E. Musisi and Others v State Wide Insurance Co. Limited (Civil Application No 1 of 1989) [1990] UGSC 27 (9 April 1990)

Full Case Text

### THE REPUBLIC OF UGANDA

## IN THE SUPREME COURT OF UGANDA AT MENGO

CIVIL APPLICATION NO 13 OF 1989

| | | 15anin annes! | | |----|-----------------|-------------------------------------|--| | 1. | E. MUSISI | | | | 2. | HENRY BUKOMEKO | ::::::::::::::::::::::::: APPELLANT | | | | GEORGE KATANYWA | | |

#### VERSUS

STATE WIDE INSURANCE OC, ITE ...................................

#### R U L I N G

This is an application for Extension of time within which to lodge a record of appeal. It is not an easy application.

The chronological facts, as found in the affidavits of Mr. Henry Bukomeko dated 22nd November 1989, and Mr. Sendege, dated 1st March 1990, are that the impugned ruling of the High Court was given on 7th July 1988, after which Mr. Sendege applied for, and was granted leave, to appeal. The subject matter of the ruling concerned the competence of the Court to hear the suit. The ruling in fact rejected a preliminary objection, but the trial could not proceed because of this appeal . Notice of appeal was given in time on 14th July 1988. A few days before that, the intending appellant applied for copies of proceedings and judgment on 11th July 1988, and copied the application to the Respondent. Hence, having applied within 30 days of the ruling, the intending appellant could look forward to obtaining a certificate of delay, if necessary, and deduct the period taken in getting the copies, as provided by Rule 81 (1) and (2) of the Court of If there were no delay, the rdcord of appeal would Appeal Rules. have to be lodged within 60 days of the 14th July 1988; namely by

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14th September 1988. Unfortunately, there was a considerable delay, and the application before the Court is dated 5th Dec. 1989. The reasons given for this delay of over 14 months from 14th Sept $\ddagger$ . 1988, are that the copies of proceedings were so full of errors, that they were rejected and later retyped. The copies were first supplied on 9th March 1989, and they were re-submitted around 10th September 1989. After that there was a delay in printing the record of appeal.

The applicant has been given time to put this application on a firm footing after true adjournments. There are no very clear facts after 9th March 1989. It is agreed by Mr. Onega, acting Registrar of the High Court, that the record was full of errors and that he ardered it to be retyped. But there was no stationery available and the applicant provided some for this purpose. The applicant (Mr. Onega's affidavit is dated 28th March 1990.). Mr. Bulomeko says in his affidavit dated 28th February 1990 that the printing took up to 8th November 1989. It is difficult to know why this application was only brought on 5th December 1989.

Mr. Sendege preserved his case in this way. I must first notice that the application was amended on 23rd February 1990, and the grounds were amplified to include:-

(a). that the High Court failed to supply a copy of the

record to the applicant in time due to lack of stationary; a copy of the record supplied was so full of errors $% \left\vert \mathbf{r}\right\vert$

$(b)$ that it could not be used in the preparation of the record of appeal;

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Mr. Sendege contended that it was proper for him to couse a better copy to used in the preparation of the appeal, than the first one given him. It was not intelligible and the Supreme Court might have been misled. It was his duty to put forward an intelligible record. He had taken every step to keep the process moving along. He had sought special keep from the Registrar to get the new record typed. He had supplied stationery. He had done his best to get the printing done. He submitted that the delay was due to the Court and he being not to blame, his client should be allowed to appeal out of time. Indeed if the time from 14th July 1988 to 8th November 1989 is adduced the applicant would be in time. It seemed that Mr. Sendege was submitting that the 60 day period allowed by the Rules to lodge the record of appeal would run from 8th November 1989, and that reading Rule 4 8th Rules, where it is said that the applicant may apply before or after the period has ended, the application was brought in time.

Mr. Lutakome opposed the application, on the grounds that the applicant had not shown sufficient couse for the extension. Certainly Rule 4 lays down the condition that the applicant must show sufficient course before the court can exercise its distution<br> $\alpha$ in favour of granting further time. The $f_{\partial}$ ct that the Court registry did not act expiditionsly still did not excuse the applicant from acting diligently, and in his submission, the applicant could not be said to have acted diligently after 9th March 1989. Mr. Lutakome questioned the necessity of getting a further copy of the record. He questioned the dates as to when the new copy had been recieved, and he questioned the need to wait until December to bring

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the application. It was an interloctory appeal about a point of law, with a short record, and this could not take all this time to institute by lodging the record of appeal.

The arguments have raised important questions for determination without a great deal of p ertinent authority cited. The authorities that were cited resolve themselves into this proposition, that if the delay is caused by the court Registry, and the applicant has taken xx every step possible to prosecute the appeal, further time will be allowed to a blameless intending appellant.

But there is an overiding faction in this case, and that is that where an interlocutory appeal is taken, great care must be exercised in getting the appleal on as quickly as possible, in order that the trial may proceed with the minimum of delay. It is obvious that the longer an interlocutory appeal intervenes in the trial, the greater is the risk that the trial may be prejudiced. Therefore I would read Rule 4 of the Court of Appeal Rules as requiring an intending appellant to show sufficent cause in the light of the fact that the appeal is an interlocutory appeal, which must be brought forward as soon as possible. Indeed the Supreme Court itself has a duty to see that such appeals are disposed of with special urgency.

Having in mind, therefore, the duty to not eapiditiously, has the applicant shown that he has done all that he could do to lodge the appeal, except that the Registry prevented him from acting any Several subsidiary questions arise:faster?

- why did the applicant not file the record, bad as it was? $(i)$ - why did he not apply in extra time in September 1989? (ii) - why did he not apply in extra time in September 1989? (iii) - what did the certificate of delay state was the delay? $(iv)$

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On the first question, the record being typed was a short argument about the competence of the Court. I am told that the disputes giving rise to the suit before the High Court, namely, no 921 of 1986, arose out of earlier proceedings in suit no 1683 of 1984. In the latter proceedings Mr. Henry Bukomeko was not a party. A sale of property had been ordered, property was registered in the name of Mr. Henry Bukomeko. It appears however that the property was in the possession of another party. Mr. Henry, it seems, lodged a coveat, but he did not institute objection proceedings. It was agreed argued that Henry could not be needly the Respondent/Plaintiff Statewic wide Insurance Co. Ltd. The learned Judge thought that the Company could do so.

I say nothing as to the merits of this decision as the trial has yet to take place. I note that the specimen of the record shows some alterations and connections and that the language is intelligible except in one or two passages in the arguments of counsel. There may have been other documents also badly typed, which I have not seen. But judging from what is before me, the typing errors do not seem very grave.

That sounds churlish. Here is Mr. Sendege trying to put a proper record before the Court; trying to get it typed by a good typist (actually the Secretary of another judge), and getting the Registrar to help him, I gladly acknowledge all there efforts and I would have applanded the effort to put a correct record before the court, if it had not been for the fact that time was passing and lengthening into a possibly

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prejudicial situation. It is therefore a sadness to me, $\epsilon$ to have to say that the errors were not such that further delay was justifiable. I am sorry to say that I do not think that further typing was called for. This seems to be justified by the fact that the Registry had no stationgry and Mr. Sendega had to supply it. It seems to me on reflection that the second should have been prefered, and, if necessary, corrected later. After all, the courts of Appeal in East Africa rarely get a perfect record and the original is often referred to, to make corrections, on to ascertain that an obscure passage is exactly what the record does contain. I have not, of/course, compared the copy provided on 9th March with the original, lat the copy is generally intelligible without comparison, and need not have caused another 9th month's delay.

Similarly, it seems to me that the applicant would have $2.$ done well to have applied for a certificate of delay at once in March 1989, or to have brought this application then. If the record was rejected, it seems to me that it would have been much better to have applied at once for an extension of time, explaining the rejection. The $\epsilon$ ourt and the Respondent would have been apprised of the situation, and may possibly have been able to assist in saving time. It is strange that **the** Mr. Lutakome was never imformed what was happening. Advocates ought always to inform each other of official difficulties that prise.

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Having decided to have the record retyped, which was then ready in September, supposing that the time taken up to then would be certified, the record had to be ready in 60 days. The datum line is September not November as Mr. Sendega contended. If that period was going to be too short, application had to be made as soon as possible. If was not capeditious to bring it in December.

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I do not know what the certificate of delay states. It was looked at during argument. From what Counsel has said, it did not reach September 1989 and that may account in this vagueness in the date of delivery of the final copies. I do not understand why there should have been any vegueness about this date. None of the deponents would be specific. If the certificate existed it ought to have been exhibited.

It is my opinion therefore, that this a plication has not been brought expeditiously. But the fundamental question is whether the appeal record could have been lodged earlier? There I have no doubt that it should have been lodged within 60 days of the 9th of March 1989. The appeal has not been prosecuted in time, further time has not been sought in good time.

Yet I am mindful of Mr. Sendega's plea that he noted normally and should be excused. It is clear that Mr. Sendega was mistaken in trying to get a better copy. There is no doubt that his mistake arose out of incompetent registry work. Mr. Sendega ought not to have been persecuted with this dilemma. Perhaps it cannot be said whether or not he was actually wrong in saying that the printers let him That may be Mr. Lutakomu's view. There is nothing down.

else to confound Mr. Sendega on that point. But it is clear that Mr. Sendega could have applied for an extention before making up the record, and suffering the printer's delay. Mr. Sendega's two choices, to get a fairer copy, to get the record made up before applying in an extension, were unfortunate. They may perhaps be telerable in some circumstances. But in the case of an interlocutory appeal, where speed is necessary, they are not therable, and must be considered mistaken.

On that basis, can this mistake of an advocate be cured in the sense that it should not be visited upon the client? This approach is well explained (if I may venture to say so) $\frac{1}{2}$ by Lord Greene M. R. in GATTI VS SHOOSMITH (1939) 3 ALL ER 916. It is true that the discretion in that case was unencumbered by the need to prove a sufficient reason. But even where a sufficient reason must be proved, a mistake of an advocate alone, his client being blomeless, may be a special reason, so long as the delay is not great and the advocate has taken steps to put the mistake right. In this case, of course, Mr. Sendega thought he stood amongst the faithful adherents of good court practice. He took his time.

It will be seen that the problem in this case is that it stands on the borderline. Ofcourse the Registry put Mr. Sendega in a dilemma which he ought not to have faced. On the other hand helms not really been $\tau = y$ edplitions. might have been tempted to excuse Mr. Sendega because basically the delay was that of the court, except for a general

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$\mathbf{T}_{\mbox{he}}$ suit was commenced in 1986 and now almost consideration. four years later has not been entered into by the calling of witnesses. If the appeal is to be heard, by the time the record goes back to the High Court further time will have elapped and the case will be an old one. I apprehend that the parties are now in the area of risk in the presentation of the case. It seems to me that there is an overwhelming need to get the trial commenced. If I take the course, and Short out the appeal what damager will I do to the $np_1$ licant? Not as much as might at first be thought. The trial will continue on the basis of the impugned ruling, but first, two other parties are not involved in this appeal as yet, and secondly the applicant can re-submit his agreement at the end of the trial. If the learned Judge still disagrees with him, then the present applicant can appeal on this and every other point which arises. The applicant will not lose his right of appeal at that stage. Mr. Sendega says that he has been put to much expense. I expect he has; but it will not be Gasted in the main. The efforts to obtain proceedings and judgment will bear fruit, seeing these cories can be used in the final appeal. It appears to me therefore that there is more risk of loss if this appeal goes forward, than if it is not allowed and the trial goes forward instead. Consequently I find that on the facts of this case the delay should not be caused.

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In the result, I dismiss the application with costs.

Right of Review to the Full Bench explained.

Asthi:

# H. G. PLATT<br>JUSTICE OF APPEAL

$9/4/1990$

DELIVERED at MENGO

$\frac{1^{2\log 1/2}}{1}$

this 9th day of April 1990.

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