Bahimbise v Rwabinumi [2010] UGSC 26

Supreme Court · 2010 Application Partly Allowed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Reference to the full Court from a single Justice's ruling granting the respondent extension of time to lodge an appeal.

Decision

Reference substantially fails; single Judge's order granting extension of time confirmed, with the costs order below varied.

The full judgment

Read the complete, verbatim text of this judgment.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions — always read the source judgment before relying on it.

Holding

On a reference from a single Justice's grant of leave to appeal out of time in a matrimonial property matter, the Supreme Court held that Rule 21(2), permitting hearing of applications during court vacation, is directory and not mandatory, and that a party who argues an application without objection waives any certificate-of-urgency requirement under Rule 46. The Court found no merit in the grounds challenging the single Judge's exercise of discretion and confirmed the extension of time. It upheld only the ground challenging costs, set aside the costs ordered against the applicant below, ordered those costs paid by the applicant to the respondent, and awarded the applicant one-third of the costs of the reference.

Facts

The parties were formerly husband and wife. In 2004 the applicant filed a divorce cause in the High Court, which dissolved the marriage and ordered the matrimonial property shared in stated proportions, with the respondent to pay a sum to the applicant if the real property could not be shared. The Court of Appeal confirmed that decision. The respondent filed a notice of appeal to the Supreme Court but did not institute the appeal within the prescribed time, and later applied for extension of time. A single Justice (Okello, JSC) heard the application, found the respondent's former lawyers had been negligent, and on 5 August 2009 granted the extension. The applicant, dissatisfied, brought this reference to the full Court on five grounds challenging the single Judge's exercise of jurisdiction during court vacation, the alleged defects in the motion and affidavit, his consideration of the evidence, reliance on unpleaded matters, and the award of costs against her.

Issues

Whether the single Judge erred in hearing the application during court vacation without a certificate of urgency as required by Rule 46.
Whether the single Judge erred in entertaining a notice of motion and affidavit alleged to be defective.
Whether the single Judge failed to consider the applicant's affidavit in reaching his decision.
Whether the single Judge based his decision on matters not contained in the notice of motion and supporting affidavit.
Whether the single Judge erred in awarding costs against the applicant in the extension-of-time application.

Orders

The order that the respondent pay costs before the single Judge is set aside.
The costs before the single Judge are to be paid by the applicant to the respondent.
The application substantially fails and the order of the single Judge granting extension of time is confirmed.
The applicant, having succeeded on one ground, is awarded one-third (1/3) of the costs of this application.

Key headnotes

Civil Procedure — Court Vacation — Hearing of Applications and Certificate of Urgency

Rule 21(2) of the Rules of the Supreme Court, governing the conduct of business during court vacation, is directory and not mandatory, and prescribes no consequence for hearing a matter during vacation.

Civil Procedure — Waiver — Certificate of Urgency Under Rule 46

A party who argues an application during court vacation without objecting that a certificate of urgency was required waives any such requirement under Rule 46.

Civil Procedure — Extension of Time — Advocate's Negligence

Extension of time to lodge an appeal is properly granted where the delay arose from the negligence of the applicant's former advocates and refusal would occasion injustice.

Civil Procedure — Affidavits — Time for Objection to Defects

An objection that a notice of motion or supporting affidavit is defective must be raised at the hearing of the application and cannot properly be taken for the first time on a reference.

Civil Procedure — Costs — Applications for Extension of Time

Where an application for extension of time arises from the fault of the applicant or the applicant's advocate, the applicant ordinarily pays the costs whether or not the application succeeds, or the costs abide the determination of the appeal.

Legislation cited (2)

Rules of the Supreme Court r.21(2)
Rules of the Supreme Court r.46

Cases cited (2)

Motor Mart Ltd v Yona Kanyomozi (Civil Application No. 6 of 1999)
M. R. Karia & Another v Attorney General & 2 Others (Civil Application No. 1 of 2003)

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.