Mulowooza and Brothers Ltd v N. Shah and Co. Ltd (Civil Application 20 of 2010) [2010] UGSC 36 (6 October 2010)

Full Case Text

### THE REPUBLIC OF UGANDA

#### IN THE SUPREME COURT OF UGANDA AT KAMPATA

## GIVIL APPLICATION NO. 20 OF 2O1O

#### BETWEEN

MULOWOOZA & BROTHERS LTD APPLICANT AND N. SHAH & CO. LTD :::::::::::::::::::::::::::::::::::::::::: RESPONDENT.

BEFORE BART M. KATUREEBE, JSC.

# RULING OF THE GOURT.

This is an application brought by way of Notice of Motion under Rules 2(L), 2(2),5, 42, and 50 of the Supreme Court Rules seeking extension of time within which to serve copies of Notice of Appeal upon the respondent. The application arises from a decision of the Court of Appeal in Civil Appeal No. 57 of 2009 dated 16th July 2010. The applicants promptly instructed their counsel to prefer an appeal against the decision. The record of the Court of Appeal does show that counsel for the applicant did inform court of the intention to appeal.

It is not disputed that on the 26th July 2010, counsel for the applicant filed a formal Notice of Appeal and a letter requesting for the record of proceedings with the Registrar of the Court of Appeal. Subsequently, copy of the Notice of Appeal was served on the Registrar of the Supreme Court. A copy of the letter requesting for the record of proceedings was also served on M/s Ekirapa & Co. Advocates, counsel for the respondent on the 28th July 2010. But by common

agreement, no copy of the Notice of Appeal was served on the said counsel for the respondent. Herein lies the problem before this court.

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ln the affidavits of Ambrose Tebyasa, an advocate representing the applicant in the Court of Appeal, and of Mukasa Henry, a clerk in his chambers, it is alleged that a Notice of Appeal together with the letter requesting proceedings were taken to be served upon counsel for the respondent, but that somehow, or inadvertently only the letter requesting proceedings was served and the Notice of Appeal was not. Mr. Tebyasa deponed that he did not realize that counsel had not been served with the Notice of Appeal until on 22nd August 2010. He stated that he then immediately wrote to respondent's councel requesting them to accept servace out of time, which request was declined.

Counsel for the respondent for his part filed in reply, an affidavit by Obiro Ekirapa lsaac, an advocate with Ekirapa & Co. Advocates who gave a different account of events. He admitted that on 28th July 2010 he was served with a letter requesting for the record of proceedings in Court of Appeal Civil Appeal No. 57 of 2009, receipt of which he duly acknowledged. He states that on 2nd August 2010 he was served, by the same clerk from Tebyasa & Co. Advocates, with a letter in which the applicant stated that he would not act on the amended pleadings that had been filed in the High Court by the respondent. Counsel states that he endorsed upon his copy and the copy of the applicant's counsel the statement that he had not been served with the Notice of Appeal. He claims to have also verbally informed the clerk who served the letter that no copy of the Notice of Appeal had been served on him. He claims furtherto have filed an application in this court seeking to strike out the Notice of Appeal since the applicant had failed to serve him on time or at all. He states that on

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the 23'd August the applicant's counsel sought to serve him with the Notice of Appeal which he rejected accusing them of inordinate delay in serving them. He accuses Henry Mukasa of stating falsehoods in his affidavit by claiming that he, Mukasa, had not been informed by counsel about the lack of service ofthe Notice of Appeal.

ln his affidavit in rejoinder, Mukasa Henry, also accuses counsel Obiro Ekirapa of stating falsehoods, and denies that Mr. Ekirapa had ever informed him of the failure of service of the Notice of Appeal, and denies further that Mr. Ekirapa had ever made any endorsements on any of the letters he had served upon him.

At the hearing of this application, Mr. Kyazze, counsel for the applicant submitted that the failure to serve a Notice of Appeal on respondent's counsel was inadvertent and was not intended to delay the prosecution of the appeal which was being filed by the applicant. He argued that it was in the interests of the applicant that the substantive appeal be disposed of as quickly as possible, and that is why he had given verbal notice of appeal in the Court of Appeal and filed the Notice of Appeal within time. He had requested for a record of proceedings which to-date had not been received. The inadvertent failure to serve notice of appeal on the respondent therefore did not occassion a miscarriage of justice. Counsel pointed out that the delay in service was only for a period of three weeks. That, to him, was not inordinate delay.

He cited the cases of F. L. KADERBHAI AND ANOTHER -Vs- SHAMSHERALI VIRJI AND OTHERS (Supreme Court Civil Application No. 20 of 2008) and that of ATTORNEY GENERAL-Vs- LUTAAYA (Supreme Court Civil Application No. 12 of

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2007) to support his argument that the litigant's interests should not be defeated by the mistakes or lapses of his counsel. The appeal should be determined on its merits. He prayed for the application to be allowed with costs.

For the respondent Mr. Ekirapa argued that the application raised only one major issue, namely, whether there was sufficient cause to enable the court exercise its discretion to allow the application. Counsel argued that counsel for the applicant had acted dishonestly by refusing even to acknowledge the endorsements purportedly made by respondent's counsel on the letters indicating a failure to serve them with the Notice of Appeal. To him, this was not a case of inadvertence, but rather one of a deliberate scheme to delay the appeal process and defeat the ends of justice. He submitted that there was no sufficient cause upon which this court could exercise discretion to grant an extension of time to serve the Notice of Appeal on the respondent's counsel. Counsel further submitted that by its very nature, the application was grounded in equity and the applicant's counsel had delayed in his actions, had told lies about the reason for the delay in service, and therefore the court ought not to exercise its discretion in favour of the applicant. He cited the case of ATTORNEY GENNERAL lOR KENYA -Vs- PROF. ANYANG' NYONGO & 10 OTHERS (East African Court of Justice, Appeal No 1 of 2009) in support of his su bm iss ion.

Having carefully perused the application and all the affidavits pertaining thereto, I find the following facts not worthy. First, when the Court of Appeal delivered its judgment on 16th July 201.0, counsel for the applicant orally gave notice of the applicant's intention to appeal. This, of course, did not take away

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the obligation to file a formal notice of appeal and serve the same, on the other parties affected by the appeal, but parties were put on notice that there may be an appeal. Second, the formal Notice of Appeal was filed in court on 25th July 2010 together with a letter requesting for a record of proceedings. This was ten days after the delivery of the judgment and within the time allowed by the Rules. Counsel for the respondent was served with a letter requesting for proceedings on 28th July 2010, but no Notice of Appeal was served on him. On 23'd August 2010, a belated attempt was made to serve the respondent's counsel with the Notice of Appeal whereby he was requested to accept service out of time. This was rejected by counsel. A period of about 27 days had elapsed from the time when the Notice of Appeal was filed, and about 20 days out of time from when the respondents should have been served. On 31't August 2010, this application was filed seeking extension of time within which to serve the Notice of Appeal on the respondent.

The first question that arises is whether it can be said that the applicant was guilty of dilatory conduct and inordinate delay in pursuing this matter. Looking at the authorities cited by both counsel, I note that in lhe KADERBHAI case (supra) the period of day in issue was about 10 months. Likewise, in the LUTAAYA case (supra) the period of delay in issue was also several months. ln the instant case, the period of delay is about 20 days. Given the steps taken by counsel for the applicant as observed above, lam unable to accept respondent's counsel's argument that there was inordinate delay in the attempt to serve the Notice of Appeal, much as it was beyond the seven days mandated by the Rules.

The next question is whether there is sufficient reason for this court to exercise its discretion to extend time. Rule 5 of the Supreme Court Rules states:-

> "The Court moy, for sufficient reoson, extend the time prescribed by these Rules or by ony decision of the Court or of the Court ol Appeal for the doing of ony act outhorized or required by these Rules, whether before or ofter the expiration of thot time ond whether before or ofier the doing of the act; ond ony reference in these Rules to any such time should be construed as o reference to the time os so extended"

The crucial phrase here is "sufficient reason." This court has consistently held that mistakes and/ or lapses by counsel may constitute "sufficient reason" for the court to exercise its discretion so as to allow an appeal to proceed to be tried on its merits. This was the gist of the decisions in the KADERBHAI and LUTAAYA case above. ln the former, this court held that what constitutes "sufficient reoson" is determined by the court using its unfettered discretion. The court, in its discretion may accept either the reason that prevented an applicant from taking the essential step in time or may accept other reasons why the intended appeal should be allowed to proceed even thought it is out of time. lf it appears to the court that refusing to grant the extension of time will shut out the appeal altogether and may cause injustice, the court may grant the extension of time. ln that case, the inadvertent failure of counsel to serve Notice of Appeal and the letter requesting for record of proceedings on the opposite party as required by the Rules constituted sufficient cause.

ln the instant case, counsel for the respondent urged court not to find sufficient cause because, to him, there was deliberate intention on the part of

counsel for the applicant to frustrate the appeal. On the facts of this case, I am unable to accept that argument. True there is apparent confusion between the lawyers and the clerk as to whether counsel for the respondent endorsed on the letters from the applicant's counsel the fact that he had not been served with the Notice of Appeal, or whether he so verbally notified the clerk' Both counsel Tebyasa and his clerk, Mukasa, deny any such endorsements. However, the fact remains that while these lawyers and their clerks are throwing accusations at each other, the litigants who are interested in the conclusion of the appeal stand to be frustrated. lt is certainly most unbecoming of two advocates accusing each other of telling lies. I note that both Mr. Tebyasa and Mr. Obiro Ekirapa withdraw from arguing the application because they had shown affidavits and might be cross-examine as witnesses. But neither of them was cross-examined. lnstead counsel for the respondent belatedly thought of cross-examining the clerk who had not been summoned to court. This to me, was further testimony of lapses of both counsel in this matter. ln my view, this is a case whether the failings, mistakes or lapses of counsel, or even the apparent m isu ndersta nding between counsel, should not be visited on the litigants.

I am satisfied that counsel for the applicant moved with speed as soon as he discovered that the other party had not been served with the Notice of Appeal, and sought consent of his counterpart to be served out of time. Then he failed to get his counterpart to accept service out of time, he quickly filed this application.

ln the ANYANG' NYONGO case, (supra) the East Africa Court of Justice did point out that applications such as this for extension of time are grounded in

equity, and he who comes to equity must come with clean hands and must be The court stated as follows:- "The delay dragged on from one vigilant. months, to two and ultimately to almost three month: in all, a delay of some 90 days. Such a delay was, by any measure, inordinate.................................... eschews indolence."

The same can hardly be said of the instant case. I am satisfied that this is a case where it is equitable and just for this court to exercise its discretion and extend the time within which the applicant must serve the Notice of Appeal on the respondent or its counsel. I order that the Notice of Appeal shall be served on the respondent or its counsel within two days from the date hereof.

The applicant delayed in effecting the service, and this hearing could have been avoided if the parties had cooperated. Each party shall bear their own costs.

6 th .............day of October, 2010. Dated at Kampala this ....................................

Bart M. Katureebe JUSTICE OF THE SUPREME COURT