Balyejusa v Development Finance Company Limited (Civil Application 34 of 2000) [2001] UGCA 30 (26 March 2001)

roused for the capallant is the THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT KAMPALA **CIVIL APPLICATION NO. 34 OF 2000**

CORAM: HON. LADY JUSTICE L. E. M. MUKASA-KIKONYOGO, **DCJ**

## ALHAJ YAHAYA ZIRABA BALYEJUSA .................................... **VERSUS**

#### DEVELOPMENT FINANCE COMPANY LIMITED... RESPONDENT

(Arising out of the Judgment and Order of the High Court of Uganda(Ag. Justice R. . Okumu Wengi dated 14<sup>th</sup> October, 1999 in HCCS No. 99 of 1998)

### **RULING**

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This is an application brought under Rules 4 and 42 of the Court of Appeal Rules Directions 1996 for extension of time to file an appeal. It is also seeking an order of this Court for validation of an incompetent pending Appeal No. 18 of 2000.

The application is supported by an affidavit sworn by Yusuf Nsibambi and advocate of the High Court of Uganda and a partner with M/s Nyanzi, Kiboneka and Mbabazi, instructed Counsel for Alhaji Yahya Ziraba Balyejusa, hereinafter to be called the applicant sworn on 24<sup>th</sup> May 2000.


'l-hcrc is an allldavit in rcply deponed to by the Courts ol Judicaturc and thc Manager' l)cvcloptrtcnt I'irt:t nce Conrtrany Lirnilcd I'atrick ()gule, an advocalc ol of the l-egal Services of thc ; hcreinafter to be called the lLesporrdent

1-he background ol the application as can be deduced lrorn the record before Court is that the applicant allegedly executed a power of attomey in favour of the Offsat Intemational Company owned by his brother called Tezikuba. On presentation of the Applicant's title deed by Tezikuba's Company, the Respondent, a financial Institution, advanced the said Company with a Ioan. I-lou,ever, Tezikuba's Conrpany defaulted its loan payment. When tlrc Respondent tried to rc-alise its security bv enlorcing the mortgage tlie applicant sued the Respondent in HCCS No.99 ol 1998 allegedly for <sup>a</sup> forged signature. The applicant lost the said suit following which the Respondent sold the suit property on 22110199. However, transfer of the title to the purchaser was prevented by a caveat lodged by the applicant apparently to enable him file the intended appeal but which the Respondent saw as an attempt to stop enforcement of its rights.

The application is based on the following five grounds set out in the notice of motion as:-

'l'hc applicant's Counsel did neithcr copy nor serve the letter requesting lbr thc proceedings on counsel for thc llespondcnt within the prescribed tinrc lbr sufficient causc viz:-

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- a) 'fhe essential stcp required to commence on the appeal to wit service of the letter requesling proceedings onto Counsel for the Respondent was nor complied with. - tl lv,[/s Kibedi and Company Advocates, first Counsel for the applicant negligently and/or inadvertently failed to serve the lefter of request within the prescribed time thereby making the applicant's appeal barred. - "y M/s Nyanz-i, Kiboneka and Mbabazi advocates as Counsel for the applicanl upon taking inslructions fronr Kibedi and Company Advocates realized the inadvertent error outside the prescribed timc upon obtaining the applicant's file from his former Counsel. - a1 The applicant has filed Appeal No. l8 of2000 out oftime. - cy In the interest ofjustice it is fair and reasonable that the substance of the appeal be heard on merits without debarring either of the litigants, from pursuing their rights.

The affidavit of Nsibambi sets out the details of the grounds of the application. Miss Nakabuye, Counsel who appeared for the applicant submitted that the first three grounds of the application were interrelated and ildicated that the failure by the applicant to comply with the law u'as due to the mistake and negligence of his first Counsel. Due to sickness for two weeks the said counsel failed to take the necessary steps to comply with the requirements of the law. Ms Nakabuye relied on a number of authorities \*,hich included Muso Vs. Waniilu I970 liA 4851 I{a iiNurdin Matovu vs

llcrr l(in'arruh:r (.. A. No. ll ol 199 I antl l.lssaii and ()thcrs vs Solanki ( l96ri) li. A. 2 ili

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lrLrrl he r Ms Nakabuye citing l{rvcnz-ol i lnvcs(rncnt Linritcd vs NI'Al{.1 Civil Misc. Application No. 1-l of <sup>1992</sup> argucd that thc applicant in thc l)rcsent case should not be blocked on grounds of the lau,1'er's negligence. I{aving been vigilant the applicant should not bc penalised by relusing hirn leave to appeal because of the negligence of his counsel over whose actions he had no contrcl.

Commenting on the affidavit in reply deponed to by Patrick Ogule, dated l2 I;ebrr.rary. 2001. she asked this Coult to strike it out. 11 was incompelent and I'alse in that it told a lie atrout itsell. She argued that had the deponent perused the affidavit in support of the application as he claimed, he would not have referred to Yusuf Mbabazi's affidavit instead of Yusuf Nsibambi. She submitted that a document telling a lie about itself should be treated with susp icion. She cited the case of Knight vs Londorr Dover Railrvavs (1962) QB378 rvhere it was held that to give a false name is no better than giving none at all.

In reply, Mr. Bwanika, Counsel for the Responderrt, o;rposed the application. Ile submitted thar r.he applicant had not shown any sufficient cause to justify granting extension ,rf time. lt rvas lr{r. Bwanika's contention that the applicant was guilty of larches, indolence and iack of in(elest 10 persue the appeal. Whilst Counsel for the applicant went to great pain to expiain thc reason ior orrrission of the lorrner Counsel she gave no

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explanation for the delay of five months to file the present application. According to paragraph 2 of Nsibambi's affidavit he avers that instructions to conduct the appeal were taken over on December 14, 1999, surprisingly this application was not filed until 25 May 2000 after a period of five months.

It was Mr. Bwanika's submission that it is settled law that for the court to

grant extension of time there must be no inordinate delay on the part of the

applicant and he must be diligent. Counsel relied on the case of **Attorney**

General vs Oriental Construction Company limited. Application No. 7/90 where Plat JSC as he then was, faced with a similar situation, observed inter alia that "mistakes of Counsel may sometimes amount to sufficient cause but only if they amount to an error of judgment. Inordinate delay on the part of the advocate is not sufficient reason nor is negligence to observe or ascertain plain requirement of the law". On the basis of the observation, Mr. Bwanika submitted that five months is substantive delay.

Another complaint raised by Mr. Bwanika was that the appellant's application was not substantiated both in the motion and affidavit in support The letter allegedly written by M/s Kibedi and Company thereof. Advocates applying for proceedings but not served on the opposite Counsel contrary to Rule 82(2) of the Rules of this Court was not annexed to the application which left this court to guess whether it existed.

Further Mr. Bwanika argued that some documentary evidence should have been produced to verify the sickness of the former Counsel which the court was told lasted for some two weeks. Counsel again pointed out that the

judgment, comments on, and the reasons for the intended appeal were not mentioned as required by the law. Counsel once again relied on the decision of Platt JSC in Attorney General vs. Oriental Supra. He submitted that the intended appeal is an abuse of court process in that it is seeking to prevent the Respondent from enforcing its rights. He argued that the applicant has not shown any sufficient cause to justify grant of his application. He pointed out that Rule 82 of the Court of Appeal Rules is not a mere technicality perhaps as envisaged under Article $126(2)$ (e) of the **Constitution** of Uganda. The Court has a duty to balance the rights of all parties to the suit. Mr. Bwanika, therefore, asked this Court to dismiss the applicant's application with costs.

I heard the, addresses and arguments advanced by both learned Counsel for the parties; and I have carefully considered them together with the authorities they cited. I have also had a careful perusal of the affidavit in support of the application and the one in reply and all the documentary evidence annexed thereto.

For convenience I will start by examining the complaint raised by Ms. Nakabuye with regard to the affidavit in reply. It was not disputed by Counsel for the Respondent that there was no affidavit deponed to by Mbabazi. As explained by Mr. Bwanika on perusal of the record and in the context of this application it must have been a genuine error on the part of the deponent, Mr. Ogule, to refer to Mbabazi instead of Nsibambi in his affidavit in reply. I do not accept Ms. Nakabuye's submission that Ogule's affidavit told a lie about itself. It is clearly stated by Mr. Nsibambi in his

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affidavit that he is a partner of Mbabazi among others. I therefore agree with Mr. Bwanika that in the context of this application that mistake is understandable, it is purely a human error, but not a deliberate falsehood. There is no doubt that court is seized with discretionary powers under **Rule** 1(3) of the Rules of this Court to make such orders as may be necessary for attaining the ends of justice or to prevent abuse of Court process.

In the case of Zola and Another 1969 EA 69 cited by Mr. Bwanika, the Court of Appeal for East Africa held that a judge had a discretion to admit an affidavit though defective but not a nullity. The defect complained of in the affidavit of reply by Ms. Nakabuye is not so serious as to render the affidavit a nullity. In my view it can be amended under Rule $1(3)$ of the Rules of the Court of Appeal as applied by Mr. Bwanika. It is, hence, hereby ordered that the name of Yusuf Mbabazi mentioned in Patrick Ogule's affidavit in reply be substituted with that of Nsibambi.

The issue for this court to determine is whether the applicant has shown sufficient reason to justify grant of his application.

#### Rule 4 of the Rules of this Court provides that

" the Court may for sufficient reason, extend the time limited by these Rules or by any decision of the Court or of the High court for doing of any act authorised or required by these Rules, whether before or after the expiration of that time and whether before or after the doing of the act and any reference in these Rules to any such time shall be construed as a reference to the time as so extended"

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The law governing the exercise of the Court's discretion under Rule 4 is now well settled. It has been reiterated in a number of cases including Investment Limited vs N. P. A. R. T. Misc. Civil Application No. 43/97, Shanti V. Handocha (1973) E. A. 218, Mugo Vs. Wanjilu (1970) EA 488; Florence Nabatanzi Vs. Naume Binsobedde Supreme Court Civil Application No. 6 of 1987 and Sipiriya Kyaturesire vs. Justin Bakachulike Bagambe Civil Appeal No. 20/1995. The principles include the following:

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- a) First and foremost the application must show sufficient reason which related to the inability or failure to take some particular step within the prescribed time. The general requirement not withstanding each case must be decided on facts. See Mugo v Wanjiru supra. - b) The administration of Justice normally requires that substance of all disputes should be investigated and decided on their merits and that errors and lapses should not necessarily debar a litigant from persuit of his rights - See Essajiv Solanki supra - c) Whilst mistakes of counsel sometimes may amount to sufficient reason this is only if they amount to an error of judgment but not inordinate delay or negligence to observe or ascertain plain requirements of the law. Attorney General vs. Oriental Construction Limited Supra - d) Unless the appellant was guilty of dilatory conduct in the instruction of his lawyer, errors or omission on the part of Counsel should not be visited on the litigant.

c) \\,lrel.c an:il)l)licant instructctl a larvycr in tintc. lris riehts should rrOt bc hlockcrl on llr, lrourrcls ol'lris lau,r,cr's rrcgliucl,, e or <tnrissiorr to colnplr rr ith tlrc rc(llrir ('nlcnls ol lhc lrtu,

A vigilant applicant should not be penalised for thc l-aulls of his Counsel on whosc actions hc has no control. With the aforesaid principles in rnind ir was Mr. Bwanil a's contention that, due 10 larchcs, dilatory conducr and Iack of interest this application should be rejected. I would be Kclined to accept Counsel's submissions.

I agree with lr4s. Nakabuye that in the present application, the blame is to be put squarcl)' at the door of the applicant's fbrrncr (-ounsel Mr. Kibe'di. On thc evidence bt ibre Cour( the applicant instructrd Mr. Kibedi to lake the necessary steps and the relevant papers were filcd within the prescribed tinre. But through the mistake of counsel the requirements of rule 82 were not complied with. Further the five months delay by the present Counsel for the applicant, irr my view should not be blamed on the applicant but again on Counsel.

In any case on the facts of this case I would U" Stin"a to find the detay of five rnonths to be substantial ai submitted by Mr. Bwanika. The present application is distinguishable l}om that in thc case of Bhaichand Shah \/s. D. Jamilaclas and Company I-td I959 E. A.839 where it was l-reld that the failure by the applicant to explain delay in prosecuting appeal may lead application for extension of time refused. Again the failure by the applicant in the present application to annex the judgment and the reasons for the

intended appeal as contended by Mr. Bwanika in, my view was not fatal to the application. The facts of this application did not warrant such attachments. With regard to the complaint by Mr. Bwanika of Counsel's failure to produce medical documentary evidence to verify Mr. Kibedi's illness it was not necessary. Kibedi's illness was never disputed in the affidavit of reply.

All in all on the evidence before court the applicant's application must succeed. The order to revalidate Civil Appeal No.18 of 1999 is also granted. The applicant is given seven days hereof in which to take the necessary steps to file the intended appeal. Let the costs abide with the results of the intended appeal.

Dated this 26th day of March, 2001 at Kampala.

Henry 1. L. E. M. MUKASA-KIKONYOGO DEPUTY CHIEF JUSTICE