Roy Busuulwa Nsereko and Another v Imelda N. Nakedde (Civil Application No. 5 of 2000) [2000] UGCA 51 (1 January 2000)

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

CORAM: HON. LADY JUSTICE C. N. B. KITUMBA, JA.

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## CIVIL APPLICATION NO, 5 OF 2OOO.

| ,l | ROY BUSUULWA NSEREKO] | | |----|-----------------------|-----------------| | 2 | J. F. K TYO | APPLICANTS<br>I |

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## VERSUS

IMELDA N. NAKEDDE RESPONDENT

(Arising from the judgment of the High court (Musoke-Kibuuka J.) dated 16.8.1999 in HCCS No. 1074/95)

## RULING OF C. N. B. KITUMBA JA.

This is an application under rule 4 of the Court of Appeal Rules 1996 for the extension of time within which to file an appeal against the judgment of the High Court which was delivered on 16/8/1999.

The application is by notice of motion filed in this court on 211212000 and is supported by two affidavits. One by Edward Ddamulira Muguluma of Lubega and Company Advocates, counsel for the applicants and another by J. F. Kityo, who is the second Applicant. There is no affidavit in reply.

The following is the back ground to this application. The respondent sued the two applicants for recovery of land in High Court Civil Suit No. 1074 of 1995. Judgment was to be given on notice. The first applicant who lives in London was at the hearing of the suit represented by the late W. Muwayire, advocate, who passed away sometime in 1997. The second applicant was not represented by counsel. Judgment was to be given on notice. Notice of the delivery of the judgment was not served to the second applicant. The notice was served on Mr. Ssensuwa, an advocate, who was practising in the chambers of M/s. Muwayire Nakana and Company Advocates. Judgment was delivered on 25th August 1999 in the absence of both applicants. When the applicants heard of the judgment on 'l4th September 1999, they instructed their present counsel to appeal against the judgment. Counsel for the applicants filed a notice of appeal in the High Court on 14th September 1999.

The grounds of this application are as follows:-

"7. The first applicant who lives in the United Kingdom, was not served with the NOTICE of the judgment and his advocate, the late W. Muwayire had died in 1997, and the applicant had not instructed any other Advocate to represent him by the 25th August, 1999.

2. The second applicant was not seryed with the NOTICE of the judgment delivered on

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the 25th August, 1ggg, and he was unrepresented.

3. That the applicants came to know of the judgment in the middle of the month of September, 1999, and filed the NOTICE OF APPEAL in courT on the 14th September, 1999.',

l0 20 At the hearing of this application counsel for the applicants relied entirely on the two supporting affidavits. The substance of Mr. Muguluma's affidavit is that the first applicant lives in London and cannot therefore swear an affidavit in support of his application. That the first applicant informed him that his former counsel the late W. Muwayire passed away in April 1998 and that the first applicant was last in Uganda in December 1998. That counsel was instructed on 14th September 1999 to file a notice of appeal against the judgment in High Court Civil Suit No. 1074 oT 1995 and he complied with his client's instructions on the same day. The substance of the second applicant's affidavit ls that he was the second defendant in High Court Civil Suit No. 1074 ot 1995. He was not represented by a lawyer at the hearing of that suit and was not served with notice of the judgment. That he learned of the contents of the judgment in the morning of 14th September 1999 and instructed M/s. Lubega and Company Advocates to include his name on the notice of appeal as an appellant. That is if he had learned of the judgment in time he would have taken steps to appeal in time.

Relying on the contents of the two affidavit, counsel submitted that the applicants were prevented by sufficient reason from appealing in time. Counsel further submitted from the bar that after fillng the notice of appeal he realized that the notice of appeal was filed out of time. He therefore filed the present application to appeal out of time. Counsel did not quote any authorities in support of his submission.

l0 ln reply Mr. Balikuddembe, learned counsel for the respondent, conceded that both applicant learned of the judgment on 14.9.1999 which had been delivered on 25th August '1999. He submitted that the applicants were already late by five days to file a notice of appeal and it was therefore futile to file one. Their counsel should have filed an application to lodge a notice of appeal out of time which he did not.

Counsel also attacked the notice of appeal on the grounds of forgery which in his opinion appeared on the face of it by way of additions. For example; the name of the second applicant was written by hand. He further argued that though the notice of appeal was filed in the High Court it bore the wrong heading as it reads 'lN THE COURT OF APPEAL. Besides the notice of appeal was never served on the respondent within 7 days as is required by law. Counsel submltted that the applicants counsel was not serious in prosecuting the appeal as he did not apply to the Registrar for the copy of the proceedings so as to inform himself of the chances of success of the intended appeal. Mr. Balikuddembe argued that this application was filed approximately one hundred a fifty days from the 14.9.1999, the day the applicant

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learned of the judgment. This was inordinate delay and could not be excused. He relied on Clouds 10 Ltd ys Standard CharTed Bank Supreme Court Civil Appeal No. 35 of 1992 (unreported) and Regina Kabatabazi v Paul Muwanqa Couft of Appeal Civil Appeal No. 2 of 1998 (unrepofted).

Rule 4 of the Court of Appeal Rules provides:

"The Court may, for sufficient reason, extend the time limited by these Rules or by any decision of the Court or of the High Court for the doing of any act authorised or required by these Rules, whether before or after expiration of that and whether before or after the doing of the act; and reference in these Rules to any such time shall be construed reference to the time as so extended. "

It has been held in numerous authorities that sufficient cause must relate to inability or failure to take a particular step in time. See Muqo v Waniiru [19701 EA. 481. The applicant has to show that the delay was not caused or contributed to by dilatory conduct on his part. See Bhatt v Teiwant Sinqh [1962] E. A.497.

ln the instant application it is obvious that as soon as the applicants heard of the judgment in High Court Civil Suit No. 1074 of 1995 which they did not agree with they instructed their counsel to appeal. Counsel took the wrong step by filing a notice of appeal when he was already late by five days. However, that was <sup>a</sup> mistake of counsel and not that of the applicants.

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Administration of justices normally requires that all disputes are investigated and decided according to their merlts, and errors or lapses on part of counsel over whom the litigant has no control should not deter a vigilant litigant from pursuing his appeal. See Haii Murdin Matovu v Ben Kiwanuka Supreme Court Civil application No. 21 of 1991 (unreported), Marv Kvamulabi v Ahamad Zirondum 1981 HCB.

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A client is entitled to rely on his counsel to carry on his instructions to their logical conclusion. lt would be expecting too much of an intending appellant, especially one who resides outside the country, like the first applicant to monitor every step his counseltakes in connection with his intended appeal. The filing of the notice of appeal out of time and the delay making this application was entirely the fault of the applicants' counsel.

ln the result this application is allowed. The applicants are to take the necessary steps to file their appeal within 2'1 days from the date of this ruling. Costs of this application are to abide the result of the appeal.

5r 11,ltn Dated at Kampala this day of ...2000

a r-ra c. N. B. Kitum a

Justice of Appeal.