Nsubuga and 3 Others v Kamuje (Civil Application 12 of 97) [1997] UGSC 26 (24 November 1997)

THE REPUBLIC OF UGANDA

IN THE SUPREME COURT OF UGANDA

## AT MBNGO, A

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# CIVIL APPLICATION NO. 12/97

CORAM: HON: KAROKORA, J. S. C.

DAVID NSUBUGA JAMES SABITI KACHOPE DAVID MUHENDA MR. MUGENYI

#### **VERSUS**

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# MARGARET KAMUJE

$\cdots$ RESPONDENT.

....... APPLICANT

### RULING

The applicants, David Nsubuga, James Sabiti Kachope, David Muhenda and Mugenyi filed this application seeking leave to be granted to them to file a memorandum of Appeal. The application was filed under Rules 4, and 42 and 52 of the Rules of this Court.

Before the application was argued, Mr. Babigumira raised a preliminary point of law to the effect that service was not $\emph{e}$ ffected by officer of the Court or a process-server authorised by the Court. So although there was an affidavit of service $\mathop{\rm sworn}\nolimits$ by one Muhenda, one of the applicants, as having served the respondent through their lawyer, he submitted that he was not a process-server and was not authorised by Court to effect service. Therefore he submitted there was no service.

In <u>Civil appeal No 2/95 Kasirye Byaruhanga & Co Advocates</u> $\underline{V}$ Uganda Development Rank he submitted that it was held that the effect of Article 106 (2)(e) of the constitution does not mean to erase Rules of Court, which Rules must be obeyed. case, he submitted that their firm had not been properly served and therefore the application should be struck out.

Mr. Musana opposed the application, arguing that the

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respondents were served through the Harriet Namozi, one of the legal practitioners in the firm where Mr. Babigumira practises. Mr. Musana, Counsel for respondent submitted that Order 5 r8 does not make mandatory that service must be effected by processserver or by a person authorised to do so by Court.

Article 126 of the constitution says that Rules of Court are handmaiden to justico. The rules should be applied to circumstances of each case. In the circumstances of this case respondent was served, and does not deny having been served. All that the respondent was saying was that the Eedunicalities were not complied with. He prayed that the application should proceed as the Counsel for respondent was present.

I was inclined to proceed as I so no merit in objection and promised to give reasons $\sim$ 1 now proceed to give my reasons.

In my view if there is a situation which Article $126$ $(2)(e)$ of the Constitution had intended to cure, this preliminary objection, is one of such cases.

The Counsel for respondent was served, but because he was served by one of the applicants, he is saying service was not properly effected by one of the authorised persons.

In my view, a part from relying on technicalities, the respondent was served by one of the applicants and because of that service, Mr. Babigumira is before Court. And in my view, this is a situation where substantial justice must be administered without undue regard of technicalities. The Lawyers for respondent were served, and one of them is present. He cannot be heard to say that service was not properly effected when he is before me, in response to the hearing notice that was served upon their firm. Would justice be administered if it struck out this application on the ground that the respondents were not properly served?

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With respect, I think I would not be dispensing justice if the applicant was struck out on that ground.

Accordingly the application proceeded as there was no merit in the objection.

The background History of this application is found in the Ruling of Oder, J. S. C., dated $16/8/96$ , where the applicants had filed application seeking leave to file appeal before they had secured leave to file Notice of Appeal. That application was struck out and were advised to take essential steps before they could seek leave to file appeal out of time.

Since the Ruling of Oder, J. S. C., dated $16/8/96$ , the applicants through their lawyer, Mr. Musana, filed application seeking leave to file Notice of Appeal out of time. On $21/3/97$ leave was granted to the applicants to file Notice of Appeal out of time.

Two conditions were imposed, to wit:

$(a)$ The Notice of Appeal and the application for proceedings should be served on the respondent or her advocates within 5 days from the date hereof.

The grounds of the application are contained in affidavit sworn by David Muhenda to the effect that the Memorandum of Appeal could not be lodged in time, because of the missing sketch plan of the Suit land from the Court record which the learned Judge ignored and gave the entire land regardless of the sketch plan and yet it would be vital in formulating the grounds of appeal.

It was contended that in view of the above, it was clear $% \left\vert \mathbf{r}\right\rangle$ that the applicants were not dilatory in their conduct. under Rule 4 of the Rules of this Court, the applicants have And

sworn sufficient cause for the delay which was not caused by the delatory conduct on their part. For instance, in Delia Almeida V cr. Carmo Rui Almoida Civil Application No. 15/1990, it was hold that failure or delay in obtaining Court proceedings which were subject of an intended appeal was sufficient reason to justify appealing out of time where such delay had affected the lodging of the appeal.

In view of the above, Mr. Musana, Counsel for applicant submitted that it would be equitable that leave should be granted so that Memorandum of Appeal is filed so that the appeal is heard and determined on merit.

Against the above submission, Mr. Babigumira, Counsel for respondent, submitted that whereas he would concur with his learned friend on the principle governing this type OÍ application brought under Rule 4 of the Rules of this Court, in the instant case the crux of the matter was that the delay was due to lack of diligence on the part of Counsel for applicants. He cited the case of Sezi Busasi & anor V. B. Kareeba & Anor Civil Appeal No 5 of 1978 U/CA where a distinction was drawn $\star\star$ between a mistake of Counsel in interpreting the law and lack of diligence, resulting in inordinate delay. The former may be sufficient cause for the Court to extend time but the latter is not exclusable.

In the instant case, it was submitted that the judgment against which the applicants intend to appeal is dated 12/7/95, but that it was only on the date of hearing this application that the Court was called upon to extend time within which to appeal. It was submitted that this was due to lack of diligence and prudence on the part of Counsel.

Another evidence of lack of diligence and prudence was, instead of applying for extension of time within which to lodge Notice of Appeal, they rushed to Court for extension of time within which to lodge Hemorandum of Appeal. It was Oder, J. S. C.,

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who avoke them that they could not appeal unless they had served Notice of Appeal and at the same time requesting for copy of the $% \mathcal{L}_{\mathcal{A}}$ proceedings. It was after that they went back to start $\frac{1}{2}$ airesh.

Another evidence of lack of diligence, it was submitted that even when Tsekooko, J. S. C., granted leave to the applicants to serve Notice of Appeal and make application for record of $^{\prime\;\star}\,\text{proceedings}$ on 5/3/97, this application was not lodged until It was submitted that this was too long considering the history of the case.

Another evidence of lack of prudence is that after getting $% \left\vert \mathbf{r}\right\rangle$ the record of appeal, they were supposed to file an appeal within $\frac{1}{2}$ $\delta$ 0 days, which they never did on flimsy ground that they never had sketch plan of the Suit land, which Rajasingham $J$ , had not depended in his decision. He himself had visited the locus in quo and so the sketch plan was superfluous.

It was submitted that a diligent advocate would have filed $% \mathcal{L}_{\mathcal{A}}$ appeal and later on filed a supplementary record. In Polycorp Sekibobo V clay Obonyo Civil Application No 2/1996 (unreported) the appellant could not file appeal on the ground that a copy of the bounced cheque was not available for him to frame grounds of appeal. So instead of filing appeal, he lodged application for extension of time within which to appeal.

It was held that it was imprudent of $\hbox{him}$ for $\hbox{him}$ not to have $\ensuremath{\text{filed}}$ an appeal and thereafter filed supplementary record later after he had secured the cheque.

Again Mr. Babigumira Counsel for respondent, wondered as to what the application was seeking from the Court!

He submitted that he did not see a provision within the $% \mathcal{L}_{\mathcal{A}}$ ules of this Court where there was institution of Hemorandum of ppeal. He submitted that he was raising this point to show $\mathop{\rm lack}\nolimits$

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of diligence on the part of the advocate for applicant. He referred to Court of Appeal decision in the Parliamentary Election Petition Appeal No 13 of 1996 Galyetonda V Kajura (un reported) where the Court considered an advocate doing a bad job. It was held there that once a party chooses an Advocate who makes him incur costs, he cannot escape liability. You should sue him for indemnity or what you have lost still in Almeida case and Sezi's Busasi case, he submitted, would defeat the application due to lack of diligence and prudence on the part of Counsel for the applicant.

It must be noted right from the outset that most of the criticism of lack of prudence and diligence against Counsel for respondent by Mr. Babigumira covers the period before the ruling of Tsekooko, J. S. C., dated 21/3/97. There is nothing to show that he never filed Notice of Appeal within 5 days as directed ) by the Court. There is no evidence that he never requested for $\star$ a copy of the Court record/proceedings as directed.

Therefore, since at the time Tsekooko, J. S. C., granted leave to the applicant on 21/3/97 to flie Notice of Appeal, time for filing appeal had already expired, it could be argued that there was a need for seeking leave to lodge appeal out of time in which cano then the application was appropriate. On the other hand, it could be argued that since leave was granted on $21/3/97$ to $\epsilon$ file Notice of Appeal within 5 days from 21/3/97, then the appeal could be lodged within 60 days from the date of the Notice of Appeal, according to Rule 81(1) of the Rules of this Court. In that case, then the applicants could have filed the appeal on 2/4/97 without seeking leave to appeal out of time, as it would be within 60 days since the Notice of appeal was lodged. In my view since the position was not clear, the applicants could take $\wedge$ any of the courses above stated.

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

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institution of Appeal. Rule $\Im(1)$ 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 Notice the оí appeal was lodged,

(a) a Nemorandum of appeal in quadruplicate,

(b) the record of appeal, in quadruplicate,

(c) the prescribed fee; and

(d) Security for the cost of the appeal $(d)$ provided........."

$\overline{\phantom{a}}$ 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 quadruplicate, the record of appeal, in quadruplicate; the prescribed fees and security for the costs of appeal.

In this type of case, the applicant would seek leave to file the appeal out of time. If sufficient reasons/cause is shown, then leave to file appeal out of time, would be granted. After that stage, then the applicant would proceed to file a Memorandum ΟÍ appeal $\verb"in=$ quadruplicate, the record οí appeal $in$ quadruplicates, pay the prescribed fees and pay or give security for costs of the appeal.

I don't think that a prudent and diligent advocate would embark on such a costly and time consuming expedition of seeking to lodge a Memorandum of appeal out of time such as Mr. Musana, Counsel for applicant filed, the results of which would not take the appeal any step forward. It is clear that if leave was granted, he would again seek leave to file record of appeal out of time, and if leave is again granted, he would probably seek

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leave to pay the prescribed fees and thereafter, seek to pay or give security for costs out of time. Yet, Rule 81(1) of the Rules of this Court provides for institution of appeal but not institution of Memorandum of Appeal. The Memorandum 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 forward.

I would strike out the application with costs to respondent as misconcieved and thus incompetent. I would in the interest of justice, order the lawyer, himself to pay the costs of this application, since these are costs that are incurred through lack of diligence and prudence on the part of the lawyer.

Dated at Mengo this $.24$ $\ldots$ day of

$CE OF$

24. 11. 97 - Nu. Baby Junia for the Resp. Mr. Amsani<br>Mr. David myhends, the 3-rd Applicant before cons<br>Mr. Emma manano Con Aicles Rulip deliveed as di $ecti$

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