[1996] UGSC 37

## IN THE SUPREME COURT OF UGANDA AT MENGO

## CIVIL APPLICATION NO. 14/1996

**BETWEEN**

$KIAPI$ $\epsilon_{LL}$ $P_{\mathcal{A}}(I)$

APPLICANT UGANDA DEVELOPMENT BANK

AND

$\ldots$ RESPONDENT OIL SEEDS (U) LTD ......................

## RULING

This is an application for extension of time to Lodge Notice of grounds for affirming decision. The application is made under Rules 4 and 42 (1) (2) of the Rules of this Court.

$\overline{z}$ The grounds for this application are:

- (1) Former Counsel by inadvertance or not being aware of the celebrated principle that a party cannot approbate and reprobate did not lodge the Notice of grounds for affirming a decision within the prescribed period after service of the record and Memorandum of Appeal. - (2) After the present Counsel had got instructions, genuinely thought that he could make an Oral application for extension of time within which to lodge the said Notice in Court when the Appeal came up for hearing.

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- (3) Former Counsel's inadvertance and or failure to lodge the said Notice cannot be visited on the respondent Bank. - $(4)$ The present Counsel's erroneous decision to make an Oral application in Court when the appeal came up for hearing cannot be visited on to the Respondent Bank.

The application is furthermore supported by the affidavits of Mr. Blaze Babigumira and Mr. Sam Mayanja.

Mr. B. Babigumira anerred inter alia as follows:

- $(1)$ That on the $7/11/95$ the Respondent Bank instructed our firm to represent the Bank in Civil Appeal No. 23/1995 which had been fixed for hearing on the 19th December, 1995 (Photocopy marked A). - That when I interviewed the legal Manager as $(2)$ I prepared for opposing the appeal I discovered that prior to filing the appeal the appellant had requested for and received payment in full settlement of the award plus Counsel's costs. - (3) That I also discovered that the Late Jonathan Kateera who had been instructed to oppose the appeal had not lodged the Notice of grounds for affirming decision within 30 days after service of the record and Memorandum of Appeal on the grounds that the appellants could not approbate and reprobate.

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1000年1月20日 年 日 日 日 日 日 日 日 日 日 日 日 日 日 日 日 日 日 日

- (4) That I decided to make an oral application in Court on the $19/12/95$ to lodge the said Notice out of time, and on the 18th December 1995 I gave the said Notice to that effect (Photocopy Marked B). - (5) That I also thought that on the authority of B. Bilimoria & Anor V. T. D Bilimoria (1962) E. D 198 there was no right of appeal and I decided to raise the preliminary objection first because if it was upheld it would dispose of the appeal. I did raise the preliminary objection but it was over ruled. - (6) That I then decided to make an oral application to lodge the Notice of grounds for affirming decision in Court when the appeal came up for hearing. The appeal was fixed for hearing on $-5 - 96$ and I gave a second Notice. When I made the oral application the Court appeared bent on a formal application being made and I abandoned the oral application hence this application under the provision of the Law stated. - (7) That former counsel's oversight or mistake in not lodging the Notice within time cannot be visited on the Respondent Bank which has been very vigilant and in opposing the appeal. - $(8)$ That my decision to make an oral application to lodge the Notice in Court was possible and its not being supported by the Court cannot be visited on the vigilant Respondent Bank. - That I have not been guilty of any dilatory conduct $(9)$ on my part.

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Then Mr. Mayanja anerred in his affidavit sworn on $31/5/96$ as follows:

- That I am the legal Manager and now Ag. Bark $(1)$ Secretary of UDB with authority to shear to affidavit. - That the Bank (UDB) instructed M/S Hunter $(2)$ and Greif now M/S Kateera Kagumire & Co. Advocates to handle the Arbitration proceedings between the Bank and M/S Oil Seeds (U) Ltd. - $(3)$ That at the conclusion of the proceedings Mr. Jonathan Kateera of Hunter & Greig wrote to me to say that M/S Oil Seeds (U) utd. wanted the money the arbitrator had awarded them together with their Counsel's costs. I addressed a Memo to the Managing Director and he approved payment. - (4) That $M/S$ Oil Seeds were paid the total amount of the award to the tune of UG. Shs. 30, 208, $424/$ = through M/S Byamugisha and Rwaheru Advocates vide cheque No. 073329 dated $1/9/94$ plus UG. Shs. 5037, 144/= being Counsel's fees and in the names of the same firm. - $(5)$ That I swear this affidavit in support of air an application for extension of time within which to lodge a Notice of grounds for affirming a decision.

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At the hearing of this application, Mr. Babigumira rehearsed the motion, the contents of his affidavit and that of Sam Mayanja and invited me to extend time within which to file Notice of grounds for affirming decision. It was submitted that this was a legal matter. After the applicant had instructed its Lawyer to file an appeal who was supposed to handle all legal aspect of the matter, including filing Notice of grounds for affirming decision. Having instructed Late Mr. Katera to file appeal, it was incumbent on him to ensure that he took all legal aspects to do what was legally necessary. Next it would be Mr. Babigumira to file the Notice within the stipulated period after he had been instructed. Instead of filing a formal application, he made oral application but his oral application was not allowed.

Mr. Babigumira contended that a vigilant litigant should not be penalised because of the negligence or mistake of his Counsel. He cited the case of Mary Kyamulabi v Ahanda Zirondumu Civil Appeal No. 1/1978 U/CA Zamu Nalumansi and Anor V Sulaiman Lule C. A. No. 2/1993 (S. C.) unreported. Izaak Bishari V Vitafoam C. A. No. 2 of 1994. However, in the instant case, there was no negligence on the part of the Counsel, but rather interpretation or appreciation of the law. He contended that he had made oral application in reliance on Civil Application No. 5/1982 Edward Kibarama but the Court did not permit him to do so.

Although likelihood of success is not a ground for extension of time, nevertheless it is much better if you can show likelihood of success or show that you have an arguable case. Mugo Wanjuru (1970) EA 481, Florence Nabatazi v Naome Binsobede Civil Appeal No. 6/1987 (unreported)

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In this case, Mr. Babigumira contended that appellant/ respondent cannot approbate and reprobate. The authority for the above proposition is Dextrers Ltd & Hillcrest Oil Co. Bradford (1925) ALL ER 273.

It was submitted that although the above cases are from another jurisdiction and therefore do not bind this Court, they are show likelihood of success and show that the case is arguable.

Another point was that UDB is a public body. It handles public funds and business and if they are to handle collassol amount of money, all possible steps should be exhausted and determind on merits. Therefore extension of time should be granted so that the matter is determined on merit. He referred me to C. A. No. 90 of 1990 A. G. V Oriental Construction Co. Ltd.

Lastly, he continued if Article 128 (1) of the 1995 Constitution has got to have meaning at all, it should not The Court give unfair advantage and unfair enrichment. should not permit this type of unfair enrichment. He therefore prayed for extension of time with costs to applicant.

Against the above submission, Mr. Byaruhanga submitted that Mr. Babigumira's affidavit in support of the application and the annextures thereto were false and that the falsity were intended to mislead the Court. In the affidavit, he contended that it was false to say there was a hearing date fixed for this case in May 1996 as averred in paragraph 7. Further, it was also false for Annexture B to Mr. Babigumira's affidavit to say in paragraph 1 that the appeallant was paid on $1/9/95$ after, the appeal was filed, because, according to Annexture B, C and D to Mr. Mayanja's affidavit, any payment that was made was on 1/9/94 but not in 1995. It was argued that this was evidence of delator conduct on the part of the applicant and Counsel which would be a ground for disentitlement of extension of time to file application.

$...17$ In order to prove that the applicant and their Counsel were guilty of dilatery conduct, it was submitted that the firm of Katureebe and Twinomukenzi & Co Advocates were not new to this case. They together with Katera & Kagumira Co. Advocates handled the case together. Katureba & Twinomukunzi acted as consultants in that case. In paragraph 8 of the affidavit in reply, Twinomukunzi told Twagira that they acted as consultants and advocates for Respondent Bank. In paragraph 7 of the reply of Twagira's affidant, Late Twinomukunzi on 17/2/95 did appear at page 247 of the record of proceedings before the High Court as representing the UDB. In other words, it was submitted that Babigumira and Twinomukunzi had always acted for the applicant even at the time the case was being handled by Mr. Katera & Co Advocates. Mr. Byaruhanga submitted that Annextures M & B and M & D show that they were the same.

Therefore a delay which is not explained will, according to the case of Clouds 10 Ltd v Standard Bank Itd. C. A. No. 35/1992 (S. C.) (unreported), cause refusal of extension of time.

On approbation and reprobation it was contended that in the instant case approbation and reprobation were not likely to succed, because they are not applicable as the award was divisible. It was contended that it had two parts and each was independent of the other. He referred to the case of $\frac{N_{\text{ational Union of Clerical Commercial}}}{N_{\text{ational Union of } \text{Curical Commercial}}}$ and Technical Employees V Uganda Bookshop (1963) E A 533 and W. J. Tame Ltd V Zagontis Estate Ltd (1960) E A 370 which states that if awards are senerable, approbation and reprobation would not be applicable.

Coming to the two affidavits, Mr. Byaruhanga submitted that these should not be relied upon, because they are contradicting each other. For instance, the dates on the cheques are clear, that is; $1/9/94$ . Yet the deponent has no cause to say payment was on 1/9/95, thereby misleading the Court.

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The document seeking to change the date is contained in Mr. Babigumira's 2nd affidavit, that is; Annexture BC, but it was contended that no amount of explanation would change the contents of the affidavit.

I have carefully considered the application, affidavits in support of the application, one sworn and mother one by Mr. Mayanja on one hand and the other one sworn by Ar have Mr. Twagira for respondent and submissions of both Counsel on this application, there is no doubt that there was an Arbitration proceedings to resolve dispute between appellant and respondent. There is no doubt that the award and the costs were paid in full settlement on $1/9/94$ on request by the appellant/respondent through $M/S$ Mubiru & Bitangoro Advocates. If the applicant/respondent desered to contend on appeal that the decision should be affirmed, Rule 91 (1) (2) of the Rules of this Court permitted them to file Notice of the grounds for affirming the decision within 30 days. From the Motion and the affidavit sworn in support of the motion allege that the applicant never did. And Mr. Babigumira averred in his affidavit that through inadvertance or not being aware of the principle that a party cannot approbate and reprobate the lawyer who was instructed to defend the applicant/respondent on appeal did not lodge the Notice of ground for affirming the decision within the stipulated period after service of the record and Memorandum of Appeal. Mr. Babigumira further averred that he was instructed to handle the appeal after Katera had died. After he had taken on the case, he filed a preliminary application on

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a point of law seeking to have the appeal struck out on the authority of Bilineoria & Anor v Balimoria $(1)62$ EA 198, which application he honestly believed would i. dispose of the appeal, but he was aver-ruled. He thereafter immediately made an oral application to lodge the Notice of grounds for affirming the decision in Court when the appeal came up for hearing. The Court was inclined to a formal application and hence the application.

It must be noted that the applicant instructed Late Katera to defend the appeal, I think in time. If he failed to take necessary legal steps, the omission, in all fairness, should not be visited on to the applicant. If Mr. Babigumira, after taking on the appeal, indulged in unnecessary legal procedure which contributed to further delay, must this be visited on to the applicant/respondent who is vigilant to have the appeal defended?

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I think that in all fairness, a vigilant litizent should not be penalised for errory, emission and delay. conmitted or caused by high it Inver. I would hereof a passage in Essajs v Solumbi 1968 - A 210 at pare 274 where the defunct East African Court of Argeel bold:

"The administration of incode sensity states" at that the substance of all disputes should to invest $\mathbb{L}\oplus\mathbb{C}$ and decided on their merits and that errors and lapses should not necessarily debar a litizant from the pursuit of his rights. $^{\rm II}$

I think the above passage has had the force of the 1995 Constitution in Uganda, under Article 128 (2) (e) where it is provided as follows:

"In adjudicating cases of both a Civil and Criminal nature, the Courts shall, subject to the law, apply the following principles.

Substantive justice shall be administered without undue regard to becluicalities."

I think, it would be deplocable for a virilant lititable be penalised by refusing him/her to take a necessary ster to defend the appeal, merely because his lawyer was not the appeal. careless, when the litigent had no control over bin slien.

I would in the circumstances, follows the view and the views expressed in Eatle . V. Shoosmith (1930) $\pm$ 445 K 916, Din V. Ram Parkash Anand 1955 22 EACA 48, Eary Asemulahi. V. Ahamad Zirondomi Civil Application No. 41/1979 T/C (unreported), Zamu Nalumansi & Anor V Sulaimani Lule Divil Application No 2/1993 (S. C) and Izaek. Bishari V Vitafoam unreported.

Further more, hearing in mind the above views, I think that the error in the dates where the cheque is allered to have been paid on 1/9/95, instead of 1/9/94 would affect applicant's case, if the wren, date was designed to course

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fraud, but in this case, the appellant are not dening having received the cheque. This was an error by counsel for applicant which should not be visited on applicant, because the fact is that appellants received the cheques.

On the Katureebe and Twinomukurizi & Co. Advocates having been acting for Applicant when the case was before Arbitration/lower Courts, I am satisfied from perusal of the affidavits of Mr Twagip(on one hand and those of Mr Mayanja on the other hand, that Twinomukurizi acted for $^\prime$ the applicant in his private capacity as a consultant in the $\Lambda$ names of R & T Association, but as Katureebe & Twinomukurizi & Co. Advocates. So when he appeared on record of proceedings $% \mathcal{L}_{\mathcal{A}}$ at page 247, he appeared as representing UDB as a consultant whilst Kanyumibwa appeared for Defendant/the present applicant.

Lastly, although likelihood of success is not a Ground for extension of time, it is nevertheless much better if it can be shown or be shown that there is an arguable case. Mugo V Wanjiro (1970 E. A 481. And on the fact of it, if the appellant did receive the award and the costs, they cannot on the authority of Dextrers Ltd Hillcrst Oil Co. Bradford Ltd (1925) All E. R 273 approbate and at the same time reprobate. Mr Byaruhanga submitted that the principle of approbation and reprobation would not arise where award was $% \left\vert \mathbf{v}\right\vert$ divisible. However, with due respect he did not go further to show how the award was divisible. In the circumstances, I would not uphold this submission.

All in all, I am satisfied that this is a case where discretion should be exercised by this court so that time $% \left\vert \mathcal{L}\right\vert$ is extended to allow the applicant to file necessary Notice $% \left\vert \mathcal{A}\right\vert$ as required by law as sufficient cause has been shown for the $% \left\vert \mathcal{L}\right\vert$ delaydox. Notice must be filed within 7 days, from the date of this Ruling. According; ly, application is hereby allowed. However, the applicant must pay respondent's costs for this $\frac{1}{2}$

$\mathcal{W}$ Dated at Mengo this day of November, 1996

A. N. Karokora

JUSTICE OF SUFREME COURT

Registrar of Supreme Court directed to deliver this ruling.

N. Karokora JUSTICE OF SUPREME COURT

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Mr. Babynning for the Fighter<br>Mr. Paul Bygundege for threesp. An. Empre manama cont clera. Rup delivered as lirected. $15/11/56$