Byampangi & 2 Others v Kigoora (Civil Application 23 of 2019) [2019] UGSC 76 (28 November 2019)

Full Case Text

## THE REPUBLIC OF UGANDA

## IN THE SUPREME COURT OF UGANDA AT KAMPLA

## CIVIL APPLICATION NO. 23 OF 2019

#### 1. BYAMPANGI JOHN 10 **2. RWEMISHURI YORAMU ::::::::::::::::::::::::::::::::::::** 3. KABWANGA WILSON

#### **VERSUS**

KIGOORA JOHN !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

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## **Representation**

The applicants were represented by Mr. Richard Mwehembezi whereas the respondent was represented by Mr. Magambo Victor.

#### BEFORE: HON. JUSTICE PROF. TIBATEMWA-EKIRIKUBINZA, JSC 20

#### **RULING**

This is a ruling on an application for extension of time within which to file an application for a certificate of importance. The application 25 was brought by a Notice of Motion under **Rules 2(2)**, and $5$ of the **Supreme Court Rules.**

The grounds supporting this application were contained in the affidavit attached to the Notice of Motion deponed by the 1st applicant-Byampangi John as follows:-

(a) That on 25th October 2011, the applicants filed Civil Application No.214 of 2011 to be granted a certificate of importance in the Court of Appeal and a ruling dismissing the application was delivered on 11th September 2019.

- (b) That the ruling was delivered on notice in the absence of the applicants who were not aware of the date of the ruling. - (c) That the $1st$ applicant who was the main contact person in the matter lost a son which disorganised his schedules and was out of reach on his known phone contacts. - (d) The applicants only got to know of the dismissal on 1st October 10 2019 when the $1^{st}$ applicant called their lawyer. - (e) There are important points of law relating to fraudulent registration of the suit land to be determined by this Court. - (f) The intended appeal has a high likelihood of success and the applicants are not guilty of any dilatory conduct.

# **Respondent's reply**

counsel.

The respondent opposed the application on the following major grounds:

(a) The intended third appeal has been overtaken by events because the decree of the Chief Magistrate's Court Mbarara in Civil Suit No.68 of 1993 was fully executed on 6th February 1996. A copy of return of the warrant in execution was attached.

- (b) The Notice of Appeal was not served on the respondent's 25 - (c) That there is no documentary evidence adduced by the applicant to prove that the son's death disorganized him from making an application within 14 days after the order of dismissing his application was made by the Court of Appeal. - (d) The applicant did not attach the application for a certificate of public importance to the present application. - (e) There is no likelihood of success of the intended appeal. - (f) The applicant has not proved sufficient cause to be granted extension of time.

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#### Court's consideration $\mathsf{S}$

The application before Court is governed by **Rule 39 (1)** of the **Supreme Court Rules** which provides as follows:

In civil matters—

(a) where an appeal lies if the Court of Appeal certifies that a question or questions of great public or general importance arise, application to the Court of Appeal shall be made informally at the time when the decision of the Court of Appeal is given against which the intended appeal is to be taken; failing which a formal application by notice of motion may be lodged in the court of Appeal within fourteen days after the decision, the costs of which shall lie in the discretion of the Court of Appeal; and

(b) 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 of Appeal 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. (My emphasis)

In the present matter, the Court of Appeal declined to grant the applicants a certificate of importance because they failed to show that there were matters of public importance to be determined by the Supreme Court.

Being dissatisfied with the Court of Appeal decision, the applicants have lodged the application before this Court. **Rule 39 (1) (b) (supra)** provides that where the Court of Appeal refuses to grant a certificate of importance, an application must be lodged in this Court within 14 days after the refusal.

The applicants lodged their application in this Court on 3rd October $\mathsf{S}$ 2019. The Court of Appeal decision declining the grant was made on 11th September 2019. This was 8 days outside the prescribed 14 days period.

The $1^{st}$ applicant deponed that the delay to lodge the application in this Court was due to the loss of his son which disorganized his 10 schedules and was out of reach by telephone. The respondent on the other hand contended that there was no documentary evidence or affidavit to prove the stated fact.

I have carefully considered the applicants' reason for failure to file the application in this Court within time and the respondent's 15 objection. I note that the applicant stated in his affidavit that he was not present at the time of delivery of the Ruling by the Court of Appeal. He was outside Kampala to attend to the loss of his son. In such circumstances, it was impossible to lodge the application in this Court within the prescribed time. Even though it may be argued that 20

the applicants were represented by a lawyer, the lawyer could not proceed without being duly instructed by his clients. I also find that a delay of 8 days was not inordinate in the circumstances of this case.

In the result, I hereby grant the applicants extension of time within which to file the application for a certificate of importance.

The application for a certificate of importance should be filed within seven $(7)$ days from the date of this Ruling.

I so order.

Dated at Kampala this day of November $2019.$ 30

> L'usabenue. PROF. LILLIAN TIBATEMWA-EKIRIKUBINZA JUSTICE OF THE SUPREME COURT