Kabunga v Leonia Karyeija and Others (Miscellaneous Civil Application No. 54/98) [1999] UGCA 80 (30 September 1999)

# THE REPUBLIC OF UGANDA

#### IN THE COURT OF APPEAL OF UGANDA

# AT KAMPALA

#### HON. MR. JUSTICE G. M. OKELLO, JA. $$ HON. MR. JUSTICE A. TWINOMUJUNI, JA. HON. MR. JUSTICE C. N. B. KITUMBA, JA.

### **MISCELLANEOUS CIVIL APPLICATION NO.54/98**

DAVID KABUNGA ::::::::::::::::::::::::::::::::::: APPLICANT

### **VERSUS**

#### 1. LEONIA KARYEIJA

- **::::::::::::::::RESPONDENTS** 2. TIRWOMWE - 3. T. MAFURIRA

# **RULING OF THE COURT:**

The applicant obtained judgment against the respondents on 5th June 1998 in High Court Suit No.972 of 1995. The respondents filed a notice of appeal on 25th June 1998, which was twenty days after the date of judgment intended to be appealed against. According to this courts rules the notice should have been filed within 14 days after the date of the judgment of the High Court.

On 6th November 1998 the applicant filed this application under Rule 81 of this court's rules seeking an order to strike out the notice of appeal on the grounds that:-

$\mathbf{1}$

- (a) the notice of appeal was lodged in the Court of Appeal outside the Prescribed 14 daYs, - (b) the provisions of Rule 82 of this .or. J= rules had not been complied with.

On 8th December 1998 the respondents filed a notice of motion seeking an order that time be extended to file a notice of appeal on the grounds that their advocate had misconstrued the 1aw providing for the period within which a notice of appeal can be filed and that such a misconstruction by the advocate should not bar the applicants from pursuing their appeal.

When this application came up for hearing on 17th December l-998, counsel for the respondent was able to secure an adjournment on the grounds that their own application seeking for extension of time in which to file a notice of appeal deserved to be heard first on the authority of the Supreme Court case, Civil Application trto.t2l91- Haji Nurdin Matovu vs Ben Kiwanuka in which that court held I'that if there is an existing application,

> (to extend time) thecourt does not normally strike out the appeal, but would prefer to alIow the applicatj-on for extension of time t,o be heard first, before the striking out motion. 'r

It is now common ground that subsequent to this adjournment, the respondents application to extend time to file a notice of appeal was granted by a single judge of this court which rendered the hearing of this application superfluous except in respect of costs incurred by the applicant when filing the application. When

the matter came before us for consideration Mr. 'Joseph Zagyenda counsel for the applicant, conceded that the application had been overtaken by events but he appeared to be at a loss as to whether to withdraw it or not in view of the fact that he wanted to ask for costs first and felt that he would not be able to do so after withdrawing the application. Preferring to leave the application hanging in the air, Mr. Zagysnfls requested this court to rely on the authority of the Court of Appeal of Uganda decision in Civil Application No.a of 1987 Mustaq Abdullat Bheqans vs Obol Ochola and grant him the costs of the application.

In rep1y, Mr. Tibesigwa, counsel for the respondents, argued that the application was now impotent and should have been wit,hdrawn, but that since the applicant refused to withdraw it, this court should strike it out leaving the costs to folIow the evenL of the main appeal. Mr. Tibesigwa did not seek to challenge the fact that the application was in the first place properly filed and that it was his "misconstruction of the Iaw providing

> for the period within which a notice of appeal can be filed. "

which necessitated the filing of this application which caused the applicant to incur costs in the process.

we do not understand why Mr. zagyenda appeared to be at <sup>a</sup> loss as to what to do with this application once it was clear it had been overtaken by events. In our view, the proper Course should have been to withdraw the application and ask the court to award costs to the applicant. It is not disputed and we have no doubt that this application was properly filed with

justification. The fact that the respondents were granted leave to appeal out of time does not change this position. This application became necessary because of the omissions of counsel for the respondents. In filing the application, the applicant was forced to incur costs. In those circumstances the applicant is entitled to the costs of the application even when he withdraws the application.

In the result, since the application has been overtaken by events and has not been withdrawn, we dismiss the application and order that the applicant is entitled to the costs of the application.

Dated at Kampala this ......day of September...................................

G. M. OKELLO JUSTICE OF APPEAL.

$116$ TWINOMUJUNI JUSTICE OF APPEAL.

CALS: Citanda! C. N. B. KITUMBA JUSTICE OF APPEAL.