Gavana & Another v Tibeijuka (Miscellaneous Application 146 of 2020) [2023] UGHC 375 (12 June 2023)

## **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MASAKA MISCELLANEOUS APPLICATION NO.146 OF 2020 (ARISING FROM CIVIL SUIT NO.119 OF 2013)**

#### **1. GAVANA BENON**

# **2. KANKIRIHO JOHN::::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPLICANTS VERSUS**

**REV. EDISON TIBEIJUKA::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT**.

## *Before; Hon. Justice Victoria Nakintu Nkwanga Katamba* **RULING**

This Application was brought under Order 52 Rules 1,2 and 3 of the Civil Procedure Rules and Section 98 of the Civil Procedure Act seeking the orders that;

1. The Applicants be allowed to appeal out of time.

2. Costs of the Application be provided for.

The grounds in support of this Application are contained in an affidavit deponed by the 2nd Applicant where he states as follows that;

1. Judgement was passed against the Applicants in Civil Suit No.119 of 2013 in the Chief Magistrates Court.

2. Before the Applicants filed a notice of appeal, the Country went into a lockdown due to the COVID 19 pandemic.

3. Due to the lockdown, the Applicants were unable to institute their appeal owing to the fact that they were resident in Rakai, a border district which was subject of the lockdown.

4. The Appeal has a likelihood of success.

An affidavit in reply was deponed by the Respondent where he states as follows that;

1. He was the successful party in Civil Suit No.119 of 2013 and that there is no justification for granting leave to appeal out of time.

2. The Applicants decided to fix Civil Appeal No.03 of 2021 without seeking leave of Court to file the appeal out of time and the same was dismissed with costs because the Appeal was incompetent.

3. The Application is a mere tactic to delay the Respondent enjoying the fruits of litigation.


4. During the government imposed locked downs, the restrictions that closed Court from the public started on the 18th March 2020 and the decision in Civil Suit No.119 of 2013 was delivered on 6th December 2019. The Applicant had ample time within which to bring the Appeal.

5. Even with restrictions, persons with emergencies were allowed to move upon obtaining permission from relevant authorities.

6. The Appeal has no probability of success and is frivolous.

Both parties filed written submissions.

Submissions for the Applicants.

On whether the Application meets the criteria for grant of leave to appeal out of time, Counsel relied on the cases of Ojara Otto Julius versus Okwera Benson HCMA, No.23 of 2017 and Tight Security Ltd versus Chartis Uganda Insurance Company Ltd and Another, HCMA. No.08 of 2014 to support his submission that time within which to file an appeal may be extended if good cause is shown.

It was further submitted that the sufficient reason must relate to an inability or failure to take a particular step in time.

Counsel submitted that the failure to lodge an appeal within 30 days from the decision delivered on 27th February 2020 was due to the Government imposed lock down.

That soon after the lockdown, the Applicants quickly instructed their lawyers to lodge this Application. Counsel stated that the Applicants are not guilty of any inordinate delay and failure to file the appeal was due to circumstances beyond the Applicants. Counsel concluded his submission by stating that the Appeal raises serious issues that ought to be determined.

Submissions for the Respondent.

Before delving into the substance of the Application, Counsel raised 3 preliminary objections; 1. The Application has been over taken by events and the Application should be struck out with costs.

2. The Applicants submissions are defective having referred to both Applicants and yet it is only the 2nd Applicant's affidavit on Court record.

3. The Application has been brought under general provisions.

On the Application being overtaken by events, Counsel submitted that before the Applicants filed this Application, they lodged an appeal vide HCCA. No.03 of 2021 and the same was


dismissed for being incompetent. It was submitted that the Application was abandoned by the Applicants and thus died with the dismissed appeal and this Application is therefore moot and academic. Counsel relied on the case of Kasolo Robins Ellis versus Julius Joseph Delahaije Supreme Court Civil Application No. 04 of 2023.

On the submissions being defective, Counsel submitted that the submissions indicate that they are filed jointly by both Applicants and yet on record is only the affidavit of the 2nd Applicant. It was submitted that this is contrary to Order 1 Rule 12 of the Civil Procedure Rules which require the 1st Applicant to give authority to the 2nd Applicant to represent him.

On the Application having been brought under general provisions, it was submitted that the Applicants ought to have brought the Application under Order 51 Rule 6 of the Civil Procedure Rules which provides for the remedy of filing an appeal out of time. Counsel submitted that since the Application was brought under general provisions and not Order 51 Rule 6, the Application ought to be dismissed.

On the merits of the Application, Counsel submitted that there are no reasonable grounds to warrant the grant of this Application. Counsel further submitted that the Applicants had 90 days within which to institute his appeal before the lock down was put in place in March 2020.

Applicants' submissions in rejoinder.

On the Application having been overtaken by events, Counsel submitted that the appeal that was fixed and dismissed was fixed at Court's discretion before the present application which had been filed earlier in November 2020. Counsel further submitted that the Applicants never abandoned this Application. Counsel then submitted that even though the appeal was dismissed for having been filed out of time, there is no law barring them from bringing this Application. On the submissions being defective, Counsel relied on the case of Namutebi Matilda versus Ssemanda Simon and others,HCMA No.430 of 2021 and submitted that knowledge of the deponent is what is important and not the mandate of representation or authorization.

On the Application brought under general provisions, Counsel submitted that this does not render the Application defective. Counsel submitted that it is now settled law that citing wrong law or even the failure to cite any law is not fatal. Counsel relied on Gold Beverages (U) Ltd versus Muhangura Kenneth and Another, Civil Suit No.163 of 2019.


In rejoinder on the merits of the Application, Counsel submitted that the Judgement was delivered on 27th February 2020 and that the lock down was put in place before the Applicants would lodge their appeal within the 30 days.

I have carefully considered the affidavits and the submissions of the parties and I therefore proceed to determine this Application.

#### **Determination of Preliminary points of law.**

In the case of *Mukisa Biscuits Manufacturing Co. Ltd. versus West End Distributors Ltd (1969) EA 696*, it was held that a preliminary objection consists of an error on the face of the pleadings which rise by clear implication out of the pleadings and which, if argued as a preliminary objection may dispose of the suit.

#### **1. The Application has been brought under general provisions.**

It was Respondent Counsel's submission that the Application ought to have brought the Application under the specific law which is Order 51 Rule 6 of the Civil Procedure Rules rather than stating general provisions. On this basis, Counsel prayed that the Application be struck out.

Counsel for the Appellant in response stated that not citing the specific law was not fatal.

I have considered the case of *Gold Beverages (u) Ltd versus Muhangura Kenneth and Another, HCMA. No.674 of 2019* as cited by Counsel and I am in agreement with the holding. In the case, it was held that*, "It is a long established principle that citing of a wrong law or even the failure to cite any law under which a case is brought, is not fatal, for as long as the substance of the case is clear on the pleadings and the opposite party is not prejudiced thereby."*

In *KCCA versus Lukyamuzi Investments and 3 Others, HCMA. No.613 of 2017,* it was held that citing a wrong law or no law at all is not fatal and the right law can always be cited. Citing a wrong law is a technicality curable under Article 126(2)(e) of the Constitution.

Based on the authorities above, it is my finding that it is not fatal to the Applicant for not having stated the specific law under which this Application was brought.

The substance of the Application is clear and the right law can always be cited in the resolution of the substance of this Application.


This preliminary point of law is hereby over ruled.

### **2. The Applicants submissions are defective having referred to both Applicants and yet it is only the 2nd Applicant's affidavit on Court record.**

Counsel submitted that it is only the 2nd Applicant's affidavit on record however, the submissions of Counsel have both Applicants. Counsel submitted that this is contrary to Order 1 Rule 12 of the Civil Procedure Rules which require the 1st Applicant to have given authority to the 2nd Applicant to represent him.

I did not fully appreciate Counsel for the Applicant's response however, it is my observation that it was the Counsel's position that the fact that it was only the 2nd Applicant's affidavit on record, does not render the submissions defective.

I respectfully disagree with Counsel for the Respondent's submission that the existence of only the 2nd Applicant's affidavit on record renders the submissions defective since the submissions refer to both the Applicants.

An affidavit acts as evidence for the Applicants or the Respondent and there is no requirement that where there are two or more Applicants or Respondents, all of them ought to swear affidavit .(see: *Ssembatya and Another versus Eco Petrol Ug Ltd, HCMA No.199 0f 2015.*)

Any of the parties to the Application or a person not party to the Application may swear an affidavit provided they are aware of the facts of the case and their evidence is considered vital to the Application. The affidavit therefore acts as evidence and can be used by both Applicants. In addition, I note that both Applicants were party to the civil suit and as a result the submissions in this Applications are filed jointly. Simply put, the Applicants wish to say the same thing without the need to file submissions twice and they are only relying on the evidence as adduced by the 2nd Applicant through his affidavit.

Order 1 applies to circumstances where an individual brings a suit on behalf of another person which is not the case in Application.

Based on the above, the 2nd Preliminary objection is also over ruled.

### **3. The Application has been over taken by events and the Application should be struck out with costs.**

Counsel for the Respondent submitted that the Applicants were dissatisfied with the decision of Court vide Civil Suit No,119 of 2013. Counsel then submitted that the Applicants filed this


Application for leave to file their Appeal out of time. Counsel then submitted that before the Application was determined, the Applicants filed Civil Appeal No.03 of 2021 which was dismissed for being incompetent and as a result, the Application died with the Appeal.

Counsel then submitted that the Applicants' lawyers duly filed the Memorandum of Appeal in accordance with Order 43 Rule 1(1) and Rule 1(2) and that the same was served on the Respondent. Counsel submitted that since the Appeal was already dismissed, granting this Application is moot and academic. Counsel relied on **Kasolo Robins Ellis versus Julius Joseph Civil Application No.120 of 2019** to support his submission.

Counsel for the Applicant in response stated that Court exercised its discretion in fixing the Appeal for hearing before the Application was heard. It was further submitted that there are letters on record addressed to the Court to fix a hearing for the Application which had been filled earlier and not the Appeal. He further submitted that the Applicants have never abandoned this Application. Counsel submitted that even though the Appeal was dismissed, nothing bars the Applicants from returning to Court under the right procedure that should have been followed. Counsel submitted that the case of Kasolo Robins Ellis (supra) is distinguishable from the current Application.

It is my observation the main contention is whether a party can bring an Application for leave to file an Appeal out of time even after the Applicant had already filed the Appeal and the same had already been dismissed for failure to seek leave to file the Appeal out of time in the first place.

To simply put it, Court seeks to answer whether Court has jurisdiction to entertain this Application for leave to Appeal out of time having already dismissed the Appeal for being incompetent.

It is my opinion that an answer to the above issue largely lies on whether the law provides for the above and what would be the effect of entertaining this Application on the existing dismissal order on the Appeal.

It is my observation that the Applicants already filed the Appeal to this Court vide HCCA No. 03 of 2021 and this Court already issued its decision with respect to the Appeal that is, the appeal was dismissed.


It is opinion that the Applicant cannot thereafter file an Application that has the effect of altering the decision of the Court on the Appeal unless the law specifically provides that the decision can be altered in such a manner.

In *Kassiano Wadri versus Nuru Juma, HCCA. No.45 of 2014*, it was held that once a final decision has been issued by court, the court becomes powerless to change it, other than to correct obvious technical or clerical errors, or unless specifically authorised to do so by statute or regulations. At some point Judicial officers become *functus officio* and the jurisdiction to intervene comes to an end. The importance of the finality of judicial decisions generally strongly militates against the existence of an inherent jurisdiction and power of court to set aside its own decisions made in finality of the matters before it. Such a power must be vested by statute or rules specifying the limited circumstances in which it is exercisable.

The above holding supports the fact that a Court's decision cannot be altered or revisited except within the confines of the law. I have perused all the relevant law that is; from the Constitution to the substantive and civil procedural laws and I have not come across any enabling law that permits Court to entertain an Appeal for leave to Appeal out of time after a decision on the Appeal has already been made that is, the Appeal having been dismissed for being incompetent. On perusal of the rules, it is my observation that the only time this Court can revisit its decision upon dismissal of an Appeal is under *Order 43 Rules 16 and 18*, that is; where the Appeal was dismissed for nonappearance, where the appeal was heard *ex parte* or where the Appeal was dismissed for failure to deposit costs, of which none of the scenarios exist in this case and in my view also largely explains why the Applicants brought the Application under general provisions of the law. It is my humble opinion that these matters are greatly concerned with the jurisdiction of this Court and besides the scenarios in Order 43, it is my observation that the dismissal order can only be altered within specific circumstances that is to say, an appeal to a higher Court or review.

Although Counsel submitted that there is no specific law barring the Applicants from bringing the Application, I observe that a determination of this Application has an effect, if determined in favor of the Applicants, of altering the dismissal order of this Court on the Appeal and yet as already observed, the circumstances under which the dismissal order may be altered by the same Court are limited. If the Court was over rule its own order without an enabling law that permits it to do so, this would amount to Court exercising jurisdiction it does not possess and


any decision reached devoid of jurisdiction is a nullity. (see: *Desai versus Warsama [1967] E. A 351*)

Premised on the preceding observations, it is my finding that this preliminary objection succeeds and that this has the effect of disposing of the entire application. As a result, this application is dismissed with costs to the Respondent.

I so order.

Dated at Masaka this 12th day of June 2023.


**Victoria Nakintu Nkwanga Katamba.**

**Judge.**