Butera v Mutalemwa (Civil Application 1 of 2020) [2022] UGSC 7 (1 March 2022)

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

## CIVIT APPLICATION NO. O'I OF 2O2O

(CORAM: OWINY-DOttO; OPIO-AWERI; TIBATEMWA-EKIRIKUBINZA; MUHANGUZI; CHIBITA: JJSC)

(An opplicotion orising oul of Civil Applicolion No. 391 ol2017 orising from Civil Appeol No. 114 of 2013)

#### BETWEEN

BUTERA EDWARD APPTICANT

#### AND

MUTATEMWA GODFREY RESPONDENI

### RULING OF COURT

This is an application brought by Notice of Motion under Sec 6(2) of the Judicature Act and Rule 39(1) of the (Supreme Court Rules) Directions, seeking the following Orders:

- 1. That a Certificate of Importance be granted to the Applicant against the decision of the Court of Appeal of Uganda delivered on 2Oth November, 20 17 - 2. Costs of the application be provided for

The application is accompanied by an affidavit sworn by Edward Butera, the Applicant.

An affidavit in repiy, on behalf of the Respondent, was sworn and filed by the Respondent Godfrey Mutalemwa.

The background to the application is that the Respondent sued the applicant, under summary procedure, in the Chief Magistrates Court of Mengo at Mwanga II Court, for rental arrears totaling Shs 4,500,00/= (four million and five hundred shillings) only

The trial Magistrate awarded the amount prayed for plus special and general damages. The applicant appealed to the High Court, which quashed the award of generai damages but confirmed a1l the other awards. A further appeal to the Court of Appeal was also dismissed. The applicant applied to the Court of Appeal for leave to appeal but his appiication was denied.

The Applicant then filed the instant application for a Certificate of Importance to enable him file a third appeal to this Court.

The application is supported by an affidavit sworn by the Applicant, which states, inter alia:

'n9. That I haue been informed bg mg aduocates of Alliance whom I ueily belieue to be true that it is important for the Court to determine the final ansu)ers on questions as to whether an appellate Court on the second appeal has powers to grant reliefs not prayed for and pleaded for, tuell aware of the principle of "Stare decisis" and uith knowledge that the Supreme Court has made decisions in that regard.

10. That I am further aduised bg the said Aduocates whom I uerily belieue to be tnte that the determination of the said questions of law is of great public and general importance and also ralses issues of justice fairness and principle "stare decisis".

In reply, the Respondent's affidavit stated that the application is farfetched, misconceived, abuse of court process and contains material falsehoods. The reason being, inter alia, that the application did not disclose any matters of great public importance requiring grant of the application.

Further that a similar application was dismissed by the Court of Appeal because it did not warrant grant of a certilicate of importance since it did not disclose any matter of public or general importance.

# REPRESENTATION

The Applicants were represented by Counsel Mudhola Denis C. Gabriel of Famm Advocates while the Respondent was represented by Counsel Kasumba Patrick and Wamani Robinson of Kasumba Kugonza & Co. Advocates. Both Counsei filed written submissions.

Counsel for the respondent raised a preliminary point of law regarding the failure by the applicant to file his application within the prescribed time. He stated that the applicant Iiled Misc. Application No. 39 1 of 2Ol7 in the Court of Appeal seeking similar orders, which was dismissed on 20th December, 2019. Whereupon he filed the instant application on 17th Jarruary,2O2O.

According to Counsel, this application was filed out of the time prescribed by rule 39(1)(b) of the Judicature (Supreme Court Rules) Directions. In absence of an application for enlargement of time, therefore, he continued, the application was not properly before Court. He therefore asked court to dismiss it.

In response to the preliminary objection, counsel for the applicant submitted that section 39(2) of the Civil Procedure Act provided that time taken by the court to make a copy of a decree or order appealed against and the proceedings shal1 be excluded from the computation of time.

He further submitted that though the ruling was delivered on 20th December, 2O19, the applicant only got knowledge of it on 6th January,2O2O.

In rejoinder, Counsel for the respondents submitted that section 39(21 of the Civil Procedure Act was inapplicable in the current instance. The section refers to a situation where the Registrar is to make a copy of the Decree or Order appealed against, which was not the case in the instant application.

He further asked Court to disregard the arguments of counsel for the applicant regarding the dates when he got to know about the ruling as amounting to submissions by counsel from the bar.

He reiterated the prayers that the application be dismissed with costs lor being filed out of time.

#### CONSIDERATION

Counsel for the respondents raised a preliminary point of law, which, he argued, would dispose of the application since it touched on the integrity on the application before court.

He submitted that that the application was filed on 17th January, 2020 while the ruling upon which the instant application was based was delivered on 2Oth December, 2019. He therefore submitted that the application was submitted way beyond the fourteen days provided for under rule 39(1) of the Rules (supra)

Rule 39(1)(b) provides as follows:

(... if the Court of Appeal refuses to grant a certificate as referred to in paragraph (a) of this sub-rule, an application may be lodged by notice of motion in the court within fourteen days after the refusal to grant the certificate by the Court ofAppeal for leave to appeal to the court on the ground that the intended appeal raises one or more matters of public or general importance which would be proper for the court to review in order to see that justice is done."

Counsel for the applicant did not dispute the fact the date of delivery of the ruling in the Court of Appeal being on 20th December, 2019. Neither did he dispute the dates of filing the instant application as being 17th January 2O2O.

I wish to emphasize the importance of time limits set by statutes. Such limits are a matter of substantive justice that enable the orderly

and predictable schedules within which litigants and counsel are required to perform particular acts. They are not mere technicalities that can be done away with at wi1l. They shouid, therefore, be strictly complied with except with good reason. (See Utex Industries vs. Attorney General Misc. Appl. No. 52 of 1995 (SC)

In light of the provisions of rule 39(1)(b) reproduced above, the application ought to have been filed within fourteen days for it to be properly before this Court.

This application, No.7 of 2O2O, was fi1ed a whole twenty-seven days after the ruiing upon which it is based was made. In other words, the application was Iiled thirteen whole days outside the statutory period. This makes the application incompetent before this Court.

Counsel for the respondent contended that no application for enlargement of time has been filed by the applicant either. Counsel for the applicant did not dispute this fact. Indeed, there is no evidence before court that such an application for enlargement of time is pending before court.

We also agree with counsel for the respondent that section 39(2) of the Civii Procedure Act, referred to by counsel for the applicant is inappiicable to the instant circumstances and is therefore not helpful to his case.

The instant application was clearly filed out of time contraqr to rule 39(1)(a) of the Rules. It is accordingly dismissed with costs to the respondent.

s+ Dated at Kampala, this Day of V1c^t <sup>2022</sup> \

1 on. Alphonse Chigomoy O ny-Dollo

CHIEF JUSTICE

Hon. Ruby Opio-A JUSTICE OF THE SUPREME COURT

ln- U"l c t\Z,16g>:--c . Hon. Lillion Tibolemwo-Ekirikubinzo JUSTICE OF THE SUPREME COURT

Hon. Ezekiel Muhonguzi JUSTICE OF THE SUPREME COURT

on. ibit

JUSTICE OF THE SUPREME COURT

d\ r r^a.e.=Q

\

tc

g. \s- Nn\.\ \\s\ \s\\_ o \- S,-i 2\_I\\_