Wakilii

Molly Kyalukinda Turinawe & 4 Ors v Turinawe Ephraim & Anor [2012] UGSC 5

Supreme Court · 2012 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application by notice of motion to the Supreme Court for extension of time within which to institute an appeal against a Court of Appeal decision.
Decision
Extension of time granted; applicants ordered to file their Memorandum of Appeal within 14 days.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

On an application for extension of time to appeal, the court held that the negligence, mistake, error or omission of an advocate is not to be visited on a lay client, and the failure of the applicants' former advocates to file the appeal after instruction constituted sufficient reason under rule 5. The respondents' preliminary objection that the supporting affidavit breached sections 5 and 6 of the Oaths Act was overruled as based on mere conjecture unsupported by credible evidence. The applicants were not shown to be guilty of dilatory conduct, and the ends of justice required that the intended appeal concerning a claimed matrimonial home be heard on its merits. The application was granted.

Outcome

Extension of time granted; applicants ordered to file their Memorandum of Appeal within 14 days.

Facts

The first applicant is the wife of the first respondent and the other applicants are their children. The first respondent sold a residential property at Kololo, claimed by the applicants to be their matrimonial home, to the second respondent without the applicants' consent. The applicants sued in the High Court to nullify the sale and succeeded, but the Court of Appeal reversed that judgment on 20 November 2009. The applicants instructed their former advocates to appeal to the Supreme Court; those advocates filed a Notice of Appeal on 23 November 2009 and requested the proceedings, which were ready on 11 March 2010. The advocates took no further steps to file the appeal. The applicants only learned of this in October 2010 when notified of an application to strike out the Notice of Appeal, having lost contact with their advocates after relocating. They then engaged new lawyers, who brought this application for extension of time.

Issues

  1. Whether the first applicant's affidavit was incurably defective for non-compliance with sections 5 and 6 of the Oaths Act, rendering the application unsupported.
  2. Whether the applicants established sufficient reason under rule 5 of the Judicature (Supreme Court) Rules to extend time to lodge their appeal.
  3. Whether the applicants were guilty of dilatory conduct.
  4. Whether any injustice would be caused if the application were not granted.

Orders

  • Preliminary objection overruled.
  • Application for extension of time granted.
  • Applicants to file their Memorandum of Appeal within 14 days from the date of delivery of the ruling and to serve the respondents immediately.
  • No order as to costs; each party to meet their own costs.

Rules and key headnotes

Civil Procedure — Extension of Time to Appeal — Sufficient Reason — Negligence of Advocate
The negligence, mistake, error or omission of an advocate in failing to institute an appeal after being instructed is not to be visited on a lay client and may constitute sufficient reason for extension of time under rule 5 of the Judicature (Supreme Court) Rules.
Civil Procedure — Extension of Time — Dilatory Conduct — Burden of Proof
A party alleging that an applicant for extension of time was guilty of dilatory conduct must support the allegation with credible evidence; bare assertions unsupported by evidence will not defeat an otherwise sufficient reason for the delay.
Evidence — Affidavits — Oaths Act — Objection to Validity — Conjecture
A preliminary objection that an affidavit was sworn in breach of sections 5 and 6 of the Oaths Act will be overruled where it rests on mere conjecture and is unsupported by credible evidence; counsel cannot testify from the bar to establish how an affidavit was sworn.
Civil Procedure — Rules as Handmaids of Justice — Ends of Justice
Rules of procedure are handmaids of justice and not meant to defeat it; where the ends of justice require that an intended appeal be heard on its merits, the court may exercise its discretion to extend time, including under its inherent powers.

Legislation cited (9)

  • Judicature (Supreme Court) Rules r.2(1)
  • Judicature (Supreme Court) Rules r.2(2)
  • Judicature (Supreme Court) Rules r.5
  • Judicature (Supreme Court) Rules r.41(2)
  • Judicature (Supreme Court) Rules r.42
  • Judicature (Supreme Court) Rules r.50
  • Judicature (Supreme Court) Rules r.53(2)
  • Oaths Act Cap 19 s.5
  • Oaths Act Cap 19 s.6

Cases cited (8)

  • Zamu Nalumansi v Sulaiman Lule (Civil Application No. 2 of 1992)
  • Attorney General v A.K.P.M Lutaaya (Civil Application No. 12 of 2007)
  • F. L. Kaderbhai and Another v Shamsherali M. Zaver Virji and 2 Others (Civil Application No. 20 of 2008)
  • Mulowooza & Bros Ltd v N. Shah & Co Ltd (Civil Application No. 20 of 2010)
  • Godfrey Magezi and Another v Sudhir Ruparelia (Miscellaneous Application No. 6 of 2003)
  • Hadondi Daniel v. Yolamu Egondi (2006) HCR Vol. 1, 103
  • Robert Kitariko v David Twinokatama (Civil Application No. 2 of 1982)
  • Paul Masiga v Toro & Mityana Tea Co. Ltd (Civil Application No. 79 of 1999)

Full judgment

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

Molly Kyalukinda Turinawe & 4 Ors v Turinawe Ephraim & Anor [2012] UGSC 5 (25 January 2012)
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.