Kabogere Coffee Factory Limited & Another v Kigongo (Civil Application 10 of 1993) [1994] UGSC 42 (8 April 1994)

Ceol - do mules<br>Juvalid IN THE SUPREME COURT OF UGANDA AT **MENGO**

(CORAM: MANYINDO, D. C. J., ODOKI, J. S. C. & ODER, J. S. C.) CIVIL APPLICATION NO. 10/1993

BETWEEN

KABOGERE COFFEE FACTORY LTD.) 1. $2.$ HAJI BRUHAN MUGERWA

**APPLICANTS**

$AND$

HAJI TWAIBU KIGONGO ...

RESPONDENT

Co

(Reference from the Ruling of the Supreme Court of Uganda at Mengo (Platt, J. S. C.) dated $14/10/1992$ in Civil Applications Nos 40 and 41 of 1992).

## RULING OF THE COURT:

This is a reference for an order to vary, discharge, or reverse the decision of a single Judge of this Court dismissing with costs the Applicants applications for extension of time for appealing against the ruling and Order of the High Court in certain Companies Causes.

The Notice of Motion bringing the reference did not state the Rules under which it was done; but the hearing was proceeded with on the assumption that Rule 54 applied. This ruling is made on the same basis.

The back ground is that the present applicants, then represented by the firm of M/S Lubega - Matovu and Co., Advocates, filed in this Court Civil Appeals Nos. 19 and 20 of 1992. The appeals were from the High Court, in Companies Cause No. 7 of 1990. The present Respondent was also the Respondent: in those appeals. In due course, the appeals were set down for hearing on 16th October, 1992. However, prior to that date, the Respondent changed to another firm of Advocates, M/S Owiny-Dollo, Tibaijuka & Co. Advocates, who are their Counsel in the present application. On taking over the conduct of the case, the new advocates discovered that the appeals appeared to be incompetent on a number of grounds, and thought that they might be struck out.

Consequently, they filed in this Court, Civil Applications Nos.40 and 41 of 1992, seeking extension of time within which to commence fresh appeals against the decisions in the same matters before withdrawing the original appeals or without waiting for them to be struck out.

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The two application were heard and disposed of together as they involved the same parties and were based on the same facts. At the hearing two preliminary objections were taken by the Respondent, one of which succeeded, resulting in the applications being dismissed with costs. Hence this reference.

The objects of the applications giving rise to this reference were stated in the Notice of Motions as being:

> "for an Order that the Applicant be granted an extension of time within which to appeal against the above Ruling and Order, and that the costs of and incidental to this application abide the out-come of the intended appeal".

The affidavits supporting the applications were deponed by the Applicants' Counsel, Mr. Tibaijuka on 8.10.1992. In essence they were to the effect that the appeals were incompetent because they had been lodged by an advocate who had no valid practising certificatethe Notices of Appeal were at varience with the memoranda of appeals as regards the date of the Rulings and Orders appealed from; the relevant pleadings were omitted from the records of Appeals; the letter applying for the proceedings, Rulings and Orders of appeals was not included in the records of appeals, nor was the Registrar's certificate on those matters. The facts stated in the affidavits were not challenged by affidavit in reply.

The preliminary objections taken at the hearing of the applications were first that as the High Court had jurisdiction to grant extension of time under Section 37 of the Judicature Act, 1967, the applications eught / have been commenced in that Court. Relying on the authorities of OPOLOT VS. A. G. of Uganda (1969) E. A. 496, and Kyazze vs Busingye, Supreme Court of Uganda Civil Application No. 18 of 1990 (unreported) and others, the learned single Judge rejected this preliminary objection.

The second was that the applications being for extension of time, they ought to have been brought after the pending appeals had been

..../disposed-

disposed of either by striking out or by being withdrawn. This objection was up-held on the grounds that the fundamental defect of the inability to act by the Applicants' Advocate due to the absence of a practising certificate was incurable and that the other important defects must also first be cured.

Four grounds were stated for the reference, but the third one was abandoned during the hearing. The ones which remained are to the effect that:

The learned single Judge erred in regarding the Applicants' 1. Civil applications as being intended to cure defects in the respective pending appeals when the applications in fact sought an extension of time to institute a fresh appeal in each case.

The learned single Judge erred in holding that the pending 2. appeals had to be disposed of first before an application for extension of time could be entertained.

$4\degree$ The learned single Judge erred in awarding costs against the applications, having found that either party was right and wrong on equally important issues.

Mr. Tibaijuka, learned Counsel for the applicants took grounds one and two together. We shall deal with them in the same manner. He submitted that it was proper for the applications for extension of time to have been brought while the incompetent appeals were still pending. On the authorities of some recent decisions of this court and others, the pendency of an incompetent appeal was no bar to applications for extension of time. See The Executrix of the Estate of the late Christine Namatovu Tebajjukira vs... Debora Namukasa, Civil Application No. 8/1988 (unreported), and Haji Nurdin Matovu .... vs.... Ben Kiwanuka, Civil Application No. 12/91 (unreported). Secondly, the learned Counsel critisized the learned single Judge for having dismissed the application for what were said to be incurable defects, and yet the applications had been intended to seek extension of time to file fresh appeals and not merely to cure defects in the incompetent appeals. It was contended that even if the purpose was to seek extension of time to cure defects, the applications should have been neither dismissed nor struck out. Instead, they should have

been adjourned pending the out-come of the appeals. A further critisim was that at worst the applications should have been struck out and not dismissed, which now has the effect of shutting the applicants out. He from bringing fresh applications, which would not have is now barred been the case had the applications been merely struck out.

Referring to Rule 4 of the Rules of this Court, the learned Counsel submitted that the application of that rule is both prosepctive and retrospective. An application under the rule may be brought either before taking the steps for which extension of time is sought or after such steps have already been taken.

Opposing the reference in his reply Mr. Matovu, learned Counsel for the Respondent, began by conceding that the applications in question ought to have been struck out, and not dismissed as they were. He then submitted that on the basis of what was stated in the relevant affidavits, the learned sigle Judge was justified in holding that the applications were intended to cure defects in the appeal. Some of those defects were in curable, for instance the lack of a valid practising certificate by the Advocate who instituted the appeals; and the filing of the notice of appeal in the Supreme Court instead of in the High Court. In the circumstances, it was contended that the applicant was not entitled to extension of time during the pendency of the incompetent appeals. The applications for that purpose should, therefore, have been struck out.

It has now been well established by a long line of decisions of Court that an application for extension of time for sufficient Wreason can be entertained during the pendency of an appeal. Many of the recent decisions on this point appear to have their basis on the case of Kiboro .. vs. ... Posts and Telecommunications Corporation, (1974) E. A. 155 beyond which, -we think, it is unnecessary to go in tracing the development of the law and to discern the conditions under which time may be extended to cure defects in pending appeals, or such appeals held to be null and void. In Kiboro, the Appellant filed a record of appeal which did not contain a certified copy of the decree appealed against as required by rule 85(1)(h) of the Rules of this Court, Just before the appeal was to be heard, he filed a fresh record

of appeal which contained the decree, contending that he was entitled to file it as a supplementary record, alternatively that he should be allowed to file it out of time. The reason given for the error was that a Clerk had mistakenly followed the High Court rule. It was held that the record filed before the hearing of the appeal was not a supplementary record, but a refiling out of time of the original record containing the basic documents omitted from the original record and that the appeal was incompetent unless the court extended time for filing the copy of the decree as part of the original record or for filing of the fresh record as the record of appeal in place of the original defective record. But before the court could do that, it must be satisfied that there was "sufficient reason" for granting indulgence. In the event, the court considered that no cause was snown, and struck out the appeal.

Kiboro's case illustrates, inter alia, how, having decided that the appeal was incompetent, the court could immediately go on to consider whether an extension of time could be allowed. It also decided that although an appeal may appear to be incompetent, the court would adjourn the hearing of such appeal thus, giving time for an application for extension of time to be brought.

The next case in the line appears to be Barclays Bank of Uganda Ltd. vs. Eddy Rodrighes, Uganda Supreme Court Civil Appeal No.5/1987 (unreported). In that case, the appeal was struck out as incompetent for three reasons. First because the Appellant had not compiled with the procedure for filing of a supplementary record of appeal. His attempts to amend the record by introducing at the hearing a document that had been omitted from the record was rejected. But more relevant for our purpose in the instant case are the second and third reasons. They were that neither the order appealed aginst nor the order granting leave to appeal were included in the record of appeal as required by Rule 85(1)(h) and (i), and that the notice of appeal was filed out of time.

In the Estate of the late Namatovu Tebajjukira (Supra), an application was made under Rule 4 for extension of time within which to file either the decree or fresh records of appeal on the ground that Appellant failed to file the appeal in time because no decree had been extracted although the other documents of the record were ready.

$\cdot$ /The

The application was heard by Odoki, J. S. C. as a single Judge of this The learned single Judge allowed the application on the ground Court. that sufficient reason had been shown. On page 4 of his judgement he referred to Kibero (supra) and Barclay's Bank of Uganda Ltd. (supra) with approval and said this:

> "Therefore, where the time for filing the recod of appeal has expired, an omitted decree can only be filed after the Court has granted extension of time.

I agree with Mr. Mulira that an appeal which is incompetent must be struck out and and not dismissed. But I do not accept his submission that the present incompetent appeal should be struck out first before entertaining this application for extension of time in which to lodge the appeal. In the first place, there is no proper application before me for striking out the appeal. Secondly, a single Judge of this Court has no jurisdiction to entertain an application to strike out a Notice of appeal or an appeal as provided under Rule $52(c)$ of the Rules of this Court. In my opinion this Court is properly seized of the application for extension of time, and it now proceeds to consider the merit of that application".

## considered

The learned single Judge then / and allowed the application for extension of time on the ground that sufficient reason was shown.

The case of Haji Nurdin Matovu (Supra) came to this Court, like the present, by way of a reference. As a result of the decision granting an extension of time within which to lodge a record of appeal in proper order, the one previously lodged having omitted the decree appealed against, rendering the appeal incompetent, the unsuccessful party applied to the court for a review under rule 54. In considering the application the Court made a fairly thorough review of the decisions in the cases of Kiboro (Supra) and Tebajjukira (Supra) and took them into consideration in up-holding the single Judge's decision extending time for the Appellant. It rejected the view that the incompetence of an appeal must always be acted upon when it first comes to light, though that may well be the result if that is proper in the circumstances of a case. That, in our view, left the door open in appropriate cases for an incompetent appeal to be struck out without entertaining an application for extension of time to cure the defects being the basis

of the incompetence. In the circumstances of Haji Nurdin Matovu (Supra), however, the Court followed the general principle applied in the previous cases referred to, and held that when an application for extension of is being heard even if the appeal at that time appears to be incompetent extension of time may nevertheless be granted if there is sufficient reason for doing so.

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We now turn to consider the grounds of the reference. First, the criticism that the learned single Judge wrongly regarded the applications for extension of time in which to file fresh appeals as having been intended to cure defects in the incompetent appeals. We understand this to mean that the learned single Judge should have considered the applications in question as if the original incompetent appeals did not exist; he should have ignored them. With respect, we do not accept this criticism for the reason that the premises on which the applications sought extension of time consisted entirely of the defects which rendered the original appeals incompetent. The Applicants were not seeking to file fresh appeals where none existed before. They were doing so because the original appeals were incompetent. In the circumstances, therefore, we think that the merit of the applications could not be considered in isolation of the original appeals and the reasons for their being incompetent. The merit of the applications for extension of time was inextricably linked with the incompetence of the original appeals. The learned trial Judge was, therefore, entitled to take into account the defects which were enumerated in the affidavits supporting the applications in question.

The next criticism is that the learned single Judge wrongly held that the pending appeals had to be disposed of first before an application for extension of time could be entertained. The passage in the ruling of the learned single Judge at which this criticism was directed reads as follows:

> "It is clear that Mr. Tibaijuka must demonstrate that the proper course for me to take is to grant an extension of time at this stage of the appeal; and that causing the appeal to dispose of first is not appropriate. It seems to me to be clear that it is not appropriate to grant an extension of time at this stage. Not only can the fundamental objection to the Advocate's ability to act not be cured, but there are also a number of

other important defects which must be cured. It is best that the existing appeal is disposed of, and the new appeal brought without all these defects. It is generally unwise to allow a new appeal to be instituted before the existing appeal is disposed of".

In this passage, the learned single Judge clearly gave his reasons for rejecting the applicant's contension that extension of time for lodging new appeals should be granted at that stage, and that causing the incompetent appeal to be disposed of was inappropriate. In essence, the reasons were that in addition to other defects, the one concerning the Advocate's inability to act was a fundamental one which could not be cured by extension of time and that as a general principle a new appeal should not be instituted before the old one is disposed of. We agree with the decision of the learned single Judge and the reasons for it. First, because we think that it is not as inconsistent as it appears with the decisions in previous case, to the effect that an application for extension of time can be entertained during the predency of an incompetent appeal. As this court said in Haji Nurdin Matovu (Supra) there may be circumstances in which striking out when the incompentence of an appeal first comes to light is the proper course to take, in stead of entertaining an application for extension of time. We cannot lay down what such circumstances should be. Each case must be considered on its own facts. The present case, in our view, falls in the catergory of the exception envisaged in Haji Nurdin Matovu (Supra). The defects in the incompetent appeals were so fundamental that the appeals should have first been disposed of before fresh ones could be filed. In addition to serious defects such as the absence in the record of appeal of the pleadings, the letter applying for proceedings, the rulings and order appealed against, and the Registrar's certificate, Other defects included the Notice of appeal being at variance with the memorandum of appeal as regards the date of the ruling and order appealed, and that the appeals having been lodged by an Advocate without a valid practising certificate. In the recent case of Alfred Olwora vs. Uganda Central Co-operative Union Ltd., Civil Appeal No.25 of 1992, (unreported) this court held that it was an offence under Section 14(1) of the Advocates' Act, 1970, for an Advocate to practise without a valid practising certificate, and that under the proviso to the sub-Section, an Advocate could not be prosecuted before the 1st of March.

$\cdot$ $\cdot$ /This

This means that an Advocate enjoys a period of grace of two months during which period he may practise without a certificate and cannot be prosecuted. Consequently, documents filed by such an Advocate during the period of grace are valid.

In the instant case, since the affidavits stated that the Advocate concerned did not have a valid practising certificate, it must be taken that the documents were filed after the grace period had expired.

Secondly, no provisions of the Rules of this Court appear to permit institution of a fregh appeal while a previous one in the same case is still inexistence. In this regard, Mr. Tibaijuka informed us from the bar in his reply that the applicants intended to withdraw the incompetent appeals after knowing the fate of the applications for extension of time. In our view this would appear to be putting the The applications in question were made and the cart before phorse. hearing commenced while the incompetent appeals were still pending. The learned single Judge was faced with the situation in which the applicants wished to file fresh appeals while the previous ones in the same case were still pending, and not with what the applicants might do following the fate of their applications. If it was their intention to do so they should have withdrawn the appeals under rule 93 of the Rules of this court, but they did not do so. They apparently saw some difficulties in the way of such an action. They then chose, instead, to bring the applications in questiion which as the learned single Judge held, rightly in our view, were properly objected to.

For the reasons given, grounds one and two of the reference must fail.

Regarding the ground concerning costs, Mr. Tibaijuka contended that each narty having succeeded on equally important grounds of the objection/should have been left to bear its own costs.

The relevant part of the learned sigle Judge's ruling reads as follows:

> "Accordingly, I up-hold the objection on the first ground, but reject that on the second ground. Each party has been wrong on equally important issues. But the objection substatially

> > $\cdots \cdots \cdots$

$10...$ succeeded

succeeded and the objection must have the costs of the objection proceedings".

We agree with the learned single Judge. As the objection which succeeded disposed of the application in the Respondent's favour, he was entitled to the cost of the application. Consequently, this ground of the reference must also fail.

The learned single Judge dismissed the applications on a successful objection, although they were not heard and determined on merit. We think that dismissal would have been justified only if the applications were found not to have sufficient reason under rule 4. As it is, the applicationSshould have been struck out. This, we think is what the learned single Judge must have meant to do. However, since this was not made a ground of appeal and as the point was conceded by the Respondent, we think that what happened does not affect the result of the reference.

In the result the Applicants' reference is dismissed with costs to the Respondent, but the Order of the learned single Judge dismissing the applications is set aside and substituted with the one striking them out.

this Dated at Mengo

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$\times$ th $l.$ 1994. day of $A$

YINDO. **DEPUTA** CHIEF JUSTICE.

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**JUSTICE** THE SUPREME COURT. OF

JUSTICE OF THE SUPREME COURT.