THE REPUBLIC OF UGANDA
IN THE SUPREME COURT OF UGANDA
AT MENGO
(CORAM: ODER, MULENGA, AND KATO JJ.SC.)
MISCELLANEOUS APPLICATION NO.6 OF 2003
BETWEEN
| 1. | GODFREY
MAGEZI |
| 2. | BRIAN MBAZIRA
:::::::::::::::::::::APPLICANTS |
AND
SUDHRI RUPARELLIA :::::::::::::::::::::: RESPONDENT
(Reference from the ruling of Kanyeihamba JSC, sitting as a single
Judge of the Supreme Court of Uganda at Mengo, dated 21st November,
2002 in civil application No. 10 of 2002)
RULING OF THE COURT.
This is an application by way of
reference to this court from the decision of a single Judge who declined to
grant an application
for extension of time.
The facts, which gave rise to this reference, are as follows: Under Civil
Appeal No. 16/2001 the applicants appealed to this court
against the decision of
the Court of Appeal. It was discovered that the appeal had been filed out of
time. The respondent applied
under Miscellaneous Application No.3 of 2002 to
have the appeal struck out for non-compliance with the rules of procedure. Under
Civil Appeal No.10 of 2002, the applicants also applied to this court for
extension of time within which to file the appeal. On 23/1/2002 when
the appeal
came up for hearing, the court was referred to the pending application for
striking out the appeal, whereupon the appeal
was adjourned to enable the
present applicants to file their reply to that application. It appears no such
reply was ever filed,
at least by the time this reference was being heard. On
21/12/2002 the applicants' application for extension of time came up before
a
single Judge. He dismissed it on the ground that it was premature, superfluous
and incompetent and that as a single Judge he could
not hear an application for
extension of time when another application for striking out the appeal was still
pending before a full
bench.
The applicants being dissatisfied with the decision of the single Judge, made
this reference on five grounds, which are:
1. The learned trial judge (sic) erred in law and when he held that a
single judge had no jurisdiction to hear and determine the application
before
him.
2. The learned trial judge ( sic) erred in law and fact when he found and
concluded that the ruling of the single judge would render
redundant the
application before the full bench.
3. The learned judge erred in law and fact when he found that the
application before him was premature, superfluous and incompetent.
4. The learned judge erred in law and fact when in reaching his decision
he failed to take into consideration and give due regard
to the substantive
rights of the litigants and the Court jurisprudence on the issue.
5. The learned judge erred in law and fact when he relied on and based his
decision on technicalities.
Mr. Mohammed Mbabazi, who represented
the two applicants, argued the grounds generally after summarizing them into one
ground namely:
whether a single Judge can proceed to hear an application for
extension of time when there is a pending application to strike out
an appeal.
He submitted that a single Judge had the power to deal with the matter in view
of the decisions in: Kiboro v Posts and Telecommunications Corporation
(1974) EA 155, Hajji Nurdin Matovu v Ben Kiwanuka (Supreme Court Civil
Application
No.12 of 1991), Kabogere Coffee Factory Ltd and Haji Bruhan Mugerwa
v Twaibu Kigongo (Supreme Court Civil Application No.10 of 1993)
and Crane
Finance Co. v Makerere properties Ltd (Supreme Court Civil Appeal No. 11 of
2001). He submitted that the learned single Judge was wrong to hold that
he had no power to decide on the application. The learned counsel
prayed that
the reference be allowed and the application (No.10 of 2002) be heard on its
merits.
On his part, Mr. William Byaruhanga, who appeared for the
respondent, submitted that the single Judge was correct to dismiss the
application
for extension of time. He contended that the Judge gave his reasons
for his decision and he (counsel) agreed with those reasons.
According to him,
the authorities cited by Mr. Mbabazi did not support the legal principle that a
single Judge has power to hear
and determine a matter pending before a full
court.
In counsel's view, Nurdin Matovu's case (Supra)
decided that an application for extension of time can only be heard when
the one to strike out the appeal is pending, if the latter
was filed after the
former had been filed, which was not the case in the present case. He contended
that in the present case, the
application to strike out the appeal ought to have
been disposed of before that for extension of time was heard.
The
ruling of the single Judge, which resulted in this reference, reads: -
"I
find merit in the objection raised by Mr. Byaruhanga, counsel for the respondent
in this application. I have analysed the cases
supplied by Mr. Mbabazi in
support of his clients' application and have found no statement in these
respective judgments which are
relevant or would assist me to dismiss Mr.
Byaruhanga's persuasive submissions. The authorities cited by counsel for the
applicants
deal with courts' discretion to grant remedies in situations where
litigants have failed or neglected to take essential steps in
the proceedings
required by rules of court. None of the authorities cited show any power, let
alone jurisdictions of a single judge
to make a ruling which has the effect of
rendering redundant an application pending before a full bench of the same
court. I noted
that the grounds of this application and the supporting affidavit
by Mr. Godfrey Magezi conspicuously omitted to mention Application No.3
of 2002 or the ruling of this court upon it. This omission, especially by
counsel, is most unfortunate and must be
totally discouraged in future. Be hat
as it may. I am satisfied that Application No.3 of 2002 is still pending
before a full bench of this court and in my view only that panel has the powers
and discretion
to make any variations in the proceedings in that application
before them. I agree with counsel for the respondent that this application
is
premature, superfluous and incompetent. It is therefore dismissed with costs to
the respondent."
There is no doubt that a single Judge of this Court has discretion to grant
or refuse to grant extension of time to a party, under
rules 4 and 49 of the
Rules of this Court and section 9(1) of the Judicature Statute 1996. In the
instant case, the application,
which is the subject of this reference, was made
under Rule 4 of the Rules of the Court, which reads;
"4 The court may, for sufficient reason, extend the time prescribed by
these Rules or by any decision of the 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 such time shall be construed as a reference to the time so
extended"
In view of the above provisions of the law, it
would be incorrect to say that a single Judge of this court has no jurisdiction
to
hear an application for extension of time. In the case before us, the Judge
declined to deal with the case because an application
was pending before a full
bench to strike out an intended appeal. There are a number of authorities of
this court stating that an
application for extension of time may be heard even
if there is a pending application to strike out an appeal. Among those
authorities
is: Hajji Nurdin Matovu v Ben Kiwanuka
(supra) where it was stated:
"It is to be noticed that in Kiboro's case the application for an
extension of time was made before the hearing of the notice to strike
out the
appeal. Hence Kiboro's case can illustrate, that if there in an existing
application, the court does not normally strike out the appeal, but would
prefer to allow the application for extension of time to be beard first,
before
the striking out motion." (underline supplied)
With due respect to Mr. Byaruhanga counsel for the respondent, his attempt to
distinguish the present case from the previous precedents
is not tenable. The
answer cannot depend on who filed his application first. This is so because if
there is merit in the application
for extension of time, the appeal will not be
strangled. If there is no merit it will be rejected and the one to strike out
the appeal
will be heard. An application to strike out an appeal does no act as
a bar to an application for extension of time nor does it divest
the court of
its jurisdiction to extend time. When dealing with a matter of this nature the
guiding principle should be that the
rules of procedure are meant to serve as
handmaids of justice and not to defeat justice.
In our view, there were two alternative courses open to the learned single
judge in this case. Since he feared pre-empting the decision
of the full court,
he could have adjourned the application pending the hearing of the application
for the striking out of the appeal.
The better course was to decide the
application on its merits and dismiss or grant it. The order dismissing the
application was clearly
an error as it served as hindrance to the applicants'
rights to file a fresh application: (See: Hajji Nurdin Matovu v Ben
Kiwanuka (supra) and Kabogere Coffee Factory Ltd and Hajji Bruhan Mugerwa v
Hajji Twaibu Kigongo (Supra).
In the result, we allow the reference with costs to the applicants. The order
by the single Judge dismissing the application is set
aside. It is ordered that
Civil Application number 10 of 2002 be fixed for fresh hearing by another single
Justice of this Court.
Dated at Mengo this 4th day of
August 2004
A.H.O. Oder
Justice of Supreme
Court.
J.N. Mulenga
Justice of Supreme Court.
C.M.
Kato
Justice of Supreme Court.
