Nsubuga & 3 Others v Kamuje (Civil Application 31 of 1997) [1999] UGSC 38 (7 October 1999)

Full Case Text

#### THE REPUBLIC OF UGANDA

### IN THE SUPREME COURT OF UGANDA

#### AT MENGO

## (CORAIII: ODER: J. S. C.)

## CIVIL APPLICATION NO.3I OF I997

# BETWEE,N

| | | APPLICANTS/ | |---|--|-------------| | o | | APPELLANTS | | | | |

APPLICANTS/

# ANI)

MAGGRET KAMUJE ,,RESPONDENT

# RULING OF ODER, J. S. C.

The applicants, David Nsubuga, James Sabiiti Kachope, David Muhenda and Mugenyi, brought this application by an amended Notice of Motion under rule 4 of the Rules of this court. The application seeks the court's leave for the applicants to file their appeal out of time and for an order for costs of this application.

There have been three previous applications before the present one in thls case, all in this court. All have been disposed off. The first one was Civil Application No.7 of 1996, by which the prdsent applicants sought similar orders as the present application now seeks. It was also based on similar grounds. I heard that application on 16.8.1996. I made an order striking out the application as incompetent.

The second application No.2l of 1996 sought leave of the court for the applicants to serve their Notice of Appeal and Application for record of proceedings on the present respondent. The application was granted by Tsekooko, J. S. C. u'ho ordered the applicants to serve their Notice ofAppeal and application for proceedings on the respondent within five days from the date ofthat order. It appears that thereafter, the documents in question were served on the respondent. \

The third application was No.l2 of 1997, again filed by the present applicants. It sought leave of the court for the applicants to file their Memorandum of Appeal out of tinle' The respondent objected to the application on the ground that no service of process had been effected on the respondent. That application was struck out by Karokora, J. S. C. on the ground that it was misconceived and incompetent. That was on 24. I L97.

The present application, No.3l of 1997, is the fourth one. The applicants, again, seek leave of the court to file their appeal out of tinte. The respondent raised a preliminary objection on a point of law, namely, that in view of the provisions of Article 280 of the Constitution, the application was not properly before the court. The objection was ovemrled by Karokora J. S. C. on 22.5.98. After that ruling nothing happened in the case until the application was recently set down for hearing.

The grounds ofthe application are set out in the amended Notice of Motion, filed in courl on 20.2.1998. They are that:

(a) The appeal could not be lodged in time on account of the missing document which would form a vital part ofthe record ofproceedings to wit, the sketch plan refened to by the trial court and the delay occasioned by confirmation of its where abouts lront the Chief Magistrate's Court, Fort Portal.

- (b) The basis and success ofthe applicant's appeal is basically based on the interpretation of the said sketch plan which went missing as against thc judgement of appellate court which disregarded the sketch plan and extended the boundaries of the properties, reason whereof it is intended to seek an order for a retrial. - (c) The delay in filing the appeal was caused by an error or errors ofjudgement by their counsel. - (d) In the interest ofjustice the applicants/appellants be allowed to file their appeal out of time.

The grounds of the application are elaborated in an alfidavit dated and 20.2.98 deponed to by Blaisie Namwezi, an advocate practicing in the firm of lv{/s Byenkya, Kihika & Co. Advocates, who are representing the applicants in this matter. The affidavit was filed as a supplementary affrdavit. So faras it is relevant, it states:

- "2 That ow finn was instructed to take ovcr the conduct of the applicants'case on the 2 February, 1998. - That we subsequently perused the record of proceedings and discovered that the applicants had been ganted leave to file a Notice ofAppeal and an application for record of proceedings by his lordship Jusice Tsekooko on 2l'r March 1997. A copy of the said ruling is annexture A hereto. 3

- Thal fie applicant's former counsel duly served the Notice of Appeal and application for record of proceedings in accordance with tle order aforementioned. Copies of both documents are atlached as annextures B and C hereto. I - That I verily believe on the basis my legal training that it was open tot the applicant's counsel to file an appeal within sixty days of the said decision ofhis lordship Judge Tsekooko. 5 - That it appears from the record that the applicant's former counsel opted instead to file an application seeking for extension of time to file a Memorandum of Appeal out of time which was dismissed by his lordship Judge Karokora on the gounds that it was not the appropriate remedy to be sought by the applicants in order to advance their case. A copy of the said ruling is annexture D herelo. 6 - That I verily believe that the decision to file an application for extersion of time instead of filing the appeal within 60 days and the subsequent decision to seek leave to file a Memorandum of Appeal rather than an appeal lvere errors of judgement by the applicants. Former counsel leading to a delay in filing the apP6al." 7

The respondent filed an affidavit in reply in opposition to what is said in the aflidavits of Blaisie Namwezi and David Muhenda. Muhenda's affidavit dated 1.12.97 was filed wilh the appellant's original Notice of Motion. The respondent's affidavit in reply makes serious allcgations of inordinate delay and apparent negligence on the part of the applicants and their counsel. It states inter alia.

- "3. That the applicants and their counsel then were inordinate when they failed to file an appeal on receipt of the proceedings rvhile awaiting the missing sketch plan. - 4 That the applicants were arviue that the time within which to lodge an appeal has expircd but failed to file an application for leave to appeal out of time. - 5. That the applicant and his counsel are guilty of inordinate delay for failing to lodge a Memorandum of Appeal in time after lhe count had directed that they serve the Respondents with a Notice ofAppeal and the record ofproceedings. - 6. That the applicants were inordinate when they did not file the application for leave to appeal out of time until after a month ofthe count's order to serve the Respondent with Notice. - 7 That the applicants were not diligent when they failed to immediately engage anolher lawyer in time aller the court on 23'd November, 1998 had put it to lhek notice that their lawyer was not diligent and prudent.

- 8. That the applicants further contributed to the delay of the disposal of the suit when they decided to act for themselves. - 9. That the delay in filing the appeal was therefore not solely caused by the error or errors of judgement of the counsel but also by the applicants themselves. - 10. That I am informed by my lawyers Tumusiimwe, Kabega & Co. Advocates which information I verily believe that the applicants have not disclosed sufficient reason for the court to grant leave to appeal out of time."

In his submission, the applicants' learned counsel Mr. Ebert Byenkya, contended that since the applicants had shown sufficient cause for extension of time by Tsekooko J. S. C. as he did by his order of 21.3.97, the applicant's task now is to explain why their appeal was not filed within the required time. Following Tsekooko, J. S. C.'s order the applicants Notice of Appeal and application for proceedings should have been served on the respondent within five days from the date of that order. Under the rules of this court, the learned counsel contended, the applicant's appeal ought then to have been filed 60 days from the court's order of 21.3.97. The applicant's former counsel did not do so, but, instead, made another application seeking an extension of time in which to file a Memorandum of Appeal. This was a mistake on the part of the applicant's former counsel. The order of Karokora J. S. C. dated 24.11.97 criticised the appellant's former counsel for making that application, as a result of which, the former counsel was condemned to pay the cost of that application which was struck out as misconceived and incompetent. Thereafter the applicants, acting on their own, filed the present application on 2.12.97, one week after the order of 24.11.97. This shows that the applicants acted quickly and were not dilatory. Thereafter, the applicants changed counsel on 2.2.98 to there present lawyers, M/s Byenkya & Co. Advocates, who filed the amended Notice of Motion on 20.2.98.

Mr. Byenkya then contended that in the circumstances the delay and failure to file the applicant's appeal in time was caused by their former counsel's mistake. The learned counsel then referred to Isaac Bishari vs. Vitafoam, Civil Application No.2 of 1994 (SCU)(unreported) for the proposition that where an application, as in the present case, has not been dilatory, and has acted quickly, the applicant's conduct amounts to sufficient cause, justifying extension of time. The learned counsel also contended that courts should have substance of justice investigated rather than stifled. He relied on The Executrix of the Estate of the Late Christine Mary Namatovu Tebajjikira & Another vs. N. G. Shalita Stanazi, a Civil Application No.8 of 1988 (SCU)(unreported); Shanti vs. Hidocha and Others (1973) E. A. 207; and John William Kihuku & Others vs. Personal *Representative of Rt. Rev. Eric Sabiti and Anor (SCU)(unreported).*

The learned counsel then submitted that in the instant case, the applicants have shown sufficient cause and, therefore, deserve extension of time for filing their appeal.

Ms. Lillian K.halayn, leamed counsel for the respondent, opposed the application' She submitted that as shown by the respondent's aflldavit in reply, dated 2.8.99 the applicants and their counsel are guilty of inordinate delay by their failure to comply with Tsekooko J. S. C.'s order. Following that coud order, the applicants applied for extension of tinre within which to file a Memorandum of Appeal, that was one month after Tsekooko. J. S. C'S order. In that order, Tsekooko, J. S. C. pointed out that the applicants' lawyers was not prudent. A previous application for extension of time within which to file their Memorandum of Appeal had been rejected by Oder, J. S. C. because it was premature, as the appellants had not yet served their Notice of Appeal and a copy of their application for proceedings on the respondent. Notwithstanding the orders of Oder, J. S. C. and Tsekooko, J. S. C., above relerred to, the applicants again made another application for extension of time within which to file their Memorandum of Appeal. That application was struck out by Karokora, J. S. C. on 24.11.1997 on grounds that it was misconceived and incompetent through lack of diligence by their counsel. Thereafler, Ms. Khalayn contended, the applicants ought immediately to have instructed more competent lawyers. They did not but, instead, first filed the present application on their own. Consequently the failure to file their appeal in time was caused not solely by errors of the applicants' counsel but also by the applicants'own conduct ofbeing dilatory. In the circumstances, it is contended, the applicants have not made out sufficient cause for extension of time. For her submission the leamed counsel relied on Shah Hemirai Bharinal and Brothers vs. Santosh Kitnari w/o J. N. Bhpla ( 196!119 in which it was held inter alia, that a delaytn filing an application for extension of time for filing a Notice of cross-appeal in that case was gossly excessive and that there was no question of mistake on the part of the legal adviser but merely of inordinate delay. In the circumstances, the application, for extension oftime was refused because no suffrcient reason had been shown. Finally, the respondent's leamed counsel submitted that the judgment against which the applicants wish to appeal was given in 1994. It is now 1999 and the applicants are still perusing an application to appeal against thatjudgement.

In all the circumstances of this case, it is contended, the applicants have not shown sufticient cause for extension of time. The application should therefore be dismissed with costs.

In reply Mr. Byenkya leamed counsel for the applicants contended first, that the case of Shah Hamrai Bharmal (suprd is distinguishable from the instant one in that any delay prior to Tsekooko, J. S. C.'s order is excusable by the fact that on that occasion the applicants obtained extension of time in which to take necessary steps in the appeal. Second, the leamed counsel submitted, it would be unfair to penalise the applicants because at one time they acled on their own. On the conlrary the applicants were diligent by so doing.

The judgement against which the applicants intend to appeal was passed by the Higlr Court in its appellate jurisdiction at Fort Portal on 12.7 .95. Up to now, the appeal has not yet been filed. This is a very long delay. However, I agree with the leamed counsel lor the applicants, Mr. Byenkya, that the period to be considered for purposes of this application should be the one subsequent to the order made by Tsekooko, J. S. C. on

21.3.97. As I have mentioned before in this ruling that order was made after the applicants had lodged their Notice of Appeal and applied for a copy of the proceedings within the prescribed time. The order extended time for the applicants to serve their Notice of Appeal and a copy of their application for proceedings on the respondent. They were given five days in which to do so. It appears that the documents were served on the respondent. Under rule 78 of the Rules of the Court the applicants should have lodged their appeal within 60 days after the date when the Notice of appeal was lodged. Under sub-rule (2) so much time as was required for the preparation of record of proceedings was excluded from computation of the 60 days. However, the applicants could benefit from the provisions of sub-rule(2) only if their written application for proceedings was served on the respondent. This is the service for which Tsekooko, J. S. C. extended time. According to paragraph 4 of Blaisie Namwezi's affidavit, the applicant's application for proceedings was served on the respondent. The date is not stated in the affidavit. Consequently it appears that the applicants could benefit from the provisions of sub-rule (2) for purposes of computation of the period within which they should have filed their appeal.

Thereafter it appears that the applicants had sixty days from the date they received the complete record of proceedings within which to file their appeal. The applicants do not say on what date they received the sketch plan which was originally missing from the copy of proceedings sent to them by the High Court Registrar in Fort Portal. It is therefore, not clear when the computation of time within which the applicants should have filed their appeal should commence. In the circumstances, I shall take the date of Tsekooko, J. S. C's order as the date when computation of time for lodging the applicant's appeal should have commenced. This is the date suggested in paragraph 5 of Blaisie Namwezi's affidavit. It is not objected to by the respondent.

During the period subsequent to Tsekooko, J. S. C.'s the applicants lawyers at the time did Cule not filing their appeal. The lawyers, instead, lodged an application for extension of time within which to file a memorandum of Appeal. That was Civil Application No.12 of 1997. Karokora, J. S. C. struck out the application on 24.11.97 as misconceived and incompetent. The reasons the learned Justice of the Supreme Court gave for doing so clearly explains the blunders made by the applicant's learned counsel at the time, Mr. Musana. This is what he said:

> "However it must be observed that there is no provision within the Rules of this court where the intended appellant must file Memorandum of Appeal as one of the necessary steps in the institution of appeal. Rule $81(1)$ of the Rules of this court provides as follows:

"Subject to the provisions of Rule 112 an appeal shall be instituted by lodging in the appropriate Registry, within 60 days of the date when the Notice of Appeal was lodged.

- (a) a Memorandum of Appeal in quadruplicate, - (b) the record of appeal, in quadruplicate;

(d) security for the cost of appeal provided...,......"

The gist of the above provision is that after the Notice of Appeal has been served in accordance with the Rules of this court, the next essential step would be institution of appeal. The institution of appeal involves lodgment in the registry a Memorandum of appeal in quadnrplicate, the record of appeal in quadruplicate, the prcscribed fees and security for cosls in the appcal.

I do not think that a prudent and diligent advocale would embark on such a costly and time consuming expedition of seeking to lodge <sup>a</sup> Memorandum ofAppeal out of time such as Mr. Musana, counsel for the applicant filed, the results of which would not take lhe appeal any step forward. It is clear that if leave rvas granted, he would seek leave to file record of appeal out of time, and if leave is again granted, he would probably seek leave to pay the prescribed fees and thereafter seek to pay or give security for costs oul of time. Yet rule 8l(l) of the Rules ofthis court provides for in\$irution of appeal but not for institution of memorandum of Appeal. The Memorandun of Appeal is one of the documents that is filed together with other documents while filing an appeal, otherwise it is not enough to file memorandum of Appeal as it does not take the appeal any step fonvard.

I would srike out the application with costs to the respondent as misconceived and thus incompetent, I would in the intercst ofjustice order the lawyer himself to pay the costs of this application, since these are costs lhat are incurred through lack of diligence and prudence on the part ofthe lawyer."

Clearly the conduct of the applicants' lawyers described by Karokora, J. S. C. in his ruling above referred to was glaring evidence of incompetence.

A week after Karokora, J. S. C.'s ruling the applicants lodged the preserrt application on 1.12.199'7, originally on their own. David Muhenda's affrdavit of 1.12.97 which was filed in support of the application does not say why the applicants acted on their own that time. Paragraph ten thereof refers to the court ruling of24.l1.97. But its not far to see why they changed counsel in view of the scenario dramatically described by Katokora, J. S. C in his ruling. On 2.2.98 the applicant's present lawyers, IWs Byenkya, Kihika & Co. Advocates, filed a Notice of Change of Advocates. This was exactly two months and a week after the applicants' former counsel was criticised by Karokora, J. S. C. arrd two months after the applicants' lodged their original Notice of Motion. Then on 20.2.98 the applicants' prcsent lawyers filed the amended Notice of Motion.

In the circumstances of this case I am unable to accept the submission from the respondent's leamed counsel that the applicants or their present lawyers have been dilatory. On the contrary, I think that when the applicants realised that their former lawyer did not appear to be making any progress in their appeal by not taking the proper

and essential steps they acted on their own without waiting for a long time. May be thereafter, they realised that they needed representation by another firm of lawyers. They went to and instructed their present lawyers. My view is also that after having been instructed by the applicants M/s Byenkya, Kihika & Advocates acted diligently by lodging the amended Notice of Motion.

On the evidence available and the submissions made by counsel on both sides before me, I am satisfied that the in ordinate delay which has occurred in this matter as been caused by the applicants' previous counsel. There are many decisions from this and other jurisdictions in which it has been held that in applications for extension of time such as the present one, a mistake or misunderstanding of the applicant's legal advisor, even though negligent, may be accepted as a proper ground for granting relief under rules equivalent to rule 4 of the Rules of this Court, which is the rule under which this application has been brought. The discretion of the court being unfettered all that an applicant has to show is "sufficient reason" to justify the courts discretion in his/her favour. See Kevorkian vs. Burney (1937) All E. R. 97; Getti vs. Shoosmith (1939) 3 All E. R. 916; Shabir Bin Ram Prakarsh Anand (1955) 22, E. A. C. A.; 48; Bray vs. Bray, (1957) E. A. 302; Haji Nurdin Matovu vs. Ben Kiwanuka, Civil Application No. 12/91 (SCU)(unreported) Alexander Jo Okello vs. Kayondo & Co. Advocates, Civil Application No.17/96 (SCU) (unreported).

In the circumstances, my view is that in the instant case, the applicants have shown sufficient reason to justify the court's discretion in their favour.

In the result, the application is granted and it is ordered that the applicants should file their appeal within fourteen (14) days from the date of this order. It is also ordered that the cost of this application should be awarded to the respondent.

Dated at Mengo this day of OCTOBE5 1999

A. H. O. Oder JUSTICE OF THE SUPREME COURT