Jo' Okello v Kayondo & Co. Advocates (Civil Application 17 of 1996) [1996] UGSC 31 (13 September 1996)

## THE REPUBLIC OF UGANDA

## IN THE SUFFERE COURT OF LIGHTING

## AT MENGU

(CORAM: A. N. KAROKORA, J. S. C.) Civil application MD 17 of 1996

IN THE MATTER OF ALLEXANDER JO'OKELLO ....... APPLICANT

AND

M/S KAYONDO & CO ADVOCATES ......... ....... RESPONDNET

**RULING**

This is an application made under Rule 4 of the Rules of this Court, seeking leave to extend time within which to lodge Notice of Appeal. The main ground for application is that Counsel for applicant, Mr. Kinyera P'Loid, committed an error in the procedure in lodging the appeal by failing to serve Notice of Appeal within 7 days as required by the rules as a result of which Civil Appeal No. 44/1995 was struck out on 24/6/1996 as being incompetent, because of that error by the Counsel. It was further averred that the applicant had duly instructed the Counsel to lodge the appeal in time.

Mr. Ladwar, Counsel for applicant, submitted that it is now settled principle of law that lack of diligence on the part of the Counsel or blunder on his part are sufficients reason for extension of time for lodging an appeal. The above proposition of law is clearly spelt out in the case of Haji Nurdi Matovu v Ben Kiwanuka Civil Application No. 12/91 (S. C.) (unreported). I was further referred to the case of V. M. Bray (1957) E. A. 3030 for the same principle. He submitted that since in the instnat case the applicant was not a party to the blunder which resulted in the striking out of the appeal, this was a proper case in the interest of justice, for the Court to exercise its discretion by extending time so that the applicant could lodge appeal.

Against the above argument, Mr. Kayondo, Counsel for the respondent submitted that there was nothing to extend, since the appeal had been struck out. He submitted that the applicant cannot resurrect Notice of Appeal which was struck out along with the appeal. Mr. Kayondo went further and submitted that an application such as this one ought to have been made before the appeal was struck out. Unfortunately, he did not cite me an authority for the above proposition.

I know that in Haii Nurdin Matovu v Ben Kiwanuka (supra) the Supreme Court discussed fully what had transpired in Kiboro v Posts & Telecom. (1974) E. A. 155 where, after Counsel for respondent had submitted that the appeal should be struck out on the ground that no decree had been extracted and included on the record as required by rule $85(1)(h)$ of the Rules of the then Court of Mr. Muite, Counsel for appellant, conceded that the objection was valid, but did, there and then produce an application filed by him before the hearing began, asking for extension of time in which to file the missing decree. The two applications were then adjourned to be heard later on, in the day.

The Court went ahead to hear both applications: one for striking out the appeal on the ground of incompetence and the other one. For extension of time within which to file the missing The Supreme Court in Haii Nurdin Matovu's case decree. expressed surprise how the full bench of the Court of Appeal proceeded to hear the application for extension of time which was, under Rule 52(1) of the Courts' Rules, supposed to be heard by a single Judge. The Supreme Court went ahead and stated whereas, perhaps the full Court has jurisdiction to so under Rule $L(3)$ of the Rules, to hear application intended for a single Judge, the better practice would be to grant time for the applicant to argue the application for extension of time to be taken to the single Judge. But as the Court rightly pointed out, unless an application for extension of time does exist, when the application to stike out the appeal is presented, it is usual for the Court to strike out the appeal. In Kiboro's case the application for exhausion of time was made just before the

hearing of the motion to strike out the appeal. However, in the instant case, there was no application pending before the application to strike out the appeal on the .......... of that Notice of Appeal had been served. In my view, since no Notice of Appeal had been served to respondent, the appeal was incompetent and once the appeal was incompetent the only course open to the Court was to strike it out. See Essaji vs Olauki (1968) E. A. 218 at page 220 letters between it and I Barclays Bank of Uganda Ltd v Rodngues Civil Appeal No.5/1987 (S. C) and Executrix of the Estate of late Christine Mary Namatovu & Tibaijuka Debora Namukasa v Noel Grace Shalita Stanazi (S. C) Civil Application No. 8 of 1988.

Therefore, in the circumstances of this case, it was proper that the appeal was struck.

Now the next question to be determined is whether or not, once the appeal is truck out, the appeal must be shut out. Mr. Kayondo contended that since no application for extension of time was made before the appeal was struck out, it could not be made where there was no appeal pending. With due respect, I would not agree with his submission, because striking out an appeal does not mean closing it or disposing of it, like when the appeal is dismissed. Here, when the appeal was struck out, it meant that there was no appeal properly before the Court. After striking it out, the appellant was left with an option of trying to see whether or not he could file a fresh appeal. Essaj's case (supra) page 218 at page 220 elucidales this point. See also the case of Haji Nurdin Matovu v Ben Liwanuka (supra) page 5, the last paragraph.

Therefore this application before me is seeking leave to extend time within which the applicant can lodge notice of appeal.

From the affidavits of both the applicant and the respondent, the appeal was struck out on that it was lodged when the respondent had not been served with Notice of Appeal to respondent which resulted in the appeal being struck out as being

incompetent. It was argued for applicant that since the applicant had duly instructed his lawyer in time, the blunder committed by his lawyer should not be visted on to him. On the other hand, I have considered Mr Kayondo 's submission where he conteded that counsel's error can be attributed to his client which would lead the client suing his counsel for negligence.

$\overline{1}$

I have considered the submission of both Counsel on this ground and have found the discussion in the Case of Haj Nurdi Matovu v Ben Kiwanuka (Supra) by the Supreme Court very relevant. It disposes of it. There, the Court held at page 8 of the Judgment inter alia:

> "It is important to remember that when dealing with Rule 4 of the Supreme Court Rules, the Court has a free discretion to determine what is a sufficient reason, and that if an advocate has made a blunder it is important not to visit that blunder on an innocent litigant. We would entirely agree with the learned Judge, with respect, that damages is not usually a sufficient remedy. If one were to put oneself in the position of a litigant and was told:

> "Well your advocate has made a blunder and now you will be unable to appeal, but of course you may always sue the advocate for damage'.

> We think one would appreciate the angry reaction which must follow. Instead of finishing one piece of litigation, $\overline{a}$ litigant must embark on a second piece of litigation in suing his advocate. It is<br>true that one has to bear in mind the delay that has been forced upon the successful party and indeed must weigh up all these circumstances. But damages can rarely be a satisfactory answer".

In my considered opinion, bearing in mind the above, I think that the applicant having duly instructed his lawyer in time to file the appeal agaisnt the decision of the Court, if in doing so, the lawyer committed a blunder which resulted in the appeal being struck out, it would be fair and just to afford opportunity to the applicant to have his appeal heard and determined on merits. This can only be done if the applicant is granted



extension of time to file Notice of Appeal. Therefore, considering the entire application and the circumstances which led to the application being filed, I am satisfied that the advocate in this case who purported to file appeal committed blunder to which the applicant is innocent. It is important that such blunder committed by the advocate should not be visited on to the innocent litigant/applicant.

I would, in the circumstances, hold that the blunder committed by the advocate in lodging the appeal should not block the applicant from pursing his litigation to its logical Accordingly, this blunder by the conclusion on merits. applicant's advocate would be sufficient reason for me to extend time within which to file Notice of Appeal. īn the circumstances, the applicant is given seven days from the date of the ruling within which he must file the Notice of Appeal.

In the circumstances, the application is hereby granted. The applicant is given 7 days from the date of this ruling within which he must file the Notice of Appeal. The applicant must, however, pay costs for this application to respondent.

Nate 13th Sept. 1996.

## A. N. KAROKORA JUSTICE OF THE SUPREME COURT.

I CERTIFY THAT THIS IS A TRUE COPY OF THE ORIGINAL **ELLY!** TURYAMUBONA

REGISTRAR, SUPREME COURT.