Major Bogere v Buwule (Misc. Application No. 7720 of 1997) [1998] UGHC 39 (28 July 1998)

## THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT KAMPALA

## MISC. APPLICATION NO.1120 OF 1997

MAJOR FRED BOGERE:::::::::::::::::::::::::: APPLICANT VERSUS

M. BUWULE:::::::::::::::::::::::::::::::::::

BEFORE: THE HON. MR. JUSTICE G. TINYINONDI

## $RULING$

The Applicant herein seeks an order that the time for filing a NOTICE OF APPEAL be extended. The main ground was that neither the Applicant nor his Advocate was served with a notice to attend judgment day. That as such they did not know so as to be able to appeal. The other ground was that the proposed appeal had high chances of success. The notice of motion was supported by the affidavit of Moses Ojokol who deponed, inter alia, that he is a member of the Applicant's firm of lawyers. He repeated the grounds in the notice of motion in the rest of his affidavit.

At the hearing Counsel for the Applicant recited the notice of motion and Ojokol's affidavit. He also referred to Order 18, Rule 1 of the Civil Procedure Rules. He abandoned the ground concerning chances of success because he conceded they had not been deponed to in the accompanying affidavit.

Counsel for the Respondent argued that since the Applicant had abandoned ground (C) of the affidavit it would be futile to extend the time when the intending Applicant was not sure of the success of his appeal.

$\star$ AUGUS This is an annexture marked. refered to in the Affidavit sworn by M. Buwul $\frac{1}{2}$ dated 31.8. 99. to which it is annexed . . . . . . . . . . . $\cdot$ & COMMISSIONER FOR OATHS $A$

He further argued that the affidavit in support was not sworn by the Applicant but by an Advocate who did not disclose that he had handled the case and therefore was versed with the facts.

I perused the court record and attentively listened to both Counsel's arguments. I also perused the law. Order 18, Rule 1 is mandatory. It directs courts to issue notices to parties or their Advocates for receiving judgments. There is only the affidavit of Ojokol that no such notice was served on the Applicant or his Advocates. This affidavit was not controverted by any evidence from the Respondent by an affidavit in reply. I hold that its contents are admitted. [See SHELTONS OKOBO VS STANDARD BANK.] The above notwithstanding, an application for extension of time is subject to the provisions of Order 47, Rule 6 of the Civil Procedure Rules. It is not a speculative matter that the Applicant or his Advocates read the Court file before they filed this application. Either or both must have read and gauged the chances of success of a likely appeal. The order sought is discretionary. But the Court is enjoined to consider " the justice of the case." [See Order, Rule 6 (ante).

The notice of, motion (paragraph (C) and the affidavit in support (paragraph 6) are short of any substance. And, rightly, the Applicant's Counsel conceded to having failed in this respect. He did not seek leave to file another affidavit to \* rectify the situation. The lower Court judgment was not availed to this Court so that at least I could evaluate it myself. These omissions by the Applicant and/or his Counsel have led me to fail to appreciate "the justice of (their) case." As was stated in TRANSPORT COMR. VS ATTORNEY GENERAL [1959]EA 329 at page 333 there must be "adequate reason shown" for a court to exercise its discretion. There having been none in this case, i hereby dismiss this application with costs.

G. Tinyinond $J U D G E$ $28/7/98.$