Bahimbisomwe v Rwabinubi (Civil Reference 4 of 2009)

Supreme Court · [2010] UGSC 41 · 2010 Reference Partly Allowed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Reference to the full Supreme Court from a single judge's ruling granting the respondent extension of time to file an appeal out of time

Decision

Reference substantially dismissed; single judge's order granting extension of time confirmed, save that the costs order was reversed

The full judgment

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Holding

On a reference from a single judge's grant of extension of time to appeal, the full Court held that Rule 21(2) of the Supreme Court Rules, governing the conduct of business during court vacation, is directory and not mandatory, so hearing the application during vacation did not vitiate the ruling; the applicant had in any event waived any certificate of urgency by not objecting. The complaints about defective pleadings, failure to consider an affidavit, and reliance on unpleaded matters were all rejected. Only the costs ground succeeded: where an extension application arises from the applicant's own fault, that party bears the costs. The reference substantially failed and the extension of time was confirmed.

Facts

The applicant and respondent were formerly husband and wife. In 2004 the applicant filed a divorce cause in the High Court, which dissolved the marriage and ordered the parties to share the matrimonial property in stated proportions, with an alternative that the respondent pay the applicant a sum of money if the real property could not be shared. The respondent's appeal to the Court of Appeal failed. He 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 judge of the Supreme Court heard that application during the court's 2009 period of activity and granted the extension, finding that the respondent's former lawyers had been negligent and that refusing extension would cause injustice. The applicant brought this reference challenging that ruling.

Issues

Whether the single judge erred in hearing the application for extension of time during court vacation without a certificate of urgency.
Whether the single judge erred in hearing the application on a defective notice of motion and affidavit.
Whether the single judge failed to consider the applicant's affidavit and thereby arrived at a wrong decision.
Whether the single judge erred in basing 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 the costs of the application before the single Judge is set aside.
The costs before the single Judge shall be paid by the applicant to the respondent.
The order of the single Judge granting extension of time is confirmed.
The applicant, having succeeded on only one ground, is awarded one third of the costs of this application.

Key headnotes

Civil Procedure — Court Vacation — Whether Rule 21(2) of the Supreme Court Rules is mandatory or directory

Rule 21(2) of the Supreme Court Rules, which restricts the conduct of business during court vacation, is directory and not mandatory; it prescribes no consequence for non-compliance, so hearing an application during vacation does not by itself invalidate the proceedings.

Civil Procedure — Certificate of Urgency — Waiver by failure to object at the hearing

A party who participates in and argues an application heard during court vacation without objecting that a certificate of urgency is required waives, whether wittingly or unwittingly, the need for such a certificate.

Civil Procedure — Defective Pleadings and Affidavits — Time for raising objection

An objection that a notice of motion or supporting affidavit is defective must be raised at the hearing before the judge concerned; it cannot properly be taken for the first time on a later reference or appeal.

Civil Procedure — Extension of Time — Negligence of former counsel

Negligence of an applicant's former lawyers may furnish sufficient basis for granting extension of time to file an appeal where refusing the extension would cause injustice and a substantial issue remains to be determined.

Civil Procedure — Costs — Applications for extension of time arising from the applicant's own fault

Where an application for extension of time arises essentially from the fault of the applicant or his lawyer, the applicant pays the costs whether he succeeds or not, or the costs abide the final 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 (Supreme Court Civil Application No. 6 of 1999)
M. R. Karia & Another v Attorney General & 2 Others (Supreme Court 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.