Muluta v Katama [1999] UGSC 25 (17 November 1999)

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

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#### BEOFORE: HON. JUSTICE G. W. KANYEIHAMBA

#### CIVL APPLICATION NO. 2 OF 99

### BETWEEN

## JOSEPH MULUTA »»»»»»»»»»>APPELLANT

#### AND

## SYLVANO KATAMA »»»»»RESPONDENT

*RULING:*

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By Notice ofMotion dated 23rd July, 1999, the appellant applied for an order granting him leave to file Notice ofAppeal and institute the appeal out oftime.

The following is the background to the application. The applicant sued the respondent in the High Court in civil case No. 445/95 for general damages for trespass and breach of contract for the sale ofmailo land. The applicant was successful in the High Court. Thereafter, the respondent appealed to the Court of Appeal and the Court ofAppeal allowed the appeal and set aside the judgment and orders ofthe High Court. The applicant instructed counsel to appeal to this court. On 4th December, 1998 the said

counsel gave Notice ofAppeal which notice was served on the respondent. On 6th December, 1998, the applicant's counsel applied for a copy ofthe proceedings and judgment ofthe Court ofAppeal for the purposes offiling an appeal in this court. However, a copy ofthat application was neither copied to nor served on the respondent notwithstanding allegations to the contrary by former counsel for the applicant. On 5th March, 1999 Mr. Charles Mwebembezi, the present counsel for the applicant was instructed by the applicant to prosecute his appeal as the former counsel was doing nothing about it. On the day the new counsel received instructions, he perused the file and made enquiries in the courts' Registrars office and the chambers of the applicant's former counsel as to the stages so far reached in the prosecution ofthe appeal for which notice was filed. The new counsel found that in effect, no further steps in the prosecution ofthe appeal had been taken since the filing ofthe notice of appeal. In consequence, the notice of appeal had expired and so had the right to appeal - hence this application by way ofNotice ofMotion.

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Before civil application No. 2 could be heard the applicant filed civil application No. 12 of 1999 by way ofnotice ofmotion seeking leave to amend civil application No. 2 of 1999. The motion to amend was accompanied by an affidavit sworn by Mr. Mwebembezi. The amendments were intendend to deal with the consequences ofthe non-prosecution ofthe appeal and the fact that any steps which could have been taken had been halted through effluxion oftime. Mr. Nkurunziza, counsel for the respondent, intimated that he had no objection to the amendments but in his opinion these were amendments which could have been easily framed in the original application No. 2 of 1999 and this being the case, he prayed for

costs incurred in the application to amend. In accordance with Rule 43 (3) ofthe rules ofthis court, I granted leave to the applicant to amend and directed that the amended motion be served immediately to enable the respondent to reply within a few days so as to enable the application to appeal out oftime to be heard on 25th October, 1999. Respondent was awarded costs for the disposal ofthe application to amend.

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On 25th October, I conducted the hearing ofthe amended application. The Notice ofMotion contained the following 9 grounds of application.

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- 1- Immediately on the day judgment in civil appeal No. 12 of 1998 was read, the applicant instructed his lawyers, M/s Akampurira & Co. Advocates to appeal and was informed that the said lawyers had taken the necessary steps. - **2-** Ofrecent it was found out that although the Notice of Appeal was lodged in time, the application for a copy of proceedings and judgment was neither copied to nor served on the respondent. - 3- It was not possible to get certified copies ofthe proceedings and judgments in time to file the appeal within 60 days and the applicant could not take the advantage ofthe provisions ofrule 78 ofthe Rules ofthis court. - **4-** It was due to the inadvertence ofthe said lawyers that the letter applying for proceedings and judgment was not served and proof retained and such inadvertence should not be visited on the applicant. - 5- The Notice of Appeal that was lodged has since elapsed because the appeal was not instituted within the time stipulated.

- **6-** In view ofthe above, it is necessary that we make an application for leave to lodge a fresh notice of appeal and institute the appeal out of time. - 7- The applicant is not guilty of any dilatory conduct on his part and that there is a sufficient cause for not having instituted the appeal within the prescribed time. - 8- The intended amendment does not prejudice (the interest of) the respondent. - **9-** In the interests ofjustice this honourable should be pleased to exercise its discretion and grant the applicant leave to lodge a fresh Notice ofAppeal and institute the appeal out oftime.

The application was supported by the affidavit ofRichard Mwebembezi which was sworn on the 23rd day ofJuly, 1999.

It was also supported by an affidavit by the applicant, Mr. Joseph Muluta which stated, *inter alia,*

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- (2) that immediately afterjudgment was delivered in Civil Appeal No. 12 of 1998 I instructed my advocates, M/s Akampurira, & Co. Advocates to lodge an appeal against it. - **(3)** that the said lawyers informed me that they had taken the necessary steps to lodge the appeal and in fact lodged a Notice ofAppeal and served a copy to the Respondent (photocopy attached and marked "A") - **(4)** that I have also been informed by my cunent lawyers and I believe the same to be true that by the 5th ofMay, 1999, they were still pursuing certified copies ofjudgment and relevant exhibits (<sup>a</sup> photocopying (sic) of our letter is attached and marked "B").

- (5) that I have been informed by my current lawyers, M/s Babigumira & Co. Advocates, and verily believe the same to be true that although my former lawyers applied for a copy ofproceedings and judgment, they neither copied nor served a copy ofthe letter on the Respondent (photocopies ofthe letter requesting for proceedings and my current lawyers 'correspondence are attached and marked "BB1", "BB2" and "BB3", respectively. - **(6)** that I have been further informed by my current lawyers and believe the same to be true that I cannot take advantage ofthe provisions of rule 78 ofthe rules ofthis court to file the appeal outside the prescribed 60 days. - (7) that it was due to 'the inadvertence ofthe said lawyers that the application for proceedings and judgment was not served on the Respondent and such inadvertence should not be visited on me. - (8) That I have also been informed by my current lawyers and I believe the same to be true that the said Notice ofAppeal has since elapsed. - (9) - (10) that there is sufficient cause for not instituting the appeal within the prescribed time and in the interest ofjustice I should be granted leave to lodge a fresh Notice ofAppeal and institute the appeal out oftime.

Mr. Richard Mwebembezi for the applicant addressed court on the application after summarising both the grounds ofthe application and the reasons contained in the applicants' affidavit. He first made submissions on grounds 1,2,5, and 6 ofthe application.

Counsel submitted that as a result ofthe enquiries carried out by his firm, it was discovered that contrary to the applicant's former counsel's claims,

there was no proof ofservice ofthe relevant notice of the appeal to the Respondent nor had the record ofproceedings been issued.

In consequence, the applicant is unable to take advantage ofRule 78 (2) and (3) ofRules ofthis court. Secondly, as the record ofproceedings has not been availed by the court, it is not possible for the applicant to appeal within 60 days as required by the Rules of court. Counsel indicated that the application was founded upon Rule 4 ofthe Rules ofthis court which empowers the court to extend the period in which to lodge an appeal beyond the sixty days limit. It was counsel's contention that there was sufficient cause for the applicant to have failed to take a particular step in the proceedings. Counsel cited the case ofIsaac Bushari v. VitaFoam. Misc. App. No. 2 of 1994 (s.c.), (unreported), in which the court, (Odoki, J. S. C.) said that in applications ofthis nature the court has wide powers to decide and is only limited by the words "for sufficient reasons."

Counsel further contended that as was held in such cases as Mugo and Others v. Wanjiru & Another (1970) E. A. 481 and Shanti v. Hindoche & Others, (1973)W. A 207, all that the applicant needs to show is that failure to take any step in the proceedings was not attributed to him personally. Counsel submitted that in this particular case, applicant had done his best to instruct his lawyers to prosecute the appeal and he gave these instructions immediately after the delivery ofthe judgment in the Court ofAppeal. In addition, the applicant was informed by his former lawyers that they had taken the necessaiy steps in the process ofthe appeal and applicant had no reason to disbelieve or doubt the words ofhis counsel. Counsel further submitted that it is clear from the facts ofthis application that it was the inadvertence or negligence of the applicant's former counsel, that there had been a failure to take the necessary steps in the proceedings, and it is now a well known principle ofjustice that the sins of counsel should not be visited on his client. Counsel submitted that in this particular case, appellant had done his best to instruct his lawyers to prosecute the appeal and he gave these instructions immediately after the delivery ofthe judgment in Court of Appeal. Counsel cited the case of Executrix ofthe Estate ofChristina v, Tibajiukira vs. Debrah Namukasa (1978) Civil Application No. 8 of 1998 (C. A), in support of his submission.

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Mr. Mwebembezi finally made submissions on grounds 3 and 7. He contended that court had delayed in the compiling and issuing ofthe record ofproceedings and this had contributed to the delay in taking the necessary steps in the prosecution ofthe case. Counsel referred to a number of authorities including Bakitara Transport Bus. Co. Ltd. V. Emmanuel Biribonwa, Civ. App. No. 7 of 1978, and Balwantrai D. Bhatt v. Tejwant Singh And Another (1962) E. A. 497 for the proposition that a party should not be penalised ifthe fault is entirely attributed to counsel or court. Cormsei contended that in this case, the applicant was entirely blameless. He asked court to allow the application, order that the Notice ofAppeal be renewed and extend the time within which to appeal to sixty days.

Mr. Nkurunziza for the Respondent opposed both the revival ofthe Notice ofAppeal and the extension oftime within which the applicant may appeal. He submitted that the applicant had not shown any sufficient reason to warrant the exercise of discretion in his favour by the court. He contended that notwithstanding that the applicant's former lawyers were negligent, the applicant had not given sufficient reasons why the record of

proceedings had not be obtained in time. The reasons for this failure have not been disclosed to court. After all, there is evidence that the record of proceedings was freely available and was presented in the Court ofAppeal. The applicant has not produced any evidence from the court below as to why the issuing ofthe record of proceedings was delayed. Counsel submitted that the contents ofparagraph 4 ofthe applicant's affidavit were inaccurate or, at worst, contained a falsehood, in that while he stated on oath that by the 5th, August, 1999, they were still pursuing certified copies ofthe judgments, in fact the letter seeking those copies was first written and presumably sent on that same day. Counsel submitted that on the basis of the case of Joy Tumushabe v. Anglo- African Limited And Another, Civil Application No. 14 of 1998, it is for the applicant to show that he or she has not directly or indirectly contributed to the delay.

Counsel for the Respondent further contended that the applicant had not shown that ifthis appeal proceeds there are prospects for the success of the appeal as was held in the cases of Balwantra D. Bhatt v. Tejwan Singh and Another (supra) and Pollack House Ltd v. Nairobi Wholesalers Ltd. (No. 2), (1972) E. A. 172.

Mr. Nkurunziza submitted further that on the other hand, the affidavit ofMr. Katama, the Respondent, shows that this case has been going on since 1995. The applicant instituted his plaint in the High Court, on 14.5.95. In the same affidavit, the Respondent shows in paragraph 9 that he would be prejudiced by long litigation which would deny him the benefits ofthe judgment in his favour. This litigation has extended to more than four years and it was Mr. Nkurunziza's contention that further delay would harm the

interests ofthe Respondent. The court must weigh the interests ofboth parties, not simply those ofthe applicant. Counsel finally submitted that it could have assisted the court ifthe applicant had disclosed the grounds upon which he intends to appeal but he chose not to do so. He prayed that the application be dismissed with costs to the Respondent. On the issues of the prospects for the success ofthe appeal and disclosure ofthe grounds of appeal, Mr. Mwebembezi, responded by saying that the rules under which a court may extend the time in which to appeal do not require that the applicant should show the grounds or chances of success of the pending appeal since that would be tantamount to hearing the appeal itself. The rules only require that the applicant show why a certain step or steps were not taken in the proceedings. It was counsel's submission that the grounds advanced by the applicant are sufficient and he repeated his prayer that the application be granted.

It is clear from the facts and submissions of counsel that the reasons which caused the Notice ofAppeal to expire without any further steps taken are attributed to former counsel for the applicant. Although an attempt was made by counsel for the applicant to portion some blame for the court registrars who are responsible for preparing records ofproceedings, no conclusive evidence was shown in this respect. Therefore tire only question is whether the applicant has satisfied me that he was utterly blameless and that the negligence or omissions ofhis former counsel were such as will justify a remedial order in his favour, bearing in mind that the right ofthe respondent granted by the judgment in his favour may be prejudiced thereby.

In a recent decision ofthis court, Motor Mart (U) Ltd. V, Yona Kanyomozi, Civl Application No. 6 of 1999, we had occasion to confirm tire ruling of a single judge ofthis court in which he, having reviewed the relevant authorities, granted a similar application to an applicant who had been let down by a defaulting advocate.

The authorities underscoring the principle that the faults of counsel should not be visited upon a litigant include Mugo v, Wanjira (1970) E. A. 481, Shanti v. Hindocha & Others, (1973), E. A. 120, Shiv Construction v. Endesha Enterprises, Ltd., Civ. App. No. 15 of 1992 (S. C.) (unreported), Haji Nurdin Matovu v. BenKiwanuka, Civ. App. No. 12 of 1992 (S,C) (unreported), The Executrix ofthe Estate of Christine N. Tibaijukira v. Deborah Namukasa, Civil Application No. 8 of 1988 (supra) and Joy Tumushabe v. Anglo- African Limited And Another (supra). In the latter case, the court said,

*''It is trite law that a vigilant litigant should not be penalisedforthe dilatory conduct ofhis advocate or ofthe court ifhe orshe has not directly or indirectly contributed to it. "*

The facts ofthis particular case show that as soon as the applicant discovered that his appeal had stalled, he took immediate steps to correct the situation. He briefed new counsel and instructed him to take over the prosecution ofthe appeal. The new counsel acted quickly and took the necessary steps. This shows vigilance on the part ofthe applicant and his new counsel.

Unfortunately, it is true, as counsel for the Respondent argued, that in cases ofthis nature where lawyers for the other side have been too slow or

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negligent, the successful and innocent party who is or ought to be enjoying tire fruits ofthe judgment is prejudiced. Nevertherless+, justice must strike a balance between the wronged applicant and the innocent Respondent.

In the circumstances ofthis case therefore I have no hesitation in exercising my discretion in favour ofthe applicant. I allow this application. The applicant shall file and serve Notice ofAppeal within seven (7) days from the date ofthis ruling and file and serve the appeal within twenty one days (21) after filing and service ofthe said Notice of Appeal.

Since these proceedings were necessitated by tire Applicant's default, costs in this application are awarded to the Respondent.

DAY DATED AT MENGO THIS. J. 7. NOVEMBER, 1999.

JUSTICE OF THE SPUREME COURT

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