Turinawe & Anor v Kyalimpa & 4 Ors [2013] UGSC 12

Supreme Court · 2013 Reference Dismissed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Reference to the full Supreme Court from a single Justice's ruling granting extension of time to file a record of appeal.

Decision

Reference to the full bench dismissed; the single Justice's grant of extension of time to the respondents stands.

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

The Supreme Court dismissed the reference, upholding the single Justice's grant of extension of time to file a record of appeal. The supporting affidavit was not defective: the burden lay on the applicants to cross-examine and prove that the commissioner for oaths was absent when it was sworn, which they failed to do. A single judge has discretion whether to refer an interlocutory ruling on a preliminary objection to a full bench; the right is not absolute. Reliance on a negligent former advocate, absent dilatory conduct by the litigant, was sufficient cause for the delay. The nine-month delay in delivering the ruling did not breach the right to a fair and speedy hearing.

Facts

The first applicant, Engineer Ephraim Turinawe, sold a residential property at Kololo, the family's matrimonial home, and transferred it to the second applicant, Dewark Limited, without the consent of his wife (first respondent) and children (other respondents). The respondents sued in the High Court to nullify the sale and transfer and succeeded. The Court of Appeal reversed that decision on 20 November 2009. The respondents filed a notice of appeal to the Supreme Court but their former advocates, after the proceedings were certified ready in March 2010, took no steps to file the appeal. In October 2010 the respondents learnt the notice of appeal was about to be struck out, changed advocates, and applied for extension of time to file the record of appeal. A single Justice granted the extension, finding the respondents were laymen who relied on negligent counsel and were not guilty of dilatory conduct. The applicants referred that ruling to a full bench on six grounds.

Issues

Whether the single Justice erred in overruling the preliminary objection that the supporting affidavit was incurably defective for non-compliance with the Oaths Act.
Whether the single Justice erred in declining to refer her ruling on the preliminary objection to a full bench.
Whether the single Justice erred in finding that the delay in filing the record of appeal was caused by the respondents' former advocate.
Whether the single Justice erred in finding that the respondents had shown sufficient cause for the delay.
Whether the single Justice failed to consider the applicants' submissions and authorities before allowing the application.
Whether the time taken to deliver the ruling occasioned a miscarriage of justice or denied the applicants a fair and speedy hearing.

Orders

Reference dismissed with costs to the respondents.

Key headnotes

Affidavits — Oaths Act — Commissioner for Oaths — Burden of proof

Where a deponent states that an affidavit was signed in her advocate's chambers, that statement does not establish that the commissioner for oaths was absent; the party alleging that the affidavit was improperly sworn bears the burden of cross-examining the deponent to prove the commissioner's absence.

References from a single judge — Discretion — Interlocutory rulings

The right under Rule 52 to refer a single judge's decision to a full bench is not absolute; a single judge retains discretion to decline to refer an interlocutory ruling on a preliminary objection and may continue hearing the application, leaving the ruling open to challenge after the application is decided.

Extension of time — Sufficient cause — Negligence of advocate

The negligence, mistake, error or omission of a former advocate constitutes sufficient cause for extension of time where the litigant, having relied on the advocate, is not himself guilty of dilatory conduct.

Costs — Discretion of the court

Under section 27 of the Civil Procedure Act costs are within the discretion of the judge; although costs normally follow the event, a judge may, for a justifiable reason, decline to award costs to a successful party.

Fair hearing — Right to typed proceedings

Refusing to furnish counsel with a typed and certified copy of proceedings of which counsel was fully appraised, before he makes submissions, does not violate the right to a fair hearing under article 28(1) of the Constitution.

Conduct of counsel — Relationship between bench and bar

Counsel must conduct a client's case with passion that never degenerates into disrespect for the judge; the relationship between the bench and the bar should remain cordial and respectful, both being officers of the court intent on administering justice.

Legislation cited (12)

Oaths Act s.5
Oaths Act s.6
Evidence Act s.101
Constitution of Uganda article 28(1)
Civil Procedure Act s.27
Judicature (Supreme Court) Rules r.52
Judicature (Supreme Court) Rules r.53(2)
Judicature (Supreme Court) Rules r.104
Judicature (Supreme Court) Rules r.2
Judicature (Supreme Court) Rules r.5
Judicature (Supreme Court) Rules r.42
Judicature (Supreme Court) Rules r.50

Cases cited (4)

Kakooza John Baptist v Electoral Commission and Anthony Yiga (Election Petition Appeal No. 11 of 2007)
Goodman Agencies Ltd v Hasa Agencies (K) Ltd (Civil Reference No. 1 of 2011)
Paul Masiga v Toro & Mityana Tea Co. Ltd (Civil Appeal No. 79 of 1999)
Godfrey Magezi & Another v Sudhir Ruparelia (Miscellaneous 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.