Nsubuga v Attorney General (Civil Application 58 of 1998) [1999] UGCA 48 (8 April 1999)

### THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

# **CORAM: HON. LADY JUSTICE C. N. B. KITUMBA, J. A.**

### CIVIL APPLICATION NO. 58 OF 1998.

### ERIDADI TITO NSUBUGA & ANOTHER, APPLICANTS

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### VERSUS

ATTORNEY GENERAL RESPONDENT

(Arising from an intended Appeal against the Judgment of the High Court (Mukanza J.) dated 27/10/1998 in H. C. C. S. No. 702 of 1995)

### RULING OF C. N. B. KITUMBA, J. A.

This is an application under Rules 4, 42, and 43 of The Court of Appeal Rules Directions, 1996, for extension of time within which to serve the notice of appeal on the respondent.

The grounds of the application as set out in the notice of motion are as follows:-

- (a) That the applicants on 9th November 1998 lodged a notice of appeal in the High Court against the decision in H. C. C. S. 702 of 1995 which was delivered on 27/10/1998. - (b) That the notice having been filed on 9th November 1998, it was not until 19th November 1998 that the notice was received from court. - **(c)** That the delay in receiving the notice of appeal from the High Court after it had been signed by the Registrar was beyond the applicant's control. - (d) That on the 19th November 1998, when the signed notice of appeal was received from the High Court registry, it was after the prescribed 7 days within which the notice of appeal should have been served on the respondent.

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- counsel served the notice of appeal on respondent. (e) That on the same day, the clerk of the applicant's the - (f) the the That the delay was sufficient cause for extension of time and that it would be in interest of justice to grant the application.

**<sup>10</sup>** deponed to on 26th November 1998. The application is supported by the affidavit of Harriet Nanyonjo, a clerk of the applicant's counsel, which she

> **,th** The substance of her affidavit evidence is that on 9 November 1998, she filed a notice of appeal against the judgment in H. C. C. S. No. 702 of 1995 in the High Court Civil registry. That she kept on checking at the High Court Civil registry from the in-charge of that registry, who kept on informing her that the notice of appeal was in the chambers of the Registrar. On the 19th November 1998, she received the signed notice of appeal from the Civil registry and on the same day served it on the respondent. A photo copy of the signed notice of appeal is attached to her affidavit and marked **"HN1".** The respondent did not file any affidavit in reply.

> At the hearing of this application Mr. Babigumira counsel for the applicant argued that the delay in signing and sealing the notice of appeal was beyond the applicant's control. As soon as the signed and sealed notice of appeal was received, it was served on the respondent. He submitted that in an application of this nature, the applicant has to show sufficient cause why he did not take the necessary step in time and the sufficient cause must relate to failure or inability to take that step. The applicant must also show that he is not guilty of dilatory conduct on his part. Unlike an applicant for leave to appeal, the applicant does not have to show that there is a likely hood chance of success of the appeal. However, the more he can do so the more his application will be sympathetically considered. In support of his submission he relied on the authority of *Muqo & others v Waniiru & Another*

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# [1970] E. A. 481

Mr. Babigumira further contended that another important principle in a case of this nature is that a vigilant litigant should not be penalized for any fault or inadvertness of his lawyer over whom he has no control. He also relied on the principle that as far as possible the substance of disputes should be investigated on their merits; and errors or lapses should not necessarily deter a litigant from pursuing his rights. In support of his arguments learned counsel referred to the following authorities: **Shanti v Hindocha and** others [1973], 207

# Isaac Bishari v Vita Foam S. C. Civil App. No. 2/94 (unreported.)

He submitted that applying the above principles to the present case when the applicants lost the case in High Court, they immediately instructed their counsel to lodge an appeal. Their counsel complied with their instructions immediately.

There was no negligence or dilatory conduct on part of their counsel and the delay was caused by the High Court registry, where neither counsel, nor, the applicant had control. He prayed that the court allows his application.

Mrs. Mugenyi learned counsel for the respondent, opposed the application. She submitted that according to $R. 75(1)$ of the Court of Appeal Rules the notice of appeal should have been lodged in the High Court within fourteen days after judgment. She argued that the judgment against which the appellants wished to appeal was delivered on 27<sup>th</sup> October 1998 and the notice of appeal should have been lodged in the High Court latest by 10<sup>th</sup> November 1998. She argued that the High Court stamp on the top right hand side of the notice of appeal indicates that it was lodged on $11<sup>th</sup>$ November 1998. She stated from the bar that what is contained in Harriet Nanyonjo's affidavit is false and should not be believed by court.

In reply Mr. Babigumira submitted that the notice of appeal was signed by counsel and filed in the High Court registry and fees were paid on the 9<sup>th</sup> day of November

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1998. This was within <sup>14</sup> days. It was not feasible for the party to pay fees and not file the notice of appeal.

This application is brought under Rule 4 of the Court of Appeal Rules which gives this court wide discretion "for **sufficient reason"** to grant extension of time. Sufficient reason depends on the circumstances of each case and must be related to the inability or failure to take a particular step in time. I agree with the law as stated in the authorities quoted by Mr. Babigumira regarding application of extension of time.

In the instant application, counsel for the applicant has submitted that he is not to be blamed for any delay as he filed the notice of appeal in time and his inability to serve it was caused by the High Court registry. According to the affidavit evidence by Harriet Nanyonjo, the notice of appeal was filed in the High Court registry on the 9th of November 1998.

I find no fault on the part of Counsel for the applicant. However, the crux of the matter in this application is whether the notice of appeal was filed on 9th November 1998 or on the 11th of November 1998 as alleged by Mrs. Mugenyi learned counsel for the respondent.

I have scrutinized the original notice of appeal which is on the record. In the top right hand corner of the notice of appeal there is a High Court stamp reading 11th November 1998 and a signature has been put on top of it. However, at the bottom of the left hand side of the notice of appeal there is another High Court stamp indicating the receipt number and the fees amounting to Ug. Shs. 3000/= which was paid on 9/11/1998.

The law is that <sup>a</sup> document is not properly filed in court until the fees for filing the same have been paid or the advocate has a general deposit in court for payment of filing fees. See *Unta Export Ltd v customs [1970] EA 648.*

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There is no affidavit in reply to the affidavit of Harriet Nanyonjo in which she has deponed that she filed the notice of appeal in the High Court registry on 9/11/1998. The law is that where facts are sworn to in an affidavit and they are not denied or rebutted by the opposite party the presumption is that such facts are accepted as true. See *Massa v Ochen 1978 HCB. 297,* This court has not been assisted by the respondent to know what happened at the High Court registry as no affidavit has been sworn in reply to contradict the affidavit of Harriet Nanyonjo. It would be wrong to accept counsel's statement from the bar that Harriet Nanyonjo's affidavit is false especially as there are two High Court stamps on the same notice of appeal and both bear different dates.

I am inclined to hold that the notice of appeal was filed on 9th November 1998 as I see no reason why the applicant's counsel would pay the fees on 9th November 1998 at the High Court premises; go away with the notice, and then file it on 11th November 1998. The applicant nor his Counsel are not responsible for the delays at the High Court registry. As was held in *Balwantrai D, Bhatt v Tejwant Singh & Another [19621 E. A. 497f* it is sufficient reason for granting extension of time where the delay is entirely attributed to court.

Accordingly, this application is allowed.

I order that the applicant serves the notice of appeal within seven days from to day. The memorandum of appeal and record of appeal should be filed and served within thirty days from today.

Costs will be in the cause.

**\$** Dated at Kampala this day of April, 1999.

**f J—<-40 ' C. N. B. Kitumba Justice of Appeal.**

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