Wakilii

Kabogere Coffee Factory Limited & Another v Haji Twaibu Kigongo (Civil Application No. 10 1993)

Supreme Court · [1994] UGSC 54 · 1994 Reference Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Reference to the full Court (under Rule 54) to vary, discharge or reverse a single Judge's ruling dismissing applications for extension of time to appeal
Decision
Reference dismissed with costs; the single Judge's order dismissing the applications set aside and substituted with an order striking them out

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

On a reference under Rule 54, the Supreme Court dismissed the applicants' challenge to a single Judge's refusal to extend time to file fresh appeals. Although an application for extension of time supported by sufficient reason may be entertained during the pendency of an incompetent appeal, the court held this case fell within the recognised exception: the defects rendering the original appeals incompetent — chiefly the lack of a valid practising certificate by the advocate who lodged them — were so fundamental that they could not be cured by extension and the appeals had to be disposed of first. The costs award was upheld. The reference was dismissed, but the order dismissing the applications was set aside and substituted with an order striking them out.

Outcome

Reference dismissed with costs; the single Judge's order dismissing the applications set aside and substituted with an order striking them out

Facts

The applicants filed Civil Appeals Nos. 19 and 20 of 1992 in the Supreme Court against High Court decisions in Companies Cause No. 7 of 1990. On taking over conduct of the matter, counsel identified the appeals as incompetent on several grounds: the omission from the records of the pleadings, the letter applying for proceedings, the rulings and order appealed against, and the Registrar's certificate; a variance between the notices of appeal and the memoranda of appeal as to the dates of the rulings and orders; and the lodging of the appeals by an advocate who held no valid practising certificate. While the original appeals were still pending, the applicants filed Civil Applications Nos. 40 and 41 of 1992 seeking extension of time to commence fresh appeals. A single Judge (Platt, JSC) upheld a preliminary objection and dismissed the applications with costs, holding that the pending incompetent appeals had to be disposed of first. The applicants brought this reference.

Issues

  1. Whether the single Judge erred in regarding the applications for extension of time to file fresh appeals as being intended to cure defects in the pending incompetent appeals.
  2. Whether the single Judge erred in holding that the pending incompetent appeals had to be disposed of before an application for extension of time could be entertained.
  3. Whether the single Judge erred in awarding costs against the applicants where each party had succeeded and failed on equally important issues.

Orders

  • The applicants' reference is dismissed with costs to the respondent.
  • The single Judge's order dismissing the applications is set aside and substituted with an order striking them out.

Rules and key headnotes

Civil Procedure — Appeals — Extension of Time — Pendency of an Incompetent Appeal
An application for extension of time supported by sufficient reason may be entertained during the pendency of an incompetent appeal; the pendency of such an appeal is not, of itself, a bar to the application.
Civil Procedure — Appeals — Extension of Time — Exception where Defects are Fundamental
Where the defects rendering an appeal incompetent are so fundamental that they cannot be cured by an extension of time, the court may properly strike out the incompetent appeal when its incompetence first comes to light, instead of entertaining an application for extension of time; each case turns on its own facts.
Civil Procedure — Advocates — Practising Certificate — Two-Month Grace Period
Under section 14(1) of the Advocates Act 1970 and its proviso, an advocate enjoys a two-month period of grace during which he may practise without a valid practising certificate and cannot be prosecuted, and documents filed during that period are valid; documents filed after the grace period by an advocate without a certificate are not.
Civil Procedure — Incompetent Proceedings — Striking Out versus Dismissal
An incompetent appeal or application must be struck out and not dismissed; dismissal is justified only where the application is heard on the merits and found not to disclose sufficient reason.
Civil Procedure — Costs — Successful Preliminary Objection
Where a preliminary objection substantially succeeds and disposes of the application in the objector's favour, that party is entitled to the costs of the proceedings, notwithstanding that each party prevailed on equally important issues.

Legislation cited (7)

Cases cited (8)

  • LOT vs. A.G ... 4.496
  • Kvazze vs Businge, Supreme Court of Uganda Civil Application No. 18 of 198? (unreported)
  • In the Matter of the Estate of the late Christine Namatovu Tebajjukira, Aukim vs. Debola Namukasa Civil Application No. 8/1988 (unreported)
  • Namatovu vs Ben Kiwanuka Civil Application No. 12/91 (unreported)
  • Kiboro v Posts and Telecommunications Corporation [1974] EA 1
  • Barclays Bank of Uganda Ltd v Eddy Rodrigues (Civil Application No. 5 of 1987)
  • Hajji Nurdin Matovu (Supra) / Tebaijukira (Supra)
  • Alfredo Lwora vs Uganda Central Co-operative Union Ltd., Civil Appeal No. 25 of 19? (unreported)

Full judgment

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

Kabogere Coffee Factory Limited & Another v Haji Twaibu Kigongo (Civil Application No. 10 1993) [1994] UGSC 54 (8 April 1994)
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.