Isaac Bishari v Vitafoam (Civil Application No. 2 of 1994) [1994] UGSC 55 (10 May 1994)

## IN THE SUPREME COURT OF UGANDA CIVIL APPLICATION NO. 2 OF 1994 AT MENGO

#### BETWEEN

TSAAC BISHARI......... $\cdots$ $\cdots$ $\cdots$ $\cdots$ $\cdots$ $\cdots$ $\cdots$

#### $\Lambda$ N D

VITAFOAM........ $\ldots$ RESPONDENT

# (Appeal from the judgment of<br>the High Court (Berko J)<br>dated 4 October 1991 in

Civil Suit NO 301 of 1989)

### RULING OF ODOKI J. S. C.

This is an application under Rules $42, 52(1), 76$ and 87 of the Rules of this court for enlargement of time within which to serve the notice of appeal and the memorandum and record of appeal on the respondent.

The main grounds of the application are that the documents were not served in time because the applicant's former advocates did not know the address of the respondents counsel and that therefore the failure to take these vital steps were attributable to the applicant's advocates and not the applicant. The applicant contends that since the appeal was properly instituted. extension of time will not cause any undue injustice to the respondent.

The applicant has sworn an affidavit dated 8 February 1994 in which he states that after judgment had been passed against him he instructed his advocates Nsambu & Co. Advocate to appeal against the judgment.

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On 4 October 1991 the advocates filed a notice of appeal in the High Court. Owing to misunderstandings with his advocates he instructed new advocates M/S Mayanja Nkangi & Co. Advocates before the notice of appeal Has served on counsel for respondents His new advocates lodged the record of appeal in this court on 22 September, 1992, within the prescribed time. He was surprised to learn from Counsel for the respondent that his advocates had not served the notice of appeal, the memorandum of appeal and the record of appeal on the counsel for the respondent. He had assumed that his advocates would do so. When he inquired from $M/S$ Mayanja Nkangi what had happened he was informed that they could not serve/documents because they did not know where the chambers of counsel for the respondent were situated since they had moved their chambers.

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In his affidavit in reply, Mr. Tibaijuka learned counsel for the respondent states that $\ensuremath{\mathrm{M}}/\ensuremath{\mathrm{S}}$ Nsambu advocates knew where their new chambers were situated because both had met there to sign the decree. Counsel further states that Mr. Nsubuga Nsambu had expressed lack of interest in lodging the appeal, but the applicant insisted on the matter. It seems that was the reason why the applicant changed advocates and instructed N/S Mayanja Mkangi & Co. Advocates who also after filing the appeal declined to take further steps because the applicant had not paid them any fees. According to the affidavit of Mr. Tibaijuka, the applicant now has a third firm of lawyers whom he engaged on the advice of this court after failing to argue the application to strike out the appeal.

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Counsel further states in his affidavit that Mr. Kibirige of & Co ADVICIATIS Mayanja Nkangi/knew the location of his chambers because they were contemporaries at the law school and had kept close contact with each other. He contends that there has been dilatory conduct on the part of the applicant as well as his counsel. He further contends that the appeal has not likelihood of success because the trial court was correct in holding that the goods in question were unascertained since they were to be manufactured.

The issue in this application is whether the applicant has shown sufficient cause for this court to exercise its discretion under rule 4 to extend time within which to serve court has the relevant appeal documents to the respondent. This $\frac{2}{2}$ a very wide power which is limited only by the words for sufficient reason. While each case must be decided on its own facts. as a general rule, the applicant must satisfactorily explain the reason for the delay. Normally the sufficient reason must relate to the inability or failure to take a particular step in time. See Mugo V. Wanjiru (1970) EA 481 The applicant must show that the delay has not been caused or contributed to by dilatory conduct on his part see Bhatt V. Tejirant Singh (1962) E. A. 497 and Shanti V. Hundocha and Others (1973) E. A. 207.

Mr. Kateeba for the applicant relied on the case of Mary Kyomulabi V. Ahamad Zirondomu, Civil Appeal NO 41 of 1979 $(1980)$ H. C. B II for the proposition that a mistake by counsel might not necessarily be a bar to his obtaining extension of time, and that the administration of justice normally required that the substance of all disputes should be investigated

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and decided on their merits and that errors and lapses should not necessarily debar a litigant from the pursuit of his rights. It was also held that it would be deplorable for a vigilant litigant to be penalised by refusing him to appeal because of the negligence of his counsel over whose actions he has no control.

In this case, it is argued that the applicant took the necessarily steps in time by instructing his counsel to appeal on his behalf. The applicant expected his counsel to take all the necessary steps to prosecute the appeal but counsel failed to do so by failing to serve the notice of appeal on the respondent. It appears there were misunderstanding between the applicant and his first firm of advocates regarding the prosecution of the appeal. According to Mr. Tibaijuka the advocates were of the view that there was no merit in the appeal. filed<br>ailed the notice, I think they had a duty to serve But having f the notice of appeal on the respondents. If they did not want to do so, they should not have eccepted instructions to file the appeal or having filed it they should have informed the applicant in time to instruct another firm of advocates to serve the In my view M/S Nsambu & Co. Advocates notice of appeal in time. were negligent in not serving the notice of appeal in time. The applicant was entitled to rely on them to carry out his instructions to their logical conclusion.

It is also argued that the failure to serve documents by the second firm of advocates namely M/S Mayanja & Advocates was due to their not knowing the location of the chambers of the respondents counsel which had been changed. Mr. Tibaijuka

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disputed this claim arguing that Mr. Kibirige of M/S Mayanja & Co. Advocates knew where their chambers were. The true reason why counsel for the applicant did not serve the memorandum and record of appeal on the respondent, claimed Mr. Tibaijuka, was because the applicant had not paid professional fees to the advocates.

It may well be that the applicant's counsel knew where the chambers of the respondent's counsel were located or that the applicant had not paid professional fees, but the fact is that the advocates were responsible for failing to take the necessary steps in time. There was no point in filing the appeal in time and failing to serve the respondent in time. The advocates should have carried out this vital steps and then withdrew from the case if they so wished. As it was held by this court in Zamu Nalumansi & Another V. Sulaiman Lule, Civil Application NO. 2 of 1992, the applicant who was a layman was entitled to rely on the assurances of his negligent counsel.

I am therefore satisfied that while the applicants previous counsel have been guilty of dilatory conduct which may amount to negligence, the applicant himself has not been guilty of any such conduct. The sole reason why the necessary steps were not taken has been the negligence or dilatory conduct of the previous two firms of advocates.

It would be unfair and unjust to penalise the applicant because of the negligence of his advocates. No injustice will be caused to the respondent be extending the time within which to serve the relevant documents to its advocates.

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I do not think that it is necessary to consider in this application whether the appeal has a likelihood of success. I think it raises an arguable point which should be considered on the merits.

Accordingly this application is allowed. I order that the applicant serves the notice of appeal, the memorandum of appeal, and the record of appeal on the respondent within seven days from the date of this ruling. The costs of this application will be costs in the cause.

Dated at Mengo this... $\mathcal{L}$ ....................................

Cavia

B. J. Odoki JUSTICE OF THE SUPREME COURT

10/5/94 Applicant and lets counsel about offlood Derned<br>Autor Tibaijnker J. Reysder prevens<br>Rudig delivered.