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THE REPUBLIC OF UGANDA
IN THE SUPREME COURT OF UGANDA
AT MENGO
CIVIL APPLICATION NO. 18/2002
BETWEEN
ERIC TIBEBAGA
...................................... APPELLANT
AND
FR.
NARSENSIO
BEGUMISA}.....................................................
B.
NTIMBA}............................................................................
D.
KOMUDA] ...................................................
RESPONDENTS
F.
KAMONDO].........................................................................
BEFORE A SINGLE JUDGE - HON. JUSTICE KATO, JSC.
DATE: 21st MARCH 2003
PROCEEDINGS
Makeera Salimu for applicant/appellant. Babigumira Blaiz for respondents. Ms.
Kimono Hadija court clerk. Makeera:
This is an application for
extension of time within which to file written submissions. The applicant was
ordered to file his written
submission by 31/10/2002 which he was not able to
fulfil within that time. The reasons for the failure are disclosed in my own
affidavit
dated 6/11/2002 accompaning the motion and another affidavit in
rejoinder dated 20/1/2003. The application is brought under section
99 of
Civil Procedure Act and rules 4., 41(1)(2) and 42(2) of the Supreme Court Rules.
Mr. Rudul was served twice on 31/10/2002 first
at Kabale by Silvest Ahimbisibwe
then by Moreen Nakato in Kampala so when Ahimbisibwe says he served him in
Kabale he is not telling
lies.
The bus which was brining Ahimbisibwe
from Kabale broke down before reaching Kampala. The reason why Rudul was served
twice is that
in Kabale he was, served personally but in Kampala Moreen served
him on behalf of the first defendant company. There is no faleshood
in the
affidavit in support of the application.. The court has a wide discretion in
this matter. Section 99 does not require any
reason to be given for granting
this type of application. It is in the interests of justice in this case that
the applicant be allowed
to file his written submissions as the respondents will
suffer no injustice if this application is granted. As for rule 4 of this
court
I would say sufficient cause has been shown in the affidavit in support of this
application. The negligence of a counsel should
not be visited on the
litigant.
This is a final court in this matter so any decision should be made after
taking into account all the pleadings from all the parties.
I pray that the application be granted since the submissions are already
ready even one day would be enough for us to file
them.
Babigumira:
Section 99 of Civil procedure Act is not
applicable to the proceedings in this court, the applicable law is rule 4 of the
rules of
this court which requires sufficient reasons to be given. The reasons
in this application are given in the notice of motion and the
affidavit in
support of the motion. Rule 42(1) of the rules of this court, requires that any
application must be supported by an
affidavit. In this case the supporting
affidavit was sworn by Mr. Salim Makeera counsel for the applicant, he has sworn
another affidavit
in rejoinder. Those affidavits are incurably defective for the
following reasons:
(a) They are contentions in that they alleges that Ahimbisibwe went to Kabale to serve defendants in a different case but we have shown affidavit that he did not go there and that the service was in that case: 594/2002 was effected by Moreen here in Kampala in the chambers of Makeera & Co. Advocates at 3.30 p.m. on 31/10/2002 but Makeera in his affidavit says that Ahimbisibwe served Rudul on 31/10/2002 late in the afternoon at Kabale, but in his affidavit in rejoinder he says the same man was served in Kampala at 6.30 p.m. (b) The affidavits contain hearsay because Mr. Makeera did not travel to Kabale, the right person to swear the affidavit in support of this application should have been Silver Ahimbisibwe. The affidavit in support of the application contravenes Rules 8 of the Advocates (Professional Conduct) Regulations 1977. That renders the affidavit incurably defective. (See: Yunusu Ismail T/A Bombo City Stage -V- Also Kamukama Supreme Court Civil Appeal 7/87 at 11 - 12; Chatrably Laximodas -V- Kanoni Importers & Exporters Barico Arabe Espousal -V- Bank of Uganda Supreme Court Civil Appeal No. 8/98 at 132 and Uganda Development Bank -V-Kasirye, Byaruhanga & Co. Advocates Civil Appeal 35/94 at 7).
The affidavit in support of the application
should be struck off the record and once that is done there will be no evidence
to support
the application; the rejoinder affidavit would also go. The
application would then be rendered incompetent on that ground alone the
application must fail.
I object to the motion on a more serious point in that
the application is based on falsehood. There is falsehood in the affidavits
of
Mr. Makeera in that Rudul was served in Kabale in the afternoon so late that the
clerk spent a night in Kabale on 31/10/2002 but
Moreen swore an affidavit (See
annexture "C" to Bibihunga's affidavit) to the effect that she served Rudul at
3.30 p.m. on the same
day of 31/10/2002. Another serious falsehood is in
paragraph 4 of Makeera's affidavit in support of the motion where he says on
30/10/2002
he went to the village on leave for 3 days but in paragraphs 5 and 6
of rejoinder he says he was in the chambers on 31/10/2002 when
Rudul went there.
This was before 3 days had expired. An affidavit containing deliberate falsehood
is insurably defective and it
must be struck out.
I pray that the application be dismissed with costs to the respondents.
Makeera:
Section 99 of Civil Procedure Act is applicable to this court as
it is applicable to all the courts, rule 4 which is a subsidiary
legislation
cannot override the provisions of the Act. There are sufficient reasons as
required by rule 4 to warrant the granting
of this application. There is nothing
in paragraphs 5 and 6 of the affidavits in rejoinder to show that I was in the
chambers on
31/10/2002. There is no contradiction as falsehood in these
paragraphs and paragraph 4 in support of the motion. There is no contradiction
in paragraph 8 of my affidavit in support and paragraph 5 of affidavit in
rejoinder about time, what appears in Moreen's affidavit
(annexture "C" to
Babihunga's affidavit) might be a misjudgment of time and it is a minor
irregularity.
The affidavit in support of the motion does not offend regulation 8 of Advocates (Professional Conduct) Regulations 1977. No matters have been stated as offending that regulation. The affidavits are not hearsay nor are they contentions. Paragraph 13 of my affidavit shows the facts which are of my own knowledge and those from other people; since I have stated the source of my information the basic rule about hearsay has been complied with.
I reiterate my earlier submission and prayer.
Court:
Application is adjourned for ruling on notice.
C.M. Kato
Justice of Supreme Court
21/3/2003
Byamugisha Kamugisha holding brief for Babigumira for
respondents. Makeera Salim for applicant absent although served. Kimono Hadija
court clerk. Court:
Ruling is delivered, signed and dated
C.M.
Kato
Justice of Supreme Court
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