Case Number APPEAL NO. 2 OF 2016

On 25th July, 2013 the Appellant filed Reference No. 5 of 2013 against the Attorney General of the Republic of Uganda with the Inspector General of Government, the Auditor General, the Public Procurement and Disposal of Public Assets Authority, National Medical Stores and Quality Chemical Industries Limited as Interested Parties. After serving the Interested Parties with the Reference, the Appellant amended his Reference and served the Interested Parties with Notices of Withdrawal. The Respondent along with Quality Chemical Industries Limited then separately filed two applications before the First Instance Division that were consolidated as Consolidated Applications No. 8 and 9 of 2014 arguing that the discontinuance of the matter against them was without an agreement in writing as to the terms of such withdrawal and the costs incurred. The Trial Court held that the Respondent was entitled to costs.

Subsequently, the Respondent filed its bill of costs and on 7th September 2015 the Deputy Registrar delivered a Taxation Ruling. Being dissatisfied, the Appellant sought to set aside the taxation award on 22nd September 2015, a day after the 14-day period prescribed by the Rules of Procedure. Thereafter, on 2nd October 2015 the Appellant filed Miscellaneous Application No. 9 of 2015 in the Trial Court seeking orders for the enlargement of time for lodging Taxation Reference and for the validation of the late filing of Taxation Reference No. 1 of 2015: Godfrey Magezi v National Medical Stores. The Trial Court dismissed the Application stating that the Court’s discretion to extend time under Rule 4 only comes into existence after sufficient reasons for extending time have been established. The Appellant’s Counsel did not provide any evidential proof in support of his statement in the Affidavit and so it not meet the rigorous standard of proof set out in Rule 4. The Appellant’s conduct was not irreproachable. He ought to have acted diligently upon learning that his Counsel would not meet the statutory deadline and requested that his case be attended by another lawyer from his Counsel’s law firm. The Appellant did not show that such a request had been made.

Being dissatisfied, the Appellant filed an appeal claiming that the Trial Court erred in law by declining to grant the Appellant’s Application for extension of time and validation of the late filing of Reference No. 1 of 2015 which was filed eleven days after the filing of the Taxation Reference. Counsel for the Appellant argued that: his failure to file the Reference in time should not have been visited on the Appellant; and the Trial Court erred in law in failing to follow the doctrine of precedent by failing to follow the ratio decidendi in the case of; The Attorney-General of the Republic of Uganda v. The East African Community Law Society & Another and Attorney-General of Kenya v Prof. Anyang’ Nyong’o & 10 others where the Court’s purpose is to administer substantial justice without undue regard to technicalities was emphasized.

In reply the Respondent submitted that the Appellant had failed in his duty to present evidence of the alleged incidents and the Trial Court could not be faulted for finding that insufficient reasons had been given for extension of time.

RespondentNational Medical Stores
ComplainantGodfrey Magezi
Date filed
KeywordAffidavit evidences , Extension of time , Precedential authority , Taxation
Treaty ArticleArticle 35 A , Articles of EAC Treaty , Rule 4 , Rule 99 , Rules of Procedure 2013

First Instance Judgment

VerdictHaving so held, we make the following final orders: I) The prayer for extension of time for filing Taxation Reference No. 1 of 2015: Godfrey Magezi v National Medical Stores against the decision rendered in Consolidated Taxation Causes Nos. 2 and 4 of 2014: National Chemical Stores & Quality Chemicals Industries Ltd v Godfrey Magezi is denied; ii) The prayer for validation of the late filing of Taxation Reference No. 1 of 2015: Godfrey Magezi v National Medical Stores is also denied; iii) This Application is therefore dismissed with costs to the Respondent as costs follow the event; iv) Consequently, Taxation Reference No. 1 of 2015 is hereby struck out. It is so ordered
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Date deliveredJune 30, 2016

Appeal Judgment

The question whether or not a Trial Court exercised its discretion properly is a matter of law and an appellate court will not interfere with a trial judge’s exercise of judicial discretion unless it is satisfied that the discretion was not exercised judicially. Such a conclusion can only be reached if it is established: that there
was a misdirection on law; a misapprehension of facts; or that the trial court took into account some irrelevant factors, or failed to take into account some relevant factors; or that in taking into account all the circumstances of the case, the decision arrived at was so manifestly wrong that an improper exercise of discretion must be inferred. 2. The wording of Rule 4 of the Court’s Rules of Procedure is permissive enough to allow the Court to take into account, suo motu, any reason or ground which is pertinent to the exercise of its discretion. In determining whether “sufficient reason” for extension of time exists, the court seized of the matter should take into account not only the considerations relevant to the applicant’s inability or failure to take the essential procedural step in time, but also any other considerations that might impel a Court of Justice to excuse a procedural lapse and incline to a hearing on the merits. Such other considerations will depend on the circumstances of individual cases and include, but are not limited to, such matters as: the promptitude with which the remedial application is brought; whether there was manifest breach of the rules of natural justice in the decision sought to be challenged on the merits; and the prejudice that may be occasioned to either party by the grant or refusal of the application for extension of time. We prefer this broad purposive approach as judicial discretion is a tool, a stratagem or a device in the hands of a Court for doing justice or, in the converse, avoiding injustice. 3. There was record of the Appellant’s own uncontroverted deposition of the steps he took to ensure that his Counsel filed the Application in time. Those depositions did not disclose sloth or dilatoriness on his part, they showed appropriate diligence. Statements made on oath in an affidavit are evidence and it was improper to treat them as mere statements or allegations which required evidential proof, as would have been the case if they had been made in a pleading. The Trial Court took the view that the deposition by the Appellant’s Counsel was an allegation or statement which required to be proved or substantiated by evidence such as a police report of the incident or factual particulars of the incident. Casting doubts on the veracity of such statements, without there being any rebutting evidence from the Respondent was a misdirection in law. 4. While decisions of Municipal Courts do not have precedential authority over EACJ, they may provide inspiration to particularly where they have been rendered by the highest tribunals in those countries and they are relevant to the matter under consideration in the Court. 5. The Trial Court failed to take into account some other relevant factors namely, that: the Taxation Reference raised the issue of the legality and equity of the impugned taxation; the period of delay in filing the said Reference was not inordinate; the Application for extension of time was filed promptly; and no prejudice to the Respondent had been shown. Consequently, the Trial Court did not exercise its discretion under Rule 4 judicially so the Appeal succeeds.
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Date deliveredMay 25, 2017