THE REPUBLIC OF UGANDA
IN THE SUPREME COURT OF UGANDA
(CORUM: JUSTICE OKELLO, JSC )
CIVIL APPLICATION NO. 19 OF 2010
B E T W E E N
KASAALA GROWERS CO-OPERATIVE SOCIETY :::::::::::::: APPLICANT
A N D
1. KAKOOZA JOHATHAN
2. KALEMERA EDSON: ::::::::::::::::::::::::::::::::::: RESPONDENTS
(An application for extension of time within which to institute an appeal against the decision of the Court of Appeal (Twinomujuni, Kitumba and Kavuma, JJA.) dated 6th February 2009, in Civil Appeal No. 19 of 2007).
RULING OF G. M. OKELLO, JSC:
This application was brought by Notice of Motion under rules 2(1), 2(2), 5, 42 & 50 of the Judicature (Supreme Court) Rules. It seeks an order of this court to extend the time within which to file Memorandum and Record of Appeal in the Supreme Court, Civil Appeal No. 14 of 2010.
The applicant, Kasaala Growers Co-operative Society, and the respondents had executed a Sale Agreement in which the applicant sold to the respondents a piece of land measuring 1000 hectares and known as Block No. 3 Plot No. 3 situate at Nampiki, Luwero for Ug. Shs. 34 million. The respondents paid Ug. Shs. 14,250,000/= of the said price and the balance was to be paid after the title of the land was renewed.
A dispute arose between the parties when the applicant sold off one square mile of the land to a one Kigayaza. The respondents sued the applicant in the High Court seeking among other reliefs, specific performance and an order of eviction of the applicant’s agents, tenants or licensees on the land.
In its written statement of defense, the applicant pleaded acquiescence/waiver on the part of the respondents. In other words, it stated that the respondents agreed to the sale of the one square mile of the land to Kigayaza.
The High Court heard the case and dismissed it; thus giving judgment in favour of the applicant.
Dissatisfied with that decision of the High Court, the respondents successfully appealed to the Court of Appeal which reversed the decision of the High Court.
The applicant was dissatisfied with the decision of the Court of Appeal and ten days after the delivery of the judgment, filed a Notice of Appeal against that decision and also requested for a certified record of proceedings from the Court of Appeal. Subsequently, it instructed M/s. Tibaijuka & Co. Advocates to pursue the appeal and prosecute it on behalf of the applicant. That firm of Advocates however, did not file the appeal. Meanwhile, the time within which to file Memorandum and Record of Appeal had expired.
Disappointed by their delay, the applicant withdrew instructions from M/s. Tibaijuka & Co. Advocates and instructed another firm of Advocates to file an application for extension of time within which to file the Memorandum and Record of Appeal. Unfortunately, this firm of Advocates too did not carry out the instructions; hence this application drawn and filed by Bambukali Sande who holds Powers of Attorney from the applicant.
The application contains eight grounds which may be summarised to two grounds; firstly that although the applicant instructed a firm of advocates (M/s. Tibaijuka & Co. Advocates) in time to pursue and prosecute the appeal, the firm of advocates negligently delayed and the time within which to file the appeal had expired before the appeal was filed.
Secondly, that it is just and equitable that the applicant’s appeal be heard on its merits and that the time be extended to enable the applicant to institute its appeal.
The application is supported by the affidavit of Bumbakali Sande sworn on 24th August, 2010.
The respondents opposed the application and relied on the affidavit in reply sworn by the second respondent on 13th September, 2010.
When the application came up for hearing before me on 14-09-2010, at 2.30 p.m., Mrs. Murangira Kasande, appeared for the respondents while Mr. Bumbakali Sande who holds Powers of Attorney from the applicant appeared in person.
At the instance of Mrs. Murangira, the hearing of the application was adjourned to 22-09-2010. This was firstly to enable her to study the applicant’s written submissions that were served on her just before the application was called for hearing that afternoon. Secondly, to offer the parties an opportunity to settle the application amicably out of court and to report the result of their settlement on the adjourned date.
However, on 22-09-2010, when the application was called, Mrs. Murangira Kasande, reported that they had failed to reach a settlement on the application as they had language barrier. Mr. Bumbakali Sande insisted to speak in Luganda, a language she did not understand well. She then submitted written submissions in response to those filed by the applicant. Both parties therefore filed written submissions.
In her said submissions, Mrs. Murangira Kasande, raised two or three points which I consider to be preliminary objections, some of which could dispose of the application. I therefore, propose to deal with them first before I consider the merits of the application.
The first point challenges the affidavit of Bumbakali Sande Sworn in Support of the application. Mrs. Murangira kasande contended that the said affidavit is incurably defective for failure to indicate at the bottom thereof, that the contents thereof were interpreted to the deponent in the language he understands and that he in fact understood them or appeared to have understood them. It was counsel’s contention that this was necessary because, Bumbakali Sande himself had declared in court that he does not understand the English language, in which the affidavit was written. She argued that without such an endorsement, Bumbakali Sande, cannot own the contents of the affidavit written in a language he does not understand. She prayed that the affidavit be struck out for being defective.
Mr. Bumbakali Sande had no response to the above submissions. In fact, when I asked him whether he had anything to say on the written submissions of Mrs. Murangira Kasande, he spoke in Luganda. Through the Court Clerk who acted as an interpreter, I understood that in that Luganda, he stated that he does not understand English language. Then I asked him who drew the application, supporting affidavit and his written submissions all of which were written in perfect English. He at first replied that he drew them. But he later changed to say that they were drawn by one Charles Kaddu to whom he had spoken in Luganda and the said Kaddu recorded in English. When I asked why the affidavit does not indicate that the contents thereof were interpreted to him in the language he understands and that he understood them. He replied that it was an oversight.
It then became clear to me that although the application, affidavit in support and the applicant’s written submissions all show in the jurat to have been drawn by Bumbakali Sande, they were clearly not drawn by him. He admitted so and stated that he does not understand the English language. The documents are therefore not what they purport to be.
I do agree with what this court had stated in Banco Arabe Espanal - vs. - BOU, Civil Appeal No. 8 of 1998, that;
“-- - - - - a general trend is towards taking a liberal approach in dealing with defective affidavits. This is in line with the Constitutional directive enacted in article 126 of the Constitution that courts should administer substantive justice without undue regard to technicalities Rules of Procedure should be used as handmaiden of justice but not to defeat it.”
However, a distinction must be drawn between a defective affidavit and failure to comply with a statutory requirement. A defective affidavit is, for example, where the deponent did not sign or date the affidavit. Failure to comply with a statutory requirement is where a requirement of a statute is not complied with. In my view, the latter is fatal.
Section 3 of the Illiterate Protection Act (Cap) 78 of the Laws of Uganda 2000, enjoins any person who writes a document for or at the request or on behalf of an illiterate person to write in the jurat of the said document his/her true and full address.
This shall imply that he/she was instructed to write the document by the person for whom it purports to have been written and it fully and correctly represents his/her instructions and to state therein that it was read over and explained to him or her who appeared to have understood it.
In the instant case, the affidavit of Bumbakali Sande sworn on 24th August 2010, shows in the jurat that it was drawn by Bumbakali Sande himself. Yet he confesses his illiteracy in the English language in which the affidavit was written. In his own admission, the document was drawn by one Charles Kaddu. Unfortunately, the said Kaddu did not comply with the provision of section 3 of the Illiterate Protection Act above.
I accept Mrs. Murangira