IN THE SUPREME COURT OF UGANDA

                                                AT MENGO

(CORAM: MANYINDO, DCJ, ODER. JSC. AND SEATON, JSC)

CIVIL APPLICATION NO. 19/90

BETWEEN

THE ATTORNEY GENERAL …………………………………………….. APPLICANT

     AND

ORIENTAL CONSTRUCTION CO. LTD ………………………….…..RESPONDENT

(Appeal from the decision of H/C of Uganda

at Kampala (Mr. Justice W.K. Kityo) dated 29/ 5/ 1990)

RULING OF THE COURT

This was a reference to the Full Bench of the Court from the decision of Platt, J.S.C., refusing an application for an extension of time to lodge an appeal.

The appeal desired to be lodged is against a Judgment given in 1989 by Kityo, J in High Court Civil Suit No. 491 of 1988. The applicant was the defendant in the suit. The respondent was the plaintiff. It involved a claim for money due under a contract for work done. The Judgment awarded to the respondent shillings 77 million in Kenya currency or 4 million in U.S. Dollars.

The applicant advanced six reasons for the reference to this Full Bench. We shall deal with them in the order in which learned counsel for the applicant argued them before us.

Grounds one, two and six were argued together. They were to the effect that the learned Judge erred in concluding that no sufficient explanation had been given for the delay in taking the required steps to lodge his appeal.

Notice of Appeal against the Judgement of Kityo, J., granting the award should, under Rule 74 (2) of the Rules applicable to this court, have been given 14 days from the date of delivery. It was not given until after approximately fourteen months. What happened during the period subsequent to the Judgment has been stated in two Affidavits sworn by principal state Attorney Tumwesigye and State Attorney Ochan.

It appears from these two Affidavits that the conduct of the high court Suit No. 491 of 1988 on behalf of the applicant was in the hands of State Attorney Byamugisha; no one assigned this takes to him, he took it upon himself; upon appearing in court he admitted liability without being authorized to do so and contested only the quantum of damages, when Judgment of the court was given, Byamugisha failed to inform the applicant. On his own initiative he applied to the Court for a review of its Judgment.

The affidavits assert that when on 22nd December, 1989, Mr. Justice Kityo refused the application for review, the state Attorney Byamugisha again failed to inform the applicant. Instead he filed another application for review. In the meantime the respondent applied by way of mandamus for execution of the Judgment award. When another State Attorney, Mrs. Mayanja appeared in Court in the proceedings for mandamus, she was apprised of this and communicated it to the applicant, the present application was filed. It was submitted by counsel for the applicant that the cause of the delay was the bad faith of the State Attorney Byamugisha, who kept the applicant “in the dark” about what was going on regarding the instant case.

Counsel for the respondent disputed the suggestion that the applicant’s delay had been caused by ignorance of the Judgment of the High Court. He referred to two letters of 26th July and 18th September. , 1989 from the Respondent’s Advocates Mulenga & Karemera, to the Solicitor General. In the letters, information was given of the decision and payment of the Judgment award was demanded. In the second letter it was pointed out that no appeal had been lodged against the Judgment.

In his ruling, Mr. Justice Platt observed that neither bad faith nor fraud on the part of Byamugisha or the Solicitor General had been alleged at the hearing of the application. In the absence of such, the learned Judge found that no sufficient explanation had been given for the 14 months’ delay in taking the necessary steps to lodge the appeal.

We have been urged to imply bad faith or at least error of judgment as reasons, which would exonerate the applicant of blame for the delay. In our view, the letters of the Inspector General of Government criticizing the judgment award and urging negotiations with the respondent with a view to obtaining agreement to accept a lower sum were ill- timed. They should not have persuaded anyone skilled in the law, such as the applicant, to delay lodging an appeal within the specified time. Nor are we convinced that state Attorney Byamugisha acted without authorization or in bad faith. The correspondence adduced as part of the evidence shows that all the Government was contesting was the amount it was being asked to pay under the contract. In the Judgement of Kityo, J., there is a comment about the “intensive cross examination” to which a witness for the Respondent was subjected during the trial by the State Attorney Byamugisha on behalf of the applicant. In all the circumstances we see no reason to disagree with Mr. Justice Platt’s finding on this point.

We now turn to ground four which was next argued. Counsel for the applicant submitted that the learned Justice should have excused the delay in view of the public importance of the appeal. Counsel had submitted to the learned Justice that the public importance of the appeal lay in the fact that a very large sum of money will have to come from the taxes paid by many individual citizens who constitute the public and they would have interest in such payment for a project which has been substantially incomplete.

The case of Esso Standard Eastern Inc., - Vs – Income Tax (1971) E.A. 140 had been cited by the learned Justice. He observed what had been held in that case on the question of public importance by the former court of Appeal for Eastern Africa, which was summarized by the learned president Duffus as follows (at p. 141 of the Judgment) :

“ ……. The point involved the circumstances in which foreign investors have to pay income tax on loans made abroad for the purpose of development in East Africa. This is undoubtedly a question which should be clearly defined from the point of view of foreign investors and it is also a matter of great importance to the three states of community that there should be no doubt the position in the future. We therefore, in all the circumstances of the case granted the extension of time (to serve the notice of appeal) …….

Platt J.S.C. then observed (at pp.8-9 of his Ruling) as follows:

“ ………. It is not for the courts to go into questions whether a litigant would have emerged better off , or if he said he had presented his case in another way , or with more vigour or had written his contract in clearer terms. Those are all matters private to the parties ……….”

We were somewhat at a loss to understand the meaning of the term “private”. If it was used in the manner in which one referee to the parties to a contract as being “privy to it” as against a third party who may attempt to enforce it or derive some benefit under it, one can understand it as meaning that the applicant, representing the Government, and the respondent were the parties privy to the contract in the instant case and the individual tax payers are third parties outside it.

But then the learned Justice went on to observe (at P.9 of his Ruling as follows:-

“……… But what is extraordinary about this case is that all this trouble arises out of the acts of the Government itself and its advisers in agreeing to continue the work on certain terms, and drawing up certificate 12. Then another set of Government advisers disagreed with the first to the question of payment only. This is not a fertile ground for making out a case of public importance, in my opinion.”

This makes us believe that the use of the term “ private” is intended to contrast it with the terms “public” and thus to deny the public nature of this contract. It would appear that the specific persons who drew up and signed the contract in the instant case are not within the knowledge of the Applicant’s counsel. There is no dispute however over the fact that the contract was entered into by or on behalf of the former East African Community. The Uganda Government inherited this contract along with other assets and liabilities of the defunct community. The obligation to pay is a part of the public responsibilities of the Government. Nowhere did the learned Justice in his ruling deal with the legitimate concern which Uganda citizens would have in payment of a large sum in foreign currency for such an inherited obligation. Had he done so, we doubt that he would have held that there no public importance in the appeal being heard.

We will therefore, set aside the order dismissing the application. The application is allowed; the time for filing the notice of appeal is extended until seven days from the date of the ruling. This extension will be on condition however, that the costs of the present application before us and before Justice Platt ARE BORNE BY the Applicant.

DATED AT MENGO THIS 18th DAY OF APRIL 1991

                                                                                                ………………………………..

                                                                                                S.T. MANYINDO

                                                                                    DEPUTY CHIEF JUSTICE

                                                                                                ……………………………………

                                                                                                A.H.O. ODER

                                                                                    JUSTICE OF THE SUPRME COURT

                                                                                                …………………………………….

                                                                                                E.E. SEATON

                                                                                    JUSTICE OF THE SUPREME COURT

I CERTIFY THAT THIS IS A TRUE

COPY OF THE ORIGINAL

B.F.B. BABIGUMIRA

REGISTRAR, SUPREME COURT