A. K. P. M. Lutaaya v Attorney General (Civil Reference 1 of 2007)

Supreme Court · [2007] UGSC 5 · 2007 Reference Dismissed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Reference to the full Court from the decision of a single Justice (Katureebe, JSC) granting the respondent leave to institute an appeal out of time

Decision

Reference dismissed; order of the single Judge granting the respondent leave to institute the appeal out of time confirmed, with thirty days to institute the appeal

The full judgment

Read the complete, verbatim text of this judgment.

Cited — treatment unverified cited in 1 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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Holding

On a reference from a single Justice who had granted the Attorney General leave to appeal out of time, the full Court held that a reference under Rule 52 must be made informally orally or by written application to the Registrar on the existing record, not by notice of motion with fresh affidavit evidence, and ordered that this commonly-practised but erroneous procedure be discontinued. On the merits, the Court held that striking out the earlier application for want of a valid supporting affidavit was not a decision on the merits, so the single Judge did not exhaust his powers and was not functus officio when he heard the later, properly supported application. The reference was dismissed and the single Judge's order confirmed.

Facts

The applicant had sued the Attorney General in the High Court alleging trespass and wrongful acts by UPDF soldiers on his land. After a series of decisions, the Court of Appeal in December 2005 enhanced his damages and awarded interest and costs. The Attorney General filed a notice of appeal but, through a succession of errors in the Attorney General's Chambers — including the resignation of the State Attorney handling the file without proper handover — failed to take the steps to institute the appeal in time. An earlier application for extension of time (Civil Application No. 1 of 2007) was struck out because the supporting affidavit was unsworn. A fresh application (Civil Application No. 12 of 2007), supported by a properly sworn affidavit, was then granted by the single Judge, who allowed the respondent to institute the appeal out of time. The applicant referred that order to the full Court, contending principally that the single Judge was functus officio.

Issues

Whether a reference under Rule 52 of the Supreme Court Rules may properly be made by notice of motion accompanied by additional affidavit evidence.
Whether the single Judge became functus officio, and so could not hear Civil Application No. 12 of 2007, after striking out an earlier application (Civil Application No. 1 of 2007) on the same subject for being unsupported by a valid affidavit.

Orders

Decision of the single Judge confirmed.
Respondent granted thirty (30) days within which to institute the appeal.
Costs of the reference to abide the decision of the Court in the intended appeal.

Key headnotes

Civil Procedure — References from a Single Judge — Proper Mode under Rule 52

A reference under Rule 52 of the Supreme Court Rules must be made either informally and orally to the single Judge when the decision is given, or by writing to the Registrar within seven days; it cannot properly be made by notice of motion, and no additional evidence may be adduced except with leave of the Court.

Civil Procedure — References — Scope of Review Confined to the Record before the Single Judge

On a reference the three Justices are to review, on the materials that were before the single Judge, whether the single Judge made the right decision; fresh affidavit evidence and annextures filed without leave are not part of the proper record and are inconsistent with the rule.

Civil Procedure — Functus Officio — Striking Out for Incompetence Distinguished from a Decision on the Merits

A judge who strikes out an application as incompetent for want of a valid supporting affidavit, without considering its merits, has not made a final decision and has not exhausted his powers; he is therefore not functus officio and may entertain a fresh, properly supported application on the same subject.

Legislation cited (5)

Judicature Act s.8(2)
Supreme Court Rules Rule 52
Supreme Court Rules Rule 42
Supreme Court Rules Rule 43
Eastern Africa Court of Appeal Rules 1954 Rule 19

Cases cited (4)

Motor Mart (U) Ltd v Yona Kanyomozi (Civil Application No. 6 of 1999)
Kabogere Coffee Factory Ltd and Hajji Bruhan Mugerwa v Hajji Twaibu Kigongo (Civil Application No. 10 of 1993)
Meru Farmers v A. A. Sulaiman [1966] EA 449
Crane Finance Company Ltd v Makerere Properties Ltd (Civil Appeal No. 1 of 2001)

Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.