Wakilii

Baryaija v Kikwisire Zaverio and Another (Civil Application No-324 of 2016)

Court of Appeal · [2017] UGCA 154 · 2017 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for extension of time within which to file a notice of appeal
Decision
Application for extension of time granted; applicant permitted to file notice of appeal within 14 days

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal overruled all four preliminary objections, holding that the purpose of sections 66 and 67 of the Advocates Act was served by the drawer's endorsement on the list of authorities, that the ruling appealed from was sufficiently identified in the motion's headnote, that no falsehood was shown in the affidavit, and that non-compliance with rule 8 of the Commissioner for Oaths Rules regarding the relevant rulings was a mere irregularity. Although the applicant failed to prove sufficient cause based on his imprisonment or alleged mistake of counsel, the court granted the extension of time because the 40-year-old land dispute raised serious questions of law meriting determination on appeal.

Outcome

Application for extension of time granted; applicant permitted to file notice of appeal within 14 days

Facts

A long-running land dispute traced back to 1977 when the applicant's father sued over a kibanja he claimed to have purchased in 1940, obtaining judgment in 1978. The father died before securing vacant possession. The applicant obtained letters of administration in 2000 and pursued execution. The respondents later sued in the LC1 Court and obtained judgment, which the Chief Magistrate confirmed and purported to cancel the 1977 judgment by letter. In 2013 the applicant sought revisional orders; the High Court set aside the Chief Magistrate's letter but left the LC1 decision standing. The respondents applied for review in 2015, which was dismissed on 29 January 2016. The applicant, dissatisfied, sought extension of time to file a notice of appeal, the 14-day period having lapsed. He attributed his failure to arrest and imprisonment in civil prison and to alleged negligence of his former counsel. The respondent contended the arrest occurred well after the appeal period expired.

Issues

  1. Whether the notice of motion and supporting affidavit should be struck out for non-compliance with sections 66 and 67 of the Advocates Act.
  2. Whether the application was defective for failing to specify the ruling intended to be appealed from.
  3. Whether the application was supported by a false affidavit warranting its being struck out.
  4. Whether non-compliance with rule 8 of the Commissioner for Oaths Rules in respect of the annextures was fatal to the application.
  5. Whether the applicant established sufficient cause for the court to extend the time within which to file a notice of appeal.

Orders

  • All four preliminary points of objection overruled.
  • Application allowed and time extended for the applicant to file his appeal.
  • Notice of appeal to be filed within 14 days from the date of this ruling.
  • Timelines for filing the memorandum and record of appeal under rule 83 to apply.
  • Costs of the application to abide the outcome of the appeal; if the appeal is not filed within 14 days, the applicant shall pay costs to the respondent.

Rules and key headnotes

Advocates Act — Sections 66 and 67 — Endorsement of Name and Address of Drawer
The purpose of sections 66 and 67 of the Advocates Act is to identify the drawer of a legal document so as to determine whether they are qualified; that purpose is served where the name and address of the drawing advocate appears on an accompanying document such as the list of authorities, even if the motion and supporting affidavit are not themselves endorsed.
Affidavits — Doctrine of Severance — False Statements
Where an affidavit is alleged to contain falsehood, the court may, in the interest of substantive justice, apply the doctrine of severance to exclude the affected paragraphs and rely on the remaining ones rather than reject the affidavit entirely.
Commissioner for Oaths Rules — Rule 8 — Sealing and Marking of Exhibits
Rule 8 of the Commissioner for Oaths Rules requires all exhibits to affidavits to be securely sealed and marked with serial letters of identification, with no exception for court judgments; however, non-compliance in respect of documents attached merely for information is a mere directive irregularity that may be ignored, as the rule provides no consequence for non-compliance.
Extension of Time — Sufficient Cause — Mistake of Counsel
An applicant seeking extension of time must establish sufficient reason for the delay, not be guilty of dilatory conduct, and show that injustice will result if the application is refused; mistake or negligence of former counsel can constitute sufficient cause but must be proved by evidence, such as an affidavit from the former counsel.
Extension of Time — Interest of Justice — Serious Questions of Law
Even where an applicant fails to demonstrate sufficient cause for delay, the court may, in exercise of its inherent power and mindful of Article 126(2)(e) of the Constitution, grant extension of time where the intended appeal raises serious questions of law and concerns a sensitive subject matter such as a protracted land dispute.

Legislation cited (13)

Cases cited (12)

  • Molly Kyalikunda Turinawe and Others v Engineer Ephraim Turinawe and Another (Civil Application No. 27 of 2010)
  • Rubaramira Ruranga v Electoral Commission and Another (Constitutional Petition No. 21 of 2006)
  • Bitaitana and 4 Others v Kananura (Civil Appeal No. 47 of 1976)
  • Kassami v Commissioner Land Registration (Miscellaneous Application No. 424 of 1996)
  • Byeshamika John v Kankwerere Lydia (Miscellaneous Application No. 82 of 2005)
  • Rtd Col. Dr. Kizza Besigye v Electoral Commission and Yoweri Kaguta Museveni (Presidential Election Petition No. 1 of 2006)
  • Mugo and ors vs Wanjiru and anor [1970] EA 481
  • Project Blue Sky Inc. vs. Australian Broadcasting Authority (1998) 194 CLR 355
  • Sitenda Sebalu v Sam K. Njuba and Another (Election Petition Appeal No. 26 of 2007)
  • Kasirye, Byaruhanga & Co. Advocates v Uganda Development Bank (Civil Appeal No. 2 of 1997)
  • Utex Industries Ltd v Attorney General (Civil Application No. 52 of 1995)
  • Nalongo Burashe v Kekitibwa Mangadalena (Criminal Appeal No. 89 of 2011)

Full judgment

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

Baryaija v Kikwisire Zaverio and Another (Civil Application No-324 of 2016) [2017] UGCA 154 (24 October 2017)
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.