Wakilii

Mbarara Municipal Council v Jetha Brothers Limited (Miscellaneous Application 10 of 2021)

Supreme Court · [2021] UGSC 34 · 2021 Application Granted ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application by notice of motion for extension of time to file a notice of appeal and validation of a late-filed notice of appeal, arising from Court of Appeal Civil Appeal No. 111 of 2013
Decision
Application for extension of time allowed; leave to appeal out of time granted and the late notice of appeal validated

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Cited — treatment unverified cited in 10 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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Holding

The single-judge Supreme Court dismissed all four preliminary objections: Mbarara Municipal Council remained the proper party despite the creation of Mbarara City, since it was the party to the intended appeal; an advocate may swear an affidavit on matters within his own knowledge; the impugned paragraphs disclosed no contentious matter; and the affidavit was not hearsay because it disclosed the source of the information, distinguishing Caspair Ltd v Harry Gandy. On the merits, the applicant's unrebutted averment that it was never served with notice of the date for delivery of the Court of Appeal judgment amounted to sufficient reason for the late filing. The application was allowed, leave to appeal out of time granted, and the notice of appeal validated.

Facts

On 18 December 2020 the Court of Appeal delivered judgment in Civil Appeal No. 111 of 2013 in favour of the respondent and against the applicant. The applicant's advocate averred that he was present when the court indicated judgment would be delivered on notice, but that neither he nor the applicant was ever served with notice of the date for delivery of the judgment. He stated that he only discovered, on 19 March 2021, through a letter from the respondent's advocates, that judgment had been delivered in his absence in favour of the respondent. The applicant lodged a notice of appeal and a letter requesting the record of proceedings outside the statutory time and sought validation of the late filing and extension of time. The respondent opposed the application, contending the applicant had been served, that the advocate lacked instructions and was a wrong deponent, and that the supporting affidavit was hearsay.

Issues

  1. Whether the application was brought by a wrong party given that Mbarara Municipal Council had ceased to exist on the creation of Mbarara City.
  2. Whether the application was incompetent because the applicant's advocate, who is not a party, swore the affidavit in support and allegedly acted without instructions.
  3. Whether the application was an abuse of court process and based on false hearsay because the advocate deponed to matters within the city clerk's knowledge.
  4. Whether the applicant showed sufficient reason for failing to file the notice of appeal within the prescribed time so as to warrant extension of time.

Orders

  • All four preliminary objections dismissed.
  • Application allowed.
  • Applicant granted leave to appeal out of time.
  • Notice of appeal and letter requesting the record of proceedings validated.
  • Costs shall be in the cause.

Key headnotes

Civil Procedure — Extension of Time — Meaning of Sufficient Reason
The court's power to extend time under Rule 5 of the Supreme Court Rules is discretionary, and sufficient reason must relate to the applicant's inability or failure to take the particular step within the prescribed time.
Civil Procedure — Extension of Time — Non-service of Notice of Delivery of Judgment
An applicant's failure to be served with notice of the date for delivery of judgment, where unrebutted, constitutes sufficient reason for failing to file a notice of appeal within the prescribed time.
Evidence — Affidavits — Advocate as Deponent
An advocate is not prohibited from swearing an affidavit, particularly on matters that are well within his or her own knowledge.
Evidence — Affidavits — Hearsay — Disclosure of Source of Information
An affidavit deposing to matters on information and belief is not defective as hearsay where it discloses the source of the information and the deponent's means of knowledge.
Civil Procedure — Parties — Capacity Where a Local Authority is Restructured
Where the entity that was party to the lower court proceedings is the party to the intended appeal, that entity remains the proper party to a related application, and the application cannot be brought in a different capacity that would alter its status.

Legislation cited (8)

  • Judicature (Supreme Court Rules) Directions r.2(2)
  • Judicature (Supreme Court Rules) Directions r.5
  • Judicature (Supreme Court Rules) Directions r.41(2)
  • Judicature (Supreme Court Rules) Directions r.42(1)
  • Judicature (Supreme Court Rules) Directions r.43
  • Evidence Act s.59
  • Advocates (Professional Conduct) Regulations reg.2
  • Advocates (Professional Conduct) Regulations reg.9

Cases cited (7)

  • James Bwogi & Sons Enterprises Ltd v Kampala City Council and Kampala District Land Board (Civil Application No. 9 of 2017)
  • Buikwe Coffee Ltd (1962) EA 327
  • Danish Mercantile Co. Ltd Vs. Beaumont & Anor (1951) Ch C.A 680
  • Banco Arabe Espanol v Bank of Uganda (Civil Appeal No. 8 of 1998)
  • Eric Tibebaga v Fr. Narcensio Begumisa & Ors (Civil Appeal No. 18 of 2002)
  • Caspair Ltd Harry Gandy (1962) E.A 414
  • Rosette Kizito v Administrator General & Ors (Civil Appeal No. 9 of 1986)
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.