Julius Emomeri v Shell (U) Limited (Civil Application No. 19 of 1997) [1997] UGCA 3 (16 October 1997)

Full Case Text

## THE REPUBLIC OY UGANDA

IN THE COURT OF APPEAL O~ UGANDA AT KAHFALA

(CORAM: KIREJU J. C. A.)

CIVIL APPLICA'l'ION NO. 1~ Ol' 19~U

## BE'l'WEEN

JULIUS EMOMERI """"""""""""" APPLICANT

AND

SHELL (U) LIMI'l'ED RESPONDEN'l'

(Appeal from Judgement and Decree ot High Court at Kampala dated 17-3-95 before Mr. Justice f'. M. S. Egonda Ntende in Civ1l Suit No. 44o0t 1994).

## RULING OF KIREJU J. C. A.

q,.

This is an application under rule 4 of the Court of Appeal Rules 1996 for extension of time within which to tile and serve notice of appeal upon the respondent and also tile Memorandum of Appeal and record of appeal and serve them on the respondent.

The grounds of the application are ,that, . .- first, there was a de la-y to serve the Notice or Appeal . -' upon the respondent's counsel due to closure of chambers where he was practising by the order

of Law Council and delay in reopening them by succeeding advocates, also refusal by the respondent to accept personal service. Secondly, the delay to tile the memorandum of appeal and record of appeal was due to constant change of advocates, resulting in the delay to obtain the record ot proceedings and to draw and obtain the decree in the original suit and investigate the locus standi of the advocate tor the respondent. Lastly that the appeal involves substantial issues of law of

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public importance.

The application is supported by two affidavits, one sworn by the applicant Julius Emomeri and the second one by his counsel Mr. George Ogwanga Emesu. According to the affidavits the applicant was the losing party in BCCS No. 440/94 which he brought against the respondent claiming damages for breach ot contract of employment. Judgement was delivered on 17-3-1995. The applicant was dissatisfied with the judgement and decree of the trial court and he instructed his lawyers at the time namely Mis Mbogo, Seguya & Co. Advocates to appeal to the Supreme Court (now Court of Appeal) but they declined to take instructions. The applicant instructed Mis. Owori & Co. Advocates to handle his appeal. A Notice of appeal was filed in the High court on 29-3- 1995 and also in the Supreme Court. However, the Notice of appeal was not served on the respondent's advocate until 20-6- 1995 which put it outside the time prescribed by the rules. The applicant's counsel failed to serve the respondent becaus~, the , respondent re fused t'o'~B,e se rved pe rsonall y. .- However, when' (he applicant tried to serve the counsel for the respondent Mr. Turyakira who was representing it in the original trial and practising in the chambers of Mis. Kateeba & Co Advocates, he found that the chambers had been closed by the Law Council Disciplinary Committee. Mis. Turyakira reopened the said chambers and resumed practice in June 1995 under the new names Turyakira & Co. Advocates as per certificate of approved chambers dated 24/4/1995. After instructing his lawyers Mis. Owori & Co. Advocates to apply for enlargement of time for him to prosecute the appeal he went back to his home village in Tororo District

with assurances tram the advocates that they were going to carry out his instructions. The advocates were to send message to the applicant in case there was any matter requiring him 1n connection with the said appeal. After waiting to hear tram the advocates in vain, he came back to Kampala on 1j-9-1~~6 and tound that they had done nothing beyond serving the notice at appeal on the respondent. The applicant was disappointed and withdrew his instructions trom Owori & Co. Advocates and instructed His £mesu & Co. Advocates as per Notice ot Change ot advocates tiled in court on 24-9-1996. His new advocate sent him wi th a clerk to request tor record at proceedlngs trom the Registrar High Court Hr. Onega (as he then was) who told them that HI s Owori & Co. Advocates had already taken the proceedings. Attempts to get record at proceedings trom His. Owori & Co. Advocates tailed and they had to get anotller copy trom the Registrarron 4/10/96 although the proceedings had been completed on 18/9/1996 ~0~cording . ~ to the Registrar" certitica1..i'\::-. . -' . -'

It is further deponed that the delay in tiling this application was caused by change at advocates, negligence of tormer advocates and delay to get record ot proceedings from HI s. Owori and the High Court. The delay in t111ng the application was also due to the delay to draw and tile the decree in the original sui t and investigations which had to be carried out in the company Registry, Law Council and High Court to tind out whether a firm of His Kateeba & Turyakira Advocates existed at the time Mr. Turyakira filed an amended defence in the original suit on 16-1-1995, and whether the firm was legally registered. The documents tram the Registrar of Companies showed that there was

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no such a tirm at advocates registered. WhlCh means that the tiling at a written statement at delellce under a non existence firm was rendered the written ~taLement 01 detence null and void.

The applicant also believes that matters at law at public importance have been raised in the memorandum 01 his intended appeal which was attached to the affidavit. First, the rights of the employee under the Bmployment Decree 19~~. Secondly, whether a disqualified advocate who is a sale partner at his tirm could have his chambers remain open and used by another practising advocate during the time ot his disqualification and whether an advocate lincenced to practice legally could draw and tile documents and appear in court in a name ot unregistered and unlincenced firm ot advocates and the effect ot those irregularities on the court proceedings.

The respondent opposed the application on the ground thcat r no sufficient reason had been advanced by the applicant or his' ~ ~ , ~~ ~ counsel. Two affidavits were'tiled on behalf 01 the respondent one deponed by Mr. Turyakira former Counsel and Hr. Serwanga Sengendo present Counsel for the respondent. Hr. Turyakira deponed that he had personal conduct ot the case in the High Court before it was transferred to HI s Katende, Ssempebwa and Co. Advocates on 20-]-95. He stated that though he practised with Mr. Kateeba the chambers were not closed when Hr. Kateeba was struck off from the role ot advocates by the Disciplinary Committee of Law Council. He continued to work normally. He further stated that it is not true that no decree was extracted as alleged by the applicant as there was a decree designed by the

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applicant's tormer Counsel Hr. Hbogo. Counsel turther stated that the Law Council proceedings did not at teet Mr. 'l'uryakira as counsel as they were against Mr. Kateeba. Mr. Serwanga Sengendo learned counsel tor the respondent stated that he was asked to sign another decree by counsel tor the applicant not knowing that the applicant's counsel was going to use it to allege that there was no decree when in tact there was one.

From the evidence on record there are t\-IO decrees one endorsed by former counsel at the respondent Hr. Hubogo and the second one by the current counsel tor the respondent. 'l'here was no explanation sought trom the High Court Registry why there were two decrees in respect ot the same case. I could not therefore say that there was no decree on the file when His Emesu & Co. Advocates took over the case. As it is not one of the grounds on which this application is brought, 1 shall not pursue the matter any turthftr.

Mr. Emesu learped counsel tor the applicant submitt&~\_~hat .~ . -' - -' the delay in tiling the notice of appeal and memorandum and record of appeal were partly due to lack of diligence on the part of the former advocates tor the applicant. The new Counsel tor the applicant had to carry out investigations before bringing this application "'lhich also caused further delay. Counsel contended that the memorandum of appeal contains good grounds and submitted that the appeal has reasonable chance of success. Counsel referred court to number ot authori ties in support of his submissions, namely, Hukula International Ltd vs. Cardinal Nsubuga 1982 HCB 11. Mayeqa VS. Katende and Another ~197Y} HCB 51 Essai;i &. Others vs. Solanki {1968} EA 218 Commisssioner for

Transport vs. Attorney General jl~:,9} EA 329. :iepiriya Kyamulesire vs. Justine bikanchulika Bagambe Civil AE.. E.eal No. LU ot 199:' (unreported).

On his part, Hr. Serwanga Sengendo invited court to strike out the affidavits in support ot the appllcatlon on the ground that they were talse. He instructed the court to believe the averment of Hr. Turyakira that His Kateeba's chambers were not closed after he was struck oft from the roll of advocates. Hr. Turyakira continued to work in the same chambers, and therefore the reason advanced by the applicant for having tailed to serve the respondent should fail. Counsel argued that no sufficient reason had been advanced why it took 2 years to tile this application and why the present lawyer for the applicant took 9 months after he had been instructed to bring this application. He added that the applicant was guilty ot dilatory conduct. In support of his submissions; he cited the cases ot National Pharmacy, vs. KCC {1979} HCB 1 ,j..~)and Immaculate Mubiru vs. J. , Ndaula {1979) HCB 130, Busasi & Anor VB. Kareeba and Anor {1979} HCB 129. Counsel further submitted that the grounds intended to be raised on appeal were never considered by the trial court and cannot therefore be raised on appeal. Counsel argued that the cases cited by counsel could be distinguished from the present one, as th~re was long delay in this case and the other cases were decided on their own facts. He added that whether the negligence of counsel should entitle the litigant to a remedy depends on the surrounding circumstances of each case. Counsel invited court to dismiss this application in order to put an end to this litigation.

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'l'hisapplication was brought under rule 4 of Court of Appeal Rules which gives court unfettered discretion tor 8uiticient reason to grant extension ot time. 'fhe burden is on the respondent on time was caused by sufficient reason. :::>utticient reason depends on the circumstances ot each case and must relate to the inability or failure to take a particular step in time although other considerations may be invoked, (See National Pharmacy Ltd. vs. Kampala City Council (supra). applicant to satisfy the court that for sufficient reason it vias not possible tor the appeal to be lodged in time. \:::>ee BusaSl vs. Kareeba (supra) ). The issue now is whether failure by the applicant's counsel to serve the notice ot appeal on the

I do not wish to go into the grounds proposed to be raised on appeal, however it appears that there were some attempts by Mr. Turyakira to operate under a firm called His Kateeba & Turyakira Advocates as evidenced by amended written statement ot .~- Defence filed in Court 6n~~9-1-1995. Hr. Turyakira did not stat~~ anything about this new firm ot advocates under which he was operating before judgement was delivered. The respondent also did not respond to the statement by the applicant that he tried to se rve them personally but they re fused. :t~rom what I have referred to above I am more convinced that the applicant failed to serve the respondent because the respondent refused personal service and that his advocates chambers had been closed and did not open until June 1996. This delay is blamed on his advocates. It has now long been held that a mistake or negligence by counsel is not necessarily a bar to an intending appellant obtaining an extension of time. Each case must be considered on its own facts

- see Gatti vs. Shoosmith (1939) ,j All Bk ~lbL N.9.°n1 Hateng,o CooEerative Union Ltd. VB. A. (Osman) 19!)~ BA ~/jL clnd BsSli vs Solamki (supra) and Ben Kiwanuka vs. Ha]i Nurdin Matovu Civil AE.. E. 17/15t90.

After the chambers of 'l'uryakira had opened in June 1996 under a neltl name there It/as further delclY in bringing this application. This further delay was caused by applicant's advocates present and former advocates. The applicant was sure of what he wanted to do after judgement was passed against him and he went ahead and instructed his advocates Mis Owori & Co. Advocates. Alter His. owori & Co. Advocates had tailed him he did not tire but went ahead and briefed His. Bmesu & Co. Advocates. 'rheapplicant cannot therefore be blamed for dilatory conduct, (see Shanti vs. Hidocha & others (19/3) EA 20". He was vigilant but unfortunately was let down by his advocates. I am of strong considered opinion that a lay person who has entrusted his case wi th advocates in their profess10nal capaci ty should not h~e his efforts in search of justice>.trustrated by negligence of his advocates. This application is distinguishable from Hubiru vs Ndaula (supra) where the court found that there was unexplained period of 5 months when no action was taken by the applicant after she had obtained letters of administration.

Having carefully considered the whole application and the authorities referred to me by counsel, 1 find that the applicant has shown that he was delayed trom filing his notice of appeal by failure to serve the respondent's counsel whose chambers had been closed tor sometime. He was further delayed by his counsel who failed to bring this application as soon as he was in a

position to do so. I tound that in the circumstances sutficient reason has been shown tor: tile grant ot the application.

I did not tind it necessary to go into the issue whether the intend~? appeal has cQances at success, ho\vever, on the face ot it I found that it is not trivolous.

In the result, the appllcation is allovJed. 'rlhe applicant is granted an extension ot ) days trom within which to tile notice at appeal and thereafter tile the memorandum and record of appeal within 30 days.

Costs will be in the cause. Dated at Kampala this 16th day ot October 1997.

.' I

UhL~ H. KireJu, I

J. C. A. 16/10/97.

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