Sekajja v Falida Saad (Civil Application No. 27 / 92) [1992] UGSC 36 (21 September 1992)

## SUPREME COURT OF

AT MENGO

$MANYINDO - DCJ$ $(GORAM:$

CIVIL APPLICATION NO. 27/92

## BETWEEN

HAJI SEKAJJA: APPLICANT $: :$ $: :$ $: :$ $: :$ $: :$ $: :$ $: :$ $: :$ AND **RESPONSENT** FALIDA SAAD: $: :$ $: :$ $:$ : $: :$ $\cdot$ $\cdot$ $\cdot$ $\cdot$ $:$ $: :$ $: :$ $\cdot$ $\cdot$

## RULING\_OF MANYINDO = $DCJ$ :

This is an application for leave to extend the time within which to appeal against the decision of the High Court (Kalanda. J) delivered on 28-2-92. It is brought by Notice of Motion, under Rule 4 of the Rules of this Court.

The respondent, Falida Saad, was the successful party in a land dispute in the High Court. The applicant was not satisfied with the judgment of that Court and so instructed a Mr. Kityo of Kityo & Co. Advocates to appeal to this Court. Mr. Kityo sought and obtained the record of the proceedings on 23-4-92 He thus had until $22-6-92$ , (60 days) to file the appeal. He filed the record of appeal on Friday June 19th 1992, but the Registrar of the Court rejected it on 23-6-92, on the ground that it was defective as it did not contain the index page. $\n\mathbf{C}\n$ the same day Mr. Kityo rectified the error but even then the Registrar would not accept the appeal as it was late by one day. Thereafter the applicant changed Advocates, taking on Mr. Dominic Kasirye of Kasirye & Co. Advocates who brought this application on $21-7-92$ .

$\frac{1}{2}$

At the hearing of the appeal Counsel for the applicant submitted that as Mr. Kityo had taken the necessary step in time except for the unfortunate omission of the index page which was corrected immediately the error was discovered, the applicant should be granted leave to file the appeal out of time. to the respond $\sqrt{su}$ On the other hand Mr. Zaabwe/argued that there was no merit in the application since the applicant had not shown sufficient reason within the meaning of Rule 4 to justify the extension of time.

$\Rightarrow$

The discretionary power to extend time under Rule 4 can only be exercised "for sufficient reason" which relates to the inability or failure to take the particular step in time -Mugo v Wanjiro 1970 EA 481 at 483. In deciding whether the time should be extended regard should be had to the reason or excuse advanced for the failure to act in time - Kangemiteto v Uganda Criminal Application No. 1 of 1978. Court of Appeal for Uganda (unreported. There must be some material on which the Court can exercise its discretion, because an unqualified right to extension of time would defeat the purpose of the Rule which is to provide a time table for the conduct of cases - Ratnam v Cumarasany & Another (1964) 3 All E. R. 933 (Privy Council).

In the instant case the only material before me are the affidavits of Mr. Kityo and Mr. Kasirye to the effect that the purported appeal was filed in time but that it was rendered incompetent only by the exclusion of the index page.

The mistake was corrected at once and the correct record of appeal was put in only one day out of time. As was pointed out in Sezi Busasi & Another v Kareba & Another, Civil Application No. 6 of 1978, Court of Appeal for Uganda (unreported), minimal delay in instituting the appeal may well be condoned.

The defective record of appeal was lodged on a Friday. It was rejected by the Registrar on the following Tuesday 23rd. Mr. Kasirye has submitted that had it been rejected on Monday 22nd the error would have been corrected/that same day with the /or result that the appeal would have been filed in time. That may well be true. I do not think that it would be right to penalise the applicant for the simple error committed by his advocate who wasted no time in putting the matter right. I am satisfied that the applicant has shown sufficient reason to justify the grant of an extension. Accordingly the application is allowed. The applicant shall file the record of appeal within seven days from to-day. Costs of this application shall be the respondent's in any event. $\mathsf{S}$

$\frac{2}{\cdots}$ day of September 1992. DATED at Mengo this:.


upindo SIGNED: S. T. MANYINDO

DEPUTY CHIEF JUSTICE