Attorney General v Alima Santos and 676 Others (Civil Reference No. 117 of 2013) [2013] UGCA 2055 (13 September 2013)

Full Case Text

# THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

### **CIVIL REFERENCE NO. 117 OF 2013 – 09-05**

## (ARISING OUT OF CIVIL APPLICATION NO. 66 OF 2013)

#### CORAM: HON. JUSTICE E. MWANGUSYA, J. A.

ATTORNEY GENERAL::::::::::::::::::::::::::::::::::::

#### **VERSUS**

1. ALIMA SANTOS 2. JOHN S. SSENTONG

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(ON THEIR OWN BEHALF AND ON BEHALF OF 675 OTHERS)

#### RULING OF HON. JUSTICE E. MWANGUSYA, J. A.

This matter came up for hearing by way of reference from the decision of Her Worship Ssali Harriet Nalukwago, Asst. Registrar Court of Appeal in Civil Application No. 66 of 2013 wherein she declined to grant an application for enlargement of time within which to lodge and serve a Notice of Appeal.

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The back ground of this matter is briefly that the Respondents filed HCCS declaration that the plaintiffs who were all former employees of the former Uganda posts and Telecommunication were entitled to pension at the revised rates obtaining at the time, prompt payment of the said pension together with all the arrears due and computed on the basis of the revised **25** rates, general damages, interest and costs. A consent Judgment was entered by the parties on 21/07/2003 whereby the respondents were paid their pension including arrears. Following execution of the consent Judgment the respondents claimed that they were entitled to pensionincrements which the applicant declined to pay claiming that the decretal **30** sum arising out of the consent Judgment was in full and final settlement of the plaintiff's claim. The Plaintiffs 'application that they were entitled to pension increments was upheld by the High Court. The applicant did not the appeal and the application for enlargement of time within which to file the appeal was rejected by the Assistant Registrar of this Court as already **5** indicated. NO. 392 of 2002 Alima Santos and Another Vs. Attorney General seeking a appeal against the decision of the High Court within the time allowed to file

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1 Hence the reference to a single Judge of the Court of Appeal.

The ruling declining to grant the above application was delivered on the **40** 17th May, 2013. On the same day the applicant wrote a letter to the Registrar of this Court notifying him of the intention to make a reference/ Appeal to a single Judge and requested for a typed copy of the record of **5** proceedings and the ruling to enable him frame the grounds for the reference. The proceedings and ruling were not availed prompting the June, 2013. applicant to send a reminder which was received by this Court on the 4th

> I he proceedings and ruling'Were sent to the Applicant on 3/07/2013-and- **I** *o* on 8/07/2013 the applicant filed what is termed as " Grounds for the Reference"On the basis of which this application was placed before me.

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I have set down the above steps because the Respondent has raised the issue as to the procedure to be followed when making a reference to this **I 3** Court.

His submission is that the proper procedure was not followed because according to him the procedure for making a reference before this Court **55**

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or Civil decisions made by the Registrar of this Court is found in Rule 55 of the Court of Appeal Rules read together with the Court of Appeal (Judicial Powers of Registrars) Practice Direction No.l of 2004. It is this practice Direction that gives Powers to the Registrar to entertain application for **60** extension of time because before that Application to extend time were *5* handled by a single Justice of the Court of Appeal. Any person dissatisfied with the decision of a single judge would have the right to make a reference to a bench of three Judges of the Court of appeal. The procedure for doing so would be by way of the Applicant applying informally to the Judge at the **65** time the decision was given or by writing to the Registrar within seven days ( 0 from that date.

I agree that a reference stipulated under Rule 55 was meant to be a simple informally immediately a decision was made but if a party was unable to **70** make a decision to make a reference instantly maybe because a **15** consultation was necessary that party was required to do so within seven days In my view it was not meant to take the form of a letter of intention to make a reference and a memorandum of reference which would be a kin ■si procedure where a party wishing to make a reference would do so

**75** to an appeal where where a party would make an informal application to me would mean that it was not necessary to raise a memorandum of reference as in this case and instead of writing to the Registrar informing him or her of an intention **5** to file a reference a party should request for a reference which a Registrar **80** should grant since after all the registrar is not the one supposed to take the decision of the matter being referred, a party is required to file a Notice of Appeal and a Memorandum of appeal. The fact that the rules envisaged a situation

The other matter raised as to the procedure is that Rule 55 referred to by **85** counsel for the Respondent is specific on .a.reference from a decision of a single Judge to the Court and not from he Registrar to a single Judge. single Judge on matters of taxation there is no rule that governs references **I 90** has been developed by the Court and there is no reason as why this matter **15** cannot be decided on its own merit merely because the applicant chose to Apart from Rule 110 which is specific on references from the Registrar to a on other matters from the registrar to a single Judge. It is a practice that prolongs the process of a reference unnecessarily and it should be avoided. follow a more cumbersome process than that provided by the Rules. It only

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95 pportunity to present their case in opposition to the application. is my view that the respondents are not prejudiced since they have had the

> The substantive matter is an application for extension of time to lodge an apped and in order to sustain such an application Court must be shown that there is sufficient reason for failing to act in good time.

In the case of *Uganda Railways Corporation versus Uganda Revenue Authority, Court ofAppeal NO. 49 of2000,* sufficient reason was defined as a case constituting a good reason for a party's failure to comply with 105 not there is sufficient cause for extension of time Court must consider the **|O** circumstances of each case before deciding as to whether or not an extension of time is warranted. In the instant case the reason for the failure of the Attorney General to file a Notice of Appeal within the time 110 personal conduct in the matter had received the ruling of the Court and did **|5** not brief the lawyer in personal conduct of the matter of the outcome. He time limitations stipulated by the rules. In determining as to whether or stipulated by the Rules is that a lawyer other than the one who had only came to find out of the outcome when a copy of the Court order was

forwarded to the applicant for approval. The applicant's explanation for the mishap was that the Applicant had not been notified by the High Court 115 as to when the Ruling was to be delivered and the state Attorney who received it happened to be in Court on a difference matter. This state Attorney might not have appreciated the implications of the ruling the way **5** the one who had conducted the case might have done. This to me constitutes a sufficient reason for failing to act in good time.

- 120 It should also be observed that the state Attorney who had conducted the case acted expeditiously when a copy of the Court order was received by the applicant. This is a demonstration that the Applicant was concerned **|O** about the resolution of the issue of the Respondents'-Pension which is a colossal sum of money and if this money is to be paid the applicant should 125 be afforded an opportunity to exhaust all the avenues of appeal to this Court and on that consideration and in addition to the fact that a sufficient granted. reason has been established for failure to act in time this application is - On costs the Respondents have incurred legal costs through no fault of 130 theirs. The Applicant should meet the Respondent's costs.

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E. MWANGUSYAJ. A1

**1** 13/09/2013.

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# 13/09/2013 at 2.35 P. M

Nobody representing the Attorney General. Mr. Edward Anguma for the Respondents whose representatives are in

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Ms. Charity Atwine Court Clerk.

Courts Ruling delivered in open Court. --... e. m'wangusyaj.a

145 13/09/2013.

Court: This is the second time this matter is called for a ruling and the Attorney General is not represented. This absentism by the Attorney General should stop or else lawyers concerned will in future be sanctioned **15** ISO by this Court.

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*>\p/* E. MWANGUSYA, J. A

13/09/2013.

Court:

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155 Given that this case has taken a long time before an appeal is filed it is **5** ordered that the Applicant files the Notice of Appeal within seven days **I** from the date of this ruling and Memorandum of Appeal within fourteen days from the date of this ruling.

**1** Dated at Kampala this 13th day of September,2013

160 **IO -A ' '** F. MWANGUSYA, J. X I

13/09/2013. **I**

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THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA CIVIL REFERENCE NO. 117 OF 2013 [Arising out of Civil Application No. 66 of 2013]

ATTORNEY GENERAL ================== APPELLANT

### **VERSUS**

ALIMA SANTOS & 676OTHERS =============== RESPONDENTS

## **ORDER**

THIS Reference coming for Ruling this 13TH day of September, 2013 before Hon. Mr Justice Eldad Mwangusya, JA, in the presence of Mr. тO Edward Anguria, Counsel for the Respondents and in the absence of Counsel for the Attorney General,

IT IS ORDERED that:

- a) This Applicant files the Notice of Appeal within Seven (7) days and Memorandum of Appeal within Fourteen (14) days from the date of 15 this ruling. - b) Costs to the Respondents.

Given under my hand and seal of this Honourable Court this... day of $\dots$ $\Delta$ , 2015. ϽC

REGISTRAR, COA.

**EXTRACTED BY:** M/s GP Advocates Formerly M/s Omunyokol& Co Advocates Plot 1508 Kira Road, Bukoto **Opposite Kadic Hospital** P. O. Box 16557 Kampala.

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