Attorney General v Kikwanzi (Civil Application 13 of 2019; Civil Application 15 of 2020) [2024] UGSC 14 (13 June 2024)

THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT KAMPALA CIVIL APPLICATIONS NOS. O13 OF 2OI9 AND 015 OF 2O2O (Arising from Court of Appeal Civil Applications Nos. 156 and 149 of 2018) ATTORNEY GENERAL APPLICANT VERSUS HAJI SWAIBU NUWEAIN E KIKWANZI: : : : : : : : : : : : RESPONDENT CORAM: HON. LADY JUSTICE FAITH MWONDHA, JSC HON. LADY JUSTICE PROF. LILLIAN TIBATEMWA. EKIRIKUBINZA, JSC HON. MR. JUSTICE MIKE J. CHIBITA, JSC HON. LADY JUSTICE ELIZABETH MUSOKE, JSC HON, MR. JUSTICE CHRISTOPHER MADRAMA IZAMA, JSC RULING OF ELIZABETH MUSOKE, JSC These two present applications arise from the decision of the Court of Appeal (Cheborion, Musota and Tuhaise, JJA) in Civil Applications Nos. 156 and 149 of 2018 dated 1Zth June, 2019, In Civil Application No. 13 of 2019, the applicant seeks this Court to grant him leave to appeal against the decision of the Court of Appeal. In Civil Application No. 15 of 2020, the applicant seeks this Court to grant an extenslon of time to allow him to proceed with Civil Applicatlon No. 13 of 2019 which he believes was filed out of time. Background The respondent sued the applicant in the High Court claiming compensation for loss of bakery machines, loss of income, general damages, interest and costs. The suit arose from acts that happened in 2008 in which police officers, agents of the applicant, unlawfully seized machines, including ovens, baking trays and baking tins, from the respondent's bakeries at Hoima and Kajjansi and kept them at respective nearby police stations. The 1 machines were damaged while at the respective police stations and could not be restored to the respondent hence his suit for compensation. The respondent also alleged that the seizing of the machines had affected his business and caused him loss of income. The trial of the suit in the High Court proceeded ex pafte as the applicant, although he filed a defence, did not attend any part of the trial. At the conclusion of the trial, the High Court (Mugambe, J.) allowed the respondent's suit in its judgment dated 4th September, 2017, and granted the following remedies; 1) compensation for loss of business at Ug. Shs. 4,000,000/- per day from 2008 till payment in full; 2) special damages of Ug, Shs. 96,000,000/= for the three baking machines, and for the construction of two ovens, sixty baking trays and six baking tins based on receipts tendered; 3) interest on (i) and (ii) above at court rate of 60/o per annum from 2008 till payment in full; 4) general damages of Ug. Shs. 20,000,000/=; and 5) costs of the suit. The appllcant was dlssatisfied with the decision of the High Court and filed a Notice of Appeal, albeit belatedly, in the Court of Appeal. He also subsequently filed the two applications referred to earlier, seeking the Court of Appeal to extend time and validate his belatedly filed Notice of Appeal. The Court of Appeal dismissed both applications. The applicant was dissatisfied with the decision of the Court of Appeal in dismissing the two applications and wished to appeal to this Court. He considered that an appeal could only lle from the decislon of the Court of Appeal with leave of this Court, and, on 3'd July, 2019 filed in this Court, Civil Appllcation No. 13 of 2019 seeking this Court to grant him leave to appeal agalnst the decision of the Court of Appeal. The applicant subsequently formed an opinion that Civil Application No. 13 of 2019 had been filed out of time, hence filing Civil Application No. 15 of 2020, In which he seeks this Court to extend time and validate the former application which was belatedly filed. Both applications have been addressed in this ruling. 2 I CivilApplication No. 13 of 2019 As I earlier stated, the applicant filed Civil Application No. 13 of 2019 seeking to be granted leave to appeal agalnst the decision of the Court of Appeal. I need not set out the grounds of this application in detail because, for purposes of the decision in this case, it unnecessary to delve into a detailed discussion of this application. CivilApplication No. 15 of 2020 The applicant filed Civil Application No. 15 of 2020 seeking the following reliefs: "1) That this Court extends the time prescribed for applying for leave to appeal against the Ruling of the Court of Appeal in Consolidated Civil Applications No, 149 of 2019 and No. 156 of 2019. 2) That this Cout validates the late filing of Supreme Court Civil Application No. 13 of 2019 which seeks leave to appeal against the Ruling of the Court of Appeal in Consolidated Civil Applications No. 149 of 2019 and No. 156 of 2019 3) Costs of the Application be provided for." The grounds in support of the application are set out In the applicant's Notice of Motion, as follows: "1) The applicant filed Civil Application No. 13 of 2O19, in this CouG seeking leave to appeal against the ruling of the Court of Appeal in consolidated Civil Applications Nos. 149 and 156 of 2019. Civil Application No. 13 of 2019 has not yet been determined by this Court. 2) The late filing of Civil Application No. 13 of 2019 was due to honest and inadvertent mistake of his counsel Ms, Goretti Arinaitwe and it was only discovered on 1st July, 2020 that the said application had been filed late. 3) It is not an the interest of justice that the mistake of counsel be visited on the applicant and his client the Government of Uganda. 4) The application for leave was filed only one week outside the prescribed time of 14 days from the ruling of the Court of Appeal and the applicant has been diligent in following up its hearing. 3 5) The underlying subject matter of the application and the intended appeal is an award of special damages of loss of business income at Ug. Shs. 4,O00,000/= per day from 2008 until payment in full which has currently accrued to over Ug. Shs. 20,000,000,000/= (Twenty Billion Shillings). The applicant has adduced unrebutted evidence in Application No. 13 of 2019 showing that the above said award of special damages was not specifically pleaded or proved by the respondent in the High Court. 6) It is in the interest of substantive justice that Civil Application No. 13 of 2019 is heard on its merits as it seeks to cure an illegality which is apparent on the face of the record. 7) If the application is not granted, the applicant will be shut out from the seat of justace and it will cause great justice and financial Ioss and hardship to the Government and tax payers of Uganda who will be compelled to pay over Twenty Billion Shillings which was awarded in contravention of established legal principles. 8) It is fair, just and equitable and in the interest of justice that the application be allowed," The application was supported by evldence contained in the affidavit of Ms. Goretti Arinaitwe, a Senior State Attorney in the Attorney General's Chambers. The respondent opposed the application on the following grounds set out in hls affidavit in reply: '3) That I am informed/advised by my lawyers which information I believe to be true that this application is untenable in law. 4) That this application is overtaken by time since it was filed at a time when all the pleadings and submissions in Civil Application No. 13 of 2019 had been closed. 5) I am advised by my lawyers which advice I believe to be true that this application is an admission that Civil Application No. 13 of 2019 which is pending ruling before this Court is fatally defective. 6) That I am further advased by my lawyers whose advice I verily believed to be true that the application is preemptively intended to defeat the outcome of Civil Application No. 13 of 2019 whose ruling is pending in this Court. 4 7) I am further advised by lawyers which advice I verily believe to be true that this application is a waste of couft's time as it purports to amend Civil Application No. 13 of 2019 to defeat my defence in the same. 8) That this application is an afterthought and has no merit. 9) I stand to suffer extreme prejudice if this application is granted as I shall continue to be engaged in unreasonable and endless litigation which is costly on my part. 10) That I affirm this affidavit in opposition to Civil Application No. 15 ot 2O2O and pray that it should be dismissed with costs." Representation At the hearing, Ms. Goretti Arinaitwe, learned Principal State Attorney in the Attorney General's Chambers appeared for the applicant. Mr. Richard Buzibira, Mr. Waiswa Ramathan and Mr. Lukwago David, all learned counsel, jointly appeared for the respondent. The respective counsel filed wrltten submissions. Applicant's submissions Counsel for the applicant submitted that this Court, under Rule 2 (2) and Rule 5 of the Rules of this Couft, has powers to order an extension where the time prescribed for the doing of an act under the Rules of this Couft has expired. She further submitted that, as decided in Kardebhai and Another vs. Sharmsherali and Others, Supreme Court Civil Application No. 20 of 2OO8 (unrepfted), this Court may grant such an extension of time lf there exists sufficient reason for doing so. Counsel contended that the sufficient reason, for purposes of Rule 5 in the present case, is that the late filing of Civil Application No. 13 of 2019 was occasioned by the mistake of the applicant's counsel, Ms. Goretti Arinaitwe, who erroneously believed that there was no time limit for filing the said application. Further, that Ms. Arinaitwe's erroneous belief was caused by her inadvertent reliance on the 2009 Edition of the Kampala Law Repofts Civil Practice Legislation, a publication of the Laws of Uganda which contained a typographical error that concealed Rule 39 of the Rules of this 5 a Court the rule that lays out the time frame for filing applications for leave to appeal. Counsel further submitted that mistake of counsel has in many decided cases been held to constitute sufficient reason for granting an extension of time. In support of this submission, counsel relied on the following cases: Kaderbhai and Another vs. Virji and Others, Civil Application No. 20 of 2008; Kato and Another vs. Nalwoga, Civil Application No. 4 of 2O12; Attorney General vs. Lutaaya, Civil Application No. 12 of 2OO7; and Magezi vs. Ruparelia, Civil Application No. 1O of 2002 (all Supreme Court cases and unreported). Furthermore, counsel submitted that after learning of Ms. Arinaitwe's mistake on lst July, 2020, the applicant moved quickly and filed the present application after only one week, which demonstrates his interest in pursuing the matter. Counsel relled on the Kaderbhai and Kato cases (supra) where the applications for extension of time were allowed owing to the vigilance exhibited by the parties in pursuing them. She concluded by submitting that in the present case, the applicant's late filing of Civil Application No. 13 of 2019 ought to be excused since it was occasioned by mistake of counsel and given that the applicant was vigilant in addresslng the mistake by promptly filing the present application, It was also submltted that it is in the interests of justice for this Court to allow the present application and permit the applicant to pursue hls intended appeal on its merlts due to the enormity of the award of damages, currently standing at Ug, Shs, 20,000,000,000/=, that was made to the respondent and which will be paid out of tax payers' money held by the Government. Counsel submitted that the applicant strongly contends that the highlighted award was illegal and excessive and it is in the interests of justice to determine the merlts of the appeal and not strike the appeal out on technicalities. In support of hearing the intended appeal on its merits, counsel cited in Re Tebajjukira and Another vs. Stananzi, Supreme Court Civil Application No. 08 of 1998 (unreported) and Banco Arabe Espanol vs. Bank of Uganda [1999] 2 EA. 6 t In view of the above submissions, counsel prayed that this Court allows this application and orders that the costs of the application be in the cause. Respondent's submissions Counsel for the respondent began by submitting that thls appllcation should be refused because Civil Application No. 13 of 2019 from which it arises is incurably defective as it was filed out of time without authorization by this Court. Moreover, that thls Court has already heard Civil Application No. 13 of 2019 and the matter is pending ruling, and in counsel's view, where a matter has been entertained by this Couft and all pleadings and submissions in the matter have been closed, no subsequent application may be filed without leave of the Court. According to counsel, the rationale for the foregoing contention is that litigation must be come to an end. Counsel cited Mulindwa vs. Kisubika, Supreme Court Civil Appeal No. 12 of 2OL4 (unreported) in support of his submissions. Counsel then contended that the litlgation in the present case which was instituted in 2010 will be unduly prolonged by granting of the present application. Further, that the applicant has frustrated the conclusion of the litigation in the matter by non- appearance at the trial and failing to apply for leave to appeal against the decision of the Court of Appeal. Counsel urged this Court to refuse the present application since it will unduly prolong the litigation in the present case. Furthermore, counsel submitted that the present applicatlon is also defective on grounds that it ought to have first been filed in the Court of Appeal in accordance with Rule 39 (2) (a) and (b) of the Rules of this Court yet it was wrongly first filed in this Court. In relation to the merlts of the appllcation, counsel submitted that the present application ought to be refused as lt does not meet the criteria for granting of an application for extension of time. Counsel referred to the Kenya Supreme Court decision of County Executive of Kisumu vs. County Government of Kisumu and 8 Others, Civil Application No. 3 of 2016 (unrepofted) which sets out the following considerations for grant of an application for extension of time: 7 "1) Extension of time is not a right of a party. It is an equitable remedy that is only available to a deservins party at the discretion ofthe Court. 2) A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court. 3) Whether the court should exercise the discretion to extend time is a consideration to be made on a case to case basas. 4) Whether there is a reasonable basis for the delay, The delay should be explained to the satisfaction ofthe Court. 5) Whether there will be any prejudice suffered by the respondent if the extension is granted. 6) Whether the application has been brought without undue delay." Counsel submitted that the present application does not satisflT the above criteria and should not be granted, for the following reasons: Firstly, the reason the applicant bases on to support this application, namely, that the late filing of Civil Application No. 13 of 2019 was caused by mistake of his counsel Ms. Arinaitwe, who referred to an erroneous publication of the Supreme Court Rules that did not contain Rule 39 setting out the timelines for filing applications for leave to appeal, was unconvincing, According to counsel, Ms. Arinaitwe, a Senior State Attorney in the Attorney General's Chambers should have exercised better diligence in identifuing and applying the applicable law so as to file the present application in time. Secondly, the applicant's conduct in the litigation between the parties right from the High Court to the Court of Appeal, which has been marked by abuse of court process by the applicant, makes him undeserving of the extension of time sought in this application. Counsel pointed out that although the applicant filed a defence against the respondent's suit in the trial Court, he did not participate in the hearing and never brought any wltnesses nor cross- examined the applicant's witnesses, and eventually the trial proceeded ex parte. Further, that although the appllcant was notlfied when the trial Court rendered its judgment, he never appealed against the judgment in time and waited almost 8 months from the date of the judgment before filing his Notice of Appeal (NOA) and an application to validate the NOA which had 8 been filed late, but the Court of Appeal dismissed the latter application. Furthermore, following the dismissal of the application to validate the NOA, the applicant never sought leave of the Court of Appeal to appeal against the dismissal decision, as required by the law, but instead opted to seek leave in this Court via Civil Application No. 13 of 2019. Counsel submitted that the above-highlighted applicant's conduct amounts to abuse of court process and renders him unworthy of the extension sought in the present application. Thirdly, counsel submitted that this application ought to be denled because the applicant unduly delayed to file it. Counsel pointed out that the present application was filed long after the filing of Civil Application No. 13 of 2019, and even after the hearing of the said application had been concluded on 16th June, 2020. Further, that the applicant only realized that he needed an extension to file Civil Application No. 13 of 2019 after he was served with the respondent's submissions in that matter on 30th June, 2020, Counsel contended that the applicant's action as highlighted above amounts to the applicant "reverse engineering" the present case by bringing an application to fix his default in belatedly filing Civil Application No, 13 of 2019. In counsel's view, such an action defeats the essence of the right to a fair hearing as enshrined in Afticle 28 of the 1995 Constitution which includes the requirement for parties to act within the timelines given to them by court for the doing of any act. Moreover, according to counsel, as Civil Application No. 13 of 2019 was belatedly filed, it was rendered a nullity whlch thls court cannot remedy. Finally, counsel submitted that the application should be refused because the respondent will suffer no injustice by its refusal. Counsel submitted that the key issue taken by the applicant in his intended appeal concerning the legality and quantum of special damages of Ug. Shs. 4,000,000/= awarded to the respondent for loss of business due to the unlawful selzing of the respondent's bakery machines had no merit, as the award of special damages was properly made. Counsel concluded that the application has no merit and ought to be dismissed with costs. 9 Applicant's submissions in rejoinder The applicant raised several points in hls submissions in rejoinder but I need not consider them for reasons that will become apparent shortly. Consideration of the applications I have carefully considered the pleadings, the evidence and the submissions of counsel in relation to the present applications, I shall begin my analysis by addressing a preliminary point as to whether the decision of the Court of Appeal in Civil Applications Nos. 156 and 149 of 2018, from which the present applications arise, is appealable to this Court because, if not, the two present applications are rendered unsustainable and liable to be dismissed. It is now well-established that an appeal may lie only if permitted by a specific statute. In the case of Attorney-General v Shah (No ) [1971] 1 EA 50, it was held: "...appellate jurisdiction springs only from statute. There is no such things as inherent appellate jurisdiction." In relation to appeals to the Supreme Court, Article L32 (2) of the 1995 Constitution provides that: "An appeal shall lie to the Supreme Court from such decisions of the Court of Appeal as may be prescribed by law." The primary law prescribing appeals to the Supreme Court ls the Judicature Act, Cap. 13 which provides for two types of appeals, namely, appeals as of right and appeals requiring leave. Section 6 (1) governs appeals as of right and provides as follows: "An appea! shall lie as of right to the Supreme Court where the Court of Appeal confirms, varies or reverses a judgment or order, including an interlocutory order, given by the High Court in the exercise of its original jurisdiction..." Section 6 (2) provides for appeals requiring leave and states as follows: "Where an appeal emanates from a judgment or order of a chief magistrate or a magistrate grade I in the exercise of his or her original 10 jurisdiction, but not including an interlocutory matter, a pa rty aggrieved may lodge a third appeal to the Supreme Court on the certificate of the Court of Appeal that the appeal concerns a matter of law of great public or general impodance, or if the Supreme Court considers, in its overall duty to see thatjustice is done, that the appeal should be heard." Except for the above-highlighted instances, in civil cases, no appeal can lie to the Supreme Court. The Court of Appeal, in the decision from which the present applications arise, refused to validate the applicant's Notice of Appeal that had been belatedly filed and resultantly struck it out. The question for determination is whether an appeal lies to this Court, whether as of right or with leave, from a decision of the Court of Appeal dismissing an application to validate a belatedly filed Notice of Appeal. In Kobusingye vs. Nyakana and Another, Supreme Court Civil Appea! No. 5 of 2OO4 (unreported), it was held that appeals from decisions of the Court of Appeal lie only from decisions passed by the Court while exercising its appellate jurisdiction. The Court In the Kobuslngye case stated as follows: "As we have recently stated in the UNEB case of Uganda National Examinations Board vs. Mparo General Contractors (Civil Application No. 19 of 2004), there is no right of appeal to this Court oraginating from interlocutory orders of the Court of Appeal which are incidental to the appeal but not resulting from the final determination of the appeal itself." In the present case, the applicant's intended appeal arises from a decision refusing to validate his Notice of Appeal, whlch, in light of the above highlighted statement from the Kobusingye case (supra), qualifies as an interlocutory decision since it did not involve the final determination of any appeal by the Court of Appeal, but concerned an incidental matter relating to the competence of a Notice of Appeal filed by the applicant in the Court of Appeal. It follows, therefore, that this Court cannot grant leave to the applicant to lodge his intended appeal to this Court because it is not permitted under the law. Therefore, Civil Application No. 13 of 2019 seeking 11 leave to appeal cannot be sustained; Civil Application No. 15 of 2020 cannot also succeed because it arises from an unsustainable application. In conclusion, for the above reasons, I would dismiss both applications with costs to the respondent. Dated at Kampala this 3*: day of ....2024. Elizabeth Musoke lustice of the Supreme Court N-\ .s / u (rrr 72 g-% D/>r N_<, { 5 10 15 20 25 30 THE RIPUBLIC OF UGANDA IN THE SUPRIME COURT OF UGANDA AT KAMPALA CryIL APPLICATIONS NO. 13 OF 2O19 and NO.15 OF 2O2O J lconem: MWoNDHA; TIBATEMwA-EKIRIr<vBrNZA; cHrBrrA; MUSoKE; MADRAMA, JJSCI BETWEEN ATTORNEY GENERAL APPLICANT AND HAJJI SWAIBU NUWEAINE KIKWANZA: : : : : : : : : : 3 : : : : RESPONDENT RULING OF PROF.TIBATEMWA-EKIRIKUBINZA, JSC. I have had the benefit of reading the Ruling of my learned sister Hon. Justice Elizabeth Musoke, JSC and I agree with her analysis and conclusion that the applications be dismissed with costs to the Respondent. I would like from the onset to make it clear that this is an application for leave to appeal against an interlocutory order. Counsel from both sides advanced arguments and cases which support general applications for leave of Court to enable a party to take an essential step outside the prescribed time. Arguments like there being a likelihood of success of the intended appeal, existence of exceptional circumstances which necessitate lodging an application directly in this Court when the rules require a party to 1 35 5 first lodge an application before the Court of Appeal etc. The arguments presented may be applicable to applications seeking for leave of Court to grant extension of time where a statutory right of appeal to this Court exists, but the arguments are not relevant to the type of application in the matter before Court. The issue to be dealt with is: whether an Interlocutory Order bg the Court of Appeql can be a subject of appeal to this Court? The right to appeal against a decision of court is not inherent but embedded in statute. In the case of Lukwago Erias vs. KCCAT, this Court stated that: "The ight of appeal is a creature of statute. There is nothing knoutn in lau as an|nherent ight of appeal. " (See also: AG vs. Shah2) Article 132 l2l of the Constitution provides that: '1{n appeal shall lie to the supreme court from such decisions of the Court of Appeal as may be prescribed bv law." "An appeal shall lie to the Supreme Court from such decisions of the Court of Appeal as are prescribed by the Constitution, this Act or any other law." ,Civil Application No.O6 of 2014. ,lt967l EA 50. 10 2 15 20 Section 4 of the Judicature Act provides for the jurisdiction of the Supreme Court. It states as follows: ^ 10 15 20 25 Section 6 (1) of the Judicature Act provides for civil appeals in the Supreme Court as follows: An appeal shall lie as of right to the Supreme Court where the Court of Appeal confirms, varies or reverses a judgment or order, including 4n interlocutory order, given by the High Court in the exercise of its original i urisdiction and either confirmed. varied or reversed bv the Court of Appea!. (Our emphasis) This provision has been explained in numerous decisions of this Court as discussed below. In the case of Uganda National Examinations Board vs. Mpora General Contractors3, it was clearly stated that: "Th.ere is no ighl of appeal to this Court oiEnating frominterloantory orders of tle Court of Appeal which orders are irwidental to tLrc appeal but not restlting from the rtnd determination of the appeal itself." In the case of Dr. Kasirivu Atwooki and Others vs. Grace Bamurangye Bororoza and othersa, this Court while relying on its earlier decisions in the cases of Uganda National Examinations Board vs. Mpora General Contractors (Supra) ano Beatrice Kobusingye vs. Fiona Nyakaana & Anothers, stated as follows: , Civil Application No.19 of 2OO4. .SC Civil Application No. O2 of 2O10. 'SC Civil Appeal No. 5 of 2004. 5 3 5 The court went on to justify the bar on appeals from decisions and orders of the Court of Appeal in interlocutory matters as follows: "Interlocutory applications are generallg an exercbe intended to help that Court to do house cleaing. If appeals were allowed to come to this Court from interlocutory rulings of the Court of Appeal, this Court would be suamped u-tith uthollg unnecessary multiplicitg of appeals. Indeed, the Court of Appeal itself would be clogged with many pending appeals uthich could not be heard and decided because theg would await decision on such interlocutory appeals to this Court. We can foresee the possibility of encouraging multiplicitg of unnecessary appeals to this Court. Delags would affect expeditious disposal of appeals in the Court of Appeal." The above position was emphasized in a very recent decision of this Court which was delivered on 29'h September 2023 - Heritage Oil & Gas Limited vs. URA.o It is clear from the above decisions of this Court, that the Court of Appeal's decision in interlocutory matters is final and not subject to appeal. Counsel also submitted that in the interest of justice, this Court can consider the applications because the Court of Appeal in its refusa-l 10 15 20 25 "Civil Appeal No. O3 of 2021. 4 "As we recently stated in the UNEB case... there is no right of appeal to this Court oiginating frominterlocutory orders of the Court of Appeal which orders are incidental to the appeal but not resulting from the final determination of the appeal itself. We are not persuaded to change that opinion." 5 10 15 20 to grant extension of time sanctioned an illegality. However, in the Iight of the finding above, this Court is left with no jurisdictional foundation to entertain the said argument. On 3,d July 2019, the Attorney General (Applicant) filed in this Court, Civil Application No.13 of 2019 seeking leave of Court to appeal against the interlocutory orders ofthe Court ofAppeal. On 8th September 2019, the Respondent (Hajji Swaibu) Iiled an affidavit in reply to the Attorney General's application No.13. The Respondent averred that the applicant had no locus to file the application because it was out of time and without the leave of court being sought first. On 9th March 2O2O, this Court conducted a pre-hearing conference and directed the parties to file their submissions; the last date being 20th March 2O2O. Furthefinore, the Court directed that the matter be fixed for hearing on 8th Aprll 2O2O. But before the hearing commenced on 15th J:uly 2O2O, the Attorney General filed Civil Application No. 15 of 2O2O for orders that: (i) This Court extends the time prescribed for applying for leave and; 5 30 25 I have also found it pertinent to comment on the chronologr of events that led to the filing of the second application - Civil Application No.15 of 202O. 5 (ii) This Court validates the late filing of Civil Application No.13 of 2OL9. It is noted that Application No.15 was filed after the Respondent had already filed submissions in reply to Application (No.13 of 2O19), arguing that Application 13 was out of time and had been filed without the leave of court being sought. In a bid to correct this mistake, the applicant then filed Civil Application No.15 for extension of time for applying for the necessary leave. It is my considered opinion that in light of the enumerated chronologr of events, the filing of Civil Application No.15 of 2020 was an abuse of court process. I therefore hold that for the foregoing reasons, the two consolidated Civil Applications No.13 of 2019 and No.15 of 202O should be disallowed with costs to the Respondent. 10 15 20 25 30 Dated at Kampala this ...(3.1: ^y rf ......e HON. JUSTICE PROF" LILLIAN TIBATEMWA-EKIRIKUBINZA, JUSTICE OF THE SUPREME COURT. 2024. qJ^e, 6 f>-*A^^.-,-*,8- /3 (u 2 a \ 5 THE REPUBLIC OF UGANDA, IN THE SUPREME COURT OF UGANDA AT KAMPALA (C0RAM: MWONDHA, TIBATEMWA - EKIRIKUBINzA, CHIBITA, MUSOKE & MADRAMA, JJSC) CIVIL APPLICATIONS NOS. 013 OF 2019 AND 015 OF 2O2O (Arising from Court of Appeat Civit Apptications Nos. 156 and 149 of 2018) ATTORNEY GENERAL} VERSUS HAJr SWATBU NUWEATNE KtKWANZ|) RESPONDENT RULING OF CHRISTOPHER MADRAMA IZAMA, JSC I have had the benefrt of reading in draft the ruting of my learned sister, Musoke, JSC and I concur that the consotidated apptications be dismissed. I would however, lLike to add a few words of my own. Civit Apptication No. 15 of 2020 is for orders that time be extended to entarge time prescribed by the Rutes to enabte the appticant appl.y for leave to appeal against the ruting of the Court of Appeal in consotidated Court of Appea[ Civil. Appl.ication Nos 149 and 156 of 2019. Further it is for orders to vatidate the late fiting of Supreme Court Civit Apptication No 13 of 2019 for [eave to appeat against the said ruting of the Court of Appeat. ln Civit ApplLication No. 13 of 2019, the Attorney General seeks leave to appea[ the Ruting/Orders in consotidated Court of Appeat Civit Appl.ications Nos. 156 and 149 of 2018 and for costs of and incidental. thereto to be provided. The appl.icant's case is that it had fited Civit Apptications Nos. 156 and 149 in the Court of Appeat for orders to enlarge time or to vatidate the tate fiting of its notice of appeat. The two apptications were consotidated and heard together between the same parties and on the same subject matter. The Court of Appeat dismissed the apptication on the l2th of June 2019 10 15 20 25 30 1, APPLICANT whereupon the appticant was dissatisf ied with the ruIing and the Government attorney handting the matter thought that the Attorney GeneraI had no automatic right of appeat. lndeed, the appticant proceeded on the premises that it required [eave to appeat. Most importantty the appLicant seeks leave of this Court to appeat to this Court against the ruting of the Court of Appeat refusing to extend time within which to fite a notice of appeat. Part of the Court of Appeat ruting is as fottows: This case has had a chequered background. lt was instituted in 2010 and during its pendency the appticant proposed that it shoutd be settted amicabty. Later the said setttement was abandoned after detaying the tria[. Judgment was detivered in September 2017 after a[most 7 years. ln the circumstances we consider it prejudiciat to the respondent for the applicant to want to pursue an appeal out of time. 10 15 20 Norma[ty, this court woutd attow apptications for extension of time and vatidation of the pteadings fil.ed, to ensure that the parties'right of appeal is exercised. However, in the circumstances of this case, we consider, based on a[ the above, that granting the apptication wil[ defeat justice for the appticant. We are therefore constrained to disattow the apptication. lt is accordingty dismissed with costs to the respondent. The centraI issue is whether the decisions of the Court of Appeat in Civit 25 Apptications Nos 156 and 149 of 2018 are appeatabte to the Supreme Court and whether this court can grant leave to appeaL against a refusal of leave to extend time to fite an appeat in the Court of Appeal. The Court of Appeal. refused to vatidate the appel.tant's notice of appeal. fil.ed out of time and gave its reasons. The reasons were primarity that the appticant had inordinatety 30 detayed the cause of justice in the High Court before the respondent proceeded against it ex parte. The appticant has now appl,ied in this court for leave to appeat against the decision of the Court of Appeal. refusing extension of time to appeal to the Court of Appeat from a decision of the High Court where an ex parte judgment was issued against the Attorney 3s Generat. An apptication for leave to appeaL is enabl.ed by rul.e 39 (2) of the Rutes of this Court which provides that: 2 5 (a) where an appeal ties if the Court of Appeal certifies that a question or questions of great pubtic or generaL importance arise, ... (2) Where formerly an appeal lay from the High Court to the court with leave of either the High Court or the court, the same rutes shat[ appty to appeats from the Court of Appeat to the court- (a) where an appea[ [ies with Leave of the Court of Appeat, apptication for the Leave sha[[ be made informa[ty at the time when the decision against which it is desired to appeal is given; or fail.ing that application or if the court so orders, by notice of motion within fourteen days after the decision; and (b) if the Court of Appeat refuses to grant leave, or where an appeal otherwise Lies with leave of the court, appLication for the Leave shatL be todged by notice of motion within fourteen days after the decision of the Court of Appeal refusing teave or, as the case may be, within fourteen days after the decision against which it is desired to appea[. Under rute 39 (2) of the Rutes of this Court, leave is necessary to be sought where former[y an appeal lay from the Court of Appeat with the leave of the High Court or the Court of Appeal.. Was leave necessary to be sought in this case as envisaged by the Rutes and the Civil Procedure Act? The answer is no. ln this case, there was an ordinary suit which was decided by the High Court ex parte after trying many times to make the Attorney Generat's State Attorney attend court and conduct the Attorney Generat's defence. Such proceedings where a defendant does not turn up on a date fixed for hearing of the suit are governed by Order 9 rul.e 20 (1) (a) of the Civil. Procedure Rutes which provides that: 20. Procedure when on[y pl.aintiff appears. (l) Where the plaintiff appears and the defendant does not appear when the suit rs caL[ed on for hearrng- (a) if the court is satisfied that the summons or notice of hearing was du[y served, it may proceed ex parte; 10 15 20 25 30 3 39, Apptication for certificate of importance or leave to appeal in civiI matters. (1) ln civit matters- 5 The suit proceeded ex parte and judgment was entered against the appticant. lf there was any hearing notice prior to the hearing date which was not duty served or if for any sufficient cause the applicant was prevented from appearing for hearing and prosecuting its defence, the ex parte decree coutd be set aside under Order 9 rute 27 of the CiviL Procedure Rules which provides that: 2?. Setting asrde decree ex parte against defendant ln any case in which a decree is passed ex parte against a defendant, he or she may appty to the court by which the decree was passed for an order to set it aside; and if he or she satisfies the court that the summons was not du[y served, or that he or she was prevented by any sufficient cause from appearing when the suit was calted on for hearing, the court sha[[ make an order setting aside the decree as against him or her upon such terms as to costs, payment into court, or otherwise as it thinks fit, and shatl appoint a day for proceeding with the suit: except that where the decree is of such a nature that it cannot be set aside as against such defendant onLy, it may be set aside as against atl or any of the other defendants atso. (c) An order under rute 27 of 0rder lX rejecting an apptication for an order to set aside a decree passed ex parte;" 10 15 20 35 4 Ctearl.y the appl.icant had a right to appLy to the High Court if it had any sufficient cause which prevented it from appearing in the High Court and the High Court coutd set aside the ex parte decree so that the appticant is 2s heard before judgment is detivered. Further, the appl.icant did not appty to set aside the ex parte decree nor drd it appty and the apptication to set aside the decree was refused by the High Court. The appticant coutd therefore onty appeat against the decree on the merits of the judgment. 0therwise an appeal lies as of right under Order 44 rute 1 (1) (c) of the Civit Procedure 30 Rutes where the apptication to set aside an ex parte decree is refused. The said rute 27 provides that: "(1) An appeal. shalL tie as of right from the fottowing orders under section 76 of the Act - 5 The appticant did not exhaust its remedies. lt was prudent for the appLicant to appty to set aside the ex parte decree and to be heard in the trial court but it did not. Therefore, the appticant was not heard in its defence and wants to appeal on the merits of a decree it had not been heard on or defended. The probtem being that the law attows the decree to be set aside so that the appticant is heard where there was sufficient cause that prevented the defendant from appearing and conducting its defence. The appettant's intended appeat was therefore one under section 67 of the Civit Procedure Act where an appeal lay as of right and where no leave is required in terms of rute 39 (2) of the Rutes of this Court. Section 67 (1) of the Civit Procedure Act provides that: 6?. Appeat from ex parte decree, etc. (1) An appeat may lie from an original decree passed ex parte. ln other words, the appticant had two options. Either appty to set aside the ex parte decree or appea[ against it as a matter of right. The appLication for leave to appea[ is therefore not envisaged rn the rutes of the High Court or the CiviL Procedure Act and Rute 39 (2) of the Judicature (Supreme Court Rutes) Directions whrch specif icatty caters f or at[ appl.ications for leave to appeal does not cover the appticant's apptication or situation thereby rendering it incompetent before this court. I further concur with my learned sister's rul.ing that appeats to this court from decisions of the Court of Appeal., which the appl.icant intends to appeal against, whether from an intertocutory order or from a final order are governed by section 6 of the Judicature Act. Section 6 of the Judicature Act envisages second appeats to this Court. Such appeats originate from any decision of the High Court in the exercise of its originaL jurisdiction. Third appeats envisaged under section 6 (2) of the Judicature Act originate from orders or decrees of a Magistrates Court in the exercise of their original jurisdiction. Section 6 of the Judicature Act provides that: 10 15 20 25 30 5 6. Appeal.s to the Supreme Court in civiI matters ('l) An appeal. shalt tie as of right to the Supreme Court where the Court of Appeat confirms, varies or reverses a judgment or order, including an intertocutory order, given by the High Court in the exercise of its originaI jurisdiction and either confirmed, varied or reversed by the Court of Appeat. (2) Where an appeal emanates from a judgment or order of a chief magistrate or a magistrate grade I in the exercise of his or her original jurisdiction, but not inctuding an intertocutory matter, a party aggrieved may todge a third appeat to the Supreme Court on the certificate of the Court of Appeal that the appeal concerns a matter of law of great pubtic or general importance, or if the Supreme Court considers, in its overatl duty to see that justice is done, that the appeat shoutd be heard. 10 15 6 From my understanding of section 6 of the Judicature Act, subsection (2) is inappticabte rn the circumstances because it concerns third appeats though I set it out for purposes of demonstrating that it is inappLicabte. The zo appticant's intended appeat is against the refusal of the Court of Appeat to vatidate its notice of appeaI or teave to fite it out of time and section 6 (1) of the Judicature Act appties to the intended appea[. Sectron 6 (1) of the Judicature Act onty confers jurisdiction on this court in cases where the Court of Appeat exercised appettate jurisdiction. ln this zs case there was no decision of the High Court, be it an order so that the Court of appeal either "confirmed, varied or reversed the judgment or order", of the High Court in the exercise of its original jurisdiction. The emphasis is on the words that the Court of Appeat eilher confirmed, varied or reversed a decision of the High Court in the exercise of its originat jurisdiction. lt is 30 important to hightight the fact that this Court exercises the jurisdiction of a second appel'tate court and the law emphasizes that the High Court must have exercised original. jurisdiction in the matter. Apparentty no attempt was made to appty for extension of time in the High Court and there is no order of the High Court. There is onty an order of the Court of Appeat which 3s is outside the ambit of section 6 (1) of the Judicature Act. 5 Apart from finding that it is not a requirement to seek leave to appeal under rute 39 (2) in the circumstances, which finding disposes of the consotidated apptication, such applications for leave are ordinarity first fited in the first appettate court. The first appettate court is the Court of Appeat and the rute envisages that the apptication was first refused by the Court of Appeat. ln such an anomatous situation where the High Court never had a say, f irst of a[[ as to whether to set aside the ex parte decree and secondty as to whether to extend time to fite a notice of appeat out of time in the High Court under rute a0 (2) of the Judicature (Court of Appeat Rutes) Directions, the apptication is incompetent. Further an apptication for leave shatt first be made informalty in the Court which issued the order at the time the decision is detivered or within 14 days by f iting a formaI apptication for leave in terms of rute 39 (2) (a) of the Rutes of this Court. Paragraph 7 of the affidavit of Ojiambo Bichachi, in support of the apptication onty states that after dismissaI the appticant was dissatisfied and requested for a copy of typed proceedings. The affidavit does not depose to any grounds for fil.ing the appl.ication for leave direct[y in this Court instead of frrst in the Court of Appeal. as required by the Rute 39 and al (1) of the Rutes of Court and the hotding of the Supreme Court in G.M Combined (U) Ltd Vs A.K. Detergents (U) Ltd; (Civit Apptication No. 23 of 1994) [1994] UGSC 3 is that the rutes provide that the apptication for leave shatl' first be made informal.ty at the time the decision is made to court issuing the order or formatty within 14 days after the order intended to be appeal.ed against is issued. Where the apptication is refused, it can then be fited in this court. The rute which was considered by the Supreme Court then is now cited under the revised Rutes of this Court as rute 41 and is to the effect that apptications for leave to appeal shatt first be made to the Court of Appeal,. Rute 41 (1) provides that: 41. 0rder of apptications to the court and to Court of Appeal.. (1) Where an apptication may be made either to the court or to the Court of AppeaL, it shaU. be made to the Court of Appeat first. 10 15 25 30 7 35 20 ) 10 (2) Notwithstanding subrute (1) of this rule, in any civiI or criminaI matter, the court may, in its discretion, on apptication or of its own motion, give leave to appeal and make any consequentiat order to extend the time for the doing of any act, as the justice of the case requires, or entertain an apptication under rute 6(2)(b) of these Rules to safeguard the right of appeat, notwithstanding the fact that no apptication has first been made to the Court of Appeal,. The appLicant has not advanced any grounds to proceed under rul.e 41 (2) and did not comp[y with ruie al (l) of the RSC. 15 I woutd find that the current apptication as purports to proceed under the inherent powers of Court expressed under rute 2 (2) of the Rutes of this Court is incompetent and atso avoids the specific rute for extension of time which is fited independentty where the lower court has refused leave but does not envisage an appeal from a refusat. The appl,ication avoids rute 5 of the Rutes of this Court which deal.s specif icatty with extension of time. Att in aLL, I concur with the decision of my learned sister Musoke, JSC that zo the apptication be drsmissed because as currentty framed, this court lacks jurisdiction to entertain it. Further I find that it is an anomatous apptication and borders on abuse of court process. To grant the apptication under rute 5 of the Rutes of this Court woutd be inequitabte because the appticant has never exhausted or attempted to exhaust the avenues open to it in the High 2s Court before pushing its issues to the Court of AppeaL after faiting to proceed with its defence. The applicant, instead of making a fresh apptication in this court under rute 5, decided to applLy for leave to appeaI under rute 39 (2) of the Rutes of this Court when no leave to appeal is prescribed in its circumstances. 30 ln any case, the appLicant did not f irst seek leave of the Court of Appeat in terms of ruLe 39 (2) (a) and 41 (1) of the Rutes of this Court and intends to proceed in a manner not envisaged in the rutes. 8 ln the premises, I concur with the ruting and orders of my learned sister Musoke, JSC that the apptication be dismissed with costs. Dated at Kampata the J.3lay of ,A^-- 202t+ 5 -.> 10 fls opher Madrama lzama Justice of the Supreme Court (- cl lrr" lr "."c .-Tr-a) 9 THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT KAMPALA MISCELLANEOUS APPLICATION NO. 13 OF 2OL9. CORAM: Mwondha, Tibatemwa-Ekirikubinza, Chibita, Musoke, Madrama, JJ.SC ATTORNEY GENERAL APPLICANT VERSUS HAJJI SWAIBU NIIWEAINE KIKWANZI RESPONDENT RULING OF CHIBITA JSC This is an application by Notice of Motion brought under Rules 2(2), 4l(2l', 42 and 43 of the Supreme Court Rules as well as Article 126(21(el of the Constitution seeking orders that: a. Leave be granted to the applicant to appeal the Ruling/ orders in consolidated Court of Appeal Civil Applications Nos. 156 and 149 of 2018. b. Costs of and incidental to this application be provided for. The application is supported by an affidavit deponed by Mr. Ojiambo Bichachi, a State Attorney in the Attorney General's Chambers. The grounds deponed in the affidavit are that: 1. The applicant filed in the Court of Appeal Consolidated Applications Nos. 149 and 1 56 of 20 I 8 seeking orders to enlarge time and validate the Notice of Appeal which had been filed out of time. 2.On 12rh June 2O19, the Court of Appeal dismissed the Consolidated Applications with costs to the respondent. 3. The applicant was dissatisfied with the ruling of the Court of Appeal which cannot be appealed against as of right. 1 4. The applicant therefore seeks leave of this Court to appeal against the ruling of the Court of Appeal which refused to extend time within which to file a Notice of Appeal. 5. That the intended appeal raises several legal issues that warrant serious judicial consideration by the Supreme Court in order to see that justice is done. Hajji Swaibu Nuweaine Kikwanzi, the respondent deponed an affidavit in reply, objecting to the grant of the orders sought. He deponed that: i. The orders that were issued in the Court of Appeal are not appealable by right and therefore the applicant has no right of appeal whatsoever. ii. The applicant cannot seek leave to appeal against such orders directly from the Supreme Court but can only do so in the Court of Appeal. iii. That the application before Court is '*,ithout merit and only meant to oppress him further in spite of the fact that the original suit was filed way back in 2O10. Background ofthe case. The facts leading to this case were that: The respondent had two bakeries, one in Hoima District and another in Kajjansi Nakigalara along Entebbe road Wakiso District. In 2OO8, he decided to sell his bakery in Hoima in order to concentrate on the one in Kajjansi. At the Hoima factory, there were three sets of baking machines, one belonged to the respondent whereas the other two belonged to his wife Aisha Nowangre and his brother Habib Namanya. On 26th July 2O08, the respondent sold his bakery machines and factory premises in Hoima to Paddy Kabaija (hereinafter called the purchaser). The sale excluded the two machines that belonged to his wife and brother and these machines were to be removed from the sold premises by the same to allow the new owner of the premises utilize them. When the respondent's wife 2 and brother removed the two bakery machines and tried to transport them to a different location, the purchaser informed the police about an alleged theft of the machines which led to the interception of the truck that was moving the machines at Kiboga. The machines were then taken to Hoima Police Station. On 28th August 2OO8, the purchaser together with the police also went to the respondent's bakery in Kajjansi and impounded the other bakery machines that were in that bakery. What followed was the unsuccessful prosecution of the respondent and his wife for the offence of theft. The respondent was later acquitted on the charge of theft on 81h September 2011. Attempts to recover the impounded bakery machines from the police were futile. The respondent then brought HCCS No. 191 of 2O1O, Haiii Swaibu Nuweaine Kikwanzi vs. Attorney General, for compensation for loss of bakery machines amounting to Shs. 96,0OO,OO0 (ninety six million only), loss of income, general damages, interest and costs of the suit. The Attorney General was sued in his capacity as the statutory defendant under section 10 of the Government Proceedings Act for the alleged acts of the Uganda Police Force. The proceedings in the trial court were ex parte as the applicant did not attend court despite several adjournments to a-llow the Attorney General present his case. On 4th September 2017, seven years after the initia-t filing of the suit, the High Court allowed the suit and made the following orders: (i) Compensation for loss of business at Shs. 4,OOO,OOO/= per day from 2008 till payment in full. (ii) Special damages of Shs. 96,000,000 l= for the three baking machines, for the construction of two ovens, sixty baking trays and sixty baking tins based on receipts tendered. (iii) Interest on i and ii above at court rate of 60/o per annum from 2008 till payment in full (iv) General damages of Ug. Shs. 20,000,000/= 3 (v) Costs of the suit are also awarded to the plaintiff. No Notice of Appeal was filed within the 14 days allowed by the (Court of Appeal Rules) Directions. On 23.d October 2017, the applicant wrote a letter requesting for a copy of proceedings in the High Court approximately a month and a half after the delivery of the High Court judgment. This letter was not served on the respondent who then proceeded to apply for execution of the said decree. In May, 20 18, approximately 8 months after delivery of the judgment of the High Court, the applicant filed an application for extension of time in the Court of Appeal vide CAC Appl. No. 149 of 2018 and CA Appl. No. 156 of 2918 for validation of the Notice of Appeal that had been filed out of time. The Court of Appeal denied these applications based on the dilatory conduct of the applicant which the court said would be prejudicial to the respondent. Being dissatisfied with the decision of the Court of Appeal, the applicant lodged this application in this Court for leave to be granted at appeal against the orders of the Court of Appeal. Court's consideration. The applicant's Motion on Notice sought leave to appeal against interlocutory decisions of the Court of Appeal in CAC Appl. No. 149 and 156 of 20 l8 in which the Court disallowed the applicant's prayers for enlargement of time within which to file a Notice of Appeal and validation of the Notice of Appeal filed outside time. The applicant ought to have been cognizant of the fact that there is no right of appeal from interlocutory orders of the Court of Appeal. This was not a third appeal governed by S. 6(2) of the Judicature Act. Be that as it may, the pleadings in this matter point to an illegality which this Court as the final Court of the land is obliged to correct. It is clear that the intended appeal concerned a matter of law of great 4 public importance and it is the Supreme Court's overall duty to see that justice is done, that the appeal should be heard. There are two instances of illegality. The one to do with the award of special damages that were not specifically pleaded. The other is to do with the way the Court of Appeal handled the application and called for the High Court record without hearing from the parties and especially the applicant. I will start with the way the Court of Appeal handled the application. It evaluated and appraised the High Court record and made up its independent mind and took a decision. The Constitution Article 44 prohibits derogation from particular human rights and freedoms as follows: - Notwithstanding anything in the Constitution there shall be no derogation from the enjoyment of the following rights and freedoms: (a) ... (b) (c)the right to fair hearing. This is where this Court has to pronounce itself, the duty this Court has in ensuring that justice is done to put the record clear. It is apparent that by the Court of Appeal calling for the High Court record and eva,luated and appraised it, which record of the High Court was not part of the pleadings the applicant filed in Court, the appeal was pre-emptied and the applicant was deprived of the right to defend it. It is observed that the Ruling of the Court of Appeal did not only stop at refusal to grant the application for extension of time by striking out the Notice of Appeal but actually determined the appeal without a hearing from the applicant. The following, is very clear. The Court of Appeal in its ruling stated; "In determining whether there is sulficient cause within the meaning of rule 2(2) of enumerated aboue. We haue considered uhether the intended appeal has chances of success as expressed bg the 5 applicant. In so doing we uishto express our dismay at the applicant's failure to file a memorandum of appeal. Such memorandum u.tould haue assisted us to understand better or easilg the possibilitg of success the applicant claims to warrant sufficient cause...the choice in this application to file for extension and ualidation of onlg the Notice of Appeal falls short of the requirements for consideration of sufficient camse,.." It is worth noting that the Court of Appeal ignored Rule 5 of this Court Rules and was bent on permitting injustices and illegalities to flourish. It is clear that the Court of Appeal after evaluating and appraising the High Court record, confirmed the High Court ex parte judgment and orders. In that eventuality, the orders made were appealable to the Supreme Court as of right pursuant to s. 6(1) of the Judicature Act. It follows therefore that the applicant ought to have proceeded under rule 79 of this Court rules to appeal against the decision and orders of the Court of Appeal. The above notwithstanding, it has been stated over and over that procedural rules are to guide the procedure and they are handmaidens of justice and are not intended to defeat it. In a persuasive decision/authority in the case of Air 2OOS SC 33O4 Smt Rani Kusumu v Smt Dani; it brought it out that, proced ural law is not to be tvrant but a servant not an obstruct but an aidlo iustice. 6 I While George CJ in the case of Essajiv Solanki [1968] E.A 218 at gage 222 said; "the administration of justice should normally require that the substance of all disputes should be investigated and decided on their merits and that errors, lapses, should not necessarily debar a litigant from pursuit of his rights unless if a lack of adhering to the rules renders the main purpose of litigation namely the hearing and determination of disputes, should be fostered rather than hindered. Each case must be decided on the basis of its own circumstances." a See also: Boney M. Katatumba v Waheed Karim SCC Application No. 27 of 2OO7 and Buyungo Samuel v Nyansiana Talidda & 6 others SCC Application No. L2 of 2O2L, which defined what sufficient reason means. The underlying justification was that even if the application is unduly delayed, the Court may grant the extension if shutting out the appeal may appear to cause injustice. In light of the above the application flaws have to be disregarded in favour of the big interest of justice. There is all the evidence on the face of the record that there was gross illegality which this Court cannot keep a blind eye. The /ocus classicus on illegality and how this Court is obliged to proceed in the face of illegality is the case of Makula International Ltd v His Eminence Cardinal Nsubuga & Anor, CACA No. 4 of 1981. The Court found, inter alia, that 7 The facts of that case are that a taxing officer awarded Shs. 1,900,0OO/= as instruction fees on the basis of the total value of the suit which he placed at 18,975,00O/=. The taxing officer had wrongly arrived at the total value by adding Shs. 1 L,975,OOO l= which was the initial estimated value of the suit to the amount of 7,0O0,000/= which the respondent had prayed for in the alternative as general damages. The appellant successfully applied for leave to appeal against the decision of the taxing officer in the High Court but its appeal was dismissed for being time barred after it filed the appeal 38 day after the grant 8 days outside the 3o-day period allowed under section 61(1) of the Advocates Act 1970. On further appeal to the Court of Appeal, the respondents raised several preliminary objections among which was that the court lacked jurisdiction to entertain the appeal because section 61(l) of the Advocates Act did not permit a further appeal to the Court of Appeal from a decision of a Judge of the High Court on matters of costs. "1. While the right of appeal to the High Court against an order of a taxing officer given by s. 61(1) of the Advocate Act, 1970 and the procedure for lodging such an appeal were laid down in the Taxation of Costs (Appeals and References) Rules (S.1 258-6) respectively, in both of those there was no provision for a further appeal. 12. The instruction fee of 1,9OO,OOO/= awarded by the taxing ollicer was based on an incorrect value of the suit as the value of the suit was 11,975,OOO/=. As the claim for general damages of 7,OOO,OOO/= for breach of contract was in the alternative, it should not have been added to the cost of production of the T- shirts to make it 18,975,OOO/= on which the instruction fee of Shs. 1,9OO,OOO/= was largely based. 13. The mode of taxation proceeded on wrong principles, totally ignoring the provisions of the law governing the taxation of costs. According to Schedule VI to the Advocates (Remuneration and Taxation of Costs) Rules S.I 258-61 and instruction fee to defend a suit where the subject matter exceeds Shs. 2OO,OOO is 5,OOO/ =. Although under the first proviso to the said schedule a taxing officer had discretion, bv taking into consideration relevant matters, such as the amount involved to vary in either direction of the prescribed fee, he is not entitled to completely ignore, as was done in the present case, the legal scale. In awarding Shs. 1,9OO,OOO/= which was more than 1O7o of the value ofthe suit, the taxing officer acted contrary to the law and the award was excessively high, unconscionable, oppressive and penal. 16. The Court could interfere with the taxing officer's order 8 despite the fact that the appeal was incompetent. A Court of law cannot sanction what is illegal and illegality once brought to the attention of the Court, overrides all questions of pleadings including any admissions made thereon. An award of Shs. 1,9OO,OOO/= instruction fee which was manifestly excessive and a contrary to law amounts to an injustice to the appellant and an abuse of court process." The Court after consideration of the principles of law governing taxation of costs, set aside the 1,90O,OOO/= that had been awarded as instruction fees and substituted it with 57,O00/= to cover the respondent's advocates costs. The following principles enunciated by the Court of Appeal (the then Apex Court) in Makula International Ltd v His Eminence Cardinal Nsubuga (supra) are still good law and this Court is bound to follow them. These principles can be summarized as follows: (i) Judicial power is a creature of the Constitution and has to be exercised by Courts in conformity with the law. (See Article 126(ll of the Constitution). (ii) The failure of the Court to operate within the parameters or Iegal scale imposed by statute and case law amounts to an illegality. (iiil The Court as the final court of the land has the power to interfere with a decision or an order that is contrary to the law even where the pleadings from which the illegality emanates are incompetent or where it would ordinarily have no jurisdiction to do so under statute. (iv) A Court cannot sanction what is illegal and illegality once brought to the attention of court overrides all questions of pleadings. The said illegality is rooted in the manner in which the trial Judge awarded compensation for loss of business income. I wish to start off by discussing the classifications and nature of damages awarded in civil suits as compensation for breach, torts, negligence etc. The legal principles governing the award of compensation for damage, loss or injury suffered was discussed in the case of Robert Coussens 9 v Attorney General, SCCA No. 8 of 1999. Order, JSC stated as follows: "The object of an award of damages is to give the plaintiff compensation for the damage, loss or injury he or she has suffered. The heads or elements of damaqes recognized as such bv law are divisible into two main groups: pecuniary and non- pecuniary loss. The former comprises all financial and material loss incurred, such as loss of business profit, loss of income, or exDense such as medical exDenses. The latter comorises all losses which do not oresent inroad u pon a Derson's financial or material assets such as phvsical pain or iniury to feelings. The former, being a money loss is capable of being arithmetically calculated in money, even though the calculation must sometimes be a rough one where there are difficulties of proof. The latter, however, is not so calculable. Money is not awarded as a replacement for other money, but as a substitute for that which is generally more important than money: it is the best that a Court can do, damages have to be measured in order to arrive at what compensation should be awarded." It is clear from the foregoing that damages are classified under two heads namely: 1. Pecuniary damages u,hich include all financial, material loss incurred such as loss of profit, income, or expenses incurred that can take the form of medical expenses. 2. Non-pecuniary damages on the other hand are not financial or material but rather physical pain or injury to feelings. The respondent's prayers in the plaint which lormed the foundation of the trial Judge's ordcrs rvere lramed as follon s: 'WHEREFORE the plaintiff prays for judgment to be entered against the Defendant for: i0 I I a (af Adequate compensation for the loss of baking machines mentioned under paragraph 6 here in above. (bll,oss of income from 28th /8/2OO8 until pavment in full lc)General damages for inconvenience. (d)Interest (e)Costs hereof." (Emphasis added) I am concerned with prayers in item (b) and (c) which constitute prayers for pecuniary damages. Oder JSC in Robert Coussens v. Attorney General (Supra) further broke down pecuniary damages into 2 classifications i.e. pre-trial loss of earnings and post-trial loss of earnings. He stated as follows: "In cases of pecuniary loss, such as claimed in the present, it is Casyl4elfCb to apply this rule in the casq qf earnings which have actually been incurred up to the date of trail. The exact or approximate amount can be proved and, if provided, will be awarded as special damages. In this cate gory falls income or earning lost between the time of injury and the time of trial. But in the case of future financial loss whether it is future loss of earnings or expenses to be incurred in the future, assessment is not easy. This prospective loss cannot be claimed as special damages because it has not been sustained at the date of the trial. It is therefore, awarded as part of the general damages. The plaintiff no doubt would be entitled in theory to the exact amount of his prospective loss if it could be proved to its present value at the date of the trial. But in practice since further loss cannot usually be proved, the Court has to make a broad estimate taking into account all the proved facts and the probabilities of the particular case." (trmphasis added) He used the "date of trial" as a threshold to separate pecuniary loss that can be claimed and proved as "special damages" and those that can be claimed and proved as "general damages." He stated further that: 11 , "As the authorities to which I have referred in this judgment clearly indicate pre-trial loss of earnings may be claimed and proved as special damages while post - trial loss should be claimed as eneral dama es assessment of which is left to the discretion ofthe trial Court, based on relevant facts having been proved. One of such facts which must be proved is the actual earnings or income at the time of the injury. However. pre-trial loss of earnings may also be left to the trial Court for assessment together with post-trial loss as part of the general damages." (Emphasis added.) Pecuniary damages that fall under "pre-trial loss of earnings" are those that may be claimed and proved as special damages share most if not all characteristics of special damages. That is to say; at the time of the trial: (i) They are "actually" earning that have been lost or expenses incurred from the time of the breach by the defendant up to the date of the trial. (iii) They must be specifically pleaded and proved at Court. Post-trial loss of earnings is more difficult to ascertain since they have not been sustained or incurred at the date of trial. They can therefore, not be claimed and proved as special damages but are instead claimed as general damages which allows the Court discretion putting in consideration the proven facts and other peculiarities of the case. In some instances, pre-trial loss of earnings may be left to the discretion of the trial Court for assessment together with post-trial loss of earning as part of general damages. 72 (ii)The exact or approximate amount of the earnings lost or expenses incurred can be ascertained and proved. I The afore discussed principles governing the assessment and award of damages clearly place the order of Mugambe, J outside the ambit of the law. I will reproduce it for casier reference. (i) Compensation for loss of business at Ug. Shs 4,OOO,OOO/= per day from 2OO8 till payment. Her justification for the amount is stated at page 4 of the High Court judgment. It was stated that: "The plaintil?s witness demonstrated that once the Kajjansi bakery machinery was taken on 28th August 2OO8 the plaintiff lost daily income saying that he was producing 2,5OO loaves of bread a day each loaf selling at Ug Shs. 2OOO/=. The plaintiff does not give us a value in regard to the loss of income from 2OO8 up to date at the rate ofUg. Shs. 5, OOO,OOO/= a day. I am not convinced that the computation should take the value of 2,5OOl= loaves a dav because like any business, some davs are bad SI law business days thatr otbers. I consider that the 5,OOO,OOO/= income a day is a bit exaggerated I also have no specific figure to it. Rather I will consider the value of cakes as part of the value assigned to daily income lost from the bakery. (Emphasis added) The first error contained in order (i) is that the Court did not apply the distinction between pre-trial loss of earnings (special damages) and post -trial loss of earnings (general damages) as required by law. The trial Court merely made an assessment outside the known principles and allowed it to run from28 l8l2OO8 the date on which the Uganda Police Force impounded the respondent's Kajjansi bakery machines till payment in full. This alone makes the order null and void. Secondly, the pre-trial loss of earnings was neither specifically pleaded nor proved as should be for special damages. This goes 13 i a against Order 6 rule 3 of the CPR provided that in all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, willful default or undue influence, and in all other cases in which particulars may be necessary, the particulars with dates shall be stated in the pleadings (Emphasis added). Similarly, in the case of Musoke v. Departed Asians' property Custodian Board and Another [199() - L9941I EA 219 (SCU| the uniqueness of special damages was explained. The Court held., inter alia that: "Special damages are such a loss as the law will not presume to be the consequences of the defendant's act. It depends on the special circumstances of the case, must always be explicitly claimed in the pleading and at the trial it must be proved by evidence both that the loss was incurred and that was the direct result of the defendant's conduct." The same requirement and standard to spccificallv pleacl and prove special damages respectivelv does not bccomc any lcss on account of the failure of the defendant to enter appearance. ln the case of Mutekanga v. Equator Growers (Ul Ltd [1995-19981 2 DA 2L9 (SCU), it rvas held: "They must also be proved exactly, that it is to say, on the balance of probabilities. This rule applies where a suit proceeds inter-parties or ex parte. It follows that even where as in the instant case, the defendant neither enters appearance not file a defence, the plaintiff bears the burden and standard of proof does not become any less. As the learned author stated in MC Gregor on Damages (4 edf at 1O28, the evidence in special damages must show the same particularly as it necessary from its pleading. It should therefore, normally consist of evidence of particular losses such as the loss of specific customers or specific contractors. However, with proof as with pleadings, the 74 a Courts are realistic and accept that the particularity must be tailored to the facts." The rest of order (i) that awarded Ug. Shs.4,0OO,0OO/: per day for the post-trial period which would in this case constitute part of the general damages is also null and void for failure to take into consideration the laws governing the award general damages. Similarly order (iv) of Mugambe J's judgment under which the respondent was awarded Ug. Shs. 20, O00,O00/: as general damages is quite insufficient to compensate the respondent for the damage and inconvenience suffered by him when the police impounded his Kajjansi bakery machines. We find this to be a case fit for the assessment of both pre-trial and post-trial loss of earnings together as part of the general damages. The principles that guide the assessment of quantum of damages 'd,ere set out in this Court's decision of Kibimba Rice Ltd v. Umar Salim SCCA No 17 of 1992, where it was stated that: "A plaintiff who suffers damage due to the wrongful act of the defendant must be put in a position he or she would have been in had she or he not suffered the wrong. When assessing quantum of damages, the Courts are guided by the value of the 15 Apart from the testimonies of the respondent's 3 witnesses that the respondent's bakery business was making Ug. Shs. 5, 000,000/: daily, nothing specific in form of receipts, or records was adduced to help Court arrive at the net figure. This shortfall meant that the respondents claim for the pre-trial loss of earnings did not meet the standard of proof required for special damages. The award of Ug. Shs.4,00O,O0O/=daily that the trial Judge awarded to the respondent as lost business income between the period of 28 l8l2OO8 to the date of trial therefore was made contrary to the law on that account as well. a subject matter, the economic inconveniences that a party may have been put through and the nature and extent ofbreach." The need for restitution ranks highest on the list while other considerations such as value of subject matter and economic inconvenience occasioned due to breach follow in importance. The facts at hand show that the respondents Kajjansi bakery machines worth 96,000,000/= were wrongly impounded by employees of the Uganda Police Force on 28 l8l2008 leading to the collapse of his bakery. The respondent and his wife were imprisoned and unsuccessfully prosecuted in the Chief Magistrates Court of Hoima at Hoima, and thereafter attempts to recover the impounded machines were futile. Attempts to have this dispute resolved earlier on were thwarted by the conduct of the applicant who delayed the Court process to date. I take note of the testimonies of the respondent's witness who informed Court that the respondent's bakery business was producing 2,500 loaves a day each selling at Shs. 20O0/= which would total to Shs. 5, 000,000/:. I am are also aware that businesses face many contingencies that can affect the output of the business such as wear and tear, pandemics like Covid 19, power shortages etc. In my view the amount of Shs. 3, O0O,O00,00O/= is sufficient compensation for loss of business income. In the result, I make the following orders: - (a) The award of Shs. 4,000,000/: per day as compensation for loss of business from 28'h I 8l2OOB till payment in full is hereby set a side. (b)The award of General damages of Shs. 20,000,000/= is also set aside. (c)Special damages of Shs. 96,000,000l= for the three baking machines, for the construction of two ovens, sixty baking trays and sixty baking tins based on receipts tendered is maintained. 16 I a (d)General damages of Shs. 3,OOO,000,OOO/= (three billion shillings only) are awarded to the respondent. (e) Interest on (c) above at the court rate of 6oh frorn the date of the suit till payment in full (f) Interest on (d) above at the court rate of 6ok from the date of judgment till palrnent in full (g) Costs of the suit in this court and the courts below to the respondent. Dated at Kampala this Yr-. ....... day of.... ,''r,*....... 2024. s Mike Chibita Justice of the Supreme Court. g,-a-) (, (+ 71 V)--\^".^---&..- t I THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT KAMPALA MISCELLANEOUS APPLICATION NO. 13 OF 2019 CORAM: (MWONDHA, TIBATEMWA-EKIRIKUBINZA, CHIBITA, MUSOKE, MADRAMA, JJ.SCI APPLICANT VERSUS HAJJI SWAIBU NTIWEAINE KIKWANZI RESPONDENT RULTNG OF FAITH MWONDHA, JSC I had the benefit of reading in draft the ruling of my learned brother Chibita, JSC, and I concur with the analysis, decision and the orders proposed. I have nothing useful to add. Decision of Court: The three Justices of the Coram concurred that the application should be dismissed and the two Justices disagreed. The application is therefore dismissed in the terms and orders as proposed in the lead judgment of Musoke, JSC. Dated at Kampala this 3 day of. /,.-s-/......2024. Faith Mwondha Justice of the Supreme Court. I\--.\^^-^-""o- % eGD Rqr t3 / L />.t (-\ >;*fr \-../ ey ATTORNEY GENERAL Yiu^4&eu!.