Mubezi James & 2 Ors v Uganda (CIVIL APPEAL NO. 10 OF 2017) [2018] UGSC 14 (21 May 2018);

Group

Full judgment

THE REPUBLIC OF UGANDA

IN THE SUPREME COURT OF UGANDA AT KAMPALA

CIVIL APPEAL NO. 10 OF 2017

(CORAM:ARACH-AMOKO, MWANGUSYA, OPIO-AWERI, MWONDHA, TIBATEMWA-EKIRIKUBINZA, JJSC)

BETWEEN

1. MUBEEZI JAMES

2. NTUNGIRE STEVEN ....…………….... APPELLANTS

3. MISAKI KAVIIGI

AND

KASULE SAMUEL .................................... RESPONDENT

DECISION OF COURT

The appeal before us was heard on 3^rd October 2017. In the course of writing the judgment and on perusal of the Court record, this Court discovered irregularities regarding the filing and cause listing of the appeal. We herein below set out a chronology of events highlighting these anomalies.

The respondentlodgedan application in this Court vide Supreme Court Miscellaneous Application No. 24 of 2015 for orders that the Notice of Appeal filed by the appellants be struck out for being served out of time. The application was heard byJustices: Katureebe, CJ; Nshimye, Mwangusya, Mwondha and Tibatemwa-Ekirikubinza. The Court found that there was no plausible explanation given for not serving the Notice of Appeal on the applicant’s lawyers within the prescribed time. Furthermore, the Court found that the appellants did not apply for extension of time to remedy the late service of the Notice of Appeal. The Courtheld in favour of the Applicant (currentrespondent)and struck out the Notice of Appeal filed by the appellants together with the appeal.

On 13/9/2017, the current second appellant - Ntungire Steven - filedSupreme Court Miscellaneous Application No. 24 of 2017 for stay of execution of the orders of Court in the ruling that struck out the Notice of Appeal and the appeal. ThisMiscellaneous Application for stay of execution came up for mentionat the pre-hearing conferencebefore a single justice. At the pre-hearing, Counsel appearing for the applicant informed court that:

(i) He had previously filed Civil Application No. 18 of 2015 on behalf of the applicant and others in this court.

(ii) That the applicant had also applied for an interim order vide No. 15 of 2017, an application for stay of execution vide No. 24 of 2017, and an application for extension of time vide No. 19 of 2017.

Furthermore, counsel informed court that the respondent’s counsel had conceded to all the above applications and agreed to file a consent order in Court setting out the above terms.

Counsel concluded by praying that the appeal be fixed for hearing on the 3^rd or 4^th of October 2017.

In reply to the above submission, Counsel for the respondent informed court that he together with the applicant’s counsel had agreed to file a consent order in court. He however sought guidance from the Court whether the validation of the Notice of Appeal and Memorandum of Appeal will have an effect on the 1^st and 3^rd appellants.

Counsel for the applicant clarified that Miscellaneous Application No.24 of 2017 was filed in respect to only Steven Ntungire. Counsel for the respondent then stated:“I have discussed with the applicant and he says he makes the application then the others will join if he succeeds.”

Courtthen ordered that theconsent order be presented to the Court for endorsement and that the hearing of the appeal be fixed for 3^rd October 2017.

Consequently, the second appellant -Ntungire Steven-filedSupreme Court Miscellaneous Application No. 19 of 2017 for:

extension of time within which to file and serve a Notice of Appeal against the decision of the Court of AppealNo. 49 of 2012;and
in the alternative validation of the applicant’s Notice and Memorandum of Appeal and the Recordof Appeal which was already filed in court on 4/12/2015 as Civil appeal No. 18 of 2015.

In addition, the second appellant- Ntungire Steven alsofiled Supreme Court Miscellaneous Application No. 25 of 2017 (arising from Civil Application No. 24 of 2017) (itself arising from Civil Application No. 19 of 2017)(arising from Civil Application No. 18 of 2015) for -

(a) An interim order of stay of execution of the orders of the Court of Appeal in Civil Appeal No .49 of 2012.

On 7/9/2017, Counsel filed the consent order vide Miscellaneous Application No. 19 of 2017. The consent order indicated that both the applicant’s and respondentcounsel consentedto have the time within which to file and serve the Notice of Appealextended. Furthermore, that the costs of the application be in the main appeal.

On 13^th September 2017, the consent order was endorsed bya single Judge.

We are alive to the fact that a full bench had earlier on delivered a decision striking out the appeal and the said Notice of Appeal. We find it irregular for parties to consent on a matter already determined by the Court. It follows that the orders contained in the consent and endorsed by the single judge could not overturn the orders of thefull bench. Civil Appeal No.10 of 2017 is a disguised attempt to have the appeal heard despite the fact that it had been struck out.

We hereby dismiss Civil Appeal No. 10 of 2017 as having been incompetently placed before this Court. We make no order as to costs.

Dated at Kampala the …21^st… day of ………May……. 2018.

………………………………………………

HON. JUSTICE STELLA ARACH-AMOKO,