Senkungo & 5 Others v Mukasa (Miscellaneous Application 4 of 2013) [2014] UGSC 409 (2 December 2014)

## THE REPUBLIC OF UGANDA

# IN THE SUPREME COURT OF UGANDA AT KAMPALA

Coram:- (Tumwesigye, Kisaakye, JJSC; Odoki, Tsekooko and Okello Ag. JJSC)

# **MISCELLANEOUS APPLICATION NO. 04 OF 2013**

### **BETWEEN**

1) YAKOBO M. N. SENKUNGO 2) JAMES KENTURA 3) JOHN RWAKAMURANGA

**..... APPLICANTS**

5) GIRADESI KATONYA

4) MISAKI R. RWAMPIGAANE

6) YONAHA RWAKAARO

AND

**CRESENSIO MUKASA...** .......... RESPONDENT

An application arising from Court of Appeal Civil Appeal No. 35 of 2006

## **RULING OF THE COURT**

This is an application by Notice of Motion brought under rules 2 (2), 5, 40 (1), 41, 42 & 43 of the Rules of this Court. By the application, the applicants seek orders that:-

1) The time within which to file in the Supreme Court, a notice of appeal already filed in the Court of Appeal be extended;

$\mathbf{1}$

2) The execution of the d'ecree in the court of Appeat ciuit Appear 1Vo. 35 of 20O6 be stayed pending Applicant's the deteiination of the intend ed. Appeal.

3i Costs of this application be in the ceuse.

### Grourrds:

The application contains fiue grounds framed as follows:\_

1) The Appricant intends to appear against the Judgment of the court of Appeal to the Supreme Court.

! The Applicant fired the notice of appear in the Lower court on the 3ah of Julg, 2o1o and inaduerti"tii did not Supreme fire the same in the Court.

Application 3) The decree in the Lotaer court utas not extracted d.ue to an that had been fited. bg the respond.ent.

4) The Applicant uas preuented bg sufftcient reason Notice from filing the Rules of appeal/Record of App.otlrtin the time prescibed bg the of this Court.

5i It is in the interest of Justice that the orders sought for be granted.

The application is supported by the aflidavit of yonah Rwakaaro, the 6lr,applicant sworn on the gth of November, 20 13.

The respondent opposed the application opposition by an affidavit in reply which he Itlovernber 2013. and supported swore on the his l2th

### Bac kground

The parties to this apprication fought a legal battle over two pieces of land; the first one known as Block SO, ptot No.l ;; ";;j\*.\*" measuring 641 acres and the second one known as Block 31, plot No. 1 at Ntyazo measuring 623 acres. Both pieces of land are situated at Mawogola.

The respondent claims that the pieces of land were owned by his grandfather one Gusite Nakaima who died in 1941. He obtained Letters of Administration of the Estate of his deceased grandfather but lost the battle in the High Court and won in the Court of Appeal. The applicants who lost in the Court of Appeal desired to appeal against that decision in this Court. In pursuit of the desire, the applicants instructed their lawyers M/s Kawanga & Kasule Advocates who lodged a Notice of appeal on 30<sup>th</sup> July 2010, four days after the decision desired to appeal against was delivered. The applicants claimed that the clerk of their lawyers inadvertently did not file a copy of the said notice of appeal in this Court. Hence this application.

## ARGUMENTS OF COUNSEL

When this application was called for hearing before us, Mr. Ali Mohammed Kajubi appeared for the applicants while Messrs Ntende Samuel and Paul Kutesa represented the respondent. Counsel for both parties filed written submissions which they adopted.

We are constrained to observe that the written submissions of Counsel for both parties violated paragraph 5 of Practice Direction No. 2 of 2005 which limits the length of written submissions in support of or in opposition to an application to five pages typed in double spacing. Rejoinder, if any, is limited to three pages typed in similar spacing.

In the instant case, both submissions went beyond five pages. Likewise, the rejoinder of Counsel for the applicants exceeded

three pages by nine pages. We have urged Counsel in a number of cases to comply with this Practice Direction but without heed. Non Compliance with this Practice Direction amounts to failure to comply with Court Procedure. This may be sanctioned by denial of or imposition of costs.

### **APPLICANTS' CASE**

Learned Counsel for the applicants addressed the application under two issues, namely:-

1) Whether extension of time to file a notice of appeal already filed in the Court of Appeal should be granted to file the same in the Supreme Court.

2) Whether there is a threat of execution of the decree Court of Appeal Civil Appeal No. 35 of 2010 that ought to be in stayed.

#### **ISSUE NO. 1**

Learned Counsel submitted that desiring to appeal to this Court against the decision of the Court of Appeal, given on 26-07-2010, in Civil Appeal No. 35 of 2006, the applicants instructed his firm to prefer the appeal. Acting on that instruction, his firm lodged a notice of appeal on 30<sup>th</sup> July 2010 in accordance with rule 72 (1) of the Rules of this Court. A copy of the same was served on Counsel for the respondent on the same day. He pointed out that the delay to file a copy of the notice of appeal in this Court in time was due to the inadvertence of the clerk of the applicants' lawyers who did not file the same in this Court. He pointed out that this error which the applicants had no control over, was discovered at the time of preparation of the Record of Appeal. He cited Godfrey Magezi and Another Vs Sudhir Ruparelia, SC Civil Application

No. 10 of 2002 for the proposition that inadvertence or mistake or omission of a litigant's agent should not be visited on the litigant.

Learned Counsel contended that the inadvertent error of the clerk of the applicants' lawyers coupled with the delayed determination Court of Appeal of the respondent's Miscellaneous by the Application No. 192 of 2010 seeking correction of the judgment of the Court of Appeal in that Appeal, constituted sufficient reason which prevented the applicant from filing the notice of appeal in the Supreme Court.

He conceded however, that rule 73 of the Rules of this Court enjoins the Registrar of the Court of Appeal, on receipt of notice of appeal, to immediately remit a copy to the Registrar of this Court. Learned Counsel pointed out however, that the practice on the ground is that it is Counsel for the intended appellant to file the same in the Supreme Court. He stated that the applicants desire that their appeal be heard on merits and added that this intended appeal has reasonable prospects of success.

He prays that the extension of the time sought be granted to enable the applicants file the Record of Appeal now that the certification of its correctness has been granted.

#### ISSUE NO. 2

This issue is about stay of execution of the decree of the Court of Appeal in Civil Appeal No. 35 of 2006.

Learned Counsel for the applicants submitted that the lower Court has ordered cancellation of the applicants' title over the disputed land and their eviction from the land amongst other orders. He

further stated that the respondent has taken steps to evict the applicants from the suit land. He submits that in the interest of justice the execution of the decree be stayed pending the disposal of the Appeal.

He contends further that this Court has powers under rule $6$ (2) (b) of the Rules of this Court where a notice of appeal has been lodged in accordance with Rule 72 of the Rules of this Court, to order a stay of execution, an injunction or stay of proceedings as the Court considers just. He cited Hon. Theodore Ssekikubo & Vs The Attorney General & Others Constitutional Others Application No. 3 of 2014, to support that submission.

He pointed out that the applicants have lodged a notice of appeal in accordance with rule 72 of the Rules of this Court, and further, that the applicants will suffer irreparable loss if the stay is not granted as their intended appeal will be rendered nugatory.

He urged Court to exercise its inherent powers under rule 2 (2) of the Rules of this Court to achieve the ends of justice.

He finally prayed that the stay of execution sought be granted pending the determination of the applicants' intended appeal.

#### RESPONDENT'S RESPONSE

Learned Counsel for the respondent opposed the application. He however, conceded that the applicants lodged the notice of appeal in the Court of Appeal within the time prescribed. To be specific, the notice of appeal was lodged within four days after the day the decision they desire to appeal against was delivered. He submitted that despite that, the notice of appeal was served on the

$\mathsf{6}$

respondent on the 20<sup>th</sup> day after its lodgment contrary to rule 74 (1) of the Rules of this Court which requires notice of appeal to be served on the opposite party within seven days after its lodgment.

He further contended that the applicants' argument that the reason for their delay to file a copy of the notice of appeal in the Supreme Court was the inadvertence of the clerk of their lawyers is flawed and does not constitute a ground to justify grant of this application. His explanation was that rule 73 of the Rules of this Court does not place the burden to deliver a copy of the notice of appeal to this Court on Counsel for the intending appellant. He argued that in that connection, the contention that the applicants' excuse for the delay is the inadvertence of their lawyers' clerk is a misconception and does not constitute a ground for allowing this application.

He challenged the applicants' failure to copy Annextures D E F G I and L to the respondent. He urged Court to take a serious view of the applicants' deliberate refusal to copy any of those letters to the respondent as an indication of the applicants' lack of readiness to respect any decision that is not in their favour. He cited Joel Kato & Another Vs Nuulu Nalwoga, Supreme Court Civil Application No. 12 of 2011 where this Court (Kitumba JSC) took a negative view of a similar act.

He further contended that it was incumbent on the applicants to ensure that their appeal is properly before this Court. He prayed that for the reasons he has given, the application for extension of time should fail.

### **ISSUE NO. 2**

On this issue, learned Counsel for the respondent submitted that in the event that this Court dismisses the application for extension of time, whether on the grounds argued or on any other grounds the Court considers fit, the effect would be automatic disposal of this part of the application.

He hastened to add, however, that reading the evidence on record as a whole shows that the applicants should not benefit from the discretion of this Court under rules 2 (2), 5, 6, or 41 (2) of the Rules of this Court. He explained, firstly, that the application should in the first place have been filed in the Court of Appeal as required by rule 41 (2) of the Rules of this Court. He cited Joel Kato & Another Vs Nuulu Nalwoga (Supra) to support that view.

Secondly, he submitted that Annexture "D" to the affidavit in rejoinder shows that the Registrar of the Court of Appeal had endorsed the certificate prepared by the Applicants' advocates on May, 2013. But no other steps had been taken by the $27^{\rm th}$ applicants until September 2013 when the respondent had taken steps to recover the suit property. He accused the applicants of dilatory conduct in pursuing their appeal.

Learned Counsel further submitted that the applicants did not complain of any substantial loss if the stay of execution was not granted to them. Counsel contended that failure to show substantial loss if the stay of execution is not granted amounts to failure to prove an essential element to justify grant of stay of execution. He cited National Housing & Construction

Corporation Vs Kampala District Land Board And Chemical **Distributors Ltd, SCCA No. 6 of 2002 which quoted with approval** National Enterprises Corporation Vs Mukisa Food Ltd, Miscellaneous Application No. 7 of 1998 (The Court of Appeal then, unreported).

He prayed that the application be dismissed with costs to the respondent.

# CONSIDERATION OF ARGUMENTS OF COUNSEL

There is a point which Counsel for the respondent raised in his written submissions which we consider to be a preliminary matter which should be disposed of first before we consider the merits of the application. The point is that this application is not in the right Court. Learned Counsel contended that the application should have first been filed in the Court of Appeal and only when the Court of Appeal refuses to grant the relief sought therefrom that it can be brought to this Court. He cited rule 41 (1) of the Rules of this Court to support his contention.

Learned Counsel for the applicants opposed that view. He contended that the application is properly before this Court and that this Court has jurisdiction to entertain it under rule 2 (2) and the other rules mentioned in this application.

The point raises the question of jurisdiction. Rule 41 (1) on which learned Counsel for the respondent relied reads as follows:

" where an application may be made either to the Court or to the Court of Appeal, it shall be made to the Court of Appeal first." There are situations where an application may be made either to the lower court or to the appellate Court for instance:-

a) where the appeal lies on a certificate from the Court of Appeal that the appeal raises a question or questions of public or general importance;

b) where the appeal lies only with leave of the Court of Appeal.

In those situations, application, if not made informally when the decision sought to appeal is delivered, shall first be filed in the Court of Appeal. Only when the Court of Appeal refuses to grant the ruling sought that it can be made to this Court.

In the case of stay of execution, however, every Court has inherent power to stay its orders. In such a case application for stay of execution of a decree of the Court of Appeal shall first be made in the Court of Appeal. However, rules 2 (2) and 41 (2) of the Rules of this Court give this Court wide powers to entertain such an application to meet the ends of justice. This application is therefore properly before this Court.

### **MERITS OF THE APPLICATION**

In considering the merits of the application, we shall look at the arguments vis-à-vis the issues adopted by Counsel for the parties, starting with issue No.1. This Issue relates to ground for grant of extension of time to file in this Court a copy of the notice of appeal which was already filed in the Court of Appeal.

Indeed rule 5 of the Rules of this Court under which this application was brought gives wide powers to this Court to extend the time for the doing of any act authorized or required by these Rules provided that "sufrrcient reason" is shown. sufficient reason must relate to the inability or failure to take the particular step in time.

It was so held in a number of decisions by this Court and by the court of Appeal for East Africa when interpreting rule 4 which is identical with our current rule s. See Florence Nabatanzi vs Noame Binsobedde, Supreme Court Civil Application No. 6 of 1987; Godfrey Magezi and Another Vs Sudhir Ruparelia, Supreme Court Civil Application No. 10 of 2OO2; Shanti Vs Hindocha, (1973)EA 2OZ, Mugo Vs Wanfiru and Another (197O) EA <sup>481</sup>

#### Rule 5 reads thus:

" The Court ray , for sufficient reason, extend the time prescribed by these Rules or by any decision ofthe court or of 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 the time as so extended.r,

" The rule envisages four scenarios in which extension of time for the dolng of an act so authori zed ot required, may .be granted namely:-

a) before the expiration of the limited time;

b) after the expiration of the limited time;

c) before the act is done;

#### d) after the act is done."

In the instant case, the applicants seek an extension of time within which to file in the Supreme Court a copy of the notice of appeal that has already been lodged in the Court of Appeal.

We agree with Counsel for the respondent that rule 73 of the Rules of this Court does not place the burden or duty to deliver a copy of a Notice of Appeal lodged in the Court of Appeal to this Court on Counsel for the intending appellant. That burden or duty is on the Court official, the Registrar of the Court of Appeal. The rule reads:-

### " On receipt of a notice of appeal the registrar of the Court of Appeal shall immediately send one copy of it to the registrar."

In Bhatt Vs Tejawant Singh (1962) EA 497, the Court of Appeal for East Africa granted extension of time where the delay was attributable entirely to Court official.

In the instant case, the delay to deliver the copy of the notice of appeal filed in the Court of Appeal to the Supreme Court was entirely attributable to the registrar of the Court of Appeal who failed to discharge his/her duty under rule 73. The applicants had done their part by lodging the notice of appeal in accordance with rule 72 (1) of the Rules of this Court.

In our view, the Registrar of the Court of Appeal is under a duty on receipt of a notice of appeal, to immediately send one copy of it to the registrar of this Court. If the practice on the ground as submitted by Counsel for the applicants, is that it is Counsel for the intended appellant who delivers a copy of the notice of appeal

to the supreme court then that is not what the rure provides. we think that those concerned must comply with the rule as it is until it is amended if need be.

Paragraph 7 and 8 of the alfidavit in support of the application show that the Court of Appeal also contributed to tn. a"i"f Uy it" delayed determination of Application No. r92 of2olo which sought correction of the judgment in civil Appeal No. 35 of 2006. This caused a delay in certification of the correctness of the Record of Appeal.

In our view, that delay in determination of the issue of correction of the judgment coupred with fa,ure of the Registrar, of court of ARy\_eal to discharge his/her duty under rule 73 constituted sufficient reason for grant of extension of time.

Counsel for the respondent submitted that service of notice of appeal on the respondent was effected outside the required seven days time limit. Annexture 'A' to the affidavit i., ".rpio.t- or the application is a copy of the notice of appeal. t, "rppor\* ,f,^, submission as it contains a received stamp dated 1g/0 g/20L0 from Counsel for the respondent acknowledging receipt of the Notice of Appeal. As the notice of appeal was rodged in the court of Appeal on the 3Otr,July 2010, its ".\*i". on the respondent should have been on 6th August 201O at the latest. This late service of the noti:e of appeal in violation of rule T4 (L) was inadvertence of Counsel for the appiicants. This can not be visited on the applicants who had given instructions to their lawyers in time.

#### TSSUE NO. 2

This part of the application relates to the appricants request for stay of execution of the decree in court of appear civil Aipear No. <sup>35</sup>of2006.

In Wilson Vs Church (No. 2t lgTg Ch. D 454, it was held that where a right of appeal exists, the Court as a general rule, ought to exercise its best discretion so as to prevent the appeal, if successful, from being rendered nugatory.

In the instant case, it is not disputed that the applicants have an unrestricted right of appeal to this court against the court of Appeal's decision. Article r32 (2) of the constitution of the Republic of Uganda supports that view. The Article reads:\_

#### " An appeal shall lie to the Supreme Court of the Court of Appeal as may be prescribed from such decisions by law."

section 6 (1) of the Judicature Act (cap 13 Laws of Uganda) is one of such laws referred to in the above Rrticte. It reads:\_

" An appeal shall lie as of right to the supreme court where the Court of Appeal confirms, varies or reverses a judgment or order, including an interlocutory order, given by tie fign Co,rrt in exercise of its original jurisdiction and either confirmed, 'raried or reversed by the Court of Appeal.,,

Clearly, the applicants have unrestricted right of appeal to Court against the decisions of the Court of Appeai such as one the subject of the applicants,intended appeal. this the

### Rule 6 (2) (b): of the Rules of this Court.

We note that no reference was made of this rule in the Notice of Motion. We assumed that this was an inadvertent omission on the part of Counsel for the applicants. There was a principle of the law that failure to cite the rule under which an application was brought was a fatal defect resulting in the application being dismissed or struck out.

That principle was stated in Odongkara Vs Kamunda (1968) EA 210. In that case, the plaintiff applied by Notice of Motion to amend the plaint by substituting the party. He did not cite the rule under which he made application.

The application was dismissed for being defective for failure to specify the rule under which it was brought.

That was approved in Abdul Suleiman Vs Nyaki Farmers (1966) EA 409.

In our view, the above principle is no longer good law in view of Article 126 (2) (e) of the Constitution. This Article reads thus:

### "Substantive justice shall be administered without undue regard to technicalities."

Though he did not cite in the Notice of Motion, Counsel for the Applicant referred to rule 6 (2) (b) of the Rules of this Court in his submissions. This rule governs application for stay of execution, injunction, or stay of proceedings in any civil proceedings. It reads:-

" 2 Subject to sub rule (1) of this rule, the institution of an appeal shall not operate to suspend any sentence or to stay execution but the Court may

(b) In any Civil proceedings where a notice of appeal has been lodged in accordance with rule 72 of the Rules, order stay of execution, an injunction or stay of proceedings as the Court considers just."

As can be seen above, the rule gives wide powers to this Court in any Civil proceedings where a notice of appeal has been lodged in accordance with rule 72, to order stay of execution, an injunction or stay of proceedings as it considers just.

In the case before us, the applicants have lodged their notice of appeal in accordance with rule 72, a fact to which the respondent conceded. Learned Counsel for the respondent however, accused the appellants of laxity in pursuing their appeal. He argued that the applicants were prompted to take steps only when the respondent had taken steps to recover the suit property.

Counsel for the applicants countered that contention by arguing that the delayed determination by the Court of Appeal of the respondent's application No. 192 of 2010 which sought correction of the judgment in Civil Appeal No. 35 of 2006, contributed to the delay.

As stated earlier in this ruling, delayed determination by the Court of Appeal of the issue of correction of the judgment in Civil Appeal No. 35 of 2006 coupled with the failure of the registrar of the Court of Appeal to discharge his/her duty under rule 73 constituted sufficient reason for grant of extension of time.

On the affidavit evidence available coupled with the arguments presented, we are satisfied that the applicants have shown sufficient reason to justify grant of the application. In the result, we allow the application and make the following Orders:-

l) The applicants are given 14 days extension of time within which to ensure that the notice ol.appeal is delivered to this Court.

2) To file their Memorandum of Appeal and Record of Appea\_I.

t

3) the execution of the decree in the Court of Appeal Civil Appeal No. 35 of 2006 is to stay pending the determination of the applicants' intended appeal.

4) costs of this Application are to abide the resurt of the intended appeal.

,a Dated at Kampala this e 20 1+ day of.

#### J. TUMWESIGYE

### JUSTICE OF THE SUPREME COURT

yfu.:..

### DR. E. KISAAKYE-KITIMBO JUSTICE OF THE SUPREME COURT


### DR. B. J. ODOKI

AG. JUSTICE OF THE SUPREME COURT


### J. W. N. TSEKOOKO

# AG. JUSTICE OF THE SUPREME COURT


#### G. M. OKELLO

## AG. JUSTICE OF THE SUPREME COURT