Nyakana v Nyakana (Civil Application 4 of 1995) [1995] UGSC 26 (18 August 1995)

IN THE SURREME COURT OF UGANDA

Je Hon, Justice Arthur Oder J. S. C.

# AT MENGO

## (CORAM: ODER, J. S. C.)

### CIVIL APPLICATION NO 4/1995

#### BETWEEN

GEORGE NYAKANA

#### A N D

REP TRICE

GRACE NYAKANA KOBUSINGYE

(Application under Rules $1(3)$ , 4 and 42 (1) of the Rules of the Supreme Court for extension of time to file Notice of Appeal and Memorandum of Appeal out of time against the decision of the High Court of Uganda at Fort Portal (Mukanza, J.) in Civil Suit No./MFP 84 of 1989)

## RULING OF ODER, J. S. C.

This is an application for an order for extension of time to enable the applicant's Notice of Appeal and Memorandum of Appeal to be filed out of time. It has been brought under Order 4 of the Rules of this court.

The background to the application is a chequrered one. It is that the applicant was the defendant in High Court Civil Suit No. DR MFP of 1989 at Fort Portal. The suit related to a Contested Will concerning the estates of the deceased father of the applicant and respondent who are brother and sister. The applicant lost the suit, the judgment in which was delivered on 15/2/1991. Mr. Mukanza, J. in Fort Portal.

According to the applicant's affidavit in support of the application, his advocates then filed a Notice of Appeal and applied for a record of proceedings, the preparation of which was completed on 13/10/1993. The Registrar's cartificate to that effect is annexture "A" to the affidavit. Thereafter an appeal was filed to this court as Civil Appeal No. 34 of 1993, but the appeal was incompetent for want of a decree from the original Suit. Consequently it was with drawn by the applicant's lawyers, M/S Katende and Sempebwa & Co. Advocates on 11th February, 1994 under rule 93(1) of the

APPLICANT

RESPONDENT

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Rules of this Court. As the period within which to file an appeal had expired, the same lawyers applied for extension of time in which to do so. The aplication was listed as No. 7 of 1994.

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On 15/9/1994 Odoki, J. S. C granted the extension of time sought and gave the applicant 14 days in which to file his record of Appeal. The record of Appeal was indeed, filed, this time including an extract of the decree in the original suit. But that was not the end of the appellant's trouble, because when the appeal came up for hearing, on 6/12/1994 this Court struck out the appeal as incompetent. The reason for striking out this time, was that the record did not include the order granted by Odoki, J. S. C. ext-ending time in which to file the appeal.

In his brief affidavit in support of the application, Mr. Geoffrey B. Mutawe, advocate, stated that he was responsible for preparing the records of proceedings after this court on 15/9/1994 granted the applicant an extesion of time to file an appeal; and that he in advertently and mistakenly did not extract the Court's order for extension of time, resulting in Civil Appeal No. 24 of 1994 filed by him being struck out. This arose out of pressure of work in completing a very bulky record within only 14 days.

The grounds for the application are set out in the Notice of Motion as follows.

The appellant was prevented by sufficient cause to file his Notice of $11.$ Appeal and Memorandum of Appeal within the prescribed time.

The applicant's counsel inadvertently failed to comply with the Rules $2.$ of this court before filing Civil Appeal No. 23 of 1994.

The applicant's appeal has overwhelming chances of success and will suffer 3. irreparable loss if his appeal is not heard on the merits.

The granting of this application shall not prejudice the rights of the 4. respondent if the intended appeal is heard on the merits.

The application is opposed by the respondent. In an affidavit in reply, Mr. Tibaijuka, Counsel for the respondent, rebutted some of the allegations in the applicant's affidavit. The affidavit in reply is to the effect that the failure to include a decree in the Record of Appeal was not the only defect in Civil Appeal No. 34 of 1993 leading to the appeal being struck out. Another was that the Notice of Appeal had been filed in this court instead of in the High Court. Further, the Record of Appeal was filed well over two

years out of time and without leave; the appeal was withdrawn by the applicant's present lawyers not because they had "found out" that it was incompetent, but because Mr. Tibaijuka had challenged it as being incompetent; when the applicant was subsequently granted an extension of tiem, he filed civil Appeal No. 23 of 1994 without including the order extending time, and this meant that both the Notice of Appeal and Record of Appeal were themselves out of time and the appeal was once again incompetent and struck out for that reason; instead of acting immediately after the second appeal was struck out on 6/12/1994, the applicant sat back and did not file the present application until 20/1/1995 and the applicant was not deligent, for which reason it took him nearly three years to obtain the record of proceedings from the High Court; due to dilatory conduct on his part, the applicant does not deserve to be granted the extension of time now being sought; and the fact that the applicant is not the administrator/executor of his father's estate does not mean that he stands to lose his interest in the estate or any part thereof. In any case, there is no merit in the intended appeal.

At the hearing of this application, the applicant was represented by Mr. s. Serwanga, advocate. In his submission the learned Counsel contended that the applicant had been serious and diligent litigant, and took all the necessary steps to file a competent appeal. In most of his submission, the learned counsel repeated what was stated in the two affidavits in support of the application. He emphasised that the appellant had to change lawyers after the first appeal was successfully challenged in court as being incompetent. His new lawyers filed the second appeal omitting the order of 28/9/1994 granting extension of time. Consequently the appeal was struck out.

It was contended that the misfortunes that had befallen the applicant in this case were not of his own making, but were failures by his Counsel; and that Counsel's fault shoud not be visited on a vigilant litigant such as the applicant was in this case. For this, reliance was placed on Isaac Vitafoam, Supreme Court Civil Application No. 1993. Bishari $v.$

It was also contended that the applicant had shown sufficient cause to be given the court's indulgence. He instructed counsel in time and changed Counsel in time; and that the rights of the respondent would not be prejudiced if the appeal was heard on merit.

In his reply in opposition to the application, Mr. Tibaijuka, learned

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Counsel for respondent, referred to the case of Commissioner of Transport Attorney General of Uganda (1959) E. A. 329 for the contention $v.$ that sufficient reason must be shown to justify extension of time. In the instant case, Counsel contended, it is now more than four years since the judgment against which an appeal is intended was delivered. The case involves administration of an estate, part of which the applicant is himself in occupation, thus delaying administration of the estate.

Regarding the ground that the intended appeal has an overwhelming chance of success, thus justifying the extension of time being sought. Mr. Tibaijuka submitted that the applicant's affidavits do not show the nature of his case and the probability of success. This is contrary to one of the principles stated in the often cited case of Baichard Bhagwoniji Shah v. D. Jamuadas & Co. Ltd. (1959) E. A. 838 at 840, which is that it is essential that an applicant for extension of time under Order 9 of the East African Court of Appeal rules (the provisions of which are similar to those our rule 4) should support his application by a sufficient statement of the nature of the judgment and of his reasons for desiring to appeal against it, to enable the court to determine whether or not a refusal of the application would appear to cause injustice.

Mr. Kaijuka further submitted that as regards the applicant's contention that he stands to lose substantial interests in his father's estate if the application failed, all that the Migh Court did in the Suit was to order for removal of the appellant's caveat and it then proceeded to grant probate to the respondent. In particular, it did not order that any of the property belonged to the respondent. That presumably was provided for by the contested Will.

Finally, Mr. Tibaijuka contended that the applicant had not been diligent as alleged in his affidavit and submitted by his Counsel. Some of the allegations in the affidavit were, in fact, false; for instance the Notice of Appeal was filed in the High Court and the application for the record of proceeding was not notified to the respondent, this being one of the reasons why the Appeal No. 34/1993 failed. Further the affidavit does not explain why the Registrar's certificate, annexture "A" to the applicant's affidavit, was issued by the high Court Registrar in Kampala and not the Hight Court District Registrar in Fort Portal, where the Suit was heard and judgment delivered. It was contended that the applicant's affidavit

supporting the motion does not tell the whole story, as it should have done.

Rule 4, under which this application is kbrought provides as follows:-

"The court may .for sufficient reason extend the time limited by these rules or by a dicidion of the Court for the doing of an act authorised or required by these rules, whether before or after the expiration of time".

In the well known case of Mugo & Another v. Wanjiri & Another (1970) E. A. 481 the Court of Appeal for East Africa said that the fact that an appeal appears likely to succeed cannot of itself amount to "sufficient reason". Normally, sufficient reason (see page 12) must relate to the inability or failure to take a particular step in time. But the court was not prepared to say that no other consideration might be invoked.

What the court said in that case, in my opinion, means that the likelihood of success of the intended appeal is only one of the factors that may be taken into account in considering whether sufficient reason has been shown. But it/ $\overline{by}$ no means suggested or required that an applicant has, at this stage, to formulate grounds of appeal.

In Shanti v. Hindocha & others (1973) E. A. 207, the Court of Appeal for East Africa put the matter this way:

"The position of an applicant for extension of time is entirely different from that of an applicant for leave to appeal.

He is concerned with showing "sufficient reason" why he should be given more time, and the most persuasive reason that can be shown, as in Bhatt's case (1962)E. A., 497), is that 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 he does so at his peril.

There is, therefore, no question of leave being given only in respect Leave is either given or refused, and where it is of certain arguements. given, the applicant is free to advance what grounds he thinks fit in his memorandum".

In the instant case the judgment sought to be appealed against was delivered on 15/2/1991, now four years ago. In his affidavit, the applicant

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says that the NoLlce of Appeal was Lhen duly flled and Lhe record of proceedlngs also duly app]1ed for. He does not say when the noLlce of Appeal was fl]edi nor when the record of proceedlngs was applled for. Mr. TlbalJuka' learned Counsel fon lhe respondenL challenges the appellantrs clalm Lhat the noLlce of Appeal was duly flled, because one of Lhe Srounds thal the ensulng appeal was succeffully obJected to was thaL Lhe NoLlce of Appeal was flled 1n lhls court lnslead of 1n lhe H18h Court. Wlbh re8ard to Lhe appllcatlon for proceedlngs, Mr. Tlbaljuka conbends that had Lhe appellanL been more dlllgent lL would noL have Laken Lhree years for the record Lo be compleLed, lf lt was applled for on ?0/2/1991 as stated 1n the ReSlsLrarrs certlflcale. Then Ehere 1s the unexplalned mystcry of how 1t was that 1L was the Re8lstrar of Lhe Hlgh Court ln Kampala who certlfled the completlon of Lhe record of proceedlngs, 81ven that the sult was Lrled by the ResldenL Judge ln For! Porlal and the proceedlngs applled for there.

In my v1ew, avallable evldence ln, and the clrcumstances of, thls case show Lhat the appllcanl has been Iess than d1l18ent 1n Lhe pensult of h1s lntended appeal. He does not, therefore' deserve the sympathy of thls Court.

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Secondly, thene 1s the apparent perslsienL negllSence on lhe parb of the appellantls Counsel. No doubL, a lltlganl has the llberty to choose any Counsel he deslres. Thls courl and lts predecessor has held LhaL the negllgence or fault, of Counsel so chosen should not be vlslled on a v181lant l1t1ganL. See Mary Kyomu1abl v. Aharnad Zlrondomu, Civll Appeal No, <sup>41</sup> ot 1979 (1989) H. C. B. 11; and Isaac Blsharl v. VlLafoam (supra)' In these and slmlLar cases, the court was faced wlth the flrst appllcatlon for extenslon of t1me. The defaults also fell squanely on the appllcanUrs Counsel and Lhe appllcanL d1d nol contrlbute Lo Lhe deIay. But ln the lnsLanL case, the presenE 1s the second appllcalllon' based on lhe same Srounds and the appllcant represenLed by Lhe same Counsel. Moneover as I have sald earller, Iack of d1llgence was apparenL on the part of the appllcant, The second Appeal No. 23/94 vtas stpuck out on 6/12/1994. The present appllcatlon was f1]ed on 20/1/1995, 1.e. l] months later. The facbs were cIear. No explanatlon 1s glven ln the tlro affldavlts 1n support of Lhe present appllcatlon lrhy 1t Look 'll monLhs. Slmtlarly, the flrst Appeal No. 34/93 was wlthdrawn on 11/2/1994 and Clvll AppllcaLlon No. 7/1994 was flled on 1/3/1994. Agatn no explanailon 1s glven for LhLs delay.

These are matbers whlch, I th1nk, cannot be blanuned on Lhe appllcanL rs Counsel alone.

F1nal1y, the appllcant' Ln my vlew, has falled Lo support hls appl1caL1

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by a sufficient statement of the nature of the judgment against which he wishes to appeal, and of his reasons for desiring to appeal in order for the court to determine whether or not a refusal of the applicant would appear to cause injustice. see Bhagwanji Shah (supra). In the instant case the appellant states in paragraph 15 of his affidavit that "if the decision of the High Court is not quashed, I, as the eldest son of my deceased Father, stand to be deprived of a substantial interest in the estate of my Father, the late Nyakana the subject of the appeal".

In my view, this information does not reveal enough of the nature of the judgment intended to be appealed against and the reasons the applicant wishes to appeal. It does not go far enough.

In the circumstances, and for the reasons given, I think that the applicant has not shown **Sufficient** reason to justify the extension of time sought by this applicantion. I would, therefore, refuse the application. It is accordingly dismissed with costs.

Dated at Mengo this ....................................

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


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