Nsubuga and 3 Others v Kamuje (Civil Application 31 of 97) [1998] UGSC 33 (22 May 1998)

THE REPUBLIC OF UGANDA

Hon G. M. Okello JA, Cuil Appliacine tro 5799

## IN THE SUPREME COURT OF UGANDA

## AT MENGO.

Received on $09 - 3 -$

ĺ

(CORAM: HON. KAROKORA, J. S. C.) CIVIL APPLICATION NO. 31/97

**BETWEEN**

DAVID NSUBUGA JAMES SABITI KACHOPK DAVID MUHENDA

MR. MUGENYT $\ldots$ ....................................

**VERSUS**

MARGARET KAMUJB ................................. RESPONDENTS

(An application from the decision of the High Court of Uganda at Fort Portal (Rajasingham, J.) dated 12/7/1995

in Civil Appeal No. 52 of 1994)

## RULING.

The applicants filed application seeking leave to file an appeal out of time. At the hearing of application, Mr. Babigumira Counsel for respondent raised two preliminary points of law to wit: $-$

The first was that the application was improperly before this Court, because for it to be properly before Court, it must be within the ambit of Article 280 of the 1995 Constitution.

The above provision is supported by Section 9 of the Constitution (consequential provisions) statute 12 of 1996 which empowers Court to continue with matters that have been pending before it and completed as composed at the time of the coming into force of the Constitution.

However, it was submitted that the application which was before me and which I dismissed had been filed in the Court on $2/12/97$ . The amended application was filed on 20/2/98. submission that this application was not pending before the $\operatorname{Court}$ So it was his on the coming into force of the 1995 Constitution and as such it should be before the Court of Appeal.

Although the Notice of Appeal was filed before the Constitution came into force, which was on $19/7/95$ , if an appeal had been filed consequent upon that Notice of Appeal, then the Appeal would be properly before the Court, but he contended that no such appeal had been filed.

It was contended that there was an attempt to apply for leave to appeal out of time before, $Oder$ , J. S. C., but the application was dismissed on $16/8/96$ because notice of appeal had not been served on the respondent at the time the application for leave to appeal $% \left\vert \mathbf{r}\right\vert$ out of time was filed. Later there was application before Tsekooko, J. S. C., seeking leave to serve Notice of Appeal out of Leave was granted to the applicants to file Notice of Appeal within 5 days on 21st March, 1997. Subsequently, Notice of Appeal was filed and served. An application for leave to file $% \left\vert \mathbf{r}\right\vert$ a Memorandum of Appeal was filed purportedly seeking leave to file an appeal out of time. However, no leave was sought to amend the application, so that application for leave to appeal out of time could be considered. Consequently, the application $\frac{1}{2}$

Babigumira, Counsel for respondent submitted that upon striking out of that application which was purportedly seeking leave to appeal out of time, then the Notice of Appeal that had been granted lapsed. He cited the case of Rubinga v Yakobo Kato & Anor Civil Appeal No. $35/92$ (SC) (unreported) for proposition that once an application to file appeal out of time $% \left\vert \mathbf{r}\right\vert$ was struck out, then leave granted to file Notice of Appeal out of time lapsed. Mr. Babigumira cited the above case to support his argument.

Mr.

$\boldsymbol{z}$

He went on to submit that when the 1995 Constitution came into force, there was no application pending before this court so as to bring it within Article 280 of the constitution and Section 9 of statute 12/96.

Secondly, even if we had to go by the Notice of Appeal which was filed before the 1995 Constitution, then that Notice of Appeal and the leave granted by Tsekooko, J. S. C., lapsed when the application to file Memorandum of Appeal was struck out.

In view of the above, he prayed that the application before the Court should be struck out so that it goes to the right Court.

Mr. Byenkya for applicants submitted that the objection was misconceived. He contended that Article 280 of the 1995 Constitution was being misapplied. Notice of Appeal filed on $18/7/95$ commenced legal proceedings in this Court and those legal proceedings were the application Tsekooko, J. S. C., considered and after finding that there was sufficient cause for the delay, allowed the said Notice of Appeal to be served on the respondents. This was part of the proceedings comenced by the Notice of appeal which had been filed in Court on 18/7/95.

It was the same Notice of Appeal on which they were basing this application. It is one of the steps to complete the process commenced by the Notice of appeal filed on $18/7/95$ .

He contended that Article 280 of the constitution envisages a situation like the instant case so that if there are proceedings pending in Court they should be continued until they are completed. He submitted that there cannot be application in Supreme Court and Notice of Motion in the Court of Appeal.

On that basis, he contended that it cannot be said that there $% \left\vert \mathbf{r}\right\rangle$ were no legal proceedings pending before the Supreme Court. was recognised by Tsekooko, J. S. C, and Karokora, J. S. C. It

He contended that there were proceedings before pending court.

Further, it was submitted for applicants that striking out application for extension of time does not bar an applicant from bringing another application unless that application was decided The only thing that would have caused the case to on merit. lapse would be a failure by applicants to serve the letter calling for record on to the respondent, because after 60 days it would lapse. He contended that a copy of the letter requesting for proceedings was Annexure C to Namwezi's affidavit paragraph 4 - along with the Notice of appeal dated $18/7/95$ . No affidavit in reply was filed to counter the above avernment.

Mr. Byenkya sought to distinguish the case of Rubinga v Yakobo <u>Kato & anor</u> (supra) because in that case, he contended that the Supreme Court was talking of where leave had been granted by the Chief Magistrate to appeal to the High Court. The Court was interpreting the provisions of Magistrates Courts Act and the Civil Procedure Act. He submitted that no where did the Court interpret the Rules of the Supreme Court. Therefore, he submitted that the case has no relevancy to this application. Moreover, in that case the appeal had been struck out, whereas in the instant case no appeal has been filed. What was struck out was application for extension of time to file Memorandum of Appeal, but not the appeal. In the circumstances, he prayed that the objection should be overruled.

On the first ground of objection the complaint was that the application was improperly before this Court. The reason was that for it to be properly before Court, it must have been pending immediately before the coming into force of the 1995 See Article 280, and Section 9 of Statute 12 of Constitution. It must be observed that after due consideration of the 1996. submissions of both Counsel, there is no doubt that an Appeal is commenced by filing of Notice of Appeal pursuant to Rule $74(1)$ of the Rules of this Court; which is the first essential step in the process of an appeal in the Supreme Court.

In the instant case, there is no dispute as to the date of $18/7/95$ when the Notice of Appeal was filed in the Court. However, problem arose in the instant case because the applicants never served copy of the Notice of Appeal to respondent. They proceeded to file application for leave to appeal out of time. The application was struck out as premature as they could not do so before they had served the respondent with the Notice of Appeal.

In the instant case Notice of Appeal was filed on $18/7/95$ before the Constitution was promulgated. However, the applicants had not served a copy of the Notice of appeal to respondent. They, however, filed application seeking leave to file Memorandum of Appeal out of time, which was resisted on the ground that they could not embark on this step before they had served the copy of the Notice of Appeal under Rule $76(1)$ of the Rules of the Court to the respondent. Therefore the application was struck out by Oder, J. S. C.

They subsequently applied for leave to serve Notice of Appeal to the respondent which was granted by Tsekooko, J. S. C., on 21/3/97. Subsequent to this stage they applied for leave to file Memorandum of Appeal which was truck out on the ground that there was no certainty as to what the applicants were seeking. However, the applicants still went ahead and filed this application for leave to file appeal out of time.

It is this application which is being resited on the ground that $\frac{1}{2}$ for it to be before this Court, it must be within the ambit of Article 280 of the Constitution and Section 9 of Statute 12 of 1996.

I think with due respect to Mr. Babigumira's submission, this must be part of the proceedings Article 280 of the Constitution and Section 9 of Statute 12/1996 intended to save. The instant application stems from the Notice of appeal which was filed on 18/7/95 before the promulgation of the 1995 Constitution.

$\overline{5}$

It was part of that matter Tsekooko, J. S. C., dealt with. part of what I dealt with on $24/11/97$ . It has not just come to It is Court for the first time.

Article 280 of the constitution provides as follows:-

"Legal proceedings pending immediately before coming into force of this Constitution before any Court including Civil Proceedings against the government may be proceeded with and completed."

Then the Constitution (Consequential Provisions) Statute 12 of 1996 enacted to implement the provisions of Article 280 of the $\frac{1}{2}$ Constitution provides in Section 9 as follows:-

"Any proceedings pending before any Court immediately before the coming into force of the Constitution, and continued under article 280 of the Constitution, may be continued and completed by the Court as composed at the time of the coming into force of the Constitution and shall be subject to the rules of procedure applicable to that Court at that time."

What is glaringly clear in Article 280 of the Constitution and Section 9 of Statute 12 of 1996 is the word "pending". And the $% \mathcal{L}_{\mathcal{A}}$ word pending in its ordinary meaning is very well defined in the Black's Law Dictionary 5th Edition as:-

"Begun, but not yet completed; during; before the conclusion of; prior to the completion of; unsettled; undetermined; $in$ the process of settlement adjustment. $or$ Thus action or suit is pending from its inception until the rendition of final judgment."

$\scriptstyle\rm I$ think considering definition of the term pending which is an operative term in the Constitution and Section 9 of Statute $12$ of 1996 and the stage at which proceedings had reached, this is a matter which was pending within the meaning of Article 280 of the Constitution and Section 9 of Statute 12 of 1996.

$\rm I$ would find support in our recent decision in the case of $\underline{\text{Salim}}$ <u>Jamal & others v Uganda oxygen & others Civil Appeal No. 64 of</u> $\frac{1995}{1995}$ (SC) (unreported) where Notice of Appeal had been filed before promulgation of 1995 Constitution. The Court considered Rule $74(1)$ of the Rules of this Court, and Article 280 of the Constitution and Section 9 of Statute $12$ of 1996.

Oder, J. S. C., held at page 5 of the judgment as follows:-

"In the instant case, the Notice of Appeal was lodged $% \left\vert \mathbf{r}\right\vert$ on 18/4/95, and the documents required under Rule 81(1) where filed on 29/12/95. Applying the meaning of the word "pending" to which I have referred, and the effect of the rule $74(1)$ which I understand to be the first essential step in the process of an appeal in this Court; I think that this appeal was pending when the Constitution came into force on 8/10/1995. It was one of those legal proceedings for which Article 280 of the 1995 Constitution and Section 9 of Constitution (Consequential Provisions) Statute 12 1996 were intended. For purpose of these provisions, therefore the appeal was pending when the Constitution cause into force."

Likewise, I would hold the same view that the matter before $\hbox{\sc Court}$ was pending before Court at the time of the promulgation of the $\alpha$ 1995 Constitution and must be proceeded with until the final

$\overline{\text{I}}$ now must turn to the issue raised by Mr. Babigumira that once an application to file appeal out of time was struck out, then the leave granted to file Notice of Appeal out of time lapsed. With respect, I have found Dr. Rubinga v Yakobo Kato & Anor Civil Appeal No. $35/95$ (SC) not help to this case.

In that case Platt J. S. C., as he then was held:-

"...... In view of what has happened or omitted, it is not necessary in this appeal to decide whether leave to appeal having been granted, is spent or may continue in force after the appeal has been struck out which was instituted on the strength of the leave granted. I leave that question open."

The other Justices on the Coram: Wambuzi, C. J., and Oder, J. S. C., never adverted to the issue as it had never been raised before Needless to say that the case cited above was not an authority for the proposition advanced by Mr. Babigumira. issue was left open. The It was not seriously pursued here except for the case of Dr. Rubinga v Kato & Anor (supra) which was wrongly cited as an authority to support his argument. I would leave it open until such a time when it would be considered at an appropriate time. However, I would express my doubts about the validity of the above proposition, in view of the provisions of Rule $1(3)$ of the rules of this Court where the Court has inherent powers to make such orders as may be necessary for the ends of justice and bearing in mind that the application had not been decided on merits, but merely struck out. The practice has always been that where an application is struck out, applicant can bring the same application seeking the same remedy the since the application was not decided on the merits.

The application would therefore not be defeated by doctrine of res-judicata as it was not decided on merit.

Further, the issue of review under the slip rule (governed by Rule 35 of the Rules of this Court) which Mr. Rwaganika, holding brief for Mr. Babigumira, had raised, would not rise since the applicants were not seeking correction of clerical errors or Mathematical errors in the record. That objection was rightly overruled since the applicants were seeking leave to file appeal out of time, which the law permits them to do, if the Court is satisfied that in the interests of justice, leave should be granted.

I would in view of the above overrule Mr. Babigumira's objection as these proceedings were pending before the Court at the time of the promulgation of the 1995 Constitution. The Court as constituted then is therefore lawfully seized with jurisdiction to continue with the proceedings under Article 280 of the Constitution and Section 9 of the Constitution (consenquential) provision Statute 12 of 1996, until they are completed.

I so order accordingly.

Dated at Mengo this $22.2$ day of $MAJ$ ......., 1998.

A. N. KAROKORA,

JUSTICE OF THE SUPREME COURT.