Mbale Municipal Council v Islamic University in Uganda (Miscellaneous Civil Application No. 28 of 1998) [1998] UGCA 65 (23 October 1998)

Full Case Text

# THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA

# HOLDEN AT KAMPALA

**CORAM:** HON. MR. JUSTICE OKELLO, J. A.

#### **NISCELLANEOUS CIVIL APPLICATION NO. 28 OF 1998**

### **BETWEEN**

MBALE MUNICIPAL COUNCIL:::::::::::::::::::::::::::APPLICANT

AND

ISLAMIC UNIVERSITY IN UGANDA:::::::::::::::::::::RESPONDENT

# RULING OF G. N. OKELLO, J. A.

This application by Notice of Motion was brought under rules 4, 42 and 75 of the Court of Appeal Rules Directions 1996 for leave $t\phi$ file an appeal out of time. The application is supported by an affidavit of Mr. Vincent Emoru, Counsel for the Applicant sworn on $28/5/98$ .

The background to this application is briefly that on $12/2/96$ the Chief Magistrate of Mbale had made an order under the Rating Decree No. 3 of 1979 against the respondent. That order was set aside by the High Court (Ouma J.) on $4/4/97$ . The applicant who desired to appeal against that decision of the High Court, sought and was on 28/5/97 granted leave to appeal. The former Counsel for the applicant purported to give Notice of Appeal on 11/6/97 against that High Court decision of $4/4/97$ . Hence this application.

When the application was called for hearing, Counsel for the respondent did not appear even though there was evidence of due service of Hearing Notice on him. He also filed no affidavit in reply to that sworn by Mr. Emoru in support of the application. At the instance of Counsel for the application, I allowed the

hearing of the appl icat ion respondent in terms of rufe proceed in the (2\ of t.he Rules to 55 absence of this of Ehe Court. .

Mr. Emoru learned Counsel for the applicant pointed out. that under rule 4 of the Rules of this Court, the CourE. may for sufficienE reason extend the Eime linited by these Rules for doing any act auEhorised or required by chese Rules. I agree. That is Ehe Iaw.

Relying on Miscellaneous Civif Application No.31 of 1997: HIIDANI VS TE'IANI (CA) (unreported) Mr. Emoru submitted that mistakes of advocates have been found in some cases to constit.ut.e sufficient reason Lo just.ify extension of time under rul-e 4 of the Rules of this court. In HITDANI',S CASE (SUPRA) this Court found that faifure of the advocate to copy the application for record of the proceeding from the High Court to the opposite Counselconstituted sufficient reason for extending the time to file a otice of Appeal . Mr. Emoru point.ed out. thats in the instant case, the former Counsel for the appficant gave Notice of Appealn aL/6/97 against t.he decision dated 4/4/97 erroneousLy thinking hat she needed Eo obtain leave to appeal first. Eo give Notice f Appeal . According to Mr, Emoru. because of that error, the ormer Counsel gave the Notice of Appeal- out of time. He ubmitt.ed E.hat. the error should not. be visited on Ehe applicant. e prayed that t.he applicat.ion be allowed.

he law governing Notice of Appeal \^rhere an application for a ertificate or for leave is necessary is covered under Rufe 40 2) of the Rules of this Court. Such application may be made efore or after the Notice of Appeal is lodged. Notice of Appeal ust however, be fodged wi-Ehin 14 days after the date of the ecrsion against whj.ch iE. is desired to appeal . (see Rule 75 (2) L

he former Counsel for the applicant j.n waiting to obtain o appeal first. before giving the Notice of Appeal acted isapprehension. l eave in a

As to what constitutes sufficient reason for extension under rule 4 of the Rules of this Court, the applicant only needs to show that the delay was not due to his/her making. There are indeed several authorities which show that mistakes or negligence by Counsel is not necessarily a bar to obtaining an extension of time! Giving only a few of such cases, See (1). Ngoni Matengo Cooperative Marketing Union Ltd Vs A. Osman [1959] EA 577; (2). Sirazali Gulamurali Merali Hudani Vs Jimmy Tejani -Miscellaneous Civil Application No. 31 of 1997 (CA) [unreported].

Clearly, the mistake of the former Counsel which resulted into the delay cannot be visited on the applicant. It constituted sufficient reason for extension of the time.

In the result the application is allowed. The applicant is to file the appeal within twenty-one days from the date of this ruling. Cost of this application shall abide the result of the intended appeal.

Dated at Kampala this...2.3. rd Dated at Kampala this...2.3. rd

. M. OKELLO

JUSTICE OF APPEAL.