Mbarara Municipal Council v Jetha Brothers Limited (Miscellaneous Application 10 of 2021) [2021] UGSC 34 (8 October 2021)

### THE REPUBLIC OF UGANDA

# IN THE SUPREME COURT OF UGANDA AT KAMPALA

### **BEFORE: MUHANGUZI, JSC**

## **MISCELLANEOUS APPLICATION NO. 10 OF 2021**

# (Arising out of Civil Appeal No. 111 of 2013)

MBARARA MUNICIPAL COUNCIL....................................

#### **VERSUS**

JETHA BROTHERS LTD....................................

### **RULING OF EZEKIEL MUHANGUZI, JSC**

- The applicant brought this application by a motion on notice under rules 10 2(2), 5, 41(2) and 43 of the Judicature (Supreme Court Rules) Directions SI 13-11, for orders that: - 1. Extension of time to file a notice of appeal be granted or the notice of appeal and letter requesting for record of proceedings filed be validated.

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2. The costs of the application be provided for.

The grounds of the application are as follows:

- 1. That on the 18<sup>th</sup> of December 2020 the Court of Appeal passed judgment in favour of the respondent and against the applicant. - 2. That on the 31<sup>st</sup> day of August 2020 counsel for the applicant was present in court when the Hon. Justices of the Court of Appeal declared that judgment would be delivered on notice. - 3. That neither counsel for the applicant nor the applicant was ever served with notice of the date for delivery of the judgment. - 4. That there is sufficient notice(sic) for the applicant not filing the notice of appeal within the required time.

5. That it is in the interest of justice and equity that this application be granted.

The application is supported by an affidavit sworn by Timothy Arinaitwe an advocate of the applicant. He avers as follows: 30

- 1. "That I am an adult male Ugandan of sound mind, an advocate of the high court and for the applicant herein and swear this affidavit in that capacity. - 2. That on the 18<sup>th</sup> of December 2020 the court of appeal passed a judgment in favour of the respondent and against the applicant. - 3. That on the $31^{st}$ day of august 2021, I was present in court when the matter was scheduled before Hon. Justices of the Court of Appeal. See copy of hearing notice attached hereto and marked as annexure A.

4. That on the aforementioned date the Hon. Justices informed the 40 advocates and parties present that judgment in Civil Appeal No. 111 of 2013 would be delivered on notice.

- 5. That I as advocate for the applicant was never served with notice of the date for delivery of judgment. - 6. That I am informed by the applicant's city clerk Mr. Theo Tibhika and which information I believe to be true that to the best of his knowledge the applicant was never served with notice of the date for delivery of judgment. - 7. That on the 19<sup>th</sup> of march 2021 I discovered through a letter from the respondent's advocates that judgment had been delivered in my absence and had been delivered in favour of the respondents. See copy of letter annexed hereto and marked as annexure B. - 8. That I am informed by the applicant's aforementioned city clerk and which information I believe to be true that the applicant is aggrieved by the judgment and would like to have it appealed.

- 9. That the applicant had lodged a notice of appeal and a letter requesting for the record of appeal out of the statutory time and prays that this court validates the late filing. - That the intended appeal raises very important matters of $10.$ fact and law which ought to be heard and resolved on their merits. - That there has been no delay either on the applicant or its 11. legal representatives in filing this application. - That it is necessary that the applicant be allowed to file its $12.$ appeal out of time in order to ensure that all the contentious matters are resolved. - That it is in the interest of justice and equity that this 13. application be granted. - $14.$ That whatever is stated herein is true to the best of my knowledge and belief save for information obtained from sources disclosed therein".

The respondent opposed the application and filed an affidavit in reply sworn by Aliyullah Husainali Jetha Ismail. He affirmed as follows:

- 1. "That I am a male adult Ugandan of sound mind, director of the above named respondent company and as such do affirm this **affidavit** - 2. That I have read and understood the affidavit of counsel for the applicant advocate Timothy Arinaitwe and in reply thereto state as follows. - 3. That I have been advised by respondent's lawyers of M/S Akampumuza &Co. Advocates whose advice I verily believe to be true that the application is incompetent, bad in law, barred by law, based on falsehoods and an abuse of court process and a preliminary point of law shall be made to have it stuck out with costs.

- 4. That in reply to paragraphs 2, 3, 4 and 5, I was personally present in court on 18/12/2020 when the court of appeal delivered the judgment in civil appeal no. 111 of 2013, after the court of appeal clerk served the judgment notice. - 5. That Timothy Arinaitwe's paragraphs 6, 8, 12 and 13 are false hearsay averments on contentious matters within the applicant's knowledge and her alleged city clerk Mr. Theo Tibhika never swore to authenticate them. - 6. That in reply to paragraphs 7, 9, 10 and 11, the contents thereof are mere afterthoughts, Timothy Arinaitwe never replied to my lawyers' letter and only approved the extracted decree as required which he attached without a copy of the decree it accompanied. (see copy of the letter to court requesting for its approval attached as "T1") - 7. That in further reply, Timothy Arinaitwe's contentious averments on matters of applicant being aggrieved by a judgment and wishing to appeal it when he is not its official are baseless hearsay. - 8. That in further reply, Timothy Arinaitwe concealed the served documents on which respondent's lawyers protested and put the applicant on notice that an application would be made to strike out the notice of appeal for being filed and served over 96 days outside the time allowed which was filed and is pending hearing. (copy of the received notice of appeal, letter and the application attached as "T2", "T3" and "T4" respectively). - 9. That in further reply, Timothy Arinaitwe's allegation that the intended appeal raises very important matters of fact and law for resolution on merits is groundless. - 10. That in further reply, the appeal involved respondent's formerly expropriated property in Mbarara which she repossessed but the applicant disregarded the certificate of repossession,

- unlawfully allocated it to other third parties in 1993, three (3) of 115 whom have since recognized her ownership and entered into consents. (see copies of consents annexures "T5" and "T6" respectively). - 120 - That in further reply, the case has since taken over 28 years 11. and is causing hardships to respondent but the applicant merely wants to continue engaging in delaying tactics to deny her from enjoying the fruits of her litigation. - That in further reply, the application was designedly filed late 12. and it would be unjust and unequitable to grant the application. - 13. That I affirm this affidavit in reply to the affidavit of Timothy 125 Arinaitwe. - $14.$ That whatever is stated herein above is true to the best of my knowledge, save for that which is true based on information the sources of which are disclosed therein." - The applicant further filed an affidavit in rejoinder sworn on 24th May 130 2021 by Timothy Arinaitwe. He avers as follows: - - 1. "That I am an adult male Ugandan of sound mind, an advocate of the High Court and for the applicant herein and I depone this affidavit in rejoinder having perused the affidavit in reply to which - 135

- I rejoin as hereunder; - 2. That the application is not incompetent, barred by law, bad in law or contains falsehoods. - 3. That in response to paragraph 4 of the affidavit in reply, the deponent has not adduced any evidence to substantiate his claim, no affidavit of service has not been annexed, (sic) and neither has the clerk to court been named nor sworn an affidavit to support the claim that the applicant was served with the judgment hearing notice.

- 4. In response to paragraph 5 of the affidavit in reply, the matters sworn are not contentious, or hearsay or false and the source of the information was provided and neither has the respondent provided evidence to the contrary save for alleging they are false. - 5. In response to paragraph 6 of the affidavit in reply, I contend that there is no legal requirement for me to reply to the letter but in fact - the legal requirement and remedy in such a case in filing this application - 6. That in response to paragraph 7 of the affidavit in reply, I am the advocate on record who appeared for the appeal and with instructions to continue and pursue an appeal. - 7. In response to paragraph 8 of the affidavit in reply, I state that 155 service of annexures T2 and T3 was on the 1<sup>st</sup> April 2021 and the application before this court had already been filed on the 31<sup>st</sup> of March 2021. I therefore cannot conceal what did not exist at the time. - 8. In further response to paragraph 8 of the affidavit in reply, I state 160 that to date the applicant or its advocates have not been served with this alleged application to strike out the notice of appeal.

9. In response to paragraph 9 and 10 of the affidavit in reply, I state that annexures T5 and T6 do not explicitly state that they recognize the respondents' ownership and furthermore the consent does not hinder the applicant from exercising its right to appeal.

That in response to paragraph 11 of the affidavit in reply, I 10. state that the delay of the suit or its appeal is no fault of the applicant nor should it deprive the applicant its right to appeal.

That the applicant was successful in the trial court and the $11.$ 170 decision was overturned by the Court of Appeal condemning the applicant to general damages of UGX. 300,000,000/= from date of judgment at the trial court till payment in full.

- That I state that non service of the judgment hearing notice 12. prevented the applicant from lodging the notice of appeal and letter requesting for record of proceedings in time. - That I reiterate my averment and prayers contained in the 13. affidavit in support of the application. - That whatever is stated herein is true to the best of my $14.$ knowledge and belief save for the information obtained from sources disclosed therein."

## Representation.

At the hearing, learned counsel Dr. James Akampumuza appeared for the respondent. While learned counsel Mr. Timothy Arinaitwe appeared for the applicant. Aliyula Jetha, Director of the respondent was in court. 185 There was no representative from the applicant in court.

## Submissions for the applicant.

Counsel for the applicant contended that the applicant was never served with the notice on when the judgment was to be delivered. Counsel submitted that the applicant got to know of the judgment on 19/03/2021 190 when the respondent's lawyers served the applicant's lawyers with a letter enclosed with a decree.

Counsel added that the applicant was unable to file the notice of appeal in time because she was never served with the notice of the date for delivery of the judgment in time. He relied on James Bwogi & Sons 195 Enterprises Ltd Vs. Kampala City Council & Kampala District Land Board. Supreme Court Civil Application No. 09 of 2017 and submitted that failure to be served with the judgment notice constituted a sufficient cause as to why the applicant never filed the notice of appeal in time.

Counsel prayed that the notice of appeal and the letter requesting for 200 record of appeal filed and served be validated.

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### Submissions for the respondent.

Counsel for the respondent raised four preliminary objections on points of law. Firstly, counsel submitted that this application is bad in law for being brought by a wrong party. Counsel pointed out that Mr. Timothy Arinaitwe's affidavit variously refers the applicant (Municipal Council) as a city council without any application on record for substitution of parties to legalize and validate the application. Counsel argued that by the time this application was filed, Mbarara Municipality no longer existed and therefore had no capacity to bring an application or instruct a lawyer. He 210 cited Regulation 2 of the Advocates (Professional Conduct) Regulations SI 267-2 in support of this argument.

**Secondly,** counsel argued that the application is incurably defective and incompetent. According to counsel for the respondent, Mr. Timothy Arinaitwe was not supposed to depone an affidavit in support of the 215 notice of motion because he is not the applicant in this case. He cited Regulation 2 of the advocates regulations (supra) for the preposition that a suit brought without instructions like in this case, is incompetent. Counsel also cited Buikwe Coffee Ltd (1962) EA 327 and Danish Mercantile Co. Ltd Vs. Beaumont & Anor (1951) Ch C. A 680 for the 220 preposition that the applicant's lawyer brought this application without instruction and as such incompetent.

**Thirdly**, counsel contended that the instant application is an abuse of court process. He argued that the applicant's lawyer swore an affidavit on contentious matters in paragraphs 6, 8, 12 and 13 of Mr. Timothy 225 Arinaitwe's affidavit in support of the application. In support of this argument counsel cited Banco Arabe Espanol Vs. Bank of Uganda, SCCA No. 8 of 1998 and Regulation 9 of the Advocates (Professional Conduct) Regulations.

Lastly, counsel submitted that the applicant's application is based on 230 false hearsay and speculation. Counsel pointed out that paragraphs 6, 8, 12 and 13 of the affidavit in support of the application are averments that are within the knowledge of Mbarara City Clerk, one Tibhika who never swore an affidavit to confirm such information. He added that his evidence offends Section 59 of the Evidence Act and Rule 42(1) of the 235 rules of this Court and therefore inadmissible. Counsel relied on Eric Tibebaga Vs. Fr. Narcensio Begumisa & Ors SCCA No. 18 of 2002.

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In reply to the grounds of the application, counsel submitted that the application lacks merit because it is incurably defective and speculative. Counsel reiterated that the applicant never proved that she instructed 240 Mr. Timothy Arinaitwe to represent him. He added that the applicant failed to appeal in in time and did not prove that she instructed lawyers who were negligent to file her appeal in time.

Counsel submitted that the applicant did not prove sufficient cause for this court to grant this application. He argued that the averments that 245 the applicant was never served with the notice of delivery of judgment in Mr. Timothy Arinaitwe's affidavit in support remain hearsay because the said town clerk did not swear an affidavit to confirm such allegations.

Counsel added that the applicant never attached the decree or the judgment she seeks to appeal against to demonstrate to court if the 250 appeal has any merit. Counsel asked court to find that the applicant has failed to demonstrate sufficient cause for extension of time to file a notice of appeal.

## Consideration of the preliminary objections by the respondent.

The respondent, argued that the application was brought by a wrong 255 party, that is, Mbarara Municipal Council which has ceased to exist by virtue of the law that created Mbarara City. I note from the record that

Mbarara Municipal council was the party in respect of the intended appeal. Mbarara City was not a party. It would therefore be improper for the applicant to bring this application in another capacity other than the 260 previous. It would change the status of the applicant and this would circumvent the gist of the intended appeal and render it nugatory because the entire record of the lower courts bears Mbarara Municipal Council not Mbarara City. I therefore find that the Mbarara Municipal Council is the right party to this application. I would therefore dismiss 265 this objection.

Secondly, counsel for the respondent contended that Mr. Timothy Arinaitwe was not supposed to swear an affidavit in support of this application because he is not party to the suit and that he acted without instructions.

As earlier noted above, Mbarara City Council was never a party to this matter in the lower courts. Paragraph 3 of Mr. Timothy Arinaitwe's supporting affidavit states as follows: -

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# "That on the 31<sup>st</sup> day of august 2021, I was present in court when the matter was scheduled before Hon. Justices of the Court of Appeal. See copy of hearing notice attached hereto and marked as annexure A."

The above statement would mean that Mr. Timothy Arinaitwe was presenting the applicant on behalf of Paul Byaruhanga Advocates where he practices from. in my view, affidavits can be sworn by anyone to prove 280 a set of facts and an advocate is not an exception. An advocate is therefore not prohibited to swear an affidavit where necessary especially on matters that are well within his/her knowledge.

Counsel for the respondent also argued that Mr. Timothy Arinaitwe has no instructions since Mbarara Municipal Council ceased to exist. This is 285

an allegation that counsel for the respondent failed to prove and it is therefore not sustainable. In his affidavit under paragraph 5, Mr. Timothy Arinaitwe stated that he was an advocate for the applicant in the Court of Appeal as well as in this court because he is on record as counsel for the applicant and this fact is not disputed by the respondent. I do not find merit in this objection and therefore dismiss it.

On the third objection, counsel for the respondent contended that the application is an abuse of court process in that the applicant's lawyers were not instructed and also swore an affidavit on contentious matters. He pointed out paragraphs 6, 8, 12 and 13 of the affidavit in support of the application. They state as follows: -

- 6. "That I am informed by the applicant's city clerk Mr. Theo Tibhika and which information I believe to be true that to the best of his knowledge the applicant was never served with notice of the date for delivery of judgment. - 8. That I am informed by the applicant's aforementioned city clerk and which information I believe to be true that the applicant is aggrieved by the judgment and would like to have it appealed.

That it is necessary that the applicant be allowed to file its appeal 12. out of time in order to ensure that all the contentious matters are resolved.

#### That it is in the interest of justice and equity that this application 13. be granted."

Paragraphs 6 and 7 disclose the source which the information provided was got from. paragraphs 12 and 13, indicate the grounds under which 310 this application may or may not be granted. In my view, the above paragraphs do not contain any contentious matter and I therefore dismiss this objection too.

The fourth objection raised by the respondent is that the affidavit in support of the application was full of false hearsay and speculation. In his view, paragraphs 6, 8, 12 and 13 would have been sworn by the city clerk not Mr. Arinaitwe

In Caspair Ltd Harry Gandy (1962) E. A 414, the Court of Appeal for East Africa held that an affidavit sworn by counsel for a party in a case was defective, because the affidavit did not disclose the deponent's means of knowledge or the grounds of his belief in the matters set out in the affidavit, nor did it distinguish between matters stated on information and belief and matters to which the deponent swore from his own knowledge.

- The above case is distinguishable from the instant case. In this case, the 325 applicant's lawyer disclosed matters stated on information in paragraphs 6 and 8 of his affidavit unlike in the above case where the court found that the applicant's lawyer did not disclose the source of the information in his belief. I therefore find that the information stated in paragraphs 6 and 8 of the affidavit in support not hearsay as alleged by counsel for the - 330

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# respondent. This objection fails too and I dismiss it.

Consideration of the grounds of the application.

Rule 5 of this court's rules under which the application for extension of time was brought provides:

"The court may, for sufficient reason, extend the time prescribed 335 by these Rules or by any decision of the court or the Court of Appeal for the doing of any act authorized or required by these Rules, whether before or after the expiration of that 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 340 the time as so extended."

The power given to court under the above rule is discretional. Before it is exercised, court ought to find that "sufficient reason" has been shown by the applicant for not doing what he was supposed to do after the pronouncement of the judgment of the Court of Appeal.

In Rosette Kizito Vs. Administrator General & Ors, SCCA No. 9 of 1986, it was held that sufficient reason must relate to the inability or failure to take the particular step in time.

- In his affidavit in support of notice of motion, Mr. Timothy Arinaitwe 350 stated under paragraph 5 that he was never served with notice of date for the delivery of judgment. He further stated under paragraph 7 that on the 19<sup>th</sup> March 2021, he discovered that the judgment was delivered in his absence through a letter by the respondent. - This averment was never rebutted by the respondent to show that the 355 applicant was served and failed to appear.

I therefore find that the applicant has shown sufficient reason why he failed to appeal within the prescribed time.

In the result, I would allow this application. The applicant is hereby granted leave to appeal out of time. The notice of appeal and the letter 360 requesting for the record of proceedings are hereby validated. Costs shall be in the cause.

Ezekiel Muhanguzi 365 JUSTICE OF THE SUPREME COURT.

Hallmered Jah<br>13<br>13<br>14 Oct