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Uganda v Ogwang & 2 Others (Miscellaneous Application 4 of 2019)

Supreme Court · [2019] UGSC 58 · 2019 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application by the State for leave to file a notice of appeal out of time against a Court of Appeal decision ordering a retrial
Decision
Application for leave to file a notice of appeal out of time granted; notice of appeal to be filed within 3 days and served within 7 days.

Observed later treatment

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Holding

The Supreme Court granted the State leave to file a notice of appeal out of time. The court held that hearsay portions of a supporting affidavit may be severed without nullifying the whole affidavit. On the merits, the court found sufficient reason for the delay because there was no proof the Directorate of Public Prosecutions was served with or present at judgment delivery, distinguishing Uganda v Ntambi. The applicant was not guilty of dilatory conduct, having learned of the judgment only after time had lapsed. The intended appeal raised substantial questions of law on the role of assessors and whether an assessor irregularity nullifies a trial, so refusing leave would occasion injustice.

Outcome

Application for leave to file a notice of appeal out of time granted; notice of appeal to be filed within 3 days and served within 7 days.

Facts

The respondents were indicted in the Lira High Court on counts of murder, aggravated robbery and attempted murder arising from a January 2014 robbery in which UGX 65 million was stolen, the victim shot dead and her son injured. The High Court convicted and sentenced them. On appeal, the Court of Appeal (judgment delivered May 2019) quashed the convictions and sentences and ordered a retrial, primarily because an assessor who had absented himself during part of the evidence was permitted to resume and give an opinion. The State sought leave to appeal out of time, contending the action officer (a Senior Assistant DPP) had been appointed to the Bamugemereire Commission and the Directorate of Public Prosecutions only learned of the judgment when the respondents were transferred for retrial, after time to appeal had lapsed. The respondents opposed, arguing the application was grossly delayed, the Directorate had been served, and the supporting affidavit was defective for non-disclosure of the source of information.

Issues

  1. Whether the supporting affidavit was rendered defective by failing to disclose the source of information for matters not within the deponent's direct knowledge.
  2. Whether the applicant established sufficient reason for the court to extend the time within which to file a notice of appeal.
  3. Whether the applicant was guilty of dilatory conduct.
  4. Whether any injustice would be caused if the application to extend time were not granted.

Orders

  • The application for amendment is granted.
  • The application for leave to file a notice of appeal out of time is allowed.
  • The notice of appeal shall be filed within 3 days and served on the opposite party within 7 days of this ruling.

Rules and key headnotes

Evidence — Affidavits — Hearsay — Severance of offending portions
Where an affidavit contains hearsay matters that fail to disclose the source of information contrary to Order 19 rule 3 of the Civil Procedure Rules, the court may sever the offending parts without rendering the remaining parts of the affidavit a nullity.
Civil Procedure — Extension of Time — Notice of Appeal — Sufficient reason
Under Rule 5 of the Supreme Court Rules the court may extend time for sufficient reason in its unfettered discretion; sufficient reason ordinarily relates to the inability or failure to take the required step in time, but the court may extend time even after inordinate delay where shutting out the appeal would cause injustice.
Civil Procedure — Extension of Time — Dilatory conduct — Burden of proving service
An applicant is not guilty of dilatory conduct where it learned of the judgment only after the appeal period had lapsed; an unproved assertion that a party was served with notice of judgment delivery cannot, by itself, establish negligent delay.
Civil Procedure — Extension of Time — Injustice — Substantial questions of law in intended appeal
Where the intended appeal raises substantial questions of law, the presence of such questions is itself a sufficient reason to overlook undue delay, as refusing leave would occasion injustice.
Civil Procedure — Pleadings — Amendment — Principles governing grant
An amendment will be allowed where it is necessary to enable justice to be done between the parties, is sought in good faith, occasions no injustice incapable of compensation by costs, and is not prohibited by law.

Legislation cited (18)

Cases cited (11)

  • Tushabe v Cooperative Bank Ltd (Civil Application No. 8 of 2018)
  • Gaso Transport Services (Bus) Ltd v Martin Adala Obene (Civil Appeal No. 4 of 1994)
  • Uganda Journalist Safety Committee v Attorney General (Constitutional Petition No. 7 of 1997)
  • Col. (Rtd) Dr. Kizza Besigye v Yoweri Museveni Kaguta & Electoral Commission (Presidential Election Petition No. 1 of 2006)
  • Boney Katatumba v Waheed Karim (Civil Application No. 27 of 2007)
  • Molly Kyalukinda Turinawe & 4 Ors v Turinawe Ephraim & Anor (Civil Application No. 27 of 2010)
  • Gulliano Gariggo v Claudio Cassadio (Civil Application No. 1 of 2013)
  • Mulindwa v Kisubika (Civil Appeal No. 12 of 2014)
  • Uganda v Ntambi (Civil Application No. 8 of 2019)
  • Abdu Komakech v Uganda [1992-93] HCB 21
  • Mukiibi Emmanuel v Uganda (Criminal Appeal No. 43 of 1996)

Full judgment

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

Uganda v Ogwang & 2 Others (Miscellaneous Application 4 of 2019) [2019] UGSC 58 (11 November 2019)
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.