Nabatanzi v Binsobedde (Civil Application 6 of 1987) [1990] UGSC 25 (2 February 1990)

Full Case Text

IN THE SUPREME COURT OF UGANDA

## AT LENGC

(CORAM: S. T. MANYINDC, D. C. J.)

CIVIL APPLICATION KC. 6 OF 1987

## BETTEEN

FLORENCE NABATANZI: APPLICANT AND

NACLZ BINSOBEDDE: RESPONDENT

(Application for leave to extend time to appeal from a Ruling of the High Court (Kato, J) dated 2-10-86).

(HIGH COURT CIVIL SUIT NO. 591 OF 1985)

## DCJ: RULING,QF \_IviANyiNDOa

This is an application for leave to file a Memorandum and record of appeal out of time It is Drought under Rule 4 of the Rules of this The applicant was the plaintiff in the original suit in the High ourt. Then the suit came up for hearing on 2-5-86, neither applicant nox' her Counsel, i,\_r. Mugenyi, was present Counsel for the defendant (now respondent) was present and asked or the dismissal of the suit for want of prosecution under Order 9 Rule 19 of the Civil Kato, J agreed and accordingly dismissed the suit with costs to the respondent Court» Procedure Rules.

The applicant then applied to the High Court, by Notice of Motion, for an order setting aside the dismissal order on the ground that on the day the suit was dismissed the late Dan Lutalo Kiyingi who had been briefed by Mr. Mugenyi to appear and prosecute the suit was prevented from attending court by heavy rains. Kato, J. heard the application and dismissed it on 2-10-86 on the ground that an affidavit in reply sworn by Counsel for the respondent Mr. Sendege, and clearly showed that it did not rain at all on the material day in the village where both Mr. Kiyingi and Mr. Sendege resided at the time. The learned judge decided that both vermisions could not be true. He thought that Ar. Sendege had told the truth.

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$=$

The present application should have been filed by 14-12-86, but was not, hence this application. The only ground in support of this application is contained in Mr. Mugenyi's affidavit which he swore on 20-8-87 and filed in support of this application. It is in paragraph 5 of the affidavit and it reads thus:-

> " 5. THAT it was and still remains the intention of the applicant to institute an appeal but the same was not instituted within the stipulated time as $I$ have faced insurmountable problems in procuring the Record of Appeal (sic) from the High Court Civil Suit No. 591 of 1983 and preparing a Remorandum of Appeal, namely,

> > $...$ /3

- (a) THAT when I went to lock for the file in the Registry on 9-10-86 it was not there and when I later called the Registry again the same day I was told that the file would not be seen. - (b) THAT from $9-10-86$ I detailed my law Clerk, DEO KIGCZI, that whenever he goes to the Civil Registry which he did everyday he should inquire whether the file had been traced and if I could be availed with a copy of the ruling of Mr. Justice Kato for my study and further action. - (c) THAT it was not until in June 1987, that my Law Clerk brought a copy of the ruling which I had been looking for, pointing out that the file had at last been found.

(d) (Not relevant)."

At the hearing of this application Mr. Mugenyi argued the same point, and submitted that if the applicant is allowed to appeal her appeal is very likely to succeeded since they had a good excuse for not filing the record and memorandum of appeal in the absence of the record of proceedings and ruling in the main suit.

In reply learned counsel for the respondent, Mr. Sendege submitted that Mr. Mugenyi's claim that the file was not available was false and was an afterthought. He thought that the appedCant had never seriously considered appeal ing since it was not until 3-2-87, that her counsel, $Kr$ . Nugenyi had, admittedly, written to the Deputy Chief Registrar of the High Court requesting for a copy of the proceedings and ruling.

$\ldots$ $\ldots$ /4

That was obviously long after the statutory period for filing the record had expired.

Rule 4 under which this application is brought reads as follows:-

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"The Court may for sufficient reason extend the time limited by these Rules or by a decision of the Court or of a superior Court for the doing of an act authori- sed or required by these Rules, whether before or after the expiration of such time..........."

Clearly under this Rule the Court has wide powers to extend the period provided sufficient reason is shown. As was pointed out by the Court of Appeal for East Africa in Mugo v Wanjirk & Amethe $\angle$ 1970 $\overline{7}$ E. A.481, normally the sufficient reason depends on the circumstances of each case and the sufficient reason must relate to the inability or failure to take the particular step in time. Where an intending appellant has excercised all due deligence and done his best to obtain the necessary documents and file his appeal in time but has been frustrated by Court which could not supply them in time, then it would be a denial of justice not to extend the time. Gee: Bhatt v Te j w and Tejurent Singh $\sqrt{1962}$ 7 S. A. 497. In that case the extension was granted as the delay was attributable entirely to the counts.

....../5

$= 5 =$

It is settled law that the fact that an appeal appears likely to succeed cannot of itself amount to a sufficient reason. It was so held in Mugo v Wanjiru (supra) and in Shanti v Hindocha and others $\angle$ 1973 7 E. A. 207. $\mathtt{In}$ Shanti (supra) the Court of Appeal for East Africa wrapped up the matter very nicely as follows:-

> "The position of an applicant for an extension of time is entirely diffe- rent from that of an appli- cant for leave to appeal. He is concerned with showing "sufficient reason" why he should be given more time and the most persuasive reason that he can show, as in Bhatt case, is that the delay has not been caused or contributed to by dilatory conduct on his part. But there may be other reasons and these are all matters of degree. He does not necessarily have to show that his appeal has a reasonable prospect of success or even that he has an arguable case but his application is likely to be viewed more sympathetically if he can do so and if he fails to comply with the requirement set out above (that is to show suffi- cient reason) he does so at his peril."

In the case before me the position is that although Kato, J delivered his ruling appealed against on 2-10-86 and infrance of Mr. Mugenyi who represented the applicant, Mr. Mugenyi did not formally ask the High Court to supply him with the record of proceedings and the ruling until after about four months later.

$...$ /6

His claim that the file was missing from 9-10-86, 21-11-86, he filed an application for stay of execution pending the determination of the appeal which "had "been filed in the Court of Appeal" (accoding to the Notice of Motion dated 19-11-86). to June 1987, is certainly not true because on

Mugenyi before Oteng, J (as he then was) on Mr Sendege who represented the respondent objected to the application being entertained on the ground that it was not properly before the Court. The Court agreed and struck it out with costs to the respondent. At the hearing of this I application Mr. Mugenyi1s attention was drawn to this important fact but he gave no useful explanation. That application was presented by Mr. 19-12-86.

There can be no doubt that the applicant and her Counsel have not been deligent in handling the intended appeal. Mr. Llugenyi's claim that the file could not be traced in the Civil Registry has not been substantiated and has been badly contradicted by the record which snows that the file was in place and that even L.r. was appearing in the case in pursuit of other matters Mugenyi

In the result I am satisfied that the sufficient $\mathbf{I}$ reason required under Rule 4 has not been established. The application is accordingly dismissed with costs.

DELIVERED at Mengo this $-2^{nd}$ - of February 1990.

T. MANYINDO

DEPUTY CHIEF JUSTICE

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