Kaderbhai v Shamsherali (Civil Application 20 of 2008) [2008] UGSC 25 (17 October 2008)

Full Case Text

# THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT MENGO

(CORAM:

### JUSTICE G. M. OKELLO, JSC.)

**...........**

## CIVIL APPLICATION NO. 20 OF 2008 **BETWEEN**

## 1. F. L. KADERBHAI:

2. N. H. VALIJI

#### **APPLICANTS**

#### $AND$

| (1) SHAMSHERALI M. ZAVER VIRJI} | | | |---------------------------------|------|-------------| | $(2) G. R. KAPACEE$ | $\}$ | RESPONDENTS | | (3) SHABEER KAPACEE | | |

{Application for extension of time for instituting appeal against the decision of the Court of Appeal, (Mpagi-Bahigeine, Kitumba and Byamugisha, JJA,) at Kampala in Civil Appeal No. 81 of 2004, delivered on $12$ th November, 2007.

#### **RULING:**

This is an application by Notice of Motion, brought under rules 2(1), 2(2), 5, 42 and 50, of the Rules of the Supreme Court. It seeks extension of time for instituting an appeal against the decision of the Court of Appeal in Civil Appeal No. 81 of 2004 delivered on the 12th November, 2007.

The background lacts leading to this application are briefly that dissatisfied with the said judgment of thc Court of Appeal, thc applicants promptly instructed M/s. Godlrey t.ule, S(' and A. I;. Mpanga Advocatcs to prel-cr an appeal against the judgmcnt. Acting on that instruction, the advocatcs filcd Notice of Appeal on l5'h November 2007, and followcd with a letter on 30'h Novembcr, 2007, requesting lor certilled copy of the procecdings. I{owever, thc lawycrs inadvertcntly failed to scrve the Noticc of Appcal to thc oppositc party within the timc prcscribcd by rule 74( I ) ol the Rulcs ol this Court. They also inadvertently failed to copy and servc the letter requesting for the certified copy of thc procecdings on thc oppositc party as required by rule 79 (2) and (3) olthe Rules of this Court'

On 29'h April, 2008, whcn thc Rcgistrar, Courl ol'Appcal in a lcttcr to thc counsel lor anothcr intended appellant, but copicd to thc applicant's counscl, adviscd thc availability of thc rccord ol'procccdings, thc time lor liling thc appeal hatl long clapsed. ('ounsel lirr the applicant statcd that due to communication difliculty bctwecn thcm as thc applicants who livc in thc Unitcd Kingdom had changcd thcir c-mail addrcss, thcy could not contact the applicants until early July, 200t1. Llntil then, thcy had no way to obtain professional and disbursement lees nccessary to fllc thc appcal and thcrcby obtain instructions to procccd in the mattcr. 'l'hc application was not filcd until l6-09-2008, alter thc currcnt counscl Itlr thc applicants pcruscd application No. 07 of 2008 which sccks to strikc out thc Noticc ol Appcal.

The grounds on which the application is based, as appear in the Notice of Motion, may be summarised as follows:

$\hat{\mathbf{r}}$

- That the Notice of Appeal and the letter requesting for record $(1)$ of the proceedings were lodged and written within time but that the former counsel for the applicants inadvertently failed to serve them on the opposite party. - That by the 29th April 2008, when the Registrar, Court of Appeal $(2)$ notified the parties of the availability of the record of proceedings, there was communication problem between the applicants and their lawyers, as the applicants, who live in the United Kingdom, had changed their e-mail address making counsel unable to contact them to obtain professional and disbursement fees and instructions to proceed in the matter. - That when the applicants eventually made contact with their $(3)$ counsel, in early July 2008, the time to file the appeal had long lapsed. - That at stake is the ownership of the subject matter of the case, $(4)$ a commercial building comprised in Plot No. 25 - Nassar Road and that the applicants would be greatly prejudiced if their rights to the property are lost without their appeal being heard on merits.

$\mathfrak{Z}$

# (5)Tltattheapplicanrsconcedetocostsb},reasonoftheirdefaultin appealing in time-"

'l'he application is supported by two allidavits: onc ol- Christopher l-ttn'aga, swom on l6,h Scptcmbcr 2008. and anothcr of I'-akrutlitt Kaderhhai, lhc tirst applicant, swom on 23'd September, 2008'

DanielByaruhangaandGeoffrcyOtimbothcarcofMuyanja&Associatcs, Advocates, Solicitors and Legal Consultants rcprescnting the 2nd and 3'd rcspondents filcd affidavits in reply'

'l'he first rcspondcnt opposcd the apptication and relicd on the al-fidavit cvirlcncc swom by Joy Ntanrbirwcki, an advocatc lrom M/s. Ntambirwcki Kandeebe & Co. Advocates, rcpresenting the first respondcnt'

At the hearing, the affidavits in reply swom by Daniel Byaruhanga and Ceolfrey Otim wcre by consent struck oflthe record'

Mr. Masembe-Kanyerezi' learned counsel for the applicants' submittcd that the formcr counsel for the applicants had lodged thc Notice of Appcal and written thc lcttcr rcqucsting for copy of thc proccedings within the prcscribcd time but inadvertently tailed either to scrve the Notico ol Appeal or to copy and scrvc thc lettcr rcquesting lor the rccord of thc procccdings on the opposite party as required by the rules ofthis court. I{e added that thc rcason for these tailurcs was inadvertence. IIe pointed out that by reason of thc fhilure to copy and scrvc thc lcttcr rcqucsting tbr thc procccdings on thc opposite party, the applicants could not take advantagc of rulc 79(2) and

therefore, the period certified by the Registrar, Court of Appeal as having becn taken in preparing the rccord could not be deducted when computing the 60 days within which to file the appeal. Consequently, the period within which the applicants' appeal should have been filed elapsed on 15-0i-08, by whrch time even the record of the proceedings had not yet been made available until 29-04-2008.

Ilc asscrtcd that thesc mistakes had not becn rcalised until the application to strike out the Notice of Appeal was served on them hence the late filing of this application.

He pointed out that the applicants, as laymen, did not know the requirement to serve a copy of the letter requesting lor the proceedings on the opposite party and retain evidence of such service. In his view, the applicants had a1l along becn interested in having their appeal heard and decided on thc merits since at stake is the ownership of the property, thc subject matter ol 1he case, which is of great importance to them and their familics. 'fhey would suffcr grcat loss if their rights to thc propcrty were losl without their appeal being heard and decided on the merits. He urged that negligence of counsel should not be visited on his client.

Counsel stated that the record of proceedings and the memorandum ol appeal wcre ready and could be filed within 48 hours if the application was allowed. He concedes to costs of the application since the applicants were at false.

Mr. Kandeebe, lcamed counsel lbr the lirst respondent, opposed the application. He contendcd that thc application was brought merely to buy time to dcny the first respondent justice since justice delayed is justice denied.

citing Boney M Katatumba - y.s - waheed Kerrim, Civil Applicatiotr No. 27 of 2007, (scu),lcamcd counscl submittcd that lbr an application lor cxtension to succced, sufficient reason must bc shown and that thc applicant must be vigilant.

I{e stated that in the instant case, the delay in instituting thc application had been inordinate. The applicants and their counscl had both bccn guilty of dilatory conduct. 'fhey wcrc availed opportunity to take the ncccssary stcps in timc but they just sat back' 'l'he Registrar, Court of Appeal by a lcttcr darcd 29-04-2008, notificd all counscl of thc availability of typcd proccedings. '[hc lettcr was scrvcd on all counscl on 07-05-0tt. Dcspitc that inlbrmation, counsel for thc applicants took no action to collect thc rccord. 'l'hcy wokc up only whcn the Registrar of the Suprcme Court by a lctter dated 22nd August 2008, invited them to appear at the pre-hearing confercnce schcduled lor 29-08-0tt.

He stated that thcre is no formcr counscl for the applicant. The lclter inviting counscl for the applicants for the pre-hcaring confercnce was scrvcd on M/s. A. F. Mpanga Advocates, a firm which jointly with MMaks Advocatcs still represent thc applicants. 'they jointly drew this application No. 20/2008 for cxtension.

Lcarned counsel rejected the claim in Mr. Luwaga's affidavit that on receipt ofthc letter ofthe Registrar, Court olAppeal, dated 29-04-2008, they could not contact their clients who live in the Ljnited Kingdom as the clients had changcd their e-mail address. tle submitted that c-mail is not a rccognised mode of service of legal documents in Uganda'

I{e stated that thc claim that the clients had changcd thcir c-mail addrcss is not truc. It is simply anothcr falsehood bccausc the flrst applicant Mr. Kaderbhai, who swore an aflldavit, did not statc that hc had changed his e-mail addrcss. tlc mcrcly stated that hc went on holidays bctwccn May and June 2008, though he did not disclose where he had bcen lor thc holiday.

('ounscl asserted that a lot of lalsehood has been told in this court rcgarding this casc. I.or instance, on 29-0808, Mr. Masembe-Kanycrczi told falsehood to court that application lor extension ol time was pending whcn in lact it had not evcn bccn filed yct. He thereby misled court to fix for hearing a non-cxistent application lor extcnsion. (-ounsel pointcd out that paragraphs ll - 24 ol'the affidavit of Joy Ntambirweki datcd 06-10-08, give the chronology of thc cvents leading to the filing of this application. Ilc that no sulficicnt reason has becn shown to justil'y grant of thc application. Ile praycd that thc application bc dismisscd with costs'

Mr. Muyanja, learned counsel for the $2^{nd}$ and $3^{rd}$ respondents, had no comments to make.

$\hat{\boldsymbol{v}}$

Rule 5 of the Supreme Court Rules empowers this court, for sufficient reason, to extend the time prescribed by these Rules. In Boney M. Katatumba - vs - Waheed Karim, Civil Application No. 27 of 2007, to which I was referred by Mr. Kandeebe, my learned brother Justice Mulenga, JSC, said:

"Under r 5 of the Supreme Court Rules, the court may, for sufficient reason, extend the time prescribed by the Rules. What constitutes "sufficient reason" is left to the Court's unfettered discretion. In this context, the court will accept either a reason that prevented an applicant from taking the essential step in time, or other reasons why the intended appeal should be allowed to proceed though out of time. For example, an application that is brought promptly will be considered more sympathetically than one that is brought after un explained inordinate delay.

But even where the application is unduly delayed, the court may grant the extension if shutting out the appeal may appear to cause injustice."

I respectfully agree with that interpretation of rulc 5 of the Rules ol this court. 'l-hc qucstion al stake is whethcr sull'icicnt rcason has bccn shown by thc applicants in the instant case 1o justily grant of thc application'? Mr. Masembe-Kanyerczi, leamed counsel lor the applicant, stated that thc former counsel for the applicant had lodgcd the Noticc of appcal and written the letrer rcquesting lor a copy ol- thc procccdings within thc prcscribcd timc but inadvcrtcntly lhiled to servc thc Noticc o[Appcal, and to copy to and serve the lettcr requcsting for record of thc proceedings on thc opposite party as required by the rule of this court. The rcason lbr the lailures was stated to bc inadvertcnce.

Inrust poirrt out at this juncture lhal in Delia Almaido - vs - Or Carmo Rui Almaitla, Civil Application No. I5 of 1990, (SCU), the dclay in filing an appeal in time was due to the inadvertent lailurc of counscl lor thc applicant to copy to and scrvc the lcttcr rcquesting lor rccord of thc proceedings on the opPosite Party.

Altcr looking at all thc facls to scc wherc thc just wcight of the casc laid, thc court hcld that inadvertence of counsel constituted "sufJicient reason" and thc application lor cxtcnsion was granted.

tn Borrey Katatumho (supra). the delay in instituting thc application flor cxtcnsion was not only lound to bc inordinate but the applicant was also lound not to have been vigilant in lollowing up the progrcss of his appeal and did not show how he would suft'er il the application \$'as not grantcd. 'l'hc application lor cxtcnsion was dismisscd.

(.)

I t'ind that casc distinguishable flrom the instant case, in that the applicants in thc casc bclorc mc havc shown in thc affidavit F'akrudin, first applicant, that they have all along been interested in having their appeal heard and decided on the mcrits because at stake is the ownership of the property, the subjcct matter of the case which is of great importance not only to thcm but also to their whole flamilies'

It would, in my view, be a grave injustice to dcny an applicant such as this one, to pursue his rights ol appeal simply because ol the negligcnce olhis lawycrs whcn it is fairly well scttled now, that an elror of counsel should not necessarily be visited on his client. Sce Zam Nalumansi - v'T - Suleman l.ule, Civil Application No. 02 of 1999, (SCU), (unrcportcd)'

Considering all the facts of this case, I find that the justice of the case tilts towards granting thc application. Inadvcrtencc of counscl constitutcd tl.re nccessary sul'ficicnt reason to justify grant olthc application'

Mr. Kandccbe complaincd very strongly about thc conduct of Mr' Masembe-Kanyerczi regarding the statement Mr. Mase mbe-Kanyerczi nradc about thc cxistcncc of this application on 29-0tt-200tt. I think that Mr. Kandccbc's concent was wcll fbundcd but I am not prcparcd to commcnt lurther on the matter because an administrative step has alrcady been takcn in that regard. sufficcs it to say that this court docs not in any way condonc impropriety much lcss acts of dishonesty in the court process'

Having said that, I allow this application, I however order with costs in favour of the respondent as conceded by the applicants. The applicants shall file the record and memorandum of appeal within one week from the date hereof.

Noted at Mengo this: $\ldots$ day of: $\ldots$ OCTObe. ...................................

G. M. OKELLO JUSTICE OF THE SUPREME COURT

3. $km$ Waturcapa Go, une applicants Kandese vor une Respondant U dem: Hady9 U: Adry read out. Buy

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