I. Thembi Okenya v The Attorney General of Uganda and Others (Civil Application No. 51 of 2001) [2002] UGCA 20 (14 January 2002)

Full Case Text

## THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

#### CORAM: HON. MR. JUSTICE A. TWINOMUJUNI, J. A. $\mathsf{S}$ (SINGLE JUDGE)

### **CIVIL APPLICATION NO.51 OF 2001**

#### 1. TIBERIO OKENY } $10$ **2. LEANDER KOMAKECH } ...................................**

## **VERSUS**

#### 1. THE ATTORNEY GENERAL OF UGANDA 15

- 2. THE EDITOR "NEW VISION NEWSPAPER" } - 3. THE NEW VISION PRINTING & }... RESPONDENTS PUBLISHING CORPORATION

# **RULING OF THE COURT**

This is an application for orders that:

(1) Time be extended within which to file and serve the Notice of Appeal, 25 Memorandum of Appeal and Record of Appeal arising from High Court Civil Suit No.401 of 1995

$(2)$ The costs of this application abide the result of the appeal.

The application is supported by an affidavit of Mr. Stephen Mubiru, counsel for the applicant dated August 2001. The application is opposed by all the three respondents whose counsel also filed affidavits in rebuttal.

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O Mr. David Sernpala, counsel for the 2"'r and 3"r respondents, filed an alfidavit he deponed to on l4'l'January 2002 and Mr. Henry Oluka, counsel for the l't respondent, filed an affldavit deponed to also on l4'r'January 2002.

The background to this application is as follows: l

In 1995, the applicants filed in the High Court Civil Suit No.40 I of 1995 against the respondents seeking damages for def'arnation. The suit was dismissed on l2'r'April 2000. On the 27'h April 2000, a Notice of Appeal was t'iled by their counsel. This was one day afier the period prescribed by the Rules of this Coum in which the Notice ol Appeal should have been filed. No application to extend the tirne was nrade as the said rules require. The same rules require that such a Notice of Appeal should be served on all the other pafties concerned within seven days of its being filed, but counsel fbr the applicants did not do this until l1'h May, 2000 which was eight days after the time prescribed by the rules. Again he did not apply to court lor extension of time as the rules require. The rules of this court also require that an appeal should be lodged within sixty days li'om the date when the Notice of Appeal was lodged in court. Counsel fbr the applicant did not file Civil Appeal No.67 ol 1000 until 27'r' November 2000 which was five rnonths out of time prescribed by the rules. Again he did not seek an extension of time from the court as required. For the next eight months, counsel for the applicants took no steps to correct the nutnerous anornalies I have outlined above. He claims in his affidavit that he did not realise that the anomalies existed until after 6'l'July 2001 when Civil Appeal No.67 of 2000 was flrst called for hearing. He then frled this application on l" August 2001 .

Meanwhile Civil Appeal No.67 of 2000 carne up again lbr hearing on l9'h September 2001. It seems up to that time, counsel fbr the applicants had not moved this court to dispose of this application belbre the appeal is heard. On the above hearing date, counsel for the respondents rrade a prelirninary objection on the grounds that the appeal was incornpetent tbr failure to comply with the rules of procedure as pointed out above. He recluested court to strike out the appeal tbr incompetence. Counsel for the applicants raised no opposition to this application save to point out that this application was pending in court. Civil Appeal No.67 of 2000 was struck ofI with costs to the respondents. This application was subsequently tixed fbr hearing this January 2002.

It can be seen frorn the above background that the applicant urade so many omissions or commissions in total disregard of the Rules ol this Court as follows: - I5

> (a)Failure to file a Notice of Appeal within l4 days as required by Rule 75(2).

- (b) Failure to serve a Notice of Appeal on respondents within 7 days as required by Rule 77( I ). - (c)Failure to apply for a copy of the proceedings from the High Court within 30 days from the date of judgment as required in Rule 82(2).

- o (d) Failure to serve the respondents with a letter applying for proceedings frorn the High Court (if any) on the respondents and retaining proofofsuch service - Rule 82(3). - (e)Failure to flle the appeal within sixty days fl'orn the filing of the Notice olAppeal - Rule 82( l). - (f) Delaying to flle a Memorandurn and Record of Appeal fbr seven months fi'orn the date olJudgment. - (g)Failure to realise that all the above rules had not been complied with for more than l5 rnonths.

Rr,rle 4 of the Rules of this Court under which this application ivas brought t5 states: -

> "The Court m:ry, lbr sufficient reason., extentl the time limited bl these Rules or by any decision of the Cou rt or of the High Court for the doing of any act authorised or required by these Rules, lvhether before or zrftcr the expiration of that time and whether beforc or aftcr the doing of the act; and any reference in these Rules to any such time shall be construcd as reference to the time:rs so extended."

a Betbre this application can be granted, the applicant must show sufficient cause fbr his t-ailure to comply with the various legal requirements as indicated above.

> In an eflbrt to do this Mr. Stephen Mubiru, learned counsel, for the applicant in his supporting affidavit dated the l" August 2001 deponed: -

## "2 That I reprcscntcd both plaintill.s (no\* applicants) in H. C.('. S. No. JOl of 1995.

- 3. That the said suit was on l2'r'April, 2000 decidcd against both applicants (plaintilfs thcn) rvho bcing dissatisfied and aggrievetl by' the decision instructed me to lodge an appeal to the Court of Appeal. - 4. That being heavily committed rvith other legal uork both in courts and chambers at thc time, I inadvetentll, failed to cause the Notice of Appcal to be filed rvithin the time allowed. Thc sante rvas filed one day outside the stipulatctl period, i.e. on 27tr' April, 2000. - 5. That for thc same rc:lson as statctl in paragraph four :rbove. I failecl to ciluse serl ice of the said Noticc of appeal on both rcspondcnts until I lrr'

a Mny', 2000 \*hich was eight days outsidc thc period stipulated by the rules.

- 6. That although at the time of filing thc Notice of Appeal I did apply for the record of proceeclings, and subsequently wrote a reminder for the sanre, none of the respondents was served lvith a copy of the samc as is required by the rules as a rcsult of my failure to effectively supervisc our law clerk in doing th is. - 7. That nevertheless, aller obtaining the rccord of proceedings, I dull' proceeded to cause the liling of the Appeal which rvas duly' filed in this court as Civil Appeal No.67 of 2000 filed on 27't' Novcmber,2000, - 8. That all the said imperfections leading up to and after the filing of the said Appc:rl are solell, attributed to m1'self and I came to realise the same after the said Appeal had becn adjourned by court, to the next convenient session. - 9. That I verily bclievc that the intencled appcal has a very high probability ofsuccess especialll sincc it rcvoh,es arouncl the detcrnrination of the

l5 defamatory quality of the words complained of by the applicants.

10. That it would occasion a grave miscarriage of justice if the applicants are penalised for errors of omission that $are$ clearly the sole responsibility of their counsel."

The only issue to be decided is whether the reasons given by Mr. Mubiru constitute "sufficient" to justify this court to exercise its discretion in favour $10$ of the applicants.

Mr. Innocent Kyakuha, learned counsel, who argued this application for the applicants pointed out that all the anomalies and irregularities complained of had been committed by Mr. Stephen Mubiru, counsel for the applicants, who $15$ had admitted his mistakes. He submitted, however, that the applicants themselves were not guilty of any dilatory conduct and should not be penalised because of the mistakes of their counsel over which they had no control. He relied on the cases of Masaka Municipal Council vs. Ssemwogerre C. Appl. No.57 of 1998 (CA)(unreported), Balyejuse vs. Dev. 20 Finance Co. Ltd C. Appl. No.34 of 2000 (C. A) (unreported), Peter Katuramu vs. Agri Industrial Management Agency C. Appl. No.45 of 2000 (C. A.)(unreported) and Leonia Karyeija & Another vs. David Kabunga C. Appl. No.60 of 1998 (C. A.) (unreported).

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Mr. Madrama, learned counsel, who argued the application on behalf of the respondents submitted that no sufficient reason had been shown to justify the

exercise of this courts discretion. He submitted further that there was evidence of dilatory conduct and inordinate delays on the part of counsel and the applicants. Lastly, that failure by the respondents to apply for the record of proceedings of the High Court and failure to serve the respondents with the letter applying for the record was an omission fatal to the whole application. He relied on the cases of Mary Kyamulabi vs. Ahamed Zirondomu (1979) HCB 219, B. B. Shah vs. Jamanandas (1959) E. A. 838, Clouds 10 Ltd vs. Standard Chartered Bank Ltd C. A. No.35 of 1992 (S. C) (unreported).

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The law governing the exercise of the court discretion under Rule 4 is very well settled. It has been summarised in the ruling of this court in Alhaji Yahaya Siraba Balejusa vs. Development Finance Co. Ltd. (supra) as follows: -

"It (the law) has been reiterated in a number of cases including Investment Limited vs. N. P. A. R. T. Mis. Civil Application No.43/97, Shanti vs. Handocha (1973) E. A. 218, Mugo vs. Wanjilu (1970) E. A. 488; Florence Nabatanzi vs. Naume Binsobedde Supreme Court Civil Application No.6 of 1987 and Sipiriya Kyaturesire vs. Justice Bakachulike Bagambe Civil Appeal No.20/1995. The principles include the following: -

(a) First and foremost the application must show sufficient reason which related to the inability or failure to take some particular step within the

The general requirement not prescribed time. withstanding each case must be decided on facts. See Mugo vs. 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 pursuit 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. - (e) Where an applicant instructed a lawyer in time, his rights should not be blocked on the grounds of his lawyer's negligence or omission to comply with the requirements of the law."

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It was also held by the Court of Appeal for Ug Kareba and Anor ( 1979) H. C. B. 129 that: anda in Busasi & Anor vs

"It is onll after "sufficient re:rson" has bcen advancetl that n court consitlers, bcltrrc exercising its tliscretion lvhether or not to grant extcnsion,, - the qucstion of prejudice, or the possibility of success and such other factors."

ll) t5 It is now incurnbent upon me to look at the reasons being advanced by the applicants for their failure to file the appeal in tirne to asceftain whether "sutflcient reason" has been shown to justify the exercise of rny discretion to extend tirne within which to take the various steps they t'ailed to take within tirne prescribed by the Rules of this Court. The reasons are to be fbund in the aflldavit filed by Mr. Stephen Mubiru, leamed counsel fbr the applicant, and deponed to on l'' August 2001, the relevant pafts olwhich have been reproduced above.

l0 llt t llltc The reasons being advanced for failure to take the various steps prescribed by law are two:

(a)That he rvas too husv lvith other lcgal mltters in court antl in his chambers and sinrpll' had no tirnc to tlkc the necess:lrl steps in the appeal.

(b)That he failed to serve the v:rrious notices on the respondcnts as a result of his failure to effectivell supenise his lan clerk.

In my judgment, none ofthese reasons can conceivably be said to constitute sufficient cause for the appellant's failure to flle the appeal in time and in accordance with the Rules of this Court. I have already indicated above that

it is the law that "sut-llcient reason" has to be shown tlrst befbre the courl considers, belbre exercising its descretion to extend tirne., the questions ol prejudice, possibility olsuccess of the appeal and other such considerations - See Bissasi vs. Kareba (supra) and Abdu Karim ( 1938 ) 5 EACA 37. This l() rneans that the matter raised by counsel for the applicants that a vigilant litigant should not be penalised fbr rnistakes ol his counsel does not fall fbr consideration in the circumstances of this case. No sufllcient cause has been shown in the tirst place. It was held in the case of {ttonrey General vs Oricntal ('onstruction ('onlranv l.td Civil Application No.7/1 990 pel Platt

J. S. C. that:

"Mistakes of counscl nt:ty sonretinres itmount to sul'l'icicnt c:rusc but onh if thr\' :rnrount to irn crror ol iutlgnrent. Inordinate delav on the part of thc atlvocate is not suflicient reason nor is nc li ence to obsen'e or ascertain :0 Irlain rcrluircntcnts of the lan " (Emphasis nt ine )

In the instant case, it took over l5 months frorn the disrnissal of the applicant's case in the High Couft to the filing of this application to extend time in August 2001. In rny view, there is no good reason tbr this inordinate delay. For all this period counsel tbr the applicants deliberately or negligently ignored the Rules of Procedure of this Coult. -lhere is a lirnit to the extend litigants can benef-rt lrom many hotdings of superior courts that a

litigant should not be penalised by mistakes of his counsel. This only benefits litigants when the mistake of counsel amounts to an error of judgment. This is not the case here. Counsel simply did not care. No sufficient reason has been advanced to justify me to exercise my discretion to extend the time as prayed for in this application.

In the result, this application has no merits and is dismissed with costs to the respondent.

$11$ th $\mathcal{L}$ day of $\mathcal{L}$ $\ldots 2002.$ Dated at Kampala this...

$15$ $4m6$ JUSTICE OF APPEAL. $20$

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