Hannington Wasswa & Anor v Maria Onyango Ochola & 3 Ors (Civil Appeal 3 of 1992) [1992] UGSC 5 (1 July 1992)

Full Case Text

I Sevsono $n$ in $c$ $e$ IN THE SUPREME COURT OF UGANDA AT MENGO MANYINDO, D. C J., PLATT, J. S. C., AND (SEATON, J. S. C.) $DCPA$ 1.01 CIVIL APFEAL NO. 3 OF 1992 N T. **BETWEEN** $a$ $A$ DUR HANNINGTON WASSWA :::::::::::::::::::::::::::: APPELL. NTS 2. SSEMUKUTU & CO. LTD $\Lambda$ ND

MARIA ONYANGO OCHOLA & <pre>::::::::: RESPONDENTS</pre> . . . . . . . . . . . . . . . . . . . . 3 OTHERS

> (Appeal from Order of the High Court of Uganda at Kampala (Mr. Justice Okalebo) dated 10/5/1990).

## JUDGMENT OF PLATT, J. S. C.

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Mr. Justice Okalebo was abked to extend time for an appeal to be. . decided that in the circumstances of the motion before instituted. $\rm He$ him, good cause had been shown, and therefore he allowed the appeal to be entered within fourteen days of his decision; namely 21st January, 1992.

The appeal had been ex parte by Mukanza J. on 9th January, 1988. After several vicissitudes, it was set down for hearing inter parties before Mr. Justice Tsekooko. The latter, struck out the appeal as having not been instituted improperly. He construed the terms of Sec. 80 of the Civil Procedure Act & Order XXXIX of the Civil Procedure Rules rather strictly and decided that there had been no memorandum filed to institute the appeal, and such memorandum as there was, wasd filed out of time. Mr. Justice Okaleba held in effect that it was doubtful whether the appeal had wrongly instituted, having in mind the practice which obtained at that The practice might not have been entirely correct in view of the time. terms of Section 80 and Order XXXIX but had caused no injustice and was justified by events at that time in $1985$ .

The learned Judge set out his recollection of the way the procedure worked, and held that if blame was to be apportioned the advocates for the appellant were to blame and not their clients. The learned Judge further held

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that the Mengo Court had been at fault in taking so long to provide the High Court had accepted the appeal without the proper procedure having been adopted. But all this was not the fault of the applicants before Mr. Justice Okalebo. For their part the Applicants had acted with diligence and had shown good cause to extend time. copies of proceedings and judgment for. the purposes of the appeal.

But Mr. Justice Okalebo. has been taken to task on a number of matters as set. out in the Memorandum of Appeal. As Dr. Byamugisha stated in his opening address, the complaints are intertwined.

les involved in dealing with an appeal of this nature; an' appeal against an extension of time. The discretion was exercise in favour of allowing the appeal to go forward in order that the merits of the dispute could at last be settled. But it is a discretion which must be exercise judicially on a proper analysis of the facts and the proper application of the law to those facts. The Court of Appeal should not interfere with trie exercise of the discretion of a Judge unless it is that he misdirected himself in some matter and as a result ?\*\*rived at a wrong decision or unless it was manifest from the the Judge was clearly wrong in the exercise of his discretion and that as (Mbogo V. Bartlam (1977) 2 All Er. 6^6)/ a result there has been injustice. case as a whole that Before they dealt with, it is wise to direct my attention to the princiv. Shah, (11968) E. A.93; Evans

In the first place, the period of limitation is that set out in Section 80 of the Civil Procedure Act (cap 65) which provides as follows:

> as otherwise specifically provided in any other law every appeal shall be entered - "80 (1) except

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- (h) Within JO days of the date of decree or order; or - (b) As the case may be ^ppeal&d against; Provided that the appellat Court may for good cause admit an appeal though the period of limitation prescribed by this section hgselapsed.

2) In computing the period of limitation prescribed in this section the time • taken by the Court or registrar in asking . for a copy of the decree or order appealed against and of the' proceedings upon which it is founded shall be included."

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2 signed by the appellant and presented . This spelling of' the word "court" indicates in this case, that presentation must be in the Court of the Chief Magistrate at Mengo and not the High Court (see Section 1-(2) of the Civil Procedure Act (cap 65)• In view of those clear provisions, can it be true, forgot them? Of course not. The difficulty in carrying out these provisions, was caused by the delay that might well be experienced in obtaining copies of the decision and proceedings,, in order to present the memorandum of appeal. In an appeal where the intending appellant can present his memorandum at once, Section 80 (1) can be complied with without difficulty.. When the proceedings and decision have to be obtained first, re the memorandum can be presented. What would happen to the appeal, would it be forgotten? Was it possible for the Chief Magistrate's Court reduced after the wars to a shadow of its former self for lack of equipment and supplies of stationery, to get these copies quickly -prepared? In this case, it took a year and a half. So a practice grew up, according to Mr. Justice Okalebo, whereby a Notice of Appeal was lodged in both the High Court and Chief Magistrate's Court, and then the High Court supervised the production of the record. The Judges' forthright explanation of what and why it happened, is greatly to be applauded. And for the benefit of those who think these matters strange, may I explain that very muefe the same thing is happening to appeals from the High Court to this Court at the present time? In order to speed up the appeal process, this Court is giving the High Court help in preparing records of appeal. This Court is Then one must read \ appeal to the High Court shall be preferred in the form of a memorandum. "to the court." as one High Court Judge seems to have thought,' that every on at Order XXXIX rule (1) which provides that every a long time migjit elapse befo\* Court,'of the several?Courts involved in this'case,

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being notifiedby a loopy of presented ia the High Court by the proper Notice of. Appeal ii> tk^t Cotirt. The situation must be controlled of course; but it does have the effect of speeding up the process of an appeal. Justice a higher Court may legitimately help a lower Court to surmount bottlenecks'which are being experienced in the lower Courts, I am surprised that this is not understood, having in mind the shortages which still plague the Courts at present. But to return to the instant case, Mr. Justice Okalebo's explanation of what happened in the difficult years between 1985 to 1987' explains the Notice of Appeal" given in this matter, to both the High Court and Chief Magistrate's Court. Of course no Notice memorandum as soon as he obtained the copies of the decision and procedding-s copies. It was not understood.- The Mengo Court began the work or preparing the\* copies of the decision and proceedings. The parties inquired from time to time without success as to the progress achieved. As far as the Mengo Court was concerned,, it carried out its djity and sent the copies to the High Court as. requested by the Court. The High Court may haye\_\_ac.ted prematurely in assigning a number. to- the appeal on receipt of the ''Notice may have intervened between the intending Appellant and the Mengo Court, by itself calling for the copies and then makin the copies available. But it is clear from the affidavit and documentary evidence before this Court, that its motive was to speed up the appeal process. The only difficulty was that the intending Appellant, having tried to obtain the **i -Hl** a nbtice^of sppeatL, that-an appeal' has' been of Appeal", or That was obviously a demand, perhaps in an unusual form, for those s. I think that in the interests pf? of Appeal as such is prescribed for this appeal. It was clearly a notifij; cation that the intending appellant wished to appeal and would present his It says that the memorandum will be presented when copies are vailable•

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• . the copies from the'Mengo . Cour.t, one where the copies would go to the High matter w^ich the intending Appellant could control\* So it becomes a case of the intending Appellant's Advocate being wrong in lav/ in following the existing but alternative procedure to that laid down ■in the Civil Procedure Act & Rules; and the Courts mistake in encouraging 'that alternative prodedure and carrying it out. At no time did the Courts or direct the intending appellant to follow the right procedure. during the period that copies of proceedings are made available before a memorandum is presented-., I i reject the-"Notice of Appeal," Court, that was not a It hardly seems possible for the intending Appellant Indeed Ig so, there was no fault on the intending Appelant's part in trying to secure the copies. On the other hand, if the J prodedure was understood to be to have done otherwise than follow the High Court's direction, one might say that the ambigous terms of. Section •80 (2), need, filing out by /■ some further procedure to make sure that an' intended • ■' 'appeal . • is••not forgotten,/ • apparently did not know tohat the copies had been, sent to the High . Court.

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decision are not serious. hold that if the wrong procedure was adopted the High Court must have its share of the blarpe for allowing and operating an alternative procedure. \*• As **the** learned Judge pointed:out, it caused no injustice, and he particularly pointed out that Mukanza J. could hardly have heard the appeal ex'parte, All that had happened For the purposes of this argument, it was accepted b\$ both Counsel that Section 80 (2) should be read as giving the intended Appellant JO days after receiving. the copies, within which to present his memorandum of appeal. That he did. had obtained the proceedings, it is not argued that he presented his memorandum outside **the period allowed**'Section 80 (2)of the Act. On ittie first ground, he was within his right to In these circumstances, the criticisms of'Mr. Justice Okalebo's if by that 'time there were no memorandum of appeal. in reality, was that the memorandum was presented after a long time, due to delay in getting the copies of proceedings. Once the intending Appellant

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Secondly, it is argued that the learned Judge was wrong to- hold that good cause had been shown in extending time. seems to be a sufficient reason" as is required in Rule 4 of the Supreme Court Rules. Consequently the learned\*Judge had a free discretion Hhe truth of the matter is, that it is surprising that the ''Notice of Hxgh Court made the copies available. How .was it possible .for the intend ing Appellant to get hold of proceedings, before the Mongo Court had sent them to the High Court?. In reality .it is strange that the appeal was struck out at all. ''Good cause" less strict test than " sting copies of proceedings, upon receipt of which a memorandum' could be presented. Further, it is said that the operative'date for completing the proceedings was on. 1Jth. February, 1987 and not 29th April, 198? when' the Appeal" was not understood for what it really was: a holding Notice reque-

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Thirdly it is said 'that the learned Judge was wrong to pray in aid Sec. 101 of the . Civil Procedure Act. I gree. It is a -firm principle that the Of limitation, But this misdirection did-not affect the real basis of the decision, that . inherent power of the Court does not extend to altering a statutory period • \ except as the statute may provide for extending the period. good cause had been shown, and no miscarriage of justice occurred.

his.own knowledge of the procedure adopted by the Courts. Before the Mr. tS wore doing. expected of parties as a matter of procedure. He was no Usurping"1 evidence on issues for trial, but explaining what the Courts m reality Justice Okalobo ought to be congratulated for explaining what the Coura function of the parties,' or giving Ccurt4 there was a ''Notice of Appeal", that ,stemmed from the procedure - • &gt; adopted by the Courts without objection at the time from any Court of party Fourthly, it is argued that the learned Judge ought not to have used *,*

been shown. ity before the Court. Altogether, there were solic? reasons for holding that £ood cause had V'o are grateful to counsel for having put a wealth of author-This wqs a case, however, .where possibly it could

the greatest It was largely the High Court(s initiative; but that caused no injustice. There was no unn-The time taken to type out the decision and proceedings caused trouble. The intending" Appellant was not at fault. be said that Counsel had mistakenJ.y\_^n.-tc,jLe.d--a---''-no'ti'ce of-appeal". But it was the. Court's own variations on the procedure which counsel was following, ecessary waste of time on the intending Appellant's part.

But there is one last ground. ■inter alia, the Court itself has intervened. In granting an extension of time, costs were ordered to.be ■' in the cause. The rule' is that costs should follow the event \* unless, Consequently, the appeal stands to.be dismissed.

*■' n* It has been fcaid that the court should not be- blamed. for Counsel's mistake. That may be so on some occasions. • But if the Court\* has allowed an alter-. native procedure as Okalebo, Ajg. J\* has explained, then Counsel's actions must be judged in the light of the directions L;iven at the time.

From- that point of view the striking out was unnecessary\*, ' •. Accordingly the order for costs might have been that each, party should . bear its own costs. But thesorder given was not unreasonable and I decline to interfere.

I^would dismiss this Appeal with costs to the Respondents. 1st July Delivered at- Mengo this day of 1992

## H. G. PLaTT JUSTICE OF THE SUF2SME COURT.

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I CERTIFY THAT THIS IS A TRUE COPY OF THE ORIGINAL.

B^F. B'. BABIGUMIRA REGISTRAR SUPREME COURT.' y IN THE SUFREME COURT OF UGANDA Suggests that AT MENGO 0.39 Reile/ evenclup MANYINDO, D. C. J., PLATT, J. S. C. AND SEATON, J. S. C.) for review (CCRAM:

## CIVIL AFPEAL NO. 3 OF 1992

1. J. HANNINGTON WASSWA

SSEMUKUTU & CO. LTD ::::::::::::::::::::::::: APFELLANTS $2.$

AND

**BETTEEN**

MAIRA ONYANGO OCHOLA &

**::::::::::::::::::::::::::::::::** RESFCNDENTS 3 OTHERS

> (Appeal from Order of the High Court of Uganda at Kampala (Mr. Justice: Ekalebo) $\sim$ , dated 10/5/1990)

# JUDGMENT OF MANYINDO, D. C. J.

I agree with Platt, J. S. C. that this appeal ought to be dismissed for the reasons he has given. But I would not approve of a Judge importing into a case his personal knowledge or experience regarding matters of procedure. It would be better for the Judge to stick to the law regulating the matter at hand. As Seqton, J. S. C. is also of the view that the appeal should fail the same is dismissed with costs to the

respondents.

Dated at Mengo this ........ day of ...... 1992

#### S. T. MANYINDO DEFUTY CHIEF JUSTICE

I CERTIFY THAT THIS IS A TRUE COPY OF THE ORIGINAL.

B. F. B. BABIGUDIRA REGISTRAR SUPREME COURT.

### • IN THE SUPREME COURT OF UGANDA

#### AT MENGO

(CORAM: . MANYINDO D. C.jJ, PLATT, J. S. C., AND SEATON, J. S. C.)

#### CIVIL APPEAL NO. 3 OF 1992

. 'BETWEEN

::: APPELLANTS AND 1. J. HANNINGTON ''ASS'7'A ; : 2. SSEMUKUTU & CO. LTD.

RESPONDENTS MAIRA CNYANGO OCHOLA & 3 OTHERS

(Appeal from order of the High Court of Uganda at Kampala (Mr. Justice Oke-labo) : dated 10/5/1990).

### JUDGMENT OF SEATON, J. S. C. ' . '

should be rejected. My reasons are as follows; I agree with my learned brother Platt, J. S. C..'that this appeal

that in his view the practice and procedure for filing an appeal to the decision of the. Chief Magistrate's Court, had been complied by the present respondents. High Court against a meaning of S-80 of the Civil procedure Act-(Cap.65X ('C. P. Act") was One of the considerations which influenced the learned Judge in the High Court to hold that ''good cause1' had been shown, within the

' I believe it is desirable to state the procedure that is laid It is set out in O.39j 10 (1) and (2) of the. Civil Procedure Rules as follows:' I • ' . down for appeals to'the High Court. rr.1 (1),8, '

''Order XXXIX

Appeals to the High Court

1 (1) Every appeal to the High Court shall be.preferred in the form of a memorandum signed by the appellant,or*t* his advocate and presented to the court or to such officer as it shall appoint in that behalf.

•(8). Where a memorandum is lodged, the High Court then shall cause to be endorsed thereon the date of presentation, and the appeal shall .be entered in a • book to be kept for that purpose, to be called the register of appeals.

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**1t.(1)** When a memorandum of appeal is lodged, the . High Court shall send notice,of appeal to the Court from , whose decree the appeal is preferred.-

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(2) The Court 'receiving- such notice shall send Twith all **practicable** despatch all material papers in the suit, or such papers as.may be specially called for by the High Court."

stated that he 'would file the'memorandum of appeal upon receipt of the reCord of proceeding in the Chief Magistrates Court.' This **was** in vi&lation of **O.39,r.1** (I). Nevertheless in. **the**-High Court Registry a file was opened and tituled Civil **Appeal** No. 37/85 arising out \*of original Mengq Suit No^ In the instant case, the present respondents on 11th December 1985 in and ' . \* &gt; • • both Mengo Cour.t/i.n the High Court filed a. notice of appeal wherein he \* 1^59/71.

Eventually on 27th May '1987 the present respondents filed a Memorandum of **Appeal** in.the same file where' the notice of appeal had beenj (For convenience I shall henceforth refer to the present respondents as ''the Administrators").

The aftermath of that .decision is described in the Judgment of my learned brother Platt J.§. C. Th'e appeal .was struck out by **Tsekdoko** J., C. A\*57 was decided by Mukanza J., there was actually no appeal because the memorandum of Appeal had been filed out. of time and without leave of court. on the ground that by the time the - On 9th February 1988,- Mukanza J., in, the High Court of. Kampala heard • and determined Civil Appeal No. 57/85 ex parte.

The limitation period for appeals is set dut in 3. 80 (I) of the Civil Procedure \*Act as follows:

- "80 (I) Except as otherwise specifically provided in any other law every appeal shall be entered- - (a) Within thirty days of the date of the decree or order of the court; or r - (b) **Within** seven days-of the date of the order of a register, as the case may be, appealed against." •

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There is a proviso.to this sub-section which allows the period to be. extended. It needs thus: u .

"Provided that the appellate court may for good cause admit an appeal though the period of Limitation prescribed by &gt; . this section has elapsed." -

Then the section with Sub:S.2:

(2) In computing the period of limitation prescribed by this section the time taken by the court or the registrar in making a copy of- the decree or order appealed against .. • and of the proceedings upon .'which it is founded shall be excluded." . • .

their counsel, Ochieng Oddi Osende filed on 19/8/1991 with the notice of motion-before the High Court that the proviso to S. 80 (I) and the Subs. (2) were being invoked in the Misc. Application No. 45 of 1991. It will be seen from the affidavits filed by the administrators and

of particular relevance. They stat as follows: Paras.-4, 5, 6, 8 and 9 of'Advocate Ochieng Oddi Osende1s affidavit are

"4. That Ruling in the case was given by the Chief Magistrate at Mengo <3n 29/11/1985 and the late\* Ulwov . Umudu holding brief for me duly applied for leave to appeal against the said ruling which leave was duly granted. . ,

> 5\* ' That on the 11/12/1985 I duly filed both in the Mengo Court and the High Court Registries a notice of Appeal wherein I specifically stated that I would file . the'memorandum of appeal upon receipt of record of proceedings in the Chief Magistrate's Court...'......'".. '

6. That I therefore instructed one of our clerks, Saulo Odongotogether with our S. Serwanga to ensure that , the record of proceedings in the case were duly obtained.

8. That it proved extremely difficult for us to obtain the record of i^roceddings from the Chief Magistrates Court at Mengo as every time my clerk went there, he was always informed that the proceedings were not yet typed.

9. That it was not until towards the end of April 1987, • th\$t I was informed by our Mr. Serwanga that he had at last managed to obtain"a copy of proceedings and ruling from the High Court on or about 27/5/87, almost I1/? years a.fter the date of the Ruling."

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It seems to me that in the above-quoted pragraphs of the affidavit, the Advocate for the Administrators in relying on S.80 (2) of- the C. P. Act as justifying the delay in filing the appeal from the decision of .the of the Mengo Court in C. S. No. 1459/71\*

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If the learned- Judge had had only to determine the Wise. Application the basis of the delay in getting the record of proceeds\* •ings, it appears that he would have grapted the extension of time. In his Judgment (at p.2J) he referred to the .case of BI KI TAN A Transport Bus Co. •. . Ltd. v. Emmanuel Biribwona (1979) H. C. S. 95 and stated as Follows: No.' 45 of 1991 on

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".... What I have decided to follow in this case is *. -* . that the delay in getting the lowe court proceedings, in the case before.'me, was the. fact of. the lower court which took one year'.to send in their record of proceedings to the High Court which then pass the same to the applicants' counsel." . •

owed by the.'advocate for the administrators had been proper. This is contained in pp. 20-22 of 'the Judgment and I quote: However the learned Judge also considered whether the procedure foll-

> ''Another aspect I wish to consider in that of >a memorandum being formulated and filed after receipt of proceedings of the court whose decision is appealed against. The. question is,, in <practi.ee>, how are tho proceedings normally obtained by the intending, appellants?

**it** Having been a member of the lower bench for ten years as a Chief Magistrate with Appellate jurisdiction, I am in a position to tell what the procedure is. This knowledge is personal and, I do not know if lam free here, to use my such knowledge to enlighten all concerned, of what the position is. I do feel, and think it is fair to do so, that I give an outline of that procedure and I do so under the guidance of Ingram v. Percival (1968) W. L. R\* 663 in which the appellant was charged with unlawfully using a net zsecured by weights in tidal waters for taking Salmon. C/S 11 of the B. K. Salmon and Fresh water Fisheries Act, 1923\* There was no evidence whether the net was fixed infact in tidal waters. The Justices convicted the appellant and on appeal to the Divisional Court, the Court held that the Justices were entitled to make use of their local knowledge,on the matter that the waters were in fact tidal waters.

The learned Judge then went on in his 'Judgment to state what in his experience was the practice and procedure in use and the reasons why the practice was' developed\* He then stated (at p.22):

> "This practice therefore out the.direct contact between the intending appellants and the trial courts. If this was the procedure followed by'the applicants^ which they say it was (paras.4, 5, and 6 of Ogola's affidavit), then I hesitate to say that the applicants

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#### ''were not diligent."

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cenceptions of v.hat facts a Judge may or may not take note of. Under the one conception a Judge may take notice of facts not subject to reasonable dispute in that it is either generally known within the territorial jurisdiction of the trial court or capable of accurate and ready determination by resort to sources whose accurancy cannot reasonably be questioned. Such, I apprefiend, was the -situation in the case cited by the learned Judge, Ipgarm v. Percival. Now it would seem to me that one must distinguish between two

Under the other conception, a judge must normally act after the catefully controlled introduction of formal evidence, which ordinarily consists of the testimony of witnesses. In the instant case the learned'Judge acted. on matters which were not introduced by the evidence but were within his own knowledge. According to this knowledge, the prevailing practice in Uganda is to ignore the lav; as set out in •39, direct contact" prescribed by statute. If such a practice is being foliowed in all appeals to the High Court,one can perhaps suggest that the . , Rules are overdue for review. i r.1 (l) and "cut out the .

But the question that poses itself is: What if all Judges of the High Court were to follows the practice which they recall from their own experience? and what if their experiences differ? Would it lead to length of the Judge's foot? Justice being administered, as some wag has put it, according to the

In the instant case, learned counsel for the administrators stated during the hearing of this appeal that his was that some advocates do follow the practice described by the learned Judge; others follow the procedure laid own experience down in 0.39, r.1 (i).

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With respect to the learned Judge, lam .of the vievz that it would . have been better if he had not in his judgment indicated his approval of the practice followed of filing a notice of appeal btfore the memorandum of appeal. It was not necessary for his decision. Even without the matter of the procedure of dealing with appeals to the High Court, there good cause shown under S.80 for admitting the appeal though the period of limitation prescribed by the section had elapsed. was enough to justify the holding that there was

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For these reasons, I would agree that this appeal be dismissed. I would also agree with the order as to costs.

1 st ' July Dated at Mengo this day of Ji 1992

E. E. SEATON JUSTICE OF THE SUPREME COURT

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I CERTIFY THAT THIS A TRUE COPY OF THE ORIGINAL

B. F. B. BABIGUMIRA REGISTRAR SUPREME COURT.