Muwanga Estates Ltd and Another v NPAITT (Civil Application No. 49 of 2001) [2001] UGCA 63 (19 March 2001)

#### THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

# CORAM: HON. JUSTICE AMOS TWINOMUJUNI, J. A (SINGLE JUDGE)

## CIVIL APPLICATION NO.49 OF 2OOI

MUWANGA ESTATES LTD & ANOR APPLICANTS VERSUS

NPAITT RESPONDENT

# ro RULING:

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2-s This is an application for leave to appeal to this Court out of time against the judgment of the Non-Performing Assets Recovery Tribunal delivered on l9'h March 2001. The application which was filed on 3l-7-2001 is supported by the affidavit of the second applicant who is also the Managing Director of the l't applicant. In that affidavit deponed to on the day of filing this application, the second applicant deponed: -

i0 \*3 That I instructed Mr, Lutakome our lawyer at that time to immediately file an appeal against the judgment and order of the tribunal as I was dissatisfied with it and all my defences had been ignored.

- That I assumed Mr. Lutakome followed my instructions and filed an appeal so I went to Masaka until June, 200I when I came back to ask him the position of our appeal and he informed me that he had not filed it as he forgot about it. 1 - That it was not my mistake not to file the appeal on time and my lawyer did not inform me on time that he was not going to file the appeal or that he had failed to file the appeal as instructed. 5

No affidavit in reply was filed. However, at the hearing, counsel for the respondent tried to challenge the affidavit from the bar stating that the reason why counsel, Mr. Lutakome, who conducted the case in the tribunal did not appeal in time is not satisfactorily explained because Lutakome did not swear any affidavit to explain it. He submitted that no good cause has been shown for this court to exercise its discretion under Rule 4 of the Court of Appeal Rules. He opposed the application. l5

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It is now an established principle of our law that a vigilant litigant, who is not guilty of dilatory conduct should not be debarred from pursuing his rights in court because of the negligence of his counsel. In the instant case, it is not averred that the applicants are guilty of dilatory conduct and the reasons given for their failure to file their appeal in tirne have not been challenged. I think in the instant case, the applicants have shown good cause

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to justify me to exercise my discretion in their favour to extend time to enable them appeal out of time.

Leave to appeal out of time is granted to the appellants to file a Notice of Appeal within 7 days from the date of delivery of this ruling.

Costs will be in the cause.

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23<sup>rd</sup> day of Movember 2001 Dated at Kampala this ...

$10$ Amos Xxinomijuni JUSTICE OF APPEAL. $15$