Bulwadda Kizito v Muluba Farm Limited and Another (Civil Application 92 of 2003) [2003] UGCA 24 (3 October 2003)

Full Case Text

# THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAIIPAI. A

CORAT: HON. JUSTICE G. U. OKELLO, JA. (Single Judge)

## Civil a lication no.926f 2003

#### Between

ZAKARIA BULWADDA KIZITO APPLICANT

#### AND

O 1. MULUBAFARTLTD. I

2. EVELRYN NATTENBO I RESPONDENTS (Applicadon arlses from HCCS No.393 of 1995)

### REASONS FOR THE RULING OF G, M. OKELLO JA.

On the 30' day of September 2003 I heard and allowed thrs appltcatron but reserved my reasons therefor whrch I now proceed to grve

The applicatron was brought under rules 4 42 (1t and (2) and 82 of the Rules of thrs court for orders that -

- 1 the trme rn whrch the apphcant should lodge hrs appeal against the deosron of the Hrgh Court rn HCCS No 393 of 1995 be extended and - 2 the costs of and rncrdental to thrs app[cation abrde the result of the appeal

The apphcatron was supported by an affidavtt affirmed by the appellant on 25-H3

The background facts to the appltcatlon are bnefly that the appltcant had through M/s Mwesrgwa Rukutana Advocates sued the respondents tn the High Court vrde HCCS No 393 of 1995 Hon Justrce Tabaro heard the case and drsmrssed rt on 6-9-2002 The appitcant was aggneved by that decrsron and rmmediately tnstructed hrs lawyers to commence appeal process on hrs behalf agarnst the decrsron On 16-9-02 hrs lawyers filed the notrce of appeal and sat back Two weeks later when he checked wtth them on the progress of the appeal the apphcant found that the lawyers had done nothrng more He wrthdrew rnstructrons from them and rn October 2002 rnstructed M/s Brrungr & Co Advocates to contrnue wrth the appeal process The latter firm of Advocates drew the Memorandum of Appeal copy of whrch they handed to the applicant and drd no more

On 1417D003 the apphcant checked with the Regrstry of thrs court and drscovered that hrs appeal had not been lodged He agarn wrthdrew O rnstructron from M/s Brrungr & Co Advocates and rnstructed M/s Mukrrbr Semakula and Kryemba-Mutale Advocates The latter firm advrsed for e!.tenslon of trme wrthrn whrch to lodge the appeal hence thrs applrcatron

At the commencement of the heanng of the app[catron. M/s Ssekandr & Co Advocates counsel for the respondents, sent no representatrve to appear for the respondent There was however evrdence of due servrce of the Notlce of Motron on them on 29-7-03 They wrote a letter dated 23" September 2003 addressed to the Regrstrar of thrs court ln the letter they

sought an adloumment of the hearrng of the applicatton on the ground that counsel who had personal conduct of matter was appeanng tn an appeal before the High Court

Mr Davtd Matovu leamed counsel for the appltcant, strongly opposed the reguest for ad.;oumment He reasoned firstly that ( was well settled that an adJoumment cannot be sought rn wnttng Secondly that the reason gtven did not constrtute suffiqent reason to.lustrfy grant of adJoumment srnce thts court takes precedence over the Hrgh Court

I agree wrth Mr Matovu Adloumment ts a matter of discretton of the court It is normally exercrsed rn favour of an applrcant where suffioent cause rs shown ln the rnstant case the method adopted by counsel for the respondent to seek the adloumment was not proper lt rs well established that adloumment should not be sought from court rn wntrng Counsel wrshrng to seek adjoumment has to appear tn person or rnstruct another to hold the brref for hrm for the purpose of applyrng for the ad;oumment Even the reason grven could not constftute sufficrent cause as thrs court takes O precedence over the High Court Therefore as no sufficrent cause was shown. I dechned the adlournment and allowed counsel for the applicant to present hrs applicatron ex parte rn accordance wth rule 55(2tof the Rules of thrs court

ln presentrng hrs apphcatron. Mr Matovu contended that the apphcant had all along shown dihgence rn havrng hrs appeal filed rn court withrn trme by tnstructrng hrs lawyers promptly and wrthrn trme He rs un-blameworthy for the delay He was only let down by the dilatory conduct of hrs lawyers

Leamed counsel submrtted that the negltgence of the lawyer should not be vrsrted on hrs cirent He relred on Paul Masiqa vs Toro & MiWana Tea Co. Ltd. Civil Application No. 79 of 1999.

It rs now well established that to extend the trme under rule 4 of the Rules of thrs Court rs a matter of discretron of the court The discretron rs exercrsed rn favour of the applrcant where sufficrent reasn rs shown lt was held by thrs court rn Alhaii Ziraf Balveiusa vs D'evelopment Finance Co. Ltd. Civil Application No. 34 of 20O0 that where an applcant had rnstructed hrs lawyers rn trme hrs rrght should not be blocked by hrs lawyer s neghgence or omrssron to comply wrth the requrrement of the law

The Supreme Court also held rn Haii Mardin Matovu vs Ben Kiwanuka, Civil Application No. 12 of 1991 that the mrstakes and blunders of the Legal professron should not be permrtted to interfere with the main arm of the ludicral seruce whrch rs to provrde for the orderly consrderatron of disputes on therr ments

ln the rnstant case paragraphs 5-10 of the apphcants affidavrt show that he was not blameworthy for the deiay He rnstructed hrs lawyers M/s Mwesrgwa Rukutana and Co Advocates rn ttme He was let down by the dilatory conduct of the advocates he engaged On the pnncrples stated above. those blunders c€n not be vrsrted on him lt was on those grounds that I allowed the applicatron and drrected that the applicant s appeal be

lodged within 30 days from 30-9-2003. I made no order as to costs.

Dated at Kampala this $3$ day of Settle-2003.

$C_{nl}$ $\overline{u}$ G. M. Okello

**JUSTICE OF APPEAL**