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Amama Mbabazi v Musinguzi Garuga (Civil Reference 60 of 2011)

Court of Appeal · [2013] UGCA 2047 · 2013 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Reference to a single Justice of Appeal seeking to set aside a Registrar's order extending time to serve the record of appeal out of time
Decision
Reference allowed; Registrar's order extending time to serve the record of appeal set aside

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

On a reference to a single Justice of Appeal, the court set aside the Registrar's order extending time to serve the record of appeal. The respondent failed to establish sufficient reason under rule 5 of the Court of Appeal Rules: a bare assertion of "honest mistake or inadvertence" of counsel, unsupported by evidence identifying who was instructed, when, and what was done, was inadequate. The court found dilatory conduct by both the respondent and his three firms of advocates over four years. The respondent also failed to show that refusal of extension would cause manifest injustice. The Tropical Africa Bank case was distinguished on its facts. The reference was allowed.

Outcome

Reference allowed; Registrar's order extending time to serve the record of appeal set aside

Facts

The respondent was the successful party in an election petition against the applicant and the Electoral Commission, and was awarded costs. Two separate bills of costs were filed and taxed, with the applicant ordered to pay shillings 139,811,500. The applicant appealed to the High Court (CA No. 21 of 2004), which on 30 September 2004 set aside the taxation as illegal and ordered fresh bills. The respondent appealed to the Court of Appeal (Civil Appeal No. 7 of 2005) in February 2005 but never served the record of appeal on the applicant. After years of inactivity, the respondent obtained a Registrar's order on 23 June 2011 extending time to serve the record out of time, supported by an affidavit asserting honest mistake or inadvertence of counsel. The applicant brought this reference to set aside that order, arguing no sufficient reason was established and that the Registrar ignored the injustice the applicant would suffer.

Issues

  1. Whether sufficient reason was established to justify the grant of the application for extension of time to serve the record of appeal out of time under rule 5 of the Judicature (Court of Appeal) Rules.
  2. Whether the respondent (applicant in the reference) would suffer manifest injustice if the extension of time was not granted.

Orders

  • The application (reference) is allowed.
  • The order of the Registrar dated 23rd June 2011 extending time to serve the record of appeal out of time is set aside.
  • Costs of the application provided for.
  • Right of appeal explained.

Rules and key headnotes

Civil Procedure — Extension of Time — Sufficient Reason under Rule 5 Court of Appeal Rules
An applicant for extension of time under rule 5 of the Judicature (Court of Appeal) Rules must establish sufficient reason; a bare assertion of honest mistake or inadvertence of counsel, unsupported by evidence identifying who was instructed, when, and what steps were taken, does not constitute sufficient reason.
Civil Procedure — Extension of Time — Burden to Show Manifest Injustice
Where it is not shown that strict enforcement of the time limit would result in a manifest denial of justice, extension of time is not justified; the burden lies on the applicant to demonstrate that injustice would be suffered if the extension is refused.
Civil Procedure — Mistake of Counsel — Dilatory Conduct of Litigant
A litigant will not be penalised for the mistake of counsel unless the mistake is caused by the party's own conduct, such as failure to give adequate or proper instructions; where both the litigant and his advocates exhibit unexplained dilatory conduct over several years, the party cannot hide behind a purported honest belief in his lawyers.
Civil Procedure — Failure by Court Officials — Distinguishing Tropical Africa Bank
Extension of time may be granted where delay results from failure by court officials to prepare or certify the record, but this principle is inapplicable where the failure to serve is attributable to the unexplained inaction of the litigant and his counsel rather than court officials.

Legislation cited (4)

  • Judicature (Court of Appeal Rules) r.2(2)
  • Judicature (Court of Appeal Rules) r.5
  • Judicature (Court of Appeal Rules) r.43
  • Civil Procedure Rules O.8 r.6(2)

Cases cited (10)

  • Bonny Katatumba and Waheed Karim v Administration of late Suleti Hajib Estate (Supreme Court Civil Application No. 27 of 2007)
  • Shah v Jamnadas [1959] EA 838
  • Tropical Africa Bank Ltd v Grace Were Muhwaya (Supreme Court Civil Application No. 3 of 2012)
  • Horizon Coaches and Mulowoza & Brothers SC Civil Application No. 19 of 2009
  • Mulowoza & Brothers v N. Shah & Co Ltd (Supreme Court Civil Application No. 20 of 2010)
  • In Re Alexandra & Okello v Kayondo and Co. Advocates Civil Application No 17 of 86 (SC)
  • Yona Kanyomozi v Motomart (V) 16 C.A. No 6 of 88 (SC)
  • Shiv Construction Co. Ltd v Endesha Enterprises (Supreme Court Civil Application No. 15 of 1992)
  • Brooke Bond Liebig (T) Ltd v Mallya [1975] EA 269
  • Malada International Ltd v His Eminence Cardinal Neubuga and another [1981] HCB 11

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Amama Mbabazi v Musinguzi Garuga (Civil Reference 60 of 2011) [2013] UGCA 2047 (15 August 2013)
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.