Wakilii

Musa Afwerk Tekle v Commissioner Land Registration and 2 Others (Civil Reference 258 of 2020)

Court of Appeal · [2023] UGCA 356 · 2023 Application Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Reference to the full Court of Appeal from a single justice's refusal of an extension of time to appeal and an injunction.
Decision
Extension of time to file an appeal granted (two weeks); temporary injunction refused.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

On a reference from a single justice, the Court of Appeal overruled a preliminary objection, holding that filing a notice of change of advocates in court secured the firm's right of audience, service on the other party being for correspondence only. On extension of time, the Court found the applicant truthful and held that counsel's erroneous choice to apply for review rather than appeal was sufficient reason; a litigant should not be penalised for counsel's fault. Extension was granted (two weeks to appeal). The injunction was refused: the loss was a liquidated, ascertainable sum (UGX 1,009,608,000) and so not irreparable, and as the suit land was held by third parties, the balance of convenience did not favour the applicant.

Outcome

Extension of time to file an appeal granted (two weeks); temporary injunction refused.

Facts

The applicant purchased land and was later challenged when the Commissioner Land Registration cancelled his proprietorship. He sued (Civil Suit No. 95 of 2017), and the High Court (Keitirima J) found him a bona fide purchaser for value without notice but, rather than reinstating him on the title, ordered that he recover the purchase price of UGX 1,009,608,000 from the third respondent vendor. Dissatisfied with this remedy, the applicant wished to appeal, but his counsel erroneously applied for review of the judgment, and the time to appeal lapsed. He then sought an extension of time and an injunction restraining further transactions on the suit land. A single justice (Mulyagonja JA) declined both on 19 October 2020, and the applicant referred the matter to the full panel. At the time of the reference the suit land was in the possession of third parties, including the widow of the late John Kabuye and Hossana Real Estates Ltd, who were not parties to the suit.

Issues

  1. Whether the firm of M/s Rwabwogo & Co. Advocates had a right of audience before the Court, having allegedly failed to serve a notice of change of advocates under Rule 24.
  2. Whether the application disclosed sufficient grounds for the grant of leave to extend the time within which to file an appeal.
  3. Whether the application disclosed sufficient grounds for the grant of a temporary injunction.

Orders

  • Preliminary objection to the right of audience of M/s Rwabwogo & Co. Advocates overruled.
  • The Applicant is granted 2 weeks within which to file their appeal.
  • The grant of the temporary injunction is declined.

Rules and key headnotes

Civil Procedure — Change of Advocates — Right of Audience — Rule 24 Court of Appeal Rules
An advocate who lodges a notice of change of advocates with the registrar acquires a right of audience before the Court even where there is no proof that the other party was served, service of the notice being required for purposes of correspondence rather than as a condition of audience.
Civil Procedure — Extension of Time — Sufficient Reason — Mistake of Counsel
An advocate's erroneous step, such as applying for review of a judgment instead of appealing so that the time to appeal lapses, constitutes sufficient reason to extend time, since a vigilant litigant who instructed counsel in time should not be penalised for the fault or negligence of counsel.
Civil Procedure — Interlocutory Injunction — Conditions for Grant
An applicant for an injunction pending appeal must establish a prima facie or triable case with a likelihood of success, that irreparable damage will be suffered or the appeal rendered nugatory, that the balance of convenience favours the applicant, and that the application was instituted without delay.
Civil Procedure — Interlocutory Injunction — Irreparable Damage — Liquidated Sum
Where the loss complained of is a liquidated and ascertainable sum of money, it cannot be regarded as irreparable damage, since such injury can be adequately atoned for in damages.
Civil Procedure — Interlocutory Injunction — Balance of Convenience — Possession by Third Parties
The balance of convenience favours the party in possession of the suit property; where none of the parties is in possession and the land is held by third parties who are not part of the suit, the balance of convenience does not favour the applicant.

Legislation cited (3)

Cases cited (21)

  • Bonny Katatumba v Waheed Karim (Civil Application No. 27 of 2007)
  • Banco Arabe Espanol v Bank of Uganda [1999] 2 EA 22
  • Kasule Samuel v Mubeezi James and 2 Others (Miscellaneous Application No. 24 of 2015)
  • Magezi and Brian Mbazira v Sudhir Ruparelia (Civil Application No. 10 of 2002)
  • Sango Bay Estates Ltd v Dresdner Bank and Attorney General [1971] EA 17
  • Ddegeya Trading Stores v Uganda Revenue Authority (Civil Application No. 16 of 1996)
  • Theodore Ssekikubo and Others v Attorney General (Constitutional Application No. 4 of 2014)
  • Tusingwire v Attorney General (Constitutional Application No. 06 of 2013)
  • Salvation Army v Uganda Land Commission (Civil Suit No. 284 of 2019)
  • Tiberio Okeny and Another v Attorney General and 2 Others (Civil Appeal No. 51 of 2001)
  • Nkalubo v Ssekikubo and Another (Miscellaneous Application No. 16 of 2016)
  • St Kizito Youth Farm Ltd v Attorney General (Civil Application No. 58 of 1997)
  • Mugo v Wanjiru [1970] EA 481
  • Njagi v Munyiri [1975] EA 179
  • Rosette Kizito v Administrator General and Others (Civil Application No. 9 of 1986)
  • Captain Phillip Ongom v Catherine Nyero Owoto (Civil Appeal No. 14 of 2001)
  • Florence Nabatanzi v Naome Binsobedde (Civil Application No. 6 of 1987)
  • Sipiriya Kyaturesire v Justine Bakachulike Bagambe (Civil Application No. 20 of 1995)
  • American Cyanamid Co v Ethicon Ltd [1975] AC 396
  • Giella v Cassman Brown & Co [1973] EA 358
  • Haruna Sentongo Vs. I & M Bank Ltd (Formerly Orient Bank (U) Ltd)

Full judgment

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

Musa Afwerk Tekle v Commissioner Land Registration and 2 Others (Civil Reference 258 of 2020) [2023] UGCA 356 (22 December 2023)
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.