Kyalukinda Turinawe and 4 Others v Eng. Turinawe and Another (Civil Application 27 of 2010) [2012] UGSC 18 (25 January 2012)

## THE REPUBLIC OF UGANDA

# IN THE SUPREME COURT OF UGANDA AT KAMPALA

# **CIVIL APPLICATION NO. 27 OF 2010**

### **BETWEEN**

#### 1. MOLLY KYALUKINDA TURINAWE

- $2.$ **FIONA TURINAWE** - $3.$ **BERNES ANKUNDA** - $4.$ **ROBIN TURINAWE** - 5. DAVIS TURINAWE

### **APPLICANTS**

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### **VERSUS**

#### 1. ENGINEER EPHRAIM TURINAWE **RESPONDENTS** $2.$ DEWARK LIMITED

# RULING OF DR. E. KISAAKYE, JSC.

The applicants brought this application by way of Notice of Motion under rules $2(1)$ , $2(2)$ , 5, 42 and 50 of the Judicature (Supreme Court) Rules. They are seeking extension of time within which to institute an appeal against the decision of the Court of Appeal in Civil Appeal No. 18 of 2009. They also pray that the costs of this application be provided for.

The brief background of this application is that the first appellant is the wife of the first respondent. The second, third, fourth and fifth applicants are children of the first applicant and the first respondent. The second respondent, Dewark Limited, purchased the suit property from the first respondent.

The applicants instituted a suit in the Iligh Coufi praying for orders for nullification ofthe sale and transfer ofa residential property at Kololo to the 2nd respondent by the first respondent without their consent, which they claimed was their matrimonial home. The High court ruled in favour of the applicants. However, on 20'h November 2009, the Court of Appeal reversed the judgment of High Court.

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The applicants, being dissatished with that decision, instructed their former lawyers, M/s Bamwite & Kakuba Advocates, to file an appeal to the Supreme Court. The Advocates filed a Notice of Appeal in the Court of Appeal on the 23'd November 2009 and applied for a certified copy of proceedings. They also served the advocates ofthe respondents.

on 11'h March 2010, the Registrar of the court of Appeal notified lv{/s Bamwite & Kakuba Advocates that the proceedings were ready for collection but the lawyers did not take the necessary steps in filing the appeal on behalfofthe applicants. The applicants only found out thattheir appeal had not been filed in October 201 0 when IMls Bamwite & Kakuba Advocates notified the first applicant that they had been served with an application to strike out the Notice of Appeal. It is then that the applicants engaged their current lawyers who filed this application.

The application is based on several grounds which appear in the Notice of Motion and the accompanying affidavit of the I't applicant, Molly Kyalikunda Turinawe sworn on the 13rh October 2010.

At the hearing of this application, Mr. Kaggwa from IWs Kaggwa-Oweyisigire & Co. Advocates represented the applicants, while the respondents were

represented by Mr. Babigumira from Ms. Bamwe & Co. Advocates. Both the respondents and the applicants applied to the court to cross examine the first applicant and Ms. Joyce Lynn Kabutiiti, who was the deponent of the respondents' affidavit in reply, respectively. I granted both applications.

The first applicant was thus cross-examined and re-examined. Following her cross-examination, counsel for the respondents requested for a certified copy of the proceedings which had so far taken place. Counsel contended that the pulpose of their cross examination of the first applicant was to prepare ground for a possible preliminary objection to her Affidavit and the Application, which they intended to make. I declined to provide the proceedings on grounds that counsel for the respondents had been present in court during the entire proceedings that had already taken place and that they were fully aware of what had transpired in court.

At the next hearing of this application, counsel for the respondents raised <sup>a</sup> preliminary objection to this application. He submitted that the affidavit sworn by the hrst applicant was incurably defective because while she claimed that her oath had been taken before one Bitagurna, a Commissioner for Oaths, she testified, while under cross-examination that she executed the Affidavit in the chambers of her lawyers. He further submitted that the only logical conclusion to draw from the first applicant's testimony was that after executing her affidavit, the same was taken to Mr. Bitaguma for his signature. He submitted that this procedure was contrary to sections 5 and 6 of the Oaths Act, Chapter 19, Laws of Uganda. He concluded by submitting that the act of her not signing her affidavit before the Commissioner for Oaths not only made the first applicant's affidavit incurably defective but also the whole application which

did not have any supporting affidavit as required by law. He prayed that the application be disrnissed with costs.

counsel for the applicants opposed the preliminary objection and submitted that it was not true that the first applicant's affidavit had been executed in noncornpliance of the Oaths Act. He submitted that the first applicant was never asked during her cross examination before whom she had swore her Affidavit and that her admission that she had swore it in her Advocates' chambers did not exclude the fact that she did it before the said Commissioner for Oaths. He prayed that the objection be ovemrled.

Section 5 of this Act prescribes the form and manner in which an oath may be taken by people professing different faiths in Uganda. Section 6 on the other hand requires every Commissioner for Oaths before whom an oath is taken to state in the jurat where and on what date the affidavit was made.

Having considered the provisions of the oaths Act and the submissions of both counsels, I overruled the respondents' preliminary objection on grounds that the objection was based on lnere conjecture and was not supported by any credible evidence to prove the allegations he had made with respect to how the first applicant's affidavit had been swom.

Counsel for the respondent failed to show how these sections had not been complied with and only made an attempt to testiff from the bar as to how the first applicant's affidavit had been sworn.

The hearing was adjourned to another date for cross-examination of Ms. Kabutiiti, who was reported to have been indisposed by her counsel. I duly

inforrned the parties that this was the last adjournment I was granting in the rnatter and also ordered Ms. Kabutiiti to attend court at the next hearing which was scheduled on l4'h April 2011, to enable counsel for the applicants to cross examine her if they still so wished to do so. Both parties were ordered to come prepared to make their submissions after the cross examination of the Ms. Kabutiiti.

Following the adjournment, counsel for the respondents resubmitted his request for a typed and certified copy ofthe proceedings and my ruling on his preliminary objection to enable them to formulate grounds for consideration by the full bench. I refused to grant this request on similar grounds as their earlier request. Subsequently, respondents' counsel wrote a letter to the ChiefJustice which is on the court record, alleging bias on my part for my refusal to avail them the proceedings and the ruling and requested tbr his intervention.

Counsel for the respondents and Ms. Kabutiiti, did not attend court on l4th April, 201 I when the matter next came up for hearing. Instead, the court clerk brought to my attention a letter dated 13th April 201 I written by counsel for the respondents to the Registrar of the Supreme Court. Counsel reiterated his allegations of bias and indicated that his clients were only interested in making <sup>a</sup>reference to the full bench and were awaiting for the response from the chief Justice and the results of their reference to a full bench.

Counsel for the applicants, on the other hand, who was in court applied to court for the matter to proceed in the absence ofcounsel for the respondents and his clients. He submitted that there was no basis for the respondents' allegations of bias and their pral,er for this application to be heard by a full bench which is

contrary to the practice of this court to have such applications heard by a single judge. He also prayed that in the absence of the Ms. Kabutiiti, he be allowed to abandon his earlier request to cross-examine her and to proceed with the hearing of the application. Lastly, he prayed that he be allowed to withdraw his earlier written submissions which were already on file and to make new written subrnissions responding to the new matters that had come up in the respondents' affidavit in reply and during the cross examination ofthe tirst applicant.

Basing on rule 53(2) of the Supreme Court Rules which provide for the procedure where the applicant appears and the respondent fails to appear on the date set for hearing, I ruled that the hcaring continues. My ruling was further based ,n l.he fact that the hearing had been adjoumed for the last time in the presence ofcounsel for the respondents, who had neither appeared in court in person or through another counsel holding briefon his behalfto seek an adjoumment. I also granted the all applications madc by counsel for the applicants. I ordered that counsel for the applicants file their new written submissions and serve counsel for the respondent, who were similarly directed to file their written subrnissions as scheduled and to serve counsel for the applicants. Subsequent to my orders, counsel for both parties filed their written submissions.

counsel for the applicants submitted that ruled 5 of the Supreme court Rules empowered this court to extend the time for doing any act authourised or required by the Rules, ifthere is sufficient reason to do so. Relying on the affidavit ofthe first applicant and her testimony during cross-examination, he contended that there is sufficient reason for the court to extend the time within

which to file the applicant's Appeal in this case. He argued that sufficient cause was constituted by the fact that it is the applicants' former advocates who either negligently or by mistake or error failed to file the appeal in court in time. He further contended that the applicants, as lay persons entrusted their case with their tbrmer advocates and so they ought not to be punished for the error, omission and negligence of their former lawyers. He reiterated the principle that the negligence, mistake error or omission of an advocate should not be visited on the party. He relied on several decisions of this court, namely Zamu Nslumansi v Sulainmn Lule S,C. Civil Application No.2 of 1992; Attorney General v. A. K. P. I[, Lutaayo, S. C, Civil Application No. 12 of 2007; F. L. Kaderbhoi & Anor v Shamsherali M, Zaver Virji & 2 Ors, S. C. Civil Application No. 20 of 2008; Mulowooza &Bros Lttl v N. Shoh & Co Ltrt S. C. Civil Applicotion No. 20 of 2010; where this court has reiterated this same principle and has also held that sufficient cause had been shown to extend the time to institute the applicant's appeal. He submitted that there was no evidence frorn the respondents to controvert the applicants' evidence that they indeed instructed their lawyer to institute their appeal and that it had been their lawyers who were negligent.

Secondly, counsel for the applicants submitted that in the instant case, a family residential house and land at Kololo which is prime property, was at stake. He contended that the applicants would suffer injustice and great loss iftheir right to the property and shelter is lost, without their appeal being heard and decided on its merits by the Supreme Court.

Thirdly, counsel also submitted that the fact that there was the pending application, Civil Application No. 9 of 2010, to strike out the applicant's Notice ofAppeal should not act as a bar to an application for extension of time, neither does it divest the courl of its jurisdiction to any time. He relied on the case of Gotlfrey Magezi ond Another vs. Sudhir Ruporelio, S. C. Misc. Applicotion No, 6 of 2003, when this court held that when dealing with a matter of this nature, "the guitling principle shoultl be thal the rules of procedure sre meant lo serve os hand nroids ofjustice ond not lo defetl juslice",

Lastly, counsel for the applicants contended that the respondents could be compensated with costs for any inconvenience caused. He concluded by praying to court to use its inherent powers under rule 5 and 4l(2) to allow his clients' application and to extend the time within which they would file their appeal.

In rcply, counsel for the respondents conceded that the while court had powers to extend the time to file an appeal, it could only do so for sufficient reason. He submitted that in the instant case, the applicants needed to prove that their advocate was not only in breach of his duty to them, but also that they too were not guilty of dilatory conduct. He contended that according to the reasons given by the first applicant, the applicants never visited their lawyer's chambers at all nor did they ever facilitate their former Advocate, Mr. Bamwite to prosecute their appeal. He submitted that there was no evidence of negligence on the part ofcounsel Bamwite. Secondly, counsel for the respondents submitted that the applicants were guilty of dilatory conduct. He relied on the cases of llorlo ndi Daniel v, Yolamu Egondi (2006) HCB Vol. I, 103; Robert Kitariko v. Dovirl Twinokatoma C. A. Civil Application No,2 of 1982; paul Mosigo v. Toro & Mityana Tea Co. Ltd, C. A. Civit Appticotion No. 79 of <sup>1999</sup> [20011 KALR /86; among others, in support of his contentions. He concluded

by submitting that the applicants had failed to establish or to show sufficient cause on grounds of their former counsel's negligence to warrant the application being granted and that even if he had been negligent, the applicants had been guilty of dilatory conduct.

Rule 5 of the Judicature (Supreme Court) Rules confers jurisdiction on this court to extend time. It provided as follows:

"The Court may, for sufficient reason, extend the time prescribed by these Rules or by any decision of the Court or of the Court of Appeal for doing of any act authorized or required by these Rules whether before or after the expiration of the at time and whether before or after the doing of the act, and any reference in these rules to any such time shall be construed as a *reference to the time as so extended"*

It is therefore important the a consider the following three questions before I can dispose of this application:

- Whether the applicants have established sufficient reasons for this court $(i)$ to extend the time in which they may lodge their appeal. - $(ii)$ Whether the applicants are guilty of dilatory conduct? - Whether any injustice would be caused if this application is not granted? $(iii)$

The basis of the applicant's evidence is to be found in the affidavit evidence of the first applicant. In paragraphs 4 to 8 of her Affidavit, she deponed as follows:

1. "That I and my co-Applicants instructed my former lawyers Ms. Bamwite & Kakuba Advocates to file an Appeal against the Court of Appeal judgment to the Supreme Court.

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- 2. Thot ntyfornter luvyersfiletl a Notice of Appeal on 23"t November 2009 and appliedfor the Court proceedittgs. The Notice of Appeol antl leller opplyitrg for Courl proceedings ore annexed and ntorked ,,A" AND uB'respectively. - -r. Thnl ofter the losing lhe family accommodation in Kompola, I went to stoy at nty porents honrc in Rukungiri tnd nty children got scollered in rlffirent places so u,e lost conlact wilh outformer Advocotes who had ulso chonged of/ices. - 4. That nty lawyers managed to lroce n e eluring the month of October 2010 md informed me tltat the Notice of Appeal was to be struck out becquse they ditl rrot toke the necessary furllrer steps on my Appeol. - 5. That when I asked them why they did not take the necessaryfurther steps in the Appeol, they informed me thot they did nol do so becouse they could nol lroce me to give lhem money required for preparing lhe record of npped, for Court fees ond for security for costs,',

During her re-examination in court, the first applicant repeated her contention that she relied on her lawyers to take the necessary action to lodge the appeal as follows:

"It is Mr. Bannpite x,ho Jiled the Notice of Appeal and sought for the record of appeol. lVhen I was leoving, we tgreed thot Mr. Bamwite woultl handle everyllting and that I woultl poy ltim loter. He told me all that involved was poper work, That is why I look long to get in touch"

From her evidence, it is evident that the applicants indeed instructed their former larvyers to institute a Notice of Appeal. That is bome out by the fact

that indeed the said lawyers filed a Notice of Appeal and also requested for a typed copy of the Judgment and proceedings on November 23'd 2009. It is also an undisputed fact that the said lawyers were duly notified by the Registrar that the proceedings were ready on I ln March 2010. The first applicant's evidence is that the said lawyers never took any necessary steps to institute the appeal hence this appl ication.

The respondents' submissions collaborate these facts that indeed no appeal was ever filed. The respondent even proceeded to file an application to strick out the Notice of Appeal. From the receipt of the Registrar's letter informing the applicants' former lawyers that the proceedings were ready, the first applicant contends that she only heard fi'our her fonner lawyers in October 2010 when they were notilying her that they had been served with an Application to strike out their Notice ofAppeal. The respondents contested the first applicant's evidence that they did not facilitate the former lawyers to prosecute the appeal. Thcy however did not offer any credible evidence to the contrary, to show what other steps the applicants' former lawyers took to inform the applicants that

- (1, the certified typed proceedings were ready for collection; - (ii) that the applicants needed to deposit filing fees and security for costs; - (iii) rvhat rvere the next steps thot nccdcd to bc takcn to institute the appeal; and - the requisite timeframe provided for by the Judicature (Supreme Court) Rules with respect to filing an appeal. (iv)

Neither did the respondents provide any credible evidence to prove their claim that the applicants' forrner lar.ryers had not changed their ofhccs and that the

first applicant was living in Kawempe and not in her home village as she clairned and that the rest of the applicants were scattered. The affidavit in reply of Ms. Kabutiiti, who holds Letters of Administration to rhe Estate of the late Elizabeth Kabutiiti, who is claimed to have been a shareholder in the second's Respondent Company does not help the respondents' case because it purports to depone to matters which are not within the deponent's personal knowledge. For example, it does not show whether Ms. Kabutiiti personally knew any of the applicants and their extended family, since her only known connection to the applicants is as a representative of the second respondent who claimed to have bought the house that is the subject matter ofthe intended appeal.

I have carefully considered the submissions of both counsels. Given the evidence adduced by the applicants, I am convinced that the appeal was not instituted in time, due to either the negligence, mistake, error or omission of their former advocates.

I find that the applicants have adduced sufflrcient reasons as required by Rule <sup>5</sup> to warrant me to exercise my discretion to grant the extension of time within which to institute their appeal. Counsels' negligence or omissions have indeed been found to constitute sufficient reasons in similar applications that have come before this court suclt as was the case in Zamu Nalumansi & Anor v Suloiman Lule (Supra); Attorney Generol v A. K. P. M Lutaya (Supra); F. L. Koderbhoi & N. H. Vabiji & others (supro),

I agree with the leasoning of my brother, Justice Seaton, JSC in the case of Zomu Nsluntonsi & Anor vs. Sulainnn Lule (Supra) when he observed as follows:

"....the applicants are laymen. There is nothing in the evidence to indicate their degree of education or sophisication. I cannot say that in relying as they did on the assurance of negligent counsel, they were usually naïve or unreasonable. Nor did their new counsel, who eventual discovered the former counsel's error or omission, appear to have been guilty of such delay as *would justify depriving the applicants of their right to have their intended* appeal adjudicated on its merits."

My resolution of the first question would be enough to disposal of this application. Let one however briefly comment on the two additional questions. This application was also brought under rule 2 (2) of the Supreme Court Rules which provided as follows:

"Nothing in these Rules shall be taken to limit or otherwise affect the inherent power of the court, and the Court of Appeal, to make such orders as may be necessary for achieving the ends of justice or to prevent abuse of the process of any such court, and that power shall extend to setting aside judgments which have been proved null and void after they have been passed, and shall be exercised to prevent an abuse of the process of any court caused by delay."

The appeal that the applicants intended to lodge involves a subject matter of a house which the applicants are claiming was their matrimonial home. It is important that the applicants be allowed to file their appeal so that the matter is heard on its merits. Indeed, this is a case where the ends of justice would be served by hearing both parties on this important matter.

Since the ends of justice demand that this application be allowed, I accordingly grant this application. The applicants are hereby ordered to file their Memorandum of Appeal within 14 days from the date of delivery of this Ruling and to serve the respondents immediately.

On the issue of costs, I believe that this is a matter which the parties could have resolved quickly and where this protracted litigation could have been avoided. In light of this, I make no award as to costs. Each party shall meet their own costs.

Dated at Karnpala this ofJanuary 2012. \,,t c?r

> Dr. Esther Kisaakye Justice of thc Supreme Court