Kawuka v Karim (Civ. App. No. 18/1937) [1938] EACA 37 (1 January 1938)

## COURT OF APPEAL FOR EASTERN AFRICA

## Before WHITLEY, C. J.; GAMBLE, J.; and JOHNSTON, Ag. J. (all of Uganda).

## ZABITISI KAWUKA, Appellant (Original Defendant) ν.

ABDUL KARIM, Respondent (Original Plaintiff) Civ. App. No. 18/1937

Application for leave to appeal out of time.

Applicant sought leave to appeal from a judgment delivered against him. He was over two years out of time. The grounds relied on as excusing failure to appear in time were ignorance of law, old age and lack of means.

Held $(5-5-38)$ —(1) That ignorance of law, old age and lack of means are not good grounds for allowing an appeal out of time.

(2) That until an applicant has shown that there are good grounds for allowing an appeal out of time any offer of security is irrelevant.

Agard for the applicant.

## Shaylor for the respondent.

Gamble, J.—This is an application for leave to appeal out of time. The judgment sought to be reversed is dated 4-10-34, but as the learned trial Judge did not give his reasons therefor until 28-2-35, it is only equitable that time should not begin to run against the applicant until the latter date.

Even this date would render the applicant nearly three years out of time.

The grounds for appealing out of time would appear to be old age and ignorance and lack of means.

The first two grounds do not appear to me of substance and I am dubious about the third ground when I observe that in February, 1937, the applicant applied for a certified copy of the judgment and on 30-3-1937 applied through his advocate regarding the cost of a certified copy of the proceedings.

Even if applicant was in needy circumstances in March, 1937, his advocate must have been aware of rule 17 of the East African Court of Appeal Rules dealing with the rights of pauper appellants.

In support of this application Mr. Agard has offered to give very full security indeed for the balance due under the original judgment and for all incidental costs. In my opinion such an offer can have no bearing on the grant or refusal of this application. Should the Court see fit to allow this application it might do so subject to such order regarding security as it thought fit; but until the applicant has shown that there are good grounds for allowing an appeal out of time any offer of security is in my opinion irrelevant.

In discussing this application, I would refer to Ribeiro v. Sequeira and Siqueira (1 E. A. C. A. 1), where Sir Joseph Sheridan, C. J., delivering the judgment of the Court observes, "Now before this applicant

can succeed he must show that there have been special grounds for his delay in presenting his appeal and here we would observe that it is settled law that a mistake made by him or his counsel as to the effect of the judgment could not per se constitute a good ground for granting his application."

I would also refer to the remarks, of Thesiger, L. J., in Collins v. Paddington Vestry (5 Q. B. D. 363), "In the interest of the public the Court ought to take care that appeals are brought before it in proper time and as between the parties it has often been remarked ... that when a judgment has been pronounced and the time for appeal has elapsed without appeal the successful party has a vested right to the judgment which ought, except under very special circumstances, to be made effectual. And I think that the legislature intended that appeals from judgments should be brought within the prescribed time and that no extension of time should be granted except under very special circumstances."

When it is sought to re-open proceedings which the successful party has thought to have finally concluded three years ago and as a result of which property has passed it appears to me that the words above quoted have very great application.

The only grounds, I can find for allowing this application are that the applicant is poor and ignorant; the former disability is curable by rule 17 of the East African Court of Appeal Rules.

Ignorance of the time in which an appeal must be lodged is no ground for an extension of time and in this connexion it must be remembered that at the original trial the applicant was represented by an advocate and according to para 3 of the affidavit he expressed his intention of appealing at the time judgment was delivered.

In my opinion the supporting affidavit does not disclose such very special circumstances as would justify this Court in entertaining this very belated application.

For the above reasons, I would dismiss the application with costs.

Whitley, $C. J.-I$ concur.

Johnston, Ag. J.—I concur.