Yahaya Kiriisa v Attorney General and Another (Civil Appeal 7 of 1994) [1994] UGSC 50 (21 November 1994)

Full Case Text

IN Th S burXx-o

## AT MENGO

(CORAM: MANYINDO DCJ, ODER JSC, TSEKOOKO JSC)

## CIVIL APPEAL NO. 7/?4

## BETWEEN

YAHAYA KIRIISA: • • APPELLANT

RESPONDENT • • • • • • ATTORNEY GENERAL M. K. RADIA 2 J

> (From the Ruling of the H/C of Uganda at Kampala (Mrs. Justice C. K. Byamu> gisha) dated the 16th December 19931 in Civil Appeal No. 40/91).

## JUDGEMENT OF MANYINDO DCJ:

The second respondent wets granted a certificate of repossession of certain property in Kampala by the Minister of Finance under the Expropriated Propertriacr Act, 1982, (hereinafter called the Act). The appellant, who claimed if from someone who in turn had bought it frbm the Departed Asian Property Custodian Board before its former owner, the second respondent was granted a certificate of repossession following the null! " fication of such sales by the Act), appealed to the High Court against the grant of the certificate of repossession. He involved an interest in the property (in that he had bought it from a third party who had bought the second respondent as legal representative of the Government. fl

The case came up for hearing five times but was adjourned at the instance of the parties. It last came up for hearing on $16 - 12 - 93$ . On that day Prof. Sempebwa, Counsel for the appellant was not in Court. A Mr. Serwanga of the same firm held a brief for him. Mr. Serwanga sought an adjournment on the ground that Prof. Seppebba who had personal charge of the case had been taken ill auddenly. The representative of the Attorney General reluctantly consented to the application but Mr. Kayondo strongly opposed it on behalf of the asecond respondent.

The learned Judge turned down the application. This is what she stated in her ruling:-

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"This is an old appeal filed in 1991. challenging the issuance of a certificate of repossession to the second respondent by the Minister of Finance. Since the filing of the appeal, it has come up for hearing a number of times This morning without taking off. another adjournment is being sought on the grounds that Mr. Sempebwa who has personal conduct of this case is There is no medical evidence indisposed. to show that the advocate is sick. However, even if Mr. Sempebwa was sick Counsel who has appeared in the morning has been appearing in this case and I am of the view that he is possessed with sufficient knowledge of the case to conduct the appeal.

The application for adjournment is refused and the hearing .of the appeal will proceed."

Mr. Serwanga then sought and obtained an adjournment consultations with his client. When the Court re-assembled $f$ or shortly afterwards, it was the appellant and not Mr. Serwanga who addressed the Court. He informed the Court that he had gone to 叒

$\frac{1}{2}$

Prof. Sempebwa's home that morning and found the Professor

He went on:- ''terribly sick".

> " The main point I want to make here, I personally wish that the Professor handles this case. I beg that we be given days so that my Lawyer handles my case. I am the one who is suffering but the second respondent with his lawyer are erijoying the house and they have nothing to lose. The delay in this case is because we have been sent by this Court to settle the matter out of Court. We had to sit with Attorney General, Custodian Board and other relevant authorities and Mr. Serwanga does not know what has been going on. I beg for a chance for the Professor to come and we proceed."

The Counsel for the respondents opposed the appellant's application for adjournment. The learned Judge agreed with them. She rejected the application in the following terms:-

> " .. The applicant who is legally represented in these proceedings has applied for an adjournment on the grounds which had already been raised by his Counsel - namely the absence of Prof. Sempebwa# The earlier application was rejected for the reasons I gave and I have not been persuaded by the subsequent application to change that position. The appellant did not appear to me as an aggrieved party and therefore may have nothing to lose if this case drags on. It will also be noted from the record of proceedings that when this appeal came before Ongom J, and the said Professor was ready to proceed, the appellant stood up in Court and informed it that he had disagreed with his Lawyer and wanted to engage another one. His request was granted.

After it was granted, the same law firm wrote to the Court that he has re-instructed them to conduct the appeal. The position of the appellant is uncertain \*' i and there is a deliberate attempt to delay the disposal of this appeal.

The application for an adjournment is once again refused."

The appellant then informed the Court that he was "handicapped;" whereupon the learned Judge made this final order:- \*

> "Since the appellant has withdrawn his instructions from his Counsel and cannot proceed with his appeal, it will be dismissed for want of prosecution with costs."

There was a misdirection there. The appellant had not withdrawn instructions from his Counsel. On the contrary, he had re-instructed him to continue to ack for The appellant appealed to his Court against the him. order dismissing his appeal for want of prosecution, on five grounds namely:-

)

- $"l.$ The learned trial Judge erred in law and in dismissing the suit for want of prosecution; - The learned trial Judge erred in law and in $2.$ fact in deciding that the Appellant did not appear to be an aggrieved party. - The learned trial Judge erred in law add in $3.$ fact in holding that Counsel who appeared to apply for an adjournment was unable mand capable one to represent the appellant. - $4\degree$ The learned trial Judge erred in law and in fadt in holding that Counsel who appeared to apply for an adjournment was unable and capable one to represent the Appellant. - The learned trial Judge erred in law when $5.$ she decided to deny the Appellant his constitutional right of being represented by Counsel of his own choice."

$...5$

At the hearing of this appeal ground No\* *U* was abandoned by Counsel for the appellant as it was same as HO\* 3. From the two Rulings or Orders of the Court quoted above it can be seen that it rejected the appellant's application for adjournment on four grounds\* These were (a) that Mr. Serwanga had not established the fact that Prof. Sempebwa (b) that the matter had been adjourned many times before, (c) that Mr. Serwanga was capable of arguing the appeal but chose not to do so, (d) that the appellant did not appear to be aggrieved by the Minister's decision and would lose nothing if the case dragged on, hence the delaying tactics. was sick on the material day,

At the hearing of this appeal Prof. Sempebwa fl submitted that the dismissal of the *case* was improper Regarding his illness, he submitted that the trial Judge should have accepted the statement of Mr. Serwanga from the bar that he (Sempebwa) was down with gout. As for the previous adjournments Counsel contended that they were justified; to enable the appellant sort out differences between himself and his Counsel and the others were taken ) with a view to settling the matter out of Court. as it was based on wrong considerations.. one was

)

With regard to Mr. *Serwanga'*s failure to argue the appeal! Prof. Sempebwa contended that this complicated case which necessitated extensive research and preparation which he had done. was a

clearly in no position to argue the appeal effectively. Finally, Prof, Sempebwa submitted that the appellant would not want to delay the case since he wanted possession of the property from the second respondent. Mr. Serwanga had never persued the case file and was

It is in the discretion of a trial Court to allow application for adjournment. It is settled law that the discretion must be excercised judiciously. An appellate Court would normally not interfere with the exercise of the discretion unless it has not been exercised judiciously; See: Nitin Jayant Madhvani Vs East African or refuse an Holdings Ltd and 5 others Civil Appeal NO. 14 of 1993&gt; Supreme Court (unreported).

In my opinion discretion simply means the faculty of deciding or determining in accordance with circumstances and what seems just, fair, right, equitablet and reasonable in those circumstances. In the instant case it is clear from the appellant's Memorandum of Appeal to the High Court that he wished to argue there that the Act which deprived \$im of his property without compensation was unconstitutional. *)* For that purpose he engaged Prof. Sempebwa, a Constitutional Lawyer. The latter prepared his arguements but could not come to Court to argue them on the material day. On that and Mr. Serwanga who represented him in Court submitted thus:-

*.../7*

"The matter is being handled personally by Prof. Sempebwa who is sick\* He has an attack of gout and cannot move. According to his note he was prepared to proceed with thia matter\*"

I think that in absence of evidence to the contrary the trial Judge should have accepted that statement as true • If she doubted it she should have directed Counsel to produce medical evidence but did not\*

According to the record of proceedings, Mr\* Serwanga had appeared in Court in connection with the case on two previous occasions but only for the purpose of seeking adjournments as Prof\* Sempebwa was not available. In my view the trial Judge was not justified in those circumstances to hold as she did, that

> ''Even if Mr\* Sempebwa is sickj Counsel who has appeared in the morning has been appearing in this case and I am of the view that he is possessed with sufficient knowledge of the case to conduct the appeal\*11

The submission of Mr. Kayondo before us told it all\* He said:-

)•

"Serwanga could have argued the appeal but refused to do so. The Memo of Appeal had 9 grounds\* Serwanga was not prepared but should have attempted to argue it\* That was the order of the Court and Serwanga should have complied with it."

Surely it cannot be right for a Court to force an Advocate to argue a matter in which he is ill prepared or not prepared at all. negation of Justice to his client. In my view that would be a

As for the several adjournments, it is necessary to put the matter in its proper perspective. The matter On that day the appeal was not to be heard; only an interlocutory application for a temporary injuction by the appellant against the second respondent was to be heard by Ongom, J. The application was not heard as Counsel for th\$ second respondent gave an undertaking that his client would not interfere with the appellant's possession of the disputed property. The appellant was in possession of the property then. came up for hearing for the first time on 11 - J - 929

)

The appeal itself was adjourned to 25 - 3 - 92, for hearing. On that day Prof. Sempebwa went to Court ready to proceed with the case. However, the appellant informed Court that there had arisen a misunderstanding between .) himself and Prof. Sempebwa and that he wished to instruct another firm of advocates to handle his case. He asked for an adjournment for that purpose® Prof. Sempebwa then withdrew from the case.

/9 posi tion• She observed that the appellant had a constitutional right to be represented by a Lawyer of his choiee. Although the appellant had asked for one month's adjournment, the Judge adjourned the matter sine die. The learned Judge appreciated the appellant's

*9*

2^ - 9 - 92. This time Ouma, J\* presided. By then the appellant had settled his differences with Prof. Sempetjwa and re-engaged him. But Prof. Sempebwa was away in England for health reasons. Mr. Serwanga held brief for him. By consent of the parties the appeal was adjourned to J -\* 11 - 92t for hearing, before another Judge. No reason was given why it had to go before another Judge. It came up again on

)

*)*

It came up before Kikonyogo, J. on that day. Counsel for the first respondent successfully applied for an adjournment with a view to reaching a setttlement out of Court. The matter was adjourned to J - 12 - 92. When it came up on that day Prof. Sempebwa sought a two week's adjournment to enable the parties conclude the settlement. The other Counsel .reluctantly agreed to the adjournment which the Court then granted. The matter was then adjourned, for the fourth time, to 22 - 12 *-* 92.

Prof. Sempebwa was unable to attend Court on that .day as he was which was meeting the President, to hand to him the Draft Constitution. .../10 a member of the Constitutional Commission

Mf. Omunyakol who held brief for Prof. Sempebwa sought an adjournment. Counsel for the first respondent did not oppose the application as he had instructions to "initiate concrete negotiations (with the appellant) in respect of the amounts that can be compensated to the appellant." Mr. Kayondo, Counsel for the second respondent again reluctantly agreed to the adjournment. He stated, inter alia:-

> "1 pray that in the spirit of reconciliation and understanding the Attorney General should write to the appellant before the next time. He sold the building to the appellant. He should write to the appellant rind ask him how much. After that we shall write our proposals•"

The learned Judge then entered this note:-

)

"By consent this case is adjourned to 25 - 3 - 931 to enable the parties to continue with the negotiations for a settlement. If by that date no settlement has been reached then the Court will proceed with the hearing of the appeal."

..../ll

For some unrecorded reason the Case did not come up for hearing on that day. The Assistant. Registrar of the High Court twice (on 12 - 5 \* 93 and 27 - 8 - 93) fixed it for hearing on 30 - 9 - 93i but on 29 - 9 - 93, she fixed it for hearing on 16 - 12 - 93? by consent of the appellant and second respondent. It was on that day that the appeal was dismissed in the circumstances stated above.

It seems clear to me that the appellant sought the four adjournments for good reasond which whole appreciated by the Court and the other Counsel in the case. For 'his part Mr\* Kayondo blamed the delays of the first respondent who failed to wrap up a settlement out of Court in good time. With respect to the learned Judge, I do not berate attempt by the appellant to delay the hearing of the appeal. see in any of those adjournments a deliwere on the

I will now consider the last point that the appellant did not appear to be aggrieved by the Minister's decision to grant to the second respondent the certificate of repossession and so would lose nothing if the ease dragged on. The certificate of repossession was signed by the Minister of Finance on 2J - 6 - 91\* The appellant lodged his statutory appeal to the High Court on 22 - 7 - 91i seeking for a declaration that the Minister's decision was unconstitutional ^nd that the appellant was the lawful proprietor of the ) he was the registered proprietor, never divested from him. Under the Act bo qualify as an aggrieved party one must have an interest in rem - in the property. ASfsputed\*property-s His case was that-he-:rhdd never been a departed Asian so that the disputed property of which

/12

)

Clearly the appellant was an aggrieved party within the meaning of the Act. It is a fact that by the time the appeal was dismissed the second respondent was in possession of the property. So I do not see why the appellant would want to delay the matter when he was seeking possession of the property.

I am of the view that none of the four reasons given by the Judge justified the dismissal of the appeal for want of prosecution. I would allow this appeal, set aside the Ruling and Order of Byamugisha, J. and remit the appeal to the High Court for hearing on its merits by another Judge. I would give the appellant his costs of the appeal.

As Oder, J. S. C and Tsekooko, J. S. C, also agree, it is so ordered.

$21st$ November, ............. Day of ................................... 1994. DATE at Mengo this

S. T. MANYINDO

DEPUTY CHIEF JUSTICE

I CERTIFY THAT THIS IS A TRUE COPY OF THE ORIGINAL.

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$\sim$ $\sim$

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$\rightarrow$

$\bullet$ 1/12/94

## AT MENGO

(CORAM: MANYINDO, D. C. J., ODER, J. S. C., TSEKOOKO, J. S. C.)

$\mathbf{Q}$

# CIVIL APPEAL NO. 7 OF 1994

## BETWEEN

# YAHAYA KIRIISA :::::::::::::::::::::::::::::::: APPELLANT

AND

$\mathbf{1}$ . ATTORNEY GENERAL **EXAMPLE 11: :::::::::::::::::::::::::::::::::** $\overline{2}$ . M. K. RADIA Ĭ

> (Appeal from the Ruling of the High Court at Kampala (Mrs. Justice C. K. Byamugisha, J. dated 16th December, $1993).$

> > $IN$

#### CIVIL APPEAL NO. 40 OF 1991

JUDGMENT OF TSEKOOKO, J. S. C.

I have read in draft the judgment prepared by Manyindo, $D. C. J.$

I agree with it and cannot usefully add anything.

November, ... 1994. Date at Mengo this ......... day of .

$\overline{ }$

)

$\cdots$

### J. W. N. TSEKOOKO JUSTICE OF THE SUPREME COURT.

I ICERTIFY THAT THIS IS A TRUE $\bullet$ PY OF THE ORIGINAL.

A. L. $KY$ for: REGISTRAR SUFREME COURT.

01/12/1994

## AT MENGO

(CORAM: MANYINDO, D. C. J., ODER, J. S. C., TSEKOOKO, J. S. C.)

# CIVIL APPEAL NO. 7 OF 1994

# BETWEEN

YAHAYA KIRIISA :::::::::::::::::::::::::::::::: APPELLANT

AND

$1.$ ATTORNEY GENERAL <pre>:::::::::::::::::::::::::::::::::::: $\overline{2}$ . $\checkmark$ M. K. RADIA

> (Appeal from the Ruling of the High Court at Kampala (Mrs. Justice C. K. Byamugisha, J. dated 16th December, $1993)$ .

> > $IN$

### CIVIL APPEAL NO. 40 OF 1991

JUDGMENT OF TSEKOOKO, J. S. C.

$\mathbf{1}$

)

$\frac{1}{2}$

I have read in draft the judgment prepared by Manyindo, $D. C. J.$

I agree with it and cannot usefully add anything.

$\frac{21st}{21222}$ day of . November, ... 1994. Date at Mengo this ...

> J. W. N. TSEKOOKO JUSTICE OF THE SUPREME COURT.

I ICERTIFY THAT THIS IS A TRUE ❤ PY OF THE ORIGINAL.

A. L. $KY$ for: REGISTRAR SUFREME COURT.

$-21/12/1994$

#### AT MENGO

(CORAM: MANYINDO, D. C. J., ODER, J. S. C., TSEKOOKO, J. S. C.)

# CIVIL APPEAL NO. 7 OF 1994

#### BETWEEN

YAHAYA KIRIISA :::::::::::::::::::::::::::::::: APPELLANT

$AND$

1. ATTORNEY GENERAL Q **EXAMPLE 11: :::::::::::::::::::::::::::::::::** M. K. RADIA $\overline{2}$ .

> (Appeal from the Ruling of the High Court at Kampala(Mrs. Justice C. K. Byamugisha, J) dated 16th December, 1993.

> > IN

### CIVIL APPEAL NO. 40 OF 1990)

## JUDGMENT OF ODER, J. S. C.

$\mathbf{1}$

$\hat{\textbf{y}}$

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I have had the benefit of reading in draft the judgment of Manyindo, D. C. J. and I agree with him that the appeal should be allowed for the reasons he has given.

I have nothing useful to add.

Dated at Mengo this $.^{21st}$ ....day of $.^{November}$ ... 1994.

### A. H. O. ODER, JUSTICE OF THE SUPREME COURT.

I CERTIFY THAT THIS IS A TRUE COPY OF THE ORIGINAL.

A. L. KYEYUNE REGISTRAR SUPREME COURT. for:

01/12/1994