[1997] UGSC 22

## REPUBLIC OF UGANDA

# IN THE SUPREME COURT OF UGANDA AT MENGO

(CORAM: WAMBUZI, C. J., TSEKOOKO, J. S. C. AND KAROKORA, J. S. C.)

$\cdot$

# CIVIL APPLICATION NO. 12/97

## BETWEEN

UGANDA CO-OPERATIVE TRANSPORT UNION

**APPLICANT**

#### A N D

ROKO CONSTRUCTION LIMITED

**RESPONDENT**

(Application arising from Ruling of single Judge of this Court (Karokora, J. S. C.) dated 11th Dec. 1996 in Civil Application No. of $1996$ )

REASONS FOR THE ORDER OF THE COURT:

The Uganda Co-operative Transport Union, the applicant, instituted this application under Rules 1(3), 41(1), 41(2) and 52(3) of the Rules of this Court seeking for orders that -

- the order of Karokora, J. S. C., dated 11th December $(a)$ 1996 by which he reinstated Civil Appeal No. 35 of 1995 be set aside. - (b) Civil Appeal No. 35 of 1995 be restored and heard on merits. - (c) costs of this application be provided for.

On 19th May 1997 we heard the application and allowed it. We promised to give our reasons later. We now give the reasons for our order.

Before the hearing of the application we drew the provisions of Rule 99(1) of the Rules of the Court to the attention of Mr. Kiapi, Counsel for the applicant. The application for restoration of the appeal was heard under Rule 99(1).

The grounds in support of this application are set out in the Notice of Motion in the following words:

- "(1) The appeal was dismissed on the 5th day of December 1996 but restored for hearing by an order of a single judge of this honourable court dated 11th December 1996. - (ii) The said order of the learned judge was given in error as the application for the reinstatement of the appeal ought to have been heard by a full bench. - (iii) On the day set for hearing, both Counsel for the applicant and the applicant's representatives were prevented by sufficient cause from appearing in Court in time to prosecute the appeal having been delayed when the vehicle they were using to travel to Court got a puncture and they had to call for another vehicle to bring them to this honourable Court. - (iv) The appeal involves public funds and it is in the public interest for it to be restored and heard and disposed of on the merits".

The application is supported by five affidavits. Steven Tashobya, the General Manager of the applicant, swore the first affidavit on 21st April 1997 and a supplementary one on 23rd April 1997. The third affidavit was sworn on 23rd April 1997 by Mr. Paul Palia Kiapi, the advocate who prosecuted this application. Another advocate, Kato Sekabaiya, swore an additional affidavit on 25th April 1997. A further additional affidavit was sworn on 8th May 1997 by another advocate. Mr. Mwesigwa-Rukutana. Since the application was lodged in the registry of the court on 23rd April 1997, we think that the additional affidavit of Kato Sekabaiya sworn and filed on 25th April 1997 and that of Mwesigwa-Rukutana sworn and filed in the registry on 8th May 1997 appear to have been filed without the leave of the Court or consent of the respondent as provided by Rule 43(2) which states:

"An applicant may, with the leave of a judge, or with the consent of the other party, lodge one or more supplementary affidavits. Application for such leave may be made informally".

The two advocates who made these two affidavits ought to have known But. this. A us this matter was not raised by the respondents we do not desire to make further observation on the matter. We however, note that the standard of drafting Tashobya's affidavits was far from the ideal.

The brief background to this application is this. Civil Appeal No. 35 of 1995 was listed before us for hearing on 5th December 1996. Neither the appellant nor its representative appeared when the appeal was called on for hearing. We dismissed the appeal. Thereafter the applicant instituted Civil Application No. 26 of 1996. (The parties were the same as they are in the present application). That application was placed before a single judge (Karokora, J. S. C.). On 11th December 1996 Counsel for the respondent did not oppose the application. Karokora, J. S. C., made an order under Rule 99(1) of the Rules of this Court restoring the appeal. The application under Rule 99(1) should have been causelisted before the full court not a single judge of the Court as was done. Mr. Tumusinguze, learned Counsel for the respondent concedes this point. This is because by virtue of the proviso to Rule 99(1), it is the Court which dismissed the appeal which should decide whether or not to restore the appeal. Sub-rule (1) of Rule 99 reads as follows:-

> $199(1)$ If on any day fixed for the hearing of an appeal, the appellant does not appear, the appeal may be dismissed and any crossappeal may proceed, unless the Court sees it fit to adjourn the hearing:

> > Provided $\cdots$ /4

Provided that where an appeal has been so dismissed ................... the appellant may apply to the Court to restore the appeal for hearing, $\vdots$ .................................... that he was pevented by any sufficient cause from appearing when the appeal was called on for hearing".

In order to correct the record we set aside the order of the single judge dated 11th December 1996.

The major contention in this application was whether the appeal should be restored. Mr. Kiapi for the applicant ugued us to restoration the appeal. Mr. Tumusinguze for the respondent argued against restoration.

The grounds in support of the application to restore the appeal are set out in paragraphs 2 to 6 of the affidavit of Mwesigwa-Rukutana

as follows:

- "2 That on the 5th day of December 1996 when Civil Appeal No. 35 of 1995 came for hear-<br>ing, myself, the General Manager and the Chief Accountant of the appellant Co-operative Union arrived at the Court premises at around $9.35$ a.m. and entered the Court room at around $9.37$ a.m. - That the reason why all the three of us 3 came to Court late was that, having left our chambers on Plot No. 90 Bombo Road together at around $9.10$ a.m. in the Chief Accountant's motor-vehicle Toyota Double Cabin Pick-up e.g. No. UPY 416, we were delayed when the said motor-vehicle got a puncture of the left rear tyre some few metres from Old Kampala Police Station. - 4 That because the said vehicle did not have a spare tyre, and because there were no taxis coming direct to Court, the only diligent thing to do was to ring my office on the mobile phone to send my personal vehicle. It took my driver about 15 minutes to get to us, and it took another 5 minutes to get to the Court premises. - That we entered the Court room at around $5$ $9.37$ a.m. only in time to see their Lordships take their leave after dismissing the appeal for want of prosecution and adjourning the Court.

- 5 - 6 That neither myself nor my clients acted negligently when we came late as the unfortunate occurrence of the tyre puncture was neither in our anticipation nor control. - 7 That the Appellant Company is a public body and over shillings $100,000,000/=$ of public funds is at stake. It would therefore be in public interest for this appeal to be reinstated and disposed of on its merits".

Mr. Kiapi relied on the various affidavits and the reasons set out in Mwesigwa-Rukutana's affidavit. Paragraphs 2 to 8 of that affidavit have just been reproduced above.

In opposing the application to restore the appeal, Mr. Musinguzi submitted that the present application which was filed on 23rd April 1997 is time barred because Rule 99(3) requires an application for restoration to be made within thirty days of the decision of the Court. Secondly learned Counsel contended in effect that the officials of the applicant and its Counsel took a deliberate risk by not travelling to Court early and further by riding in a vehicle which had no spare tyre.

We entirely agree with Mr. Tumusinguzi that the officials of the applicant and its Counsel took a deliberate risk in taking a ride to Court too late and in a vehicle which had no spare tyre. Motorists in Kampala know the problems of traffic jams in the City. It was most imprudent on the part of Counsel and his clients to have left his Chambers on Bombo Road at 9.10 a.m. when he knew or ought to have known that this Court commences hearing appeals by 9.30 a.m. prompt. Therefore we think that the late arrival in Court because of the puncture does not on the facts constitute sufficient cause.

In a way we also agree with Mr. Tumusinguzi that the present application was filed out of time. Sub-rule (3) of Rule 99 in so far as it is relevant states that -

An $\cdots$ /6

"99(3) An application for restoration under<br>the proviso to Sub-rule $(1)$ .................................... shall be made within thirty days of the decision of the Court .....................".

It may be arguable that this provision does not provide for extension of time to apply for restoration out of time. As we have indicated earlier, the present application was filed on 23rd April 1997. Since we dismissed the appeal on 5th December 1996, the application for restoraought to have been filed by or before 22nd January 1997. But there are circumstances peculiar to this matter. Firstly after we dismissed the appeal on 5th December 1996, the applicant instituted Civil Application No. 26/96 on the same day (5th December 1996) seeking the restoration of the appeal. Through the error of the court, that application was cause-listed for hearing and the same was heard and disposed of by a single judge on 11th December 1996. Then on 13th February 1997, by written memo the Registrar of this court explained the matter as follows:

#### "INTERNAL MEMO

From: Registrar, Supreme Court To: The Hon. the Chief Justice Subject: Civil Appeal No. 35 of 1995 Date: 13th February, 1997.

The above appeal was dismissed by a full bench on 5th December 1996 due to lack of prosecution.

Thereafter counsel for the appellant made an application for reinstatement of the appeal and by mistake we placed it before a single Judge who allowed the application and reinstated the appeal.

After causelisting the appeal, we realised that the application should have been presented to a full bench as required by proviso to Rule 99 of the Rules of this Court.

$\epsilon$ -

$\bullet \quad \ldots \quad \bullet$

This in effect means the appeal remains dismissed until the appellant obtains an order of the Court that dismissed the appeal, reinstating it.

This is therefore to inform you that the appeal has been removed from the causelist and by copy of this memo the Justices of the Supreme Court are informed. This now leaves $20/2/1997$ a free day.

### ELLY TURYANUBONA REGISTRAR, SUPREME COURT.

c.c: Justices of the Supreme Court".

In consequence we had to correct the error by vacating the order of the single judge which we have already done.

By vacating the order of the single judge we have recognized correctly the error of the Court. As the applicant had acted promptly in instituting the first application (No. $26/96$ ), we think that we can exercise our discretionery powers under Rule $1(3)$ of the Rules of this Court to make such order as may be necessary for the ends of justice. Ends of justice will be served by allowing the application. We also think that the facts of this application make it appropriate for us to apply the provisions of Article $126(2)(e)$ which states that -

"126(2) In adjudicating cases of both a civil and criminal nature, the courts following principles -<br> (e) Substantive jestite shall be administered without<br> (e) Substantive jestite shall be administered without<br> In our view here the applicant had initially complied with the shall, subject to the law, apply the

requirement of the rules of the Court by filing the first application which was dealt with by error. We think that if we reject the present application on account of it having been filed out of time when this was done in consequence of an error of the Court, we would be paying undue regard to technicalities.

For $\cdots$ /8


For the foregoing reasons we allowed this application with costs tothe Respondent.<br>Delivered at Mengo this .....................................

$S$ . W. V. Wambuzi,

Chief Justice.

Justice of the Supreme Court J. W. N. Tsekooko,<br>Justice of the Supreme Court.

A. N. Karokora.<br>A. N. Karokora.<br>Justice PJ the Supreme Coust.