Kasaala Growers Co-operative Society v Jonathan,Kalemera Edson [2011] UGSC 6

Supreme Court · 2011 Application Granted ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Application before a single Justice of the Supreme Court for leave to file the memorandum and record of appeal out of time

Decision

Application granted; applicant permitted to file the memorandum and record of appeal out of time and to serve the record within seven days

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 an application for leave to file the memorandum and record of appeal out of time, the single Justice held that the applicant had shown sufficient cause: it had consistently demonstrated an intention to appeal, and the failure of its successive advocates to institute the appeal — where this did not gravely prejudice the respondents — should not be visited on the applicant. The court held that a prior application struck out on a technical defect (an incurably defective affidavit) was not decided on the merits and so did not operate as res judicata, and that an affidavit sworn by an illiterate deponent bearing the commissioner for oaths' certificate was competent. The application was granted, with costs to the respondents.

Facts

The respondents had unsuccessfully sued the applicant in the High Court, but the Court of Appeal allowed their appeal on 6 February 2009. The applicant lodged a notice of appeal on 16/17 February 2009 and applied for the record of proceedings, demonstrating an intention to appeal to the Supreme Court. It engaged Messrs. Tibaijuka & Co. Advocates, who lodged a further notice of appeal but did not institute the appeal, principally because the applicant did not pay the agreed fees. The applicant later engaged Ambrose Tebyasa & Co. Advocates, paying Shs.1,500,000, but that firm also took no steps. The sixty-day period to institute the appeal expired in late April 2009. The applicant itself later filed Civil Appeal No. 14 of 2010 out of time, and its application to validate it (Civil Application No. 19 of 2010) was struck out for a defective supporting affidavit. Through Messrs. Kyazze & Co., the applicant then filed the present application for leave to file out of time, supported by an affidavit of its agent Mumbakali Sande, who held a power of attorney to institute proceedings on its behalf.

Issues

Whether the applicant showed sufficient cause to be granted leave to file the memorandum and record of appeal out of time.
Whether the earlier ruling striking out Civil Application No. 19 of 2010 rendered the question of extension of time res judicata.
Whether the application was incompetent for want of a valid supporting affidavit and for being filed without instructions.

Orders

Application granted; leave given to file the memorandum and record of appeal out of time.
Applicant to meet the respondents' costs of the application.
Applicant to serve the record of appeal on the respondents within seven days from the date of the ruling.

Key headnotes

Civil Procedure — Extension of Time — Sufficient Cause — Default of Advocate Not Visited on Litigant

Where a litigant has consistently demonstrated an intention to pursue an appeal, the failure or negligence of its advocates to institute that appeal does not bar an extension of time, unless the conduct is so grave as to adversely affect the legal rights of the opposite party.

Civil Procedure — Res Judicata — Dismissal on a Technical Point

An application struck out on a technical defect, such as an incurably defective supporting affidavit, is not determined on its merits and therefore cannot operate as res judicata on the substantive issue between the parties.

Evidence — Affidavits — Illiterate Deponent — Jurat

An affidavit sworn by a deponent considered illiterate in English is competent where it bears the commissioner for oaths' certificate that its contents were explained to and understood by the deponent.

Legislation cited (6)

Constitution of Uganda 1995 Article 126(2)
Constitution of Uganda 1995 Article 126(6)
Rules of the Supreme Court r.2
Rules of the Supreme Court r.5
Rules of the Supreme Court r.43
Rules of the Supreme Court r.50

Cases cited (2)

Kadebhai Vs Shamerabi & Another (2008 HCB 16)
G. Magezi v S. Rupelia (Supreme Court Civil Application No. 6 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.