Omar v Abdalla (civil Application No. 54 of 2000) [2002] UGCA 21 (6 March 2002)

Full Case Text

# THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

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### CORAM: HON. MR. JUSTICE G. M. OKELLO, JA

CIVIL APPLICATION NO. 54 OF 200

#### **BETWEEN**

OMAR ALI $\cdots\cdots\cdots\cdots\cdots\cdots\cdots\cdots\cdots\cdots\cdots\cdots\cdots\$ APPLICANT

#### AND

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ABDALLA :::::::::::::::::::::::::::::::::::: RESPONDENT $\overline{1}$

> (Application arising from the decision of the High Court (Ntabgoba, PJ) dated 27/3/98 at Kampala in HCCS No. 962/86)

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## RULING

The applicant. Omar Ali. instituted this application under rules 1 (3). 4. 23 and 42 of the Rules of this Court for orders that:- $\frac{1}{2}$

> Fresh Notice of Appeal and application for record $(1)$ of proceedings in HCCS No. 962/86 be lodged with the Registrar of the High Court of Uganda at Kampala,

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the time within which to lodge and serve such $(2)$ Notice of Appeal be extended, and

other directions be made as to costs and other $(3)$ matters as this Honourable Court may deem fit and just.

The grounds on which the application is based as stated in the Notice of Motion are

- the applicant duly instructed counsel to process $(a)$ the appeal in time; - the non-compliance with the rules of limitation $(b)$ was caused by the mix-up in the High Court Registry and negligence/blunders by the applicant's Counsel: - all along the applicant was assured by counsel that $(c)$ notice of appeal and application for record of proceedings were filed in court and served upon the opposite party; - $(d)$ that the judgment and decision sought to be appealed against has caused the applicant great hardship and there are overwhelming chances that the appeal will succeed; - the appeal raises very important legal issues and $(e)$ it is in the interest of justice to both parties and the

public at large that the appeal is determined on merit by this Honourable Court;

### the applicant personally has been very vigilant in $(f)$ his guest for a remedy on appeal.

There are three affidavits in support of the application: the first one was sworn by the applicant on 10th August. 2000. The second affidavit was deponed to by Hussein Wachi, the Chief Law Clerk with M/S Odimbe & Co Advocates on 10th August. 2000. The third $\left\lfloor \left( \cdot \right) \right\rfloor$ affidavit was sworn by Apolo Mwesigve, the advocate who was instructed to prosecute the appeal. He too deponed on $10 - 8$ -2000

The gist of the contents of these affidavits is that the notice of $\frac{1}{2}$ appeal was lodged at the High Court Registry within time. The letter requesting for copy of the proceedings was also written within time and taken to the High Court registry for endorsement Thereafter the copies of the notice of appeal were misplaced at the Registry. Consequently, neither the notice of appeal nor the letter $\sum_{i=1}^{n}$ requesting for copy of the proceedings was served on the persons affected by the intended appeal. The blame for the delay was placed on M/S Natsomi, Wandera & Co Advocates who were instructed by the appellant within time to prosecute the appeal on his behalf. They were not diligent. Subsequently the applicant changed $\colon$ instruction to M/S Mwesigve. Mugisha & Co. Advocates. The applicant had no share of the blame as he diligently instructed counsel in time.

The respondent filed an affidavit in reply dated 7th January, 2001. The affidavit apportioned the blame for the delay between the applicant's counsel old and new and the applicant himself. According to this affidavit. both M/S Natsomi. Wandera & Co. Advocates and M/S Mwesigve. Mugerian & Co. Advocates were guilty of indiligence in handling the applicant's instruction. Applicant himself was also accused of indiligence because he never $\overline{10}$ complained to court about the indiligence of his advocates. He only concentrated in protecting the valuable property of the Estate from execution. Rehearsing the contents of the respondent's affidavit in reply. Mr. Lubega Matovu submitted that as the case was filed about 16 years ago and judgment in it was given in 1998. granting $15$ extension of time now would be prejudicial to the respondent. He praved that the application be dismissed.

The law governing extension of time is now well settled that it is in the discretion of the judge. It being a judicial discretion, it must be $\frac{1}{2}$ exercised on a sound principle. It was stated in Shanti VS Hindocha and Others (1973) EA 207 at 209 that:

> "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"

> > $\downarrow$

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reason" why he should be given more time and the most persuasive reason that he can show, as in Bhat's case, is that the delay has not been caused or contributed to by dilatory conduct on his part" (emphasrs addedl.

1,'

ln Haji Nurdi Matovu vs Ben Kiwanuka, Cirril Application No. L2 191 (scu) the Supreme Court stated.

'It is important to rernember that when dealing with rule 4 of the Supreme Court Rules, the court has a free discretion to determine what is a sufficient reason and that if an advocate has rnade a blunder. It is important not to visit that blunder on an innocent Iitigant. We would entirely agree nrith the learned judge, with respect, that darnages is not usually a sufficient remedy. If one were to put oneself in the position of a litigant and was told

> Well. your advocate has made a blunder and now you will be unable to appeal. but of course you may always sue the advocate for damages '

We think one would appreciate the angry reaction whir:h rnust follow instead of furnishing one piece of litigatiou, a litigant must embark on a second piece of litigation in

suing his advocate. It is true that one has to bear in mind the delay that has been forced upon the successful party and indeed weigh up all these circumstances. But damage can rarely be a satisfactory answer".

There are some decisions of the Supreme Court which show that once the applicant has instructed his lawyer in time to file the appeal, any blunder by his lawyer which resulted in the delay in complying with the time limit requirement should not be visited on the applicant.

In Alexander Jo Okello vs M/S Kayondo & Co. Advocates, Civil Application No. 17 of 1996 (scu) it was stated thus:-

"In my considered opinion, bearing in mind the above, I think that the applicant having duly instructed his lawyer in time to file the appeal against the decision of the Court, if in doing so, the lawyer committed a blunder which resulted in the appeal being struck out, it would be fair and just to afford opportunity to the applicant to have his appeal heard and determined on merit. It can only be done if the applicant is granted extension of time to file Notice of Appeal".

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i-l ori-ever. Nsubuga, said. rn Sadrudin Dharnji Civil Application No. Sayani vs Edward Mpresse 10 of 1995, sclr, Tsekooko, JSC

\*I am arr/are of a number of decisions of this court including that of Hussein's casc (supra) to the eflect that a blunder by an advocate may or rnay not be sufficient reason to e.-rtend time a"d to save the applicant from prejudice. See Supreme Court Ciwil Application No. 15 of 199O: D. Alrneida vs Dr. C. Ruid Almeida; Haji Nardin Matorru vs Ben Kiwanuka, (Suprerne Court Ciwil Application No. t2 of 19921 (unreported) and Cloud 10 Ltd vs Standard Chartered Bank (U) Ltd. (unreported. I think that each case or application must be decided on its own facts. Otherwise if it is held that in every case where delay in taking a necessary step in litigation was due to a blunder by an advocate an application for extension of time to take necessary step ought to be granted would easily lead to abuse and delibcrate disregard of the rules of the court. That would prouide an easy way of circumventing the requirements of the rules whose effect is that certain necessary steps in litigation ought to be taken within the time prescribed by the rules so as to conclude particular litigation."

I respectfully agree with the above views expressed by the learned Justice of the Supreme Court. Not every blunder by an advocate should constitute sufficient reason to justify extension of time. Each case must be decided on its own peculiar facts. An error of judgment on the part of an advocate resulting in the delay may constitute sufficient reason but sheer lack of diligence on his part should not unless there is some satisfactory explanation for it.

In the instant case, the first lawyers of the applicant filed notice of appeal and wrote a letter requesting from the High Court. a copy of $\left\{ \left( \cdot \right) \right\}$ the proceedings in time but failed to serve them within the prescribed time. Applicant's attempt to blame the delay on the High Court Registry cannot be sustained for lack of cogent evidence. There was no evidence from the Registrar as to how the documents were handled in his Registry. The cause of the delay therefore. $15$ remain a sheer lack of diligence on the part of the applicant's first lawvers. Even the applicant himself had a share of the cause of the delay. He was not vigilant. The decision he sought to appeal against was delivered on 27 - 3 - 1998. It was only in April. 2000. about two years later, that he changed advocates. A litigant who is $\mathcal{L}$ anxious to have his case diligently prosecuted would not wait for that long to act. I think some satisfactory explanation was required for the long delay from which I could exercise my discretion whether or not to grant the extension. No such explanation was adduced.

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On the evidence before me. I am not satisfied that sufficient reason has been shown why those documents were not served in time. It is not enough that the first lawyer was not diligent.

In the result. I dismiss this application with costs to the $\cdot\cdot$ respondent.

Dated at Kampala this 6TK day of McCrch, 2002.

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G. M. Okello JUSTICE OF APPEAL