Court name
Supreme Court of Uganda
Judgment date
19 December 2004

Godfrey Magezi and Anor v Sudhir Rupaleria (2) (Civil Application-2002/10) [2004] UGSC 33 (19 December 2004);

Cite this case
[2004] UGSC 33

THE REPUBLIC OF UGANDA

IN THE SUPREME COURT OF UGANDA

AT MENGO

BEFORE: HON. JUSTICE KAROKORA, JSC.

CIVIL APPLICATION NO. 10 OF 2002

BETWEEN

1. GODFREY
MAGEZI
2. BRIAN
MBAZIRA: :::::::::: ::::::::::
APPLICANTS


AND
SUDHIR
RUPALERIA: ::::::::::
::::::::::
RESPONDENT
RULING OF KAROKORA,
JSC:

This is an application by Notice of Motion tiled under Rules
1(3), 4, 41 and 42 of the Rules of this Court seeking extension of time
within
which to tile an appeal out of time against the decision of the Court of Appeal
in Civil Appeal No. 61 of 1999. The application
further seeks that the tiling of
Civil Appeal No. 16 of 2001 out of time against the decision of the Court of
Appeal be validated.
The application seeks the costs of the application to be in
the cause.

The grounds for the application are stated as follows:





I) The applicants instructed M/s. Birungi & Co. Advocates to file an
appeal in the Supreme Court against the decision of the Court
of Appeal No. 61
of 1999.


2) That M/s. Birungi & Co. Advocates filed Supreme Court Civil Appeal
No. 16 of 2001 and paid all the requisite charges and fees
for security for
costs and filing fees amounting to Shs. 520,000=.


3) That Supreme Court Civil Appeal No. 16 of 2001 was filed out of time
due to the mistake, inadvertence and or omission of M/s. Birungi
& Co.
Advocates, counsel for the applicants.


4) That the applicants have changed counsel to M/s. Nyanzi, Kiboneka and
Mbabazi Advocates who have discovered the mistake which mistake
ought not to be
visited on the applicants as litigant but requires to be corrected by
Court.


5) That in the interest of justice, it is fair and just that the substance
of the appeal be heard on merit without debarring the applicants
from pursuing
their rights to be heard and accorded justice in accordance with article 126(2)
(e) of the Constitution.

The application is supported by affidavit sworn by Godfrey Magezi c/o M/s.
Nyanzi, Kiboneka and Mbabazi Advocates, which affidavit
I feel constrained to
reproduce the paragraphs which spell out mistakes of counsel and mix up of dates
by either his counsel or the
court.

Godfrey Magezi stated in his affidavit as follows:

"(1) I am the applicant herein and the appellant on SSCA No. 16 of
2001.

(2) That I did instruct my former counsel M/s. Birungi
& Co. Advocates to file an appeal against the Court of Appeal decision in
Civil
Appeal No. 61 of 1999.

(3) That the
said M/s. Birungi & Co. Advocates filed a Notice of Appeal together with a
letter requesting for proceedings both of
which are annexed hereto as annexes
'1'
and
'2.'
(4) That on
23rd August 2001, the Registrar of Court of Appeal did notify M/s. Birungi &
Co. Advocates that the record of Appeal was
ready for collection. Copy of the
letter of the Registrar is hereto annexed annexture
'3'
(5) That the
requisite fees were duly paid vide receipt No. 2171963 hereto annexed as
annexture
'4'
(6) That
according to the court file the Memorandum and Record of Appeal was duly filed
on 9th November 2001, and the security for costs and filing fees in
the amount of shillings Four hundred thousand (Shs. 400,000=) and shillings
One
hundred and twenty thousand (Shs. 120,000=) respectively was duly paid vide
receipt No. 42608199 and 42608198. Copy of the extract
of the court file is
annexed as annexture
'5'.
(7) That
however, receipt No.42608198 is dated 9th November 2001, while
receipt No. 42608199 is dated 9th October 2001, copies of both
receipts are annexed as annexes '6a' and
'6b'.
(8) That the
received stamp for the record of appeal is dated 9th September 2001,
as per copy of the extract hereto
attached.
9. That the
Registrar's seal certifying judgment of the record is dated 20th
December,
2001.
10. That the
Court of Appeal Registrar's Certificate of completion delivery of the
proceedings was sealed on 9th
November
2001.
11. That it
is therefore not easy to clearly tell the date when the appeal was filed
although the date of 9th November 2001, would logically be the date
of filing as it was the date the filing fees and security for costs was
paid.
12. That the
court stamp on the record of appeal together with the receipts of payment are
equally misleading as to the date when the
record of appeal was
filed.
13. That the
filing of the appeal on 9th November 2001, was clearly outside the prescribed
time of sixty (60) days within which to file
an appeal after the completion and
delivery of the record of
proceedings.

14. That all this mix-up
of dates and when particular events occurred was done by my counsel M/s. Birungi
& Co. Advocates without
my knowledge.

15. That I only discovered this after the hearing on 23rd January 2002,
whereupon I instructed M/s. Nyanzi, Kiboneka and Mbabali Advocates
to take over
the full conduct of my appeal from M/s. Birungi & Co. Advocates.

16. That I
had originally instructed M/s. Nyanzi, Kiboneka and Mbabali Advocates to assist
M/s. Birungi & Co. Advocates and jointly
appear for the hearing on 23rd
January,
2002.
17. That on
my part I did all that was necessary and required of a diligent litigant seeking
for justice including payment of all the
court fees and charges to render my
appeal ready for a
hearing.
18. That
such omissions and inadvertence of my former counsel ought not to be visited on
me leading to the striking out of my appeal thereby
denying me
justice.

19. That I swear this affidavit in support of my application for leave
to extend time to file my appeal out of time and/or the validation
of the due
filing of SCCA No.16 of 2001."

The respondent's affidavit in reply was sworn by Paul Rutisya of M/s.
Kasirye, Byaruhanga & Co. Advocates. He averred as follows:

"(3) That in reply to paragraph 6 of the deponent's affidavit in support
of the application, the respondent maintains that the appeal
was filed on the
9th September 2001, as the court stamp on the record and memorandum
of appeal indicates.


(4) That in reply to paragraph 7 of the applicant's
affidavit the date of 9th October is a reknown public holiday in
Uganda depicting our Independence and all public officers and courts of
judicature are closed
and therefore, the receipt dated 9th October
2001, is suspect.


(5) That in reply to paragraphs 7 to 12 of the applicant's
affidavit it cannot be that counsel for the applicant went to file an appeal on
the 9th of November as alleged in paragraph 11, and the court stamp
was back dated by two whole months (9th September), and the receipts
issued for payment of filing fees and security for costs respectively appeared
with two different dates
a month apart, one of the days (9th October) having a
holiday on which the Registry was closed and, further the date of lodgment
on
page 4 of the Memorandum of Appeal clearly indicates tampering.


(6) That in the absence of an affidavit from the Registrar acknowledging
that errors were made by the staff of the Registry the generalization
in the
applicant's affidavit cannot suffice to explain the inconsistencies in the
dates.

(7) That
prior to the main appeal the respondent in this application had filed
Miscellaneous Application No. 3 of 2002 in which they sought
orders for the
dismissal of the appeal for non-compliance with rules of
procedure.
(8) That
at the hearing of the main appeal on the 23rd January 2002, the grounds
contained in the said application No. 3 of 2002, were
discussed in court which
then adjourned the hearing to enable the applicant in this one to file an
affidavit in
reply.
(9) That
to-date the applicants in this one have not filed the affidavit in reply to
Miscellaneous Application No. 3 of 2002, which is
still pending before the
Honourable
Court.
(10) That
the orders sought in the present application even if granted, would not operate
to cure the defect in Civil Appeal No. 16 of
2001.
(11) That the
affidavit of Godfrey Magezi in support of the present application makes no
mention of Brian Mbazira even when he is named
as an applicant and it is not
clear if he is a knowing part to this
application
(12) That
I swear this affidavit in reply to the affidavit of Godfrey Magezi and din
opposition to the orders sought.

(13) That all what is stated herein is true and correct in my knowledge
and professional experience.


Mr. Mbabazi counsel for the applicants submitted that the application was
seeking leave to be granted to applicants to tile an appeal
against the decision
of the Court of Appeal Civil Appeal No. 61 of 1999 out of time and also to
validate the tiling of Civil Appeal
No. 16 of 2001 which was tiled out of time.
He also sought costs of the application to be in the cause.

The grounds of the application are in the body of the application. Reasons
for the application are set out in the body of the application
as inadvertence,
error and omission by the former counsel M/s. Birungi & Co. Advocates. The
other ground concerning Supreme Court
Civil Appeal No. 16 of 2001 is that the
applicants have already paid Shs. 520,000= as spelt out in the 2nd
paragraph of the grounds for the application.

In the interest of justice, counsel submitted that it was fair that the
substantive appeal No. 16/2001 be validated and be heard on
merit.

The application is supported by affidavit of Magezi dated 9th
April 2002. Mr. Mbabazi submitted that the relevant paragraphs show 3 steps
taken to the Notice of Appeal.


Paragraph 5 shows requisite fees duly
paid vide receipt No. 2171963 annexed as '4'.

Paragraph 6 shows extracts of Court Register and shows two receipts. These
receipts have different dates but were issued by the Supreme
Court one receipt
No. 42608198 is dated 9th November 2001, while the second receipt No.
42608199 is dated 9th October 2001. These receipts are annexed as
'6a' and '6b' respectively. The received stamp for the record of Appeal is dated
9th September 2001. Yet the Registrar's seal certifying lodgment of
the record is dated 20th December 2001. That the Court of Appeal
Registrar's certificate of completion and delivery of the Proceedings was sealed
on 9th November 2001. Paragraph 1 1 brings home the mix-up. It avers
that it is therefore not easy to clearly tell the date when the appeal
was
tiled, though the date of 9th November 2001, would logically be the
date of filing, as it was the date the filing fees and security for costs was
paid.


Counsel submitted that all the above was done by M/s. Birungi
& Co. Advocates without the knowledge of the applicants, because
payments
were made by M/s. Birungi & Co. Advocates. He further submitted that when
those things were being done by the perpetrators,
the applicants was not aware.
He contended that these things were done by court officials and former counsel.
Counsel submitted that
the law is that such mistakes, omission and inadvertence
should not be visited on to the litigant. He contended that there was no
evidence that litigants participated in these errors or
mistakes.


Further, counsel for applicants referred to Mr. Rutisya's
affidavit sworn in reply, dated 8th October 2002. He submitted that
the thrust of Rutisya's affidavit was that the appeal was tiled out of time.
Further in that affidavit
Mr. Rutasya confirms mix-up in dates. Counsel also
confirms tampering of the date when Memorandum of Appeal was received by the
Registry
-which imputes fraud - Mr. Mbabazi submitted that the respondent's
affidavit does not attribute fraud to any party.

On the issue of backdating of dates of receipt and issuance of receipt,
counsel submitted that these receipts could not have been
issued by the
applicants because the receipts bear Uganda Government and were issued in favour
of M/s. Birungi & Co. Advocates.
Counsel submitted that emphasis in cases of
this nature has been not to debar a litigant from accessing court and also not
to encourage
fresh suit or suing lawyers. Counsel cited the cases of
Executrix of the Estate of Christine Nantatovu Tibaijuka & Deborah
Namukasa - vs - Noel G. Shalita S.C. Civil Application No.
8 of 1988, Haji
Nurdin Matovu - vs - Ben Kiwanuka (S.C.) Civil Application No. 12 of 1991, David
Nsubuga & 3 Others - vs - Margaret
Kamuge (S.C.) Civil Application No.
31/1997,
in support of the above submission.

Counsel further submitted that where the courts have found that there is
already an appeal tiled, despite the mistake, which may amount
to tampering, the
court has validated the appeal which had been tiled out of time. He relied on
Crane Finance Co. Ltd. - vs - Makerere Properties Civil Application No. 1
of 2001 (S.C.)
(unreported) and Mansukhalal Ramji Karia &
Crane Finance Co. Ltd. - vs - Attorney General & 2 Others Civil Application
No. 1 of 2003 (S.C).



Mr. Byaruhanga, counsel for the
respondent, in opposition to the application submitted that the application did
not set out sufficient
cause for the delay in filing the application/appeal
within the framework of the rules. Further, he submitted that the contradictions
in the dates were not explained satisfactorily. Counsel submitted that after
realising that they were out of time, they came up with
this application
alleging that the mistake or error was by counsel; but Mr. Magezi's affidavit
does not disclose that he gave money
to his counsel in time to tile the appeal.
Counsel further submitted that in the absence of the evidence that Magezi had
paid money
to his Lawyer to tile the appeal in time, the conclusion left was
that there was complicity in tampering with the date of tiling
the appeal
between counsel and the applicant. Counsel further submitted that this was a
peculiar case, because the alleged mistake
was calculated by whoever chose to
state appeal was tiled on 9-11-2001, and 9th October and
9th September having the date on the court record which bears court
stamp. He submitted that if it cannot be found that it was done by
counsel, then
the applicant bears responsibility.


Moreover, counsel submitted that
not all mistakes of counsel are excusable. Although court has wide powers to
extend the period, sufficient
reasons must be shown. Counsel cited the case of
Florence Nabatanzi - vs -Naome Zinsobedde Civil Application No. 5 of 1997
for proposition that sufficient reason depends on the circumstances of
each case and must relate to the inability or failure to take
a particular step
in time. Claim by the applicant that the tile could not be traced in time, in
that case was not substantiated because
it had been contradicted.

Counsel submitted that it would not be proper exercise of the court's
discretion to extend time for the applicant to file appeal out
of time or to
validate the appeal which was filed out of time.Moreover, in Civil Application
No. 3/2002 Mr. Mbabazi and Birungi appeared
together. In that application the
respondents were seeking leave to have the appeal struck out. That application
was adjourned and
applicant's application was still pending. In the
circumstances, this would not be a proper case for this court to exercise
discretion
to grant the extension. Counsel cited the case of Karia &
Anor - vs - Attorney General & Others Supreme Court Civil Application No. 1
of 2003
where extension of time was granted because it was found that
the mistake was that of the court.

On the allegation of mix-up, this would not arise because the record of
appeal was ready on 23rd August 2001. The dates of 9th
November, 9th October and 9th September, were deliberately
inserted and designed to justify mix-up. He submitted that the application
should be dismissed.

Rule 4 of the Rules of this Court under which this application was tiled
reads:

"The Court may, for sufficient reason, extend the time presented by
these Rules or by any decision of the Court or of the Court of
Appeal for the
doing of any act authorised or required by these Rules, whether before or
after the expiration of that time and whether before or after the doing of the
act;
any reference in these Rules to deny such time shall be construed as
reference to the time so extended."


There are many decisions of this Court and of the East African Court of
Appeal which have interpreted Rule 4 of the Rules of this
Court. I shall quote
in extensio the portion of the decision of this Court from page 4 to page 6 in
the case of Crane Finance Co. Ltd. - vs - Makerere Properties (Supreme
Court) Civil Application No. 1 of 2001
(unreported) which raised issues
similar to those in the instant case. These we stated as
follows


"The rule envisages four scenarios in which extension
of time for the doing of an act so authorised or required, may he granted,
namely
-

(a) before expiration of the limited time;

(b) after expiration of the limited time;

(c) before the act is done;

(d) after the act is done."

The situation in the instant case is a combination of scenario (b) and
(d). the appellant applied for, and Kitumba JA, granted extension
of time for
filing and serving of the record of appeal, long after limited time had expired,
and also after the acts of filing and
serving the record of appeal had been
done. The bone of contention however, is in respect of scenario (d) namely the
effect of such
extension on the acts which had already been done. We thin that
it is obvious that the contended effect is to bring an act within
the time as so
extended. There would have been no reason to include that scenario in the rule
if an act done out of time was an incurable
nullity. It is because it is not a
nullity that under rule 12 of the same Rules, the Registrar is required to
accept documents filed
out of time, and only to endorse them to that effect. A
reading of rr 4 and 12 together clearly indicates that while a document filed
out of time is voidable, it may be validated by extension on time.

Secondly, we share the view that it could be futile to construe the
provision otherwise. That view was succinctly expressed by the
Court of Appeal
for East Africa in Shanti - vs - Hindocha [1973] E.A. 207.
In that case the Court considered r 9 of its

Rules (which was in identical terms as r. 4), and all arguments
(similar to that of Mr. Nangwala in the instant case), that the rule
empowered
the judge to authorise a future act not to validate a past
one.



The Court held:

We think that when the time for lodging a document is extended, the
document is duly lodged if lodged within the time as so extended, whether
the actual lodging is before or after the order of extension. To hold
otherwise would serve no purpose and would merely result in further costs being
incurred.
It is not irrelevant in this connection to note that under r 11
the Registrar has no power to refuse to accept an appeal on the ground
that it
is out of time, which clearly implies that the delivery of the appeal out of
time may be excused or validated."


In an obiter dictum in The Executrix of the Estate of Christine Mary N
Tebaijuka & Anor - vs - Noel Grace Shalita Civil Application No. 8 of 1999
(S.C),
Odoki JSC (as he then was) referring to the same scenario
said:

'late filing of "The legal effect (of extending time for filing) is
therefore, to validate or excuse the documents. The applicant
need not file
fresh documents if those already filed are

completed and in proper form.' "


On the evidence
available and submission made by counsel on both sides I am satisfied that
although Mr. Byaruhanga, counsel for the
respondent submitted that the
back-dating of dates on the receipts and the mix-up in the dates appearing in
the tiling of the appeal,
payment of tiling fees and security for costs were
deliberately calculated by whoever chose to insert them by design to justify the
mix-up, in my view, there was no evidence by the respondent to prove that the
mix-up of those dates was done by the applicants, as
he was not personally
handling the appeal. Those receipts were issued by the court officials on the
Uganda Government receipts in
favour of M/s. Birungi & Co. Advocates who was
representing the applicants.


It is now settled that omission or
mistake or inadvertence of counsel ought not to be visited on to the litigant,
leading to the striking
out of his appeal thereby denying him justice. There are
many decisions from this Court and other jurisdictions in which it has been
held
that an application for extension of time, such as this one, where mistake or
error or misunderstanding of the applicants' legal
advisor, even though
negligent have been accepted as a proper ground for granting relief under rules
equivalent to rule 4 of the
Rules of this Court, which is the rule under which
this application was brought. See Getti - vs - Shoosmith [1939] B ALL ER
916, Bray - vs - Bray [1957] EA 302, Haji Nurdin Matovu - vs - Ben Kiwanuka
(supra) Alex Jo Okello - vs - Kayondo & Co. Advocates Civil
Application No. 17 of 1981, (SC), David Nsubuga & 3 Others - vs - Margaret
Kamuge (SC), Civil Application No. 31 of 1997.
Further, errors/mistakes
of court officials have been held to be sufficient grounds for granting
extension of time to the applicant
to tile his or her appeal out of time. Seen
Bhatt - vs - Tejwart Singh [1962] EA 497, Mansulkalal Ramji Karia - vs -
Attorney General & Others SCCA No. 1 of 2003.



In view of
the above, I am satisfied that sufficient reasons in this case exist for
granting extension of time to the applicants to
appeal out of time. Accordingly,
extension of time is granted. However, in the instant case, Mr. Birungi of M/s.
Birungi & Co.
Advocates, had already tiled Supreme Court Civil Appeal No. 16
of 2002 and paid all the requisite fees for tiling the appeal which
included
fees for security for costs totalling to Shs. 520,000=. The appeal however, had
been tiled in the Supreme Court out of time
on 9th November 2001, due
to the mistake, error or inadvertence of the former counsel, which must not be
visited on to the litigant. See
Crane Finance Co. Ltd. - vs - Makerere
Properties
(supra) Gett. - vs - Shoosmith (supra)
Executrix of the Estate of Christine Mary Tebaijuka & Anor - vs - Noel
Grace Shalita
(supra) and Mansukhalal Ramji Kania (supra)
Shanti - vs - Hindocha (supra) for the proposition that the legal
effect of extending time to tile an appeal out of time when the appeal had
already been
duly tiled albeit out of time is to validate
that appeal or to excuse the late tiling of that appeal. Consequently, the
Supreme Court Civil Appeal No.
16 of 2001 is deemed to have been validly tiled
on 9th November, 2001. Accordingly, application for validation of
appeal No. 16 of 2001, is allowed.

Costs of this application to be in the cause.

Delivered at Mengo this 20th day of
December 2004.



A. N. KAROKORA
JUSTICE
OF THE SUPREME COURT