGANDA**

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

## *Coram: Hon. Justice Muhanguzi, JSC*

## **CIVIL APPLICATION NO. 25 OF 2020**

#### **⁵ BETWEEM**

### **1. THE RED PEPPER PUBLICATIONS LTD**

**APPLICANTS 2. THE EDITOR IN CHIEF, THE RED PEPPER**

#### **AND**

### **RTD CHIEF JUSTICE SAMUEL W. WAKO WAMBUZI RESPONDENT.**

### **io RULING OF MUHANGUZI, JSC**

This is an application by notice of motion brought under Rules 2(2), 5 of the Rules of this Court, section 33 of the Judicature Act Cap. 13 and section 98 of the Civil Procedure Act. The application seeks extension of time within which to file and serve ^a notice of appeal againstthe decision

**15** of the Court of Appeal in Civil Appeal No. 0128 of 2017. The application further seeks that the filing of the notice of appeal out of time against the decision of the Court of Appeal be validated. The application also seeks that costs be provided for.

The grounds of the application are stated as follows: -

- **20** *1. That the applicants filed Civil Appeal No. 0128 of 2017 in the Court of Appeal at Kampala against the High Court decision by Hon. Basaza Wasswa, ^J delivered on the 4th day of May 2017 in Civil Suit No. 0305 of 2015.* - *2. That the decision ofthe Court ofAppeal was delivered on the 20th July 2020* - **25** *3. That dissatisfied with the judgment, the applicants immediately instructed theirformer counsel Okua & Associates to file an appeal against the same.*

- *4. That the applicants tried tofollow up with the said lawyersfor the updates, and what they expected from them, in form of evidence or otherwise but their silence prompted the applicants to instruct another lawyer, to wit my present advocates, Allan & Festo Advocates.* - *5. That upon inquiry and perusal ofthe record, the said lawyers informed the applicants that the later were supposed to file a notice ofappeal within 14 days from the date ofJudgment which notice was neverfiled and that they were out oftime.* - *6. That the applicants asked the said lawyers to do whatever they could legally to challenge the same, ifpossible.* - *7. That on the very date of the communication, to wit 13th August 2020, pursuant to the applicant's instructions, the said lawyers filed a notice of appeal but informed the applicants that they had to apply to court for extension of time and validation of the same, and the process accordingly commenced.* - *8. That there is sufficient cause warranting the grant of the sought prayers.* - *9. That the intended appeal raises serious questions of law meriting judicial consideration by the appellate court.* - **45** *10. That the applicant has strong grounds ofappeal as listed in the affidavit in support ofthe application.*

*11. That it is in the interest ofjustice that this application is granted.*

The application is supported by an affidavit sworn by Johnson Musinguzi c/o M/s. Allan & Festo Advocates. He stated in the affidavit as follows: -

- **50** "1. *That I am a male adult Ugandan of sound mind, a director at the 2nd applicant company, the capacity in which I swear this affidavit.* - 2. *That the applicants filed CivilAppeal No. 0128 of2017 in the Court of Appeal at Kampala against the High Court decision by Hon. Basaza Wasswa, ^J delivered on the 4th day ofMay 2017 in Civil Suit No. 0305 of2015.* - *3, That the decision of court of appeal was delivered on the 20th July 2020.*

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- *4. That dissatisfied with the judgment, on behalf of the applicants, I immediately instructed myformer counsel Okua & Associates to file an appeal against the same.* - **5.** *That I tried to follow up with the said lawyers for the updates, and what they expected from me, in form of evidence or otherwise but their silence prompted me to instruct another lawyer, to wit my present advocates, Allan & Festo Advocates.* - **65** *6. That upon inquiry and perusal ofthe record, the said lawyers advised me that the applicants were supposed to file a notice of appeal within 14 days from the date ofjudgment which notice was never filed and that I were out oftime.* - 7. *That the communication sent to me into utter shock, reflecting on the irreparable damage the applicants were going to face consequently.* - *8. That I asked the said lawyers to do whatever they could legally to challenge the same, ifpossible.* - *9. That on the very date ofthe communication, to wit 13th August 2020, pursuant to my instructions, my said lawyers filed a notice ofappeal but informed me that I had to apply to court for extension of time and validation of the same, and we accordingly commenced on the process.* - *10. That getting the files from my former counsel initially proved problematic seeing my present counsel take steps to personally access the same.* - *11. That with a haste he commenced on the preparation of the present application.* - *12. That the applications are highly desirous of challenging the said decision since it affects their rights and interest.* - **85** *13. That as a lay person in matters oflaw, I did not know the procedure for even timelinesfor challenging such a decision, thus initially relied on the advice and skills of my former counsel, before I felt I should*

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*seek a second opinion, due to the reduced response/communication by the said lawyers.*

90 **14.** *That as per the advice from my lawyers, Allan & Festo advocates which I believe to be true, I have strong grounds warranting the settling aside ofthe said decision and briefly are;*

- *a. The learned Court of Appeal Justices failed to properly evaluate evidence adduced leading to an erroneous decision.* - *b. That in the alternative, without prejudice, the learned Court of Appeal Justices wrongly applied principles of law governing the grant ofdamages awarding excessive damages.* - *That in further alternative, without prejudice, the learned Court ofAppeal Justices erred in law when they upheld and granted exemplary damages in a case where they were not deserving.* - *15. That it is in the interest ofjustice that this application is granted.* - ¹⁰⁵ *16. That this application has been filed without undue delay.* - *17. That as advised by lawyers Allan & Festo Advocates, the intended appeal raises serious questions of law that merit judicial consideration by the appellate court.* - *18. That if this application is not granted the applicants shall suffer irreparable damage.* - *19. That whatever is stated herein above id true and correct to the best of my knowledge and belief save for the information whose sources I have disclosed.* - *20. That I swear this affidavit in support of the application for extension oftime within which to file a notice ofappeal."*

100 *c.*

The application was opposed by the respondent. The affidavit in reply was sworn by David Mukiibi Semakula of c/o MMAKS Advocates. He averred as follows: -

- *"1. That I am an advocate practicing with the firm of MMAKS Advocates instructed by the respondent herein. I am conversant with the facts and law involved in this application and I am thus instructed and competent to swear this affidavit on behalf ofthe respondent.* - *2. That on the 20th July 2020 judgment was delivered in the presence of both parties and their lawyers by the Court ofAppeal in C. A. C. A No. 128 of 2017. The Court ofAppeal decision was pursuant to an appeal from the decision oflady Justice Basaza Wasswa in HCCS No. 305 of2015. The following was ordered by the Court ofAppeal:* - /. *The applicants are to pay to the respondent general damages for libel in the sum of Ug. Shs. 150,000,000/= reduced from the trial court's award of UGX 375,000,000/=* - *ii. The trial court's award of Ug. Shs. 50,000,000/= in exemplary damages as against the applicants was maintained.* - 135 *Hi. The respondent was awarded* % *ofthe costs in the Court ofAppeal and all the costs in the High Court.* - *3. That a preliminary objection on a point of law shall be raised at the commencement of the hearing that pursuant to the concurrent jurisdiction provision in rule 41(1) of the Supreme Court Rules S.l 13-11, this application for extension oftime to file a notice of appeal ought to have been made to the Court of Appeal first before filing it in this honorable court. Having not done so this application is barred in law and should be dismissed with costs.* - *4. That without prejudice to the above preliminary objection, the respondent avers that the applicants filed a notice of appeal on 13th*

*August 2020 being ten (10) days after3rdAugust 2020 being the last day forfiling a notice ofappeal in this matter.*

- 5. *That the applicants make bare allegations ofhaving communicated with itsformer lawyers and with its current lawyers on various dates without stating the dated and without attaching any proof of that communication.* - *6. That for a matter of such importance, the applicants would have been vigilant in challenging the decision of the Court of Appeal if they genuinely intended to do so. It cannot now blame such lack of vigilance on its former lawyers.* - *7. That applicants have failed to show sufficient cause for extension of time within which to file a notice ofappeal.* - *8. That in any event, the intended appeal has little to(sic) no chances of success.* - 160 - *9. That what is stated herein is true and correct to the best of my knowledge."*

165 170 The brief background of this application is that the applicants filed Civil Appeal No. 0128 of 2017 in the Court of Appeal against the High Court decision by Hon. Basaza Wasswa, ^J delivered on the 4th day of May 2017 in Civil Suit No. 0305 of 2015. Dissatisfied with the Court of Appeal decision, the applicant instructed their lawyer then (Okua & Associates) to file an appeal to this court. The lawyers did not do so until the applicant instructed Allan & Festo Advocates who upon review of the record found that the intended appeal would be out of time hence this application. However, there is ^a notice of appeal filed in relation to the intended appeal before this court. The applicant therefore seeks to validate it.

# 175 **Representation.**

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At the hearing of this application, learned counsel, Mr. Allan Bariyo, represented the applicants while learned counsel, Mr. Timothy Lugayizi, represented the respondent. Mr. Dickens Byamukama, the applicants' legal officer was present in court. Both counsel filed written submission.

# 180 **Submissions for the applicants.**

Counsel for the applicants submitted that from the affidavit evidence on record, the delay in filing the notice of appeal was ^a mistake of the applicants' former counsel. Counsel added that mistake of counsel should not be visited on the applicants. In support of this argument, he

185 cited **Horizon Coaches Ltd Vs. Edward Rurangaranga & Anor. S. C. C. A No. 18 of 2009.**

Counsel urged court to invoke Article 126 (2) (e) of the Constitution in order to administer justice. He argued that the Court of Appeal did not properly re-evaluate the evidence thus reaching ^a decision that was detrimental to the applicants.

In the alternative but without prejudice, counsel contended that the awarded damages were excessively high. Further, that the damages awarded were not in line with the underlying principles of awarding damages.

- 195 Counsel further stated that this application was brought without unreasonable delay and that the steps taken by the applicants show the willingness and desire to appeal against the Court of Appeal decision. Counsel finally argued that the delay of 9 days did not occasion any prejudice to the respondent. - 200 Counsel prayed court to allow the application and validate the notice of appeal filed out of time.

## **Submissions for the respondent.**

205 210 Counsel for the respondent raised ^a preliminary objection on ^a point of law. Counsel pointed out that this application is incompetent before this court because it out to have been filed first in the Court of Appeal. He cited rule 41(1) of this court's rules which provides for concurrent jurisdiction of this Court and the Court of Appeal. Counsel also cited rule 72(1) of this court's rules which is to the effect that any person who desires to appeal to this court shall give notice in writing lodged in duplicate with the registrar of the Court of Appeal. In support of this argument, counsel relied on **Lawrence Misiitwa Vs. Eunice Busingye, S. C. C. A No. 18 of 1990.**

Counsel submitted that since the applicants have not proved any special circumstancesto justify this courtto hearthis application. He asked court to dismiss the application with costs.

Without prejudice to the preliminary objection, counsel submitted that the applicants have failed to prove sufficient cause for late filing of the notice of appeal.

#### **Applicants' submissions rejoinder**

220 Counsel submitted that rule 5 of this court's rules empowers court to extend time within which to perform ^a particular act. According to counsel, this court holds the same power to allow this application.

He reiterated his earlier submissions and prayers that the applicant has proved sufficient cause and that this application should be allowed.

#### ²²⁵ **Consideration**

Rule 5 of this court's rules among others, under which this application was brought provides as follows: -

### 5. *Extension oftime.*

*The court may, for sufficient reason, extend the time prescribed by these Rules or by any decision of the court or ofthe Court ofAppealfor the doing of any act authorised or reguired by these Rules, whether before or after the expiration ofthat time and whether before or afterthe doing ofthe act; and any reference in these Rules to any such time shall be construed as a reference to the time as so extended.*

The above power given to court under the above rule is discretional. Before it is exercised court ought to find that sufficient reason has been shown by the applicant for not doing what he was supposed to do after the pronouncement of the judgment of the Court of Appeal. See: **James**

240 **Bwogi** & **son's Enterprises Ltd Vs. Kampala City Council & Kampala District Land Board, Supreme Court Civil Application No. 9 of 2017.**

Before ^I consider the merits of this application, ^I will first address the respondent's preliminary objection. The respondent raised a preliminary objection on ^a point of law that the applicant ought to have first filed this application to the Court of Appeal before filing it in this court.

Counsel for the respondent cited rules 41(1) and 72(1) of this court's rules. They provide as follows: -

#### *41. Order of applications to the court and to Court ofAppeal.*

*(1) Where an application may be made either to the court or to the Court ofAppeal, it shall be made to the Court ofAppeal first,* (emphasis added)

72. *Notice of appeal.*

*(1) Any person who desires to appeal to the court shall give notice in writing, which shall be lodged in duplicate with the registrar ofthe Court of Appeal,* (emphasis added)

The above reproduced rules are coached in a mandatory manner. It is ^a procedural requirement by rules that ^a notice of appeal shall be filed in the Court of Appeal first before it is filed in this court as well as this application.

260 In the event that the Court of Appeal delays or denies to grant the application, then, the applicants would bring the application to this court under rule 5 of this court's rules.

265 270 Counsel for the respondent cited **Lwarence Musiitwa Kyazze Vs. Eunice Busingye, Supreme Court Civil Application No. 18 of 1990** in opposition of the application. ^I find it helpful in resolution of this objection. Although it was an application for stay of execution unlike in the instant case, this court labored to interpret the provisions of rule 41 of the rules of this court. In that case counsel forthe respondent objected to the application for stay of execution on the ground that the applicant had not made the application first in the High Court. The Supreme Court stated thus;

> *"There must be substance to the application both in form and content; this court would prefer the High Court to deal with the application for stay on its merits first, before the application is made to the Supreme Court. However, if the High Court refuses to accept jurisdiction, or refuses jurisdiction for manifestly wrong reasons, or there is great delay, this court may intervene and accept jurisdiction in the interest ofjustice.*

*This court may in special and probably rare cases entertain an application for a stay before the High Court has refused a stay, in the interests ofjustice to the parties. But before the court can so act it must be appraised of all facts."*

. <

The applicants in this application did not show whether or not they filed ^a notice of appeal nor an application for extension of time in the Court of Appeal first. Further, the applicants did not show that the Court of Appeal denied the application hence the instant application. Therefore, ^I do not find any special circumstance that warranted the applicants to

file this application in this court before filing it at the Court of Appeal. ^&gt; find and hold that this application is incompetent and barred in law.

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Having found that the applicants ought to have first filed this application in the Court of Appeal, ^I find no reason to address the merits of the application.

Dated ta Kampala this In the result, ^I strike out this application with costs to the respondent, day of..................................... 2020.

Ezekiel Muhanguzi **JUSTICE OF THE SUPREME COURT.**

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file this application in this court before filing it at the Court of Appeal.! find and hold that this application is incompetent and barred in law.

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Having found that the applicants ought to have first filed this application in the Court of Appeal, ^I find no reason to address the merits of the application.

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In the result, ^I strike out this application with costs to the respondent. Dated ta Kampala this day of.................................. 2020.

Ezekiel Muhanguzi **JUSTICE OF THE SUPREME COURT.**

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