Wakilii

Tumusiime T/a Bakery Limited and Another v San Sara Agro Limited (HCT-05-CV-MA 186 of 2022)

High Court · [2023] UGHC 57 · 2023 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for leave to appeal out of time and stay of execution following dismissal of an earlier appeal filed out of time
Decision
Applicants granted leave to file and pursue appeal out of time in High Court

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court granted leave to appeal out of time where applicants' earlier appeal was dismissed for being filed out of time due to counsel's error. The Court held that sufficient cause existed under s.79(1)(b) Civil Procedure Act where the procedural defect arose from counsel's mistake in commencing the appeal with a notice of appeal rather than a memorandum. Applicants should not be shut out from having their case determined on its merits due to counsel's blunder. Substantive justice requires that procedural errors not bar litigants from pursuit of their rights where no prejudice is caused to the other side that cannot be compensated by costs.

Outcome

Applicants granted leave to file and pursue appeal out of time in High Court

Facts

The respondent sued the applicants in Chief Magistrate's Court Bushenyi for recovery of UGX 11,000,000 arising from supply of cooking oil. The trial Magistrate entered judgment for the respondent on 27 February 2020. Applicants filed a notice of appeal on 4 March 2020 and a memorandum of appeal on 22 July 2020. On 20 May 2022, the High Court raised and upheld a preliminary objection that a notice of appeal cannot commence an appeal under the Civil Procedure Rules and struck out both the notice and memorandum, dismissing the appeal for being filed out of time. On 6 July 2022, applicants filed the instant application seeking leave to appeal out of time and stay of execution. When called for hearing on 30 November 2022, neither applicants nor their advocates appeared and the application was dismissed under Order 9 rule 22. On 3 May 2023, the court reinstated the application.

Issues

  1. Whether there are sufficient grounds to grant leave to appeal out of time

Orders

  • Application allowed.
  • Leave to appeal out of time granted.
  • Costs of this application to abide the results of the appeal.

Rules and key headnotes

Civil Procedure — Appeals — Leave to Appeal Out of Time — Sufficient Cause — Counsel's Error
Where an appeal was dismissed for being filed out of time due to counsel's procedural error in commencing the appeal with a notice of appeal rather than a memorandum of appeal, the court may grant leave to appeal out of time under s.79(1)(b) of the Civil Procedure Act upon a showing of sufficient cause, particularly where the applicant should not suffer the penalty of counsel's blunder and no prejudice is caused to the other side that cannot be compensated by costs.
Civil Procedure — Sufficient Cause — Definition and Application
Sufficient cause under s.79(1)(b) of the Civil Procedure Act implies the presence of legal and adequate reasons of such quality, number, force or value as is necessary for the purpose intended, embracing that which provides a plenitude which suffices to accomplish the purpose intended in the light of existing circumstances when viewed from the reasonable standard of practical and cautious persons. The sufficient cause must relate to the inability or failure to take the particular step and the most persuasive reason is that the delay was not caused or contributed to by dilatory conduct on the applicant's own part.
Civil Procedure — Appeals — Substantive Justice over Technicalities
The administration of justice normally requires that the substance of all disputes be investigated and decided on their merits and that errors or lapses should not necessarily debar a litigant from the pursuit of rights unless lack of adherence to rules renders the appeal process difficult and inoperative. Where there has been no damage done to the other side which cannot be sufficiently compensated by costs, the court should exercise its discretion so that no party is shut out from being heard, and a procedural error or blunder on a point of law by counsel should be taken with a humane approach.
Civil Procedure — Affidavits — Advocate as Deponent in Non-Contentious Matters
There is no legal prohibition against an advocate who of their own knowledge can prove facts stating them in an affidavit on behalf of a client. However, an advocate should not act as counsel and witness in the same case. Regulation 9 of the Advocates (Professional Conduct) Regulations SI 267-2 permits an advocate to give evidence by affidavit in formal or non-contentious matters. Before accepting an affidavit deposed by an advocate where an objection has been raised, the court must first ascertain whether the matter is formal or non-contentious on the matters of fact stated in the affidavit.
Civil Procedure — Affidavits — Treatment of Irregularities and Falsehoods
Where a court finds paragraphs in an affidavit that it believes are falsehoods or contain irregularities, the proper approach in light of Article 126(2)(e) of the Constitution which requires substantive justice to be administered without undue regard to technicalities is to sever those paragraphs and rely on the remaining paragraphs in the affidavit, subject to the fact that such parts as severed should be irrelevant to the matter at hand.
Civil Procedure — Misnomer in Party Names — Power to Correct
Where there exists a misnomer or mistake in naming a party in a legal instrument which can be corrected by amendment, the court has power to order such an amendment aimed at replacing the name appearing on the court document with what the party believes to be the right litigant. The correction of the name is only possible where the legal document speaks the truth and the misnomer was done out of good faith. The court has discretionary power to move itself suo moto to allow parties to alter or amend their pleadings for the purpose of determining the real questions in controversy between the parties, provided such amendments are in accordance with the law and do not prejudice the rights of the other party.
Civil Procedure — Citing Wrong Provision — Not Fatal to Application
The citing of the wrong law is not fatal to an application where the error does not go to the root of the application. Article 126(2)(e) of the Constitution provides that substantive justice shall be realized without undue regard to technicalities. The essence of all disputes is that disputes must be heard and determined on merits rather than dismissal on technicalities.

Legislation cited (15)

Cases cited (29)

  • Mugoya Construction v Central Electricals International Ltd (MA No. 609 of 2011)
  • Bankone Limited v Simbamanyo Estates Limited (Misc. Appn. No. 645 of 2020)
  • Greenwatch vs Attorney General and another [2003] EA 83
  • Pattni vs Ali and others [2005] 1 EA 339
  • Ismail vs Kamukamu and Others [1986-1989] EA 165 (SCU)
  • Uganda Development Bank v Kasirye, Byaruhanga & Co. Advocates (SCCA No. 35 of 1994)
  • Daniel Toroitich Arap Moi and another v. Mwangi Stephen Murithi and another [2014] eKLR
  • Comfoam Uganda Limited v Megha Industries (U) Ltd (HCMA No. 1084 of 2014)
  • Trustees of Rubaga Miracle Centre v Mulangira Ssimbwa (Misc. Application No. 576 of 2017)
  • Attorney General v Sanyu Television (CS No. 614 of 1998)
  • Kyaninga Royal Cottages Limited v Kyaninga Lodge Limited (HCMA No. 551 of 2018)
  • Trust Ventures Ltd v Powerfoam (U) Ltd (Civil Suit No. 669 of 2017)
  • Saggar vs Roadmaster Cycles (U) Ltd [2002] EA 25
  • Besigye Kizza v Museveni Yoweri & EC (Election Petition No. 1 of 2001)
  • Baryaija v Kikwisire (CACA No. 324 of 2017)
  • Hamam Singh Bhogal T/a Hamam Singh & Co. vs Jadva Karsan (1953) 20 EACA 17
  • Baku Raphael v Attorney General (SC Civil Appeal No. 1 of 2005)
  • Attorney General vs Shah (No. 4) [1971] EA 50
  • Sango Bay Estate vs Dresdner Bank & Attorney General [1971] EA 17
  • Oriental Insurance Brokers Ltd v Transocean (U) Ltd (SC Civil Appeal No. 55 of 1995)
  • Kiboro vs Posts & Telecommunications Corporation [1974] 1 EA 155
  • Kabogere Coffee Factory Ltd and another vs Kigongo [1990-1994] 1 EA 130 (SCU)
  • Balwant Singh vs Jagdish Singh and Ors (Indian Supreme Court Civil Appeal No. 1166 of 2006)
  • Mugo and others vs Wanjuiru and another [1970] 1 EA 481
  • Shanti vs Hindocha and others [1973] EA 207
  • Banco Arabe Espanol vs Bank of Uganda [1999] 2 EA 22 (SCU)
  • Githere vs Kimungu [1976-1985] 1 EA 101
  • Phillip Keipto Chemwolo and another vs Augustine Kubende [1986] KLR 495
  • Ojara v Okwera (Miscellaneous Civil Application No. 23 of 2017)

Full judgment

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

Tumusiime T_a Bakery Limited and Another v San Sara Agro Limited (HCT-05-CV-MA 186 of 2022) [2023] UGHC 57 (31 August 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.