Manskhlal & Another v Attorney General & 2 Others (Civil Application 1 of 2003) [2003] UGSC 45 (20 June 2003)

Full Case Text

# Personal Copy Extension 9 mm Rules 4+420772(2) Article 176(2)(3) THE REPUBLIC OF UGANDA

## IN THE SUPREME COURT OF UGANDA AT MENGO

## (CORAM: J. W. N. TSEKOOKO, JSC)

### CIVIL APPLICATION No. 1 OF 2003.

#### BETWEEN

| $\mathbf{1.}$ | MANSUKHLAL RAMJI KARIA ] | APPLICANTS | |---------------|--------------------------|-------------------| | | 2. CRANE FINANCE CO. LTD | | | | AND | |

**ATTORNEY GENERAL** $\mathbf{1}$ .

**MAKERERE PROPERTIES LTD] ....... RESPONDENTS** 2.

AMIN MOHAMED PIRANI 3.

(APPLICATION ARISING FROM CIVIL APPEAL NO.20 OF 2002)

#### RULING

This is an application by notice of motion instituted under **Rules 4** and 42 (1) of the **Rules** of the Court. By this application, the two applicants seek two orders, namely: -

- That time within which to file and serve the Record of 1. Appeal be extended. - Costs of the application be provided for. $2.$

The application is supported by three aflidavits, two by Rosette Mugidde, an advocate in the Chambers of Sebalu & Lule, Advocates, the first of which was sworn on 8lll2oo3 and the second, a rejoinder, was sworn on 8l5l2OO3. The third aflidavit was sworn on 28/4/2003 by Shelton Wamateke, a Law Clerk and Court Process Server. Mr. Badru Bwango, an advocate in the Chambers of Nangwala and Rezida, Advocates who are counsel for the 2"d and 3d respondents swore an affidavit in reply'

## O BAcKGRouND

I will start with the brief background of this matter. The applicants lost an appeal in the Court of Appeal some time in 2OO2. On 218l2OO2, M/s Sebalu & Lule, Advocates, counsel for the applicants, wrote to the Registrar, Court of Appeal, a letter ref. SLI4t42I40659 requesting for a "typed and certllled copy" of the record of the proceedings for purposes of compiling the record of appeal. The letter was copied to the first respondent and to M/s. Nangwala & Rezida, Advocates, and it was received by the Registrar on 618/2002, On LlllOl2OO2, M/s. Sebalu & Lule, Advocates, paid for a copy of proceedings from the Court of Appeal and were issued with an officiat receipt. It appears that the Registrar was not available to certiff a copy of the proceedings at the time of the payment.

Certiffing was done on 14 lLO/2OO2, a Monday where the certified copy was provided to M/s. Sebalu & Lule's Law Clerk, Shelton Wamateke. However instead of dating the acknowledgement as 14llOl2OO2, lne, on advise from a cashier, backdated the

acknowledgement to ll I lo l2oo2 so that the date matches with the date on the cash receipt. Eventually M/s. Sebalu & Lule instituted the appeal (Civil Appeal 20 of 2OO2l in this Court on lLll2l2OO2, on the assumption that the statutory period of 60 days within which to institute the appeal would expire on 13/ 12l2OO2, because copy of proceedings was obtained on 14 llOl2OO2. Subsequently the respondents' advocates indicated that the appeal was in fact filed out of time. Therefore this application was instituted. Meantime the respondents also instituted their own application seeking to have the appeal struck out because it was filed out of time. I arn concerned with the first application.

#### OBJECTION

When the application was called up for hearing on 61512O03, Mr. Rezida, on behalf of the 2"d and 3'd respondents, raised objection to the competence of the application and contended that because the appeal (No.20 of 2OO2l is still on the records of this Court, this application is misconceived and should be struck out. He relied on Shant: Vs Hindecha & Others (1973) EA 2OT in support- In response, Mr. Ecimu, counsel for the applicants, relied on Rule 4 of the Rules of the Court for the view in effect that assuming that the appeal was filed out of time, this Rule allows the applicants to seek leave for extension of time even before the appeal is struck out. He relied on Crane Finance Vs Makerere Properties Civil Application No. lof 2001 (S. Ct) (unreported).

I overruled the objection and promised to give my reasons. I now give the reasons.

#### **REASONS**

It is my considered opinion that the **Shant case** (supra) relied on by Mr. Rezida and the provisions of Rule 4 are clearly against the contentions of Mr. Rezida. Rule 4 reads: -

"The Court may, for sufficient reason, extend the time prescribed by these Rules or by any decision of the Court or of the Court of Appeal for the doing of any act authorised or required by these Rules, whether before or after the expiration of that time and whether before or after the doing of the act; any reference in these Rules to any such time shall be construed as reference to the time so extended" (underlining supplied for emphasis).

This Court has in a number of decisions, interpreted this Rule in relation to contentions similar to those raised here by Mr. Rezida. The recent of such interpretation is set out in the **Crane Finance** case (supra), where Mr. Nangwala, a partner of Mr. Rezida, raised an argument to similar effect. At page 4 of the judgment, this is what the Court said, affirming what the East African Court of Appeal had stated in 1973 in the **Shant Case.**

"The rule invisages four scenarios in which extension of time for the doing of an act so authorised or required, may be granted, namely: -(a). before expiration of the limited time;

- after expiration of the limited time. $(b)$ . - before the act is done. $(c)$ . - $(d)$ . after the act is done.

The situation in the instant case is a combination of scenarios (b) and (d). The appellant applied for and Kitumba, J. A, granted, extension of time for filing and serving the record of appeal, long after limited time had expired, and also after the acts of filing and serving the record of appeal had been done. The bone of contention, however, is in respect of scenario (d), namely the effect of such extension on the acts which had already been done.

We think that it is obvious that the intended effect is to bring an act within "the time as so extended". There would have been no reason to include that scenario in the rule, if an act done out of time was an incurable nullity. It is because it is not such a nullity that under $r.12$ of the same Rules, the Registrar is required to accept documents filed out of time, and only to endorse them to that effect. A reading of rr.4 and 12 together clearly indicates that while a document filed out of time is voidable, it may be validated by extension of time.

Secondlg, we share the uleut that lt would be futlle to constrtte the pronlslon othenolse. Tho,t tieut tttcr's succlnctlg expressed bg the Court of Appeal tor East AfrLca in SHAMI Vs HINDOCHA (1973) EA 2O7. In that case the court considered r.9 of its Rules (whtch was in identlcal terms as r.4), and an argument, (shnllar to that oJ Mr. Nangutala ln the lnstant case) that the ntle empouered. the judge to a;uthorise a fuhtre act, not to rnlidqte a past one.

The courtheld.

"We think that when the time for lodging a document is extended, the document is dulg lodged if lodged within the time as so extended, whether the actual lodging is before or afier the order of extension. To hold othenaise would serue no u ose and utould merel result in firther costs bei incurred. It is not irreleuant in this connection to note that under r.11 the registrar has no pou)er to refuse to accept an appeal on the ground that it is out of time, uhich clearlg implies that the deliuery of the appeal out of time mag be exansed or ualidated."

This quotation in extenso is deliberate. I do so to illustrate one of the points that even though the applicants frled the appeal while labouring under the mistake that the filing was within time, Rule 4

allows them to hle this application since the respondents had indicated that the appeal were lodged out of time.

In my view the decisions in Shant case and 9rqEg-E!4arye case give sound interpretation of Rule 4 and I respectfully agree with that interpretation. That is the answer to the objection raised by Mr. Rezida. I shall now turn to the application itself.

#### THE APPLICATION

Mr. Ecimu, counsel for the applicants, has presented three scenarios. The first is that if I accept that his chambers were served with a copy of proceedings on l4llOl2OO2 then the appeal filed on llll2l2}O2 was instituted within the prescribed sixty days. In that case, he urged me to hold that there was no need to seek leave and therefore the application should abate. (I doubt whether abating would be the appropriate course). The second scenario, according to learned counsel, is that if on the evidence, I hotd that the proceedings were obtained on 11 / lO I 2OO2 ' the appeal lrled on lL I l2/2OO2, would have been filed one day out of time and so I should extend time and in effect va-lidate action taken by the applicants in filing the appeal and serving the record of appeal on respondents' counsel. The third scenario is that if, on the facts now available on the record before me, I am satisfied that the letter of the registrar written on 13 l9l2O02 was indeed delivered to the applicants counsel on that day, the hling of the appeal on llll2/2OO2 would have been filed within 89 days, and, therefore 31 days out of the statutory time. Counsel then argued that on the

basis of the letter by the Registrar of the Court of Appeal, dated 20l12 l2OO2, explaining the "mix up" arising from non-certification of proceedings on 1lllOl2OO2, the court would be to blame and so I should extend time. Finally Mr. Ecimu contended that whatever the case since mistakes by counsel that led to filing the appeal out of time afe not attributable to the applicants the mistakes ought not be visited upon the applicants. He relied on the authority of Crane Finance Co. Ltd. Vs Makerere Properties , Civil Application 1 of 2000 (S. Ct) (unreported), Yona Kanyomozi Vs. Mort Mart (Ul Ltd Civil Application No. 8 of 1998 (S. Ct) (unreported) and Gutti Vs Shoosmith (1939) 3 All ER 916. Mr. Ecimu stated from the bar that the disputed land is dear to applicants, who should presumably, be a-llowed to argue the appeal on merits.

On the other hand, Mr. Rezida, counsel for the 2nd and 3rd Respondents, and Mr. B. Cheborion, Commissioner for Civil Litigation, representing the first respondent, contended in summary, that the applicants have not shown sufficient reason and that the three authorities relied on by the applicants are distinguishable from the proceedings before me. Indeed, Mr. Rezida submitted, and he is supported by Mr. Bwango's afhdavit, that the applicants persist in hling court documents out of time because in the Court of Appeal the applicants sought extension of time to file the appeal out of which these proceedings spring. Therefore, counsel contended that this application amounts to an abuse of the process of the court and as such the application should not be allowed.

Let me examine the facts and arguments. There are certain points which are clear. The applicants lost an appeal in the court below and, therefore, lodged a notice of appeal intending to appeal to this court. There is no dispute that the notice of appeal was filed within time. That by itself suggests that the applicants intended to appeal. On 2"d August, 2OO2, as point out earlier, counsel for the applicants wrote the letter, ref. SL/4142140659, to the Registrar of the Court of Appeal and requested for a certified copy of the record of the proceedings for purposes of compiling the record of appeal for this Court. There is no suggestion that there is any fault in the letter which fault prevents the applicants from enjoying tJ'e advantages set out in Rule 78 (2) of the Rules of this Court. The subrule (2) reads;

(2). "Where dn appltcatlon .for a copg oJ the proceedlngs in the Court oJ Appeal has been made ruulthtn thiray dags after the date of the declslon a,galnst uthlch it 7s deslred to appeal" there shall, ln comgtutlng the tlne uithin uthlch the appeal is to be instidtted, be excluded such tlnte as ma be cerfified bu the reotstrqr of the Court of Aopeal a,s hauino been required for oreparqtlon and delhtent to the appellant of that coPg". Pausing here for a moment, it should be noted that the subrule does not require that "a certifled" copy of the proceedings be provided.

of signifrcance is that on 13 1912002, the Registrar of the court of Appeat ad.d.ressed a letter to M/s. Sebalu & Lule, informing counsel that: -

## "Th.e couti proceedlngs ln the aboue appeal" uthlch utere applted. for bg Uout are nou) readg for collectlon subJed ta pagtnent for the sa;me"

M/s. Sebalu & Lule, have asserted that they never received that letter. Mr. Ecimu has adopted the same stand before me and also made alternative submission that in case I find that indeed the letter was delivered, in which case the filing of the appeal on llll2l2OO2 would be late by 31 days, I should nevertheless grant the extension of time sought so as to validate the filing of the appeal. Of course both Mr. Rezida and Mr. Cheborion argued me not to grant such extension.

The disputed letter of L3l9l2OO2 was produced by counsel for the 2"d and 3'd respondents as annexture "B1" to the affidavit in reply and which was a-fhrmed on 71512002 by Mr. Badru Bwango, an advocate in the chambers of M/s Nangwala and Rezida. The purpose of Mr. Bwango's affidavit is to show that counsel for the applicants were not vigilant after they were notified of the availability of the proceedings by L3l9l2OO2 and that the applicants' delay is inexcusable. The affidavit avers further that the

applicants had also to seek leave for extension of time to file and serve notice of appeal and the appeal in Court of Appeal Civil Appeal (Civil Appeal No.69 of 2000) and, therefore, they are in the habit of not filing court documents in time.

### MIK UP OF DATES

As noted earlier, on a Friday ll I IO l2OO2, counsel for the applicants paid for the proceedings and were issued with a receipt. Apparently, because counsel wanted a copy of "certifled proceedings", their clerk, Wamateke, did not take the uncertihed proceedings, although it is not mandatory under Rule 78 (2) for proceedings to be certified. It is clear that certified copy of the proceedings was made available to the counsel for the applicants on 14/LO/2OO2. Counsel for the respondents have not in fact sought to challenge the fact that proceedings were paid for on ll llOl2OO2. Nor have they challenged the fact that the proceedings were in fact received on 14 llOl2OO2. Therefore the date of purchase and the date of delivery of proceedings are undisputed facts. In effect Mr. Ecimu relies on failure by his side to appreciate the import of rule 78 (21 to argue that there was a mix up of dates and for this, Mr. Ecimu sought to blame the Court. The contentions on the part of Mr. Ecimu are that if we take lllLOl2OO2 as the date when computation of 60 days began, the filing of the appeal would be out of time by one day on llll2l2OOZ when the appeal was instituted in which case this application is necessary. On the other hand if I accept the so called "mix up" and take 14 llOl2OO2 as the starting date for the computation, the institution of the appeal would be

within 6O days by ll/l2l2OO2. I better dispose of this point here' There is no dispute on the fact that there was administrative confusion in the Court of Appeal Registry on both dates. The registry should have given the proceedings to Wamateke on llll2l2}O2. Subrule (2) of Rule 78 does not stipulate that the registrar must certify the proceedings before the 60 days start running. The subrule only requires the Registrar to say that a certain period was

# "Requlred lor the preparatlon o;nd delfinry to the appellant of the copg"

of proceedings.

Therefore, assuming for the moment that the letter of 13 l9l2OO2 was not received by M/s Sebalu & Lule Advocates, I find that the period of 60 days would have started running from 1 I I lO I 2OO2. ln that event the appeal filed on ll ll2l2OO2 would have been lodged out of time by one day. So to va-lidate the action done on LL|L2|2OO2 by frling the appeal and contrar5l to Mr. Rezida's contention, the applicants would have to ask the court to extend time and show suflicient reason to support the application. The explanation in her affidavit of 8lll2OO3 by Ms' Mugidde that the typed certified proceedings were only received on 14 110/2002 does not affect nor change this conclusion. Therefore, under this scenario filing the appeal on 1 1/ 12 l2OO2 was done out of time. /

The crux of the matter in this application, however, is the said letter dated 13/9 /2OO2 to which I now turn.

#### THE LETTER DATED 13/9/2002

I have earlier on reproduced the contents of the letter. The letter was addressed to Messrs. Sebalu & Lule Advocates and was signed by the Registrar of the Court of Appeal.

Ms. Rossette Mugidde, a member of the said firm of advocates, in her rejoinder affidavit sworn on 8/5/2003 asserted, and the assertion was repeated before me by Mr. Ecimu, counsel who prosecuted the application before me, that the letter was never delivered to the firm.

There is a matter, I should dispose of before I proceed further. The matter concerns the dispute letter dated (13/9/2002) signed by Mr. Muragira and a second letter dated 20/12/2002 written to the Registrar of this Court by Mr. Ssegirinya, Assistant Registrar of the Court of Appeal explaining the so called "mix up". On 26/5/2003 Counsel for the applicants wrote a letter ref. SL/4142/43985 to the Registrar of this Court asking that Mr. Ssegirinya, be summoned to Court for cross-examination on the two letters. I did not accede to the request because I did not think that the cross-examination would yield more useful material since the first and more critical letter bore the name of Murangira as its author. Secondly much of the contents of second letter consists of hearsay.

Be that as it is, the matter of the letter of 13/9/2002 was first raised in the affidavit of Mr. Badru Bwango in paragraphs 3,4 and 5 which state: -

- (3) "That accordlng t-o the records of the Cour-t' of Appeal, on the 73th dqg of Septrlnber 2OO2, the Reglstrar, Court. of Appeal" urote to the crdtpcortes for the appllcants notlfglng them that the record. of proceedlngs ln Ciail Appeal No.69 of 2OOO before tlrc sdid coutt utere readg for collectlon. - 4 That I have also looked at Assistant Registrar Court of Appeal letter dated 18th Decembet, 2OO2, ln which it is clearly stated that couneel for the appllcants were notified of the fact on 13th September, 2OO2, as well as a letter from Sebalu and Lule Advocates in reaction thereto.

That it is apparent that counsel for the applicaats did not take the neceasary and vigilant steps to collect the proceedings until after the explry of almost a month from the date they were notlfied. They only collected the proceedings on 1lth october, 2OO2" 5

The three letters referred to in paragraphs 3 and 4 were annexed to the affidavit as "B1", "B2" atld "83".

I reproduced the contents of annexture "B1" earlier in this ruling. Annexture "B.2' is a letter dated l8ll2l2OO2 which Mr. J. B. Ssegirinya, wrote to the Registrar, Supreme Court and in its body it states: -

## "Re: Ciuil Appeal No.2O oJ 2OO2 Mansrukho,lRamfi Karia & Another Versus Attoraeg general & 2 othets

We refer to the aboue appeal of the Supreme Court.

Tlrc Registrar's certificate in the record of Appeal filed in your court indicates that the record of proceedings was supplied to M/ s. Sebalu, Lule & Co. Aduocates, counsel for the applicants on 18tn October, 2O02. Howeuer, in the course of our routine check of files, we haue discouered that the aboue date is elroneous. A close scruting of our registry fiIe in Ciuil Appeal no. 69 of 2000 has reuealed that the letter notifuing M/ s. Sebalu, Lule & Co. Aduocates that the court proceedings in the Court of Appeal were readg for collection was witten and deliuered on 73th September. 2OO2. The said" counset for the appellants subseqtentlg receiued with acknowledgement this court's proceedings on 7 7th October, 2OOO2. So that date is the correct date, which should haue appeared on the Registrar's certificate.

The mistake was not deliberote.

Yours faithfullg, J. B. Ssegirinya."

(Underling supplied bg me).

This letter was copied to the advocates for both sides. On the following day (l9l12l2OO2l Ms. Mugidde of Sebalu & Lule, Advocates responded to this letter. I say Ms. Mugidde because when Mr. Rezida submitted that the letter was written by her, Mr. Ecimu did not challenge this.

Mr. Rezida has argued that annexture "B2" confirms that indeed the letter of 13 19l2oo2 was delivered to M/S sebalu & Lule Advocates, despite the denial by the latter. I accept Mr. Rezida's contentions that the letter of l3/9l2OO2 was delivered to applicants' counsel. The following are some of my reasons. The applicants' counsel paid for a copy of certilied proceedings on 11/lOl2OO2 and collected them on 14llOl2OO2. There is no explanation or hint by the applicants or anybody, let alone Mugidde or Wamateke, from the applicants' counsel as to what other thing prompted them to purchase the proceedings on 11/lOl2OO2. In view of Bwango's a-ffidavit asserting that the letter of 13 l9/2OO2 was served on appellants' counsel advising counsel of the avaitability of the proceedings, I would have expected either Ms Mugidde, or 'Wamateke the clerk, to explain in their respective affidavits how they became aware of the proceedings prior to purchasing those proceedings on 11/lOl2OO2. Further I would have expected Ms. Mugidde to explain this in her letter 5L14142143398 dated 8l5l2OO3 (Annex "E" to her second a-ffidavit in rejoinder). What is also remarkable is that in his letter (dated t9ll2l2}O2l (supra) to the Registrar of the Supreme Court, Mr. Ssegirinnya asserted that: -

"A close sctl.ttlng of our reglstry ftle tn Ciull Appeal No. 69 of 2OOO has revealed thqt the lelter nottfglng M/s. Sebalu, Lule & Co. Adttocotes that the court, proceedings ln the Court of Appeal utere readg for collectlon u)crts urltten o;nd delfinred oft 73th Septcmber. 2OO2. The sqld counsel lor the appellants stbsequentlg recelued wtth acknoutledgement this coutt's proceedings on 77th October, 2OO2". (underllnlng for emphasls)

The followinB day, Ms Mugidde responded to the letter and contented herself with pointing out only the dates of payment for, and collection, of the proceedings. She apparently glossed over the very important facts in the statement in the letter that the letter to collect proceedings, "uIaE wrltten and delivered on 13th September, 2OO2".

In these circumstances, and with respect to Mr. Ecimu, the denial by him of receipt by his Chambers of the letter has no basis in fact, in reasons nor in logic whatsoever. I find that the letter was written and delivered to M/s Sebalu & Lule Advocates on 13th September, 2002' On the basis of this conclusion, it is obvious that the appeal which was lodged on 11/ 12 l2OO2 was indeed lodged out of time' I do not believe that counsel for the applicants were rushed or mixed up by the court merely because of certi\$ring proceedings on 14 lLol2oo2' The blame for omission to take proceedings on ll I lO /2OO2 should be that of appellant's counsel.

### PRAYER FOR EXTENSION OF TIME

Mr. Ecimu's prayer is that even if I lind in the two senarios, as I have found, that the appeal was lodged out of time, I should exercise my discretion to grant the apptication. Mr. Ecimu relied on the three cases, mentioned earlier in this ruling, for his prayer that the mistakes of counsel should not be visited on the intending appellant. Both Mr. Rezida and Mr. Cheborion opposed the application.

Mr. Rezida contended that the affidavits of both Ms. Mugidde and the Law Clerk, Wamateke, supported the application only on the basis that the appeal was filed in time and that the afidavits do not explain how and where the liling is out of time. Learned Counsel therefore submitted that in that case Rule 4 is inapplicable. Indeed learned counsel contended, but I do not agree,that the frling of the application / is an abuse of process of the Court.

Mr. Rezida submitted further that the cases relied on by Ecimu are distinguishable and that counsel for the applicants were guilty of persistent dilatory conduct. Mr. Cheborion, learned Commissioner for Civil Litigation, associated himself with the above arguments advalced by Mr. Rezida. The learned Commissioner expressed doubts about the credibility of Mugidde's affrdavits and contended that the applicants have not given suflicient reason within the meaning of Rule 4. The learned Commissioner argued that this is an application, which should not be granted because the application does not show unequivocally the error committed by counsel for the applicants to be sufhcient reason. To some extent, both Mr. Rezida and Commissioner Cheborion are correct. The affidavits in support of the application do not openly admit a mistake committed by counsel for the applicants. This is clear from the alfidavits filed to support the application' Reproduction of the contents of the affrdavits makes this ruling unnecessarily long. But I am constrained to reproduce some paragraphs.

ln paragraphs 3 to 11 of her affidavit in support of the application this is what Mugidde stated to explain the so called mix up and the mistake under which her firm laboured.

- (3). "That tlrc sqld clerk wa.s not lmmediatzlg lssted utth certltled coples of the proceedlngs brtt utas told to comc boick for the so;me on Mondag 14/7O/2OO2. - (4). That on 74/7O/2OO2 uhen the clerk receitnd the cerfified proceedlngs he utrrs told to o.cknowledge receipt bg one oJ the CoutA of Appeal Reglstry stqff whtch he dld lndlcatlng the date oJ recelpt of the proceedlngs as 74/7O/2OO2 bttt he uas told by the Reglstry staJf thot thls should be changed to 11/1O/2OO2 such thdt tt tallTes wlth the receipt issued on 77/7O/2OO2. Copg of lctter is hereto attached and marked .'8".

- (5). That the aboue changes were unfortunatelg not brought to mg olttentlon bg the Clerk o;nd on the 17/72/2002 uthcn I went to the Registrar of Court of Appeal for the Reglstrqr's certltlcatc the court Jlles for C"tull Appeal no.69 of 2OOO could not be traced to rzscert-o;in uhen the proceedlngs were rrurr;iled to Counselfor the Appellant. - (6). That I mistakenlg lnfonned tlrc Assistant Registrer thqt the record was qaqlled to us on 18/1O/2OO2 and thls was the dqte tho:t uo"s recorded on the records oJ appeal instead ot 14/1O/22O2.

- (7), That on the 78/72/2002 we recelued a letter oddressed. to the Reglstrar Supreme CoutA and copied to us from the Asslstqnt Reglstrar statlng inter a,llq tho;t ue were avslled the recotd on 17/1O/2OO2. - (S). That ort the 79/72/2002 ute urotn to the Assistant Reglstrar CourA of Appeal infonnlng hlm that though we dtd pag for the record of proceedings on 77/7O/2OO2 ue were antqlled the certttled. coples on 74/7O/2OO2. Copg ofthe sqid letter is o;ttached qnd marked "C".

(9). That on the 20th December 2002 the Assistant Registrar wrote to the Registrar Supreme Court explaining the mix up of the dates when the record of proceedings was availed to counsel for the appellant. Copy of the letter is attached and marked "D".

$\begin{array}{ccc} \cdot & \cdot & \cdot \\ \cdot & \cdot & \cdot \\ \cdot & \cdot & \cdot \end{array}$

- (10). That the appeal to Supreme Court was filed on the 11/12/2002 because we were under the belief that the statutory sixty (60) days were to expire on 13/12/2002 and not 10/12/2002 as it later turned out. - (11). That the mistake of filing the appeal late was occasioned by counsel for the applicant and should not be visited on the applicant/appellant and it is in the interest of justice that the time within which to file and serve the appeal be extended."

These averments were challenged in his replying affidavit by Bwango to which Ms Mugidde made rejoinder. In the rejoinder in paragraphs 3 to 7 Ms. Mugidde stated: -

3. That I have looked at the letter dated the $13th$ September 2002 annexed to Bwango's affidavit as Annexture "B1" and state that the same was never served or delivered to our firm and I first saw it only when the respondents counsel served us with their affidavit.

4. That I am surprised that a letter duly addressed to us was never delivered to us but instead found its way into the respondent's counsel's hands.

$\begin{array}{cccccc} \cdot & \cdot & \cdot & \cdot & \cdot & \cdot & \cdot & \cdot & \cdot & \cdot & \cdot & \cdot & \cdot & \$

- 5. That I wrote to the Registrar Court of Appeal asking that he furnishes proof that the said letter was delivered to our firm but no such proof has been availed to us. Find a copy of my said letter attached hereto and marked Annexture "E". - 6. That it may be possible that the said letter was written but probably by the omission of court the same was not delivered to its addressee, a possibility that should not be visited on the applicants. - 7. That mistake of counsel in an earlier instance should not be harshly construed and be visited on the applicants who have no knowledge or control or what their counsel did".

There is implied admission of counsel's mistake in Paragraph 11 of Mugidde's original affidavit and in paragraph 7 of her rejoinder affidavit.

Both Mr. Rezida and Commissioner Cheborion do not attach significance to these two paragraphs as admissions of mistakes on the part of counsel for applicants. However, the evidence before me suggests very strongly that both Mugidde and Wamateke appear to be inexperienced which their firm should have owned up rather than be adamant in the stand they have taken. Can such attitude of an advocate or the firm's blunders be visited upon the client or constitute sufficient reason. I think that this depends on circumstances of each case and how a judge appreciates those circumstances. In a case where a client has been clearly involved in the application such as personally swearing an affidavit, a judge would naturally be influenced by what the applicant states in the affidavit supporting the application. Equally a judge would be influenced one way or the other on the basis of the evidence given personally by an advocate on behalf of the applicant. As was said in the **Kanyomozi case** (supra) "Sufficient reason" is not defined in the Rules. The matter is left to the discretion of the court. This means in my view that various factors can constitute sufficient reason. In my view a ground that prevents injustice to an applicant can constitute sufficient reason. Counsel's mistake can cause injustice. Article 126 (2) (e) requires courts to administer substantive justice without undue regard to technicalities. Without being dogmatic, I think that Art.126 (2) (e) should be a useful tool in considering applications such as this one.

$\cdots,$

The afhdavits in support of the application sworn by Mugidde and Wamateke, the Clerk, very strongly place blameworthiness in the handling of the matter on the part of the advocates. what is clear is that the advocates had instructions to appeal to this court. There is no suggestion that that has changed. counsel for the applicants failed to take the necessar]i steps within 31 days to institute the appeal after the notice of appeal was filed. I do not think, as suggested by Mr. Rezida, there is such a material distinction between this application and the three cases cited by Mr. Ecimu that prevents me from granting this application. In crane Finance delay was over a year. Delay in the other two cases was also long. Here there is delay of only 31 days which can be compensated for in costs. It is my considered opinion that in this particular application lack of diligence on the part of counsel ought not to be visited on the applicants. In this case I find that lack of diligence on the part of applicants' counsel, combined with the fact that the appeal was lodged within 31 days outside time, is sufficient reason under Rule 4 to justifu grant of extension for filing the appeal out of time. I therefore allow the application.

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I order that the respondents be paid the costs of tJlis application. Since I have held that the applicants counsel were responsible for the tailure to file the appeal in time, I order that the costs be paid by the advocates for the applicants.

Since the court record has been filed there does not appear to be a need for specifying time within which to file documents. They are deemed to have been validly filed.

Delivered at Mengo this. 2.t.t.day of. Funs....................................

J. W. N. Tsekooko **Justice of Supreme Court**

ISI Applicant Mr. N. Ecenny for Applicants. Mr. Cheborion Davisadi fort Genero Mr. A Rezida for 200 and 300 Deep. Rulip delivered. Pulip delivered.