Sepiriya v Bagambe (Civil Appeal 20 of 1995) [1997] UGSC 12 (6 August 1997)

sevent comme to serve con IN THE SUPREME COURT OF UGANDA 1 Certify the chy Kopy of the Criginal AT MENGO (CORAM: SINGLE JUDGE, KAROKORA JSC) Supremo CIVIL APPEAL NO. 20 OF 1995 SEPIRIYA KYAMULESIRE

**VERSUS**

APPLICANT

**RESTONDENT**

id.

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JUSTINE BIKANCHULIKA BAGAMBE

(Judgement and Decree of the High Court of Uganda dated 14th December, 1993 (Hon. Mrs. Justice C. K. Byamugisha)

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H. C. C. S. No. 254 of 1992)

## RULING

The applicant filed this application seeking Leave to file appeal out of time, institute appeal, serve his memorandum of appeal and record of appeal. The application was made under Rules 4, 42 (1) (2), 43 (1) (2), 52 (1), 74, 76, 82 (1) (2) and 87 of the Rules of this Court.

The grounds of application are:

That the Memorandum of Appeal and Record of Appeal ı. are ready for filing but cannot be ladged by the application, because after filing the Notice of Appeal, there was amission to serve a copy of the said Notice of Appeal to the respondent within the prescribed time.

2. That the omission to serve the Notice of Appeal within the prescribed time was caused as a result of successive change of advocates: by the applicant.

That the applicant did not lodge the Memorandum of Appeal and Record of Appeal within the prescribed time due to delay the High Court to furnish him with the Record of Proceedings etc.

- That the Applicant has been deligent in the prosecution $4.$ of his intended appeal. - 5. That the intended appeal has a strong likelihood of success on the merit. - 6. That the subject matter of the intended appeal is land to which the applicant has got a lease offer and on which he has a permanent home with development on it. - That the applicant will suffer injustice and substantial and irreparable loss and damage if the application is not granted as prayed.

The application is supported by the Affidavit sworn by the Applicant which has 25 paragraphs.

The first paragraph avers that judgment was given by the High Court against the applicant on 14/12/93. Being dissatisfied, he instructed M/S Mugamba and Co Advocates of Port Portal to file appeal in the Supreme Court and on 22/12/93, Notice of Appeal was filed. In the 4th paragraph M/S Mugamba & Co Advocates told him that they had given instructions to M/S Kateeba & Co Advocates to take over the conduct of the said Appeal on 21/12/93 and gave him a copy of their letter to M/S Kateeba & Co Advocates. M/S Kateeba & Co Advocates told him he would be notifying the Court of the change of Advocate as soon as possible.

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Later in Sepiember 1994 M/S Kateeba gave him a copy of his Kotice of Change of Advocates dated 5/9/1994, but he could not process and file the appeal. They were telling him to wait. However, in January 1995, the applicant learnt from a clerk in the High Court that Mr. Kateeba was doing nothing but wash delaying his appeal because there was serious disciplinary case against him pending judgment by the Law Council. On $3/1/95$ , the applicant gave instructions to M/S Emesu & Co Advocates to take over the appeal; who upon taking over tried to regularise the appeal.

This application therefore seeks to regularise the appeal so that it can be heard on merit.

Judgment was delivered on 14/12/93 against the applicant. Notice of Appeal was given on 22/12/93, which was within the prescribed time, but no copy thereof was given to the runnement. According to Rule 81 (1) of Supreme Court Rules (SCR) the Record of Appeal should: have been filed within 60 days from the date of filing Notice of Appeal. preal should have been requested within 30.00%. The date And a Elving a copy of the letter of that request to the respondent. But there were these omission on the part of the applicant. Memorandum of Appeal and Record of Appeal were prepared but could not be filed by M/S Emesu & Co Advocates, because, they realized that no copy of the Notice of Appeal had been served on to respondent by M/S Mugamba & Co Advocates, and hence this application.

At the hearing of this application Mr. Arthur Mugenyi of N/S Mugenyi & Co Advocates raised a preliminary objection under Rule 41 of the Rules of this Court against this application. It was submitted that under Rule 41 of S. C. R., the application must first be made before the Superior Court. He referfed me to the decision of Kazzora v Rukuba, Civil Application No. 4/91 (unreported) of this Court, where he alleged that this Court held inter alia that the general principle is that disputes should first be filed in the lowest Court having jurisdiction and that it was preferable that the High Court should first deal with the application before it came to the Supreme Court. That application, had been made under Rule 5 and 42 of the S. C. R. He further referred to Civil Application No. 37/95 Biverentyo Fermers Ltd v CMB (Ltd) (unreported) which had been filed seeking stay of execution, where this Court struck out the application on the ground that it should have first been filed before the High curt. Since the High Court under Order 37 r 6 had jurisdiction. the application should have first been filed there before it came to this Court. He prayed for this application to be struck cut with costs to them.

Against the objection, Mr. Emenu submitted that there was no merit in the objection, because the Notics of Appeal having been filed under Rule 74 (1) of S. C. R. Thereafter, the procedure would as laid down by Rules 81 and 85 of the Rules of this Court. Then Rule 4 of the S. C. R. spells out the procedure. He contended that the application was seeking enlargement of time within which Notice of Appeal, Memorandum of Appeal and Record of Appeal would be lodged. which were outside the scope of High Court.

I there and then over-ruled the objection and directed them to proceed with the application to be decided on morit, promising that I would give reasons in the ruling on the merits of the application.

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I must observe that when Mr. Arthur Mugenyi raised his objection. he never furnished the two authorities he cited. It was not clear whether the authorities he cited were relevant to this application of enlargement of time within which leave was Bold to regranted to file Notice of Appeal.

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In my considered view, whereas in certain cases there may be concurrent jurisdiction between High Court and Supreme Court to take a stop c. E. in case of stay of execution under Rule 41 of S. C. R. and under Section 131 (2) of Urial on Indictment Decree. However, in Civil Appeals, it seems to be clear that the Supreme Court has exclusive discretionary jurisdiction in matters of extension of time for purpose of appeals. Rule $k$ of the S. C. R. is an authority for the above proposition. See Civil Appeal No. 18/1990 Lawrence Musiitwa Kyazze v Eunice/Busingye (unreported) where it was held inter alia:

"The provision to Rule 41 suggests that matters concerning the granting of leave to appeal and extension of time were uppermost in the minds of the legislaters using those matters as a guide, the situation is as follows: In Civil Appeals, extension of time is a matter for the discretion of the Supreme Court under Rule 4 of the Court of Appeal Rules alons. There is to concurrent poucr."

In the circumstances this application is properly before this Court and as such the preliminary objection was properly overruled.

Turning to the substantive application, it is seeking leave to serve Notice of Appeal outside the prescribed period on the grounds that at the time when the applicant filed Notice of Appeal, his Advocate overlooked to serve the Notice to the Respondent within the prescribed time. Rule 76 (1) of the Rules of this Court spells out that:

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"An intended appellant shall, before or within seven days after lodging notice of appeal serve copies thereof on all persons directly affected by the appeal".

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Mr. Emesu, Counsel for Applicant submitted that this was a mistake of the applicant's advocate which should not be visited on to the applicant. He referred me to Civil Application No. 2/1992 Zamu Nalumansi Malumansi & Anor-y-Sulaiman Lule where Section 330 McLd that the applicant in that case should not be made to suffer for the consequences of their former Counsel's error. In that case a number of authorities on the point were cited with approval which included Executrix of the Estate of the Late Christine Mary Nanatovu Tebeinjuka; Attorney General v Noel G. Shalita, Civil Application No. 8/1988 (unreported) A. G. V Orient Construction Co. Ltd, Civil Application No. 7/1990, Shanti v Handocha (1973) EA 207 Gatti v Shoosmith (1939) 3 ALLER 916, Mary Kyamulabi v Nirondomu/1980 ROB III Essayi v Solanki (1963) EA 218 and Ben Kiwanuka v Nurdin Matovu, Civil Application No. 17/1990 (unreported) Muso v Manjiru (1970) EA 484. $c \in \{1, 1, 1, \dots, r\}$

In the instant case it was contended that a Langer who was an partner broke away and took away the applicant's file. Later the applicant handed his case to M/S Mugamba & Do. Mavouries of Fort Portal who filed Notice of Appeal within the prescribed period i.e. on 22/12/93 as averned in paragraph 5 of the affidavit sworn in support of the application.

After filing the Notice of Appeal, there, a change of Advocate to M/S Kateeba & Co Advocates as averred in paragraph 4 of the affidavit. The change of Advocate was filed by Katacha on 5/9/94. See pare 5 of the affidavit. These were supposed to proceed from What M/S Mugamba had done, but they never did anything.

$...17$ In January 1995 the applicant learnt from the High Court Civil Registry that Mr. Kateeba could not do anything anythere all there were disciplinary proceedings against him pending before

On 3/1/95 the applicant instructed M/S Emesu & Co. Advocate to take on the appeal. On the same day. Notice of Change of Advocate was given. They asked for copy of the proceedings. Court proceedings were given on 12/4/95 to the Advocates. It was discovered that the **record** of appeal did not contain exhibits. On $5/5/95$ full proceedings of the lower court were supplied. The Advocate thereafter prepared the Herorandum of Appeal as spelt out in paragraph 15 of the affidavit storp in support of the orplication.

At that time the Advocate could not file Record of Appeal. They had to take application, seeking leave in order to present Notice of Appeal, Memorandum of Appeal, Encord of Appeal, all outside the prescribed time, because as deposed to in persgraph 15 of the affidavit in support of the application, there were characters on the part of the Advocate in that he never served a copy of the Notice of Appeal to the Respondent. Moreover, at the time of applying for copy of proceeding, see paragraph 18 of the effidavit, the Advocate overlooked to serve the respondent with a copy of the letter requesting for the copy of the proceedings of the lower

It was contended that there were added one committed by Counsel for applicant, through no fault of the applicant. As corlier on submitted, it was contended the applicant should not be made to suffer for mistakes of his Advocates.

In paragraph 20 of the affidavit, the applicant overred as follows:

"The suit land was at the time of the institution of the suit leased to me by the U. L. C. for 5 years and I had already paid all the fees and taken nurveyors to carry out the survey when the said surveyors were chased away by the defendant respondent's father."

Then in paragraph 21 he deposed as follows:

"That at the time of the institution of the said suit in the Righ Court and up to new, I had a permanent house on the su t land with developments such as 1 acre of coffee trees and other trees and I was using the said land for grazing."

In view of the above, it was submitted that in the interest of Justa this application should be allowed so that the appeal is eventually filed and determined on merit. It was contended that there was one application instead of making several application in order to avoid miltiplicity of application. He therefore proved for costs of this application.

Against the above submissions, Mr. Arbam hugenyi submitted hat the application was seeking orders which were contradictory and abuse of Court process. For instance, he contended as follows:

"If you look at ground "b" for leave to institute the appeal outside the prescribed period, then ground $\mathbf{u}_{\mathbf{a}^H}$ seeking leave to serve notice of appeal on to respondent cutside the prescribed time would not wribe, because if the applicant filed notice of appeal in the High Court and registered there and a copy of the same was sent to the Supreme Court, then he had instituted the appeal which means that the appeal is in the Supreme Court. And therefore the prayer under ground "b" does not arise."

With due respect, I would not accept the above submission that once Notice of Appeal is filed in the High Court then the appeal is lodged in the Supreme Court, because after filing the Notice of Appeal, there are steps that must be taken before the appeal is filed/lodged in the Supreme Court. For instance, the Intended appellant must serve copy of the Notice of Appeal to all persons directly affected by the appeal under Rule 76 (1) (2) and must apply for copy of proceedings of the lower court. He must thereafter lodge the appeal in accordance with the provisions of Fule 81 (1) of the Rules of this Court. I therefore do not see where the order sought in "b" would contradict the orders sought in "a" of the grounds of the application.

Turning to the submission by Mr. Arther Mugenyi that the omission to serve Notice of Appeal to the respondent was due to confusion caused as a result of successive change of idvocates brought about by the applicant himself, which should not be visited by the applicant top his lawyers, must not be accepted. It must be noted that judgment was delivered on 14/12/93. The Hotice of Appeal was filed on 22/12/93, which was within the prescribed period. The Advocate for Applicant never served a copy of the Notice of Appeal to the respondent as required under Aule 76 (1) and never requested for copy of the proceedings from the lower Court in writing as required by the law, giving a copy of the Letter requesting SE the proceedings to the respondent. If k/s Magazina & Co Advocates: on their own instructed M/S Kateeba & Co Advocates to take on the epplicant's appeal, this was as "ethical on the part of both M/S Mugamba & Co Advocates and M/S Kateeba & Co Advocates, because instruction could only be given by the applicant.

In my view, and in all fairness bearing in mind the decision in Gatti v Sheosmith (supra) Shanti v Haudocha (1973) IA 207. Bon Kiwanuka v Nurdin Matovu (supra) Essenji v Selanki (cupro) and Sann Nalumansi & Anor v Sulaiman Lule (supra), it is my considered view that the effors and omissions by applicant's larger should not be visited on to the applicant who is a layman and who had instructed the lawyer within the stupulated period. For instance, there is evidence which is not controverted that the applicant instructed his lar within the stipulated period, because the larger lodged the

Notice of Appeal on 22/12/93 when the judgment had been delivered on 14/12/93. His lawyer's inadvertence to serve a copy of Notice of Appeal to respondent as required by Rule 76 of the Rules of this Court and his subsequent omission to take other essential steps should not be visited on to the applicant who had done all that was required of him. Mr. Mugamba's unilatoral and unprofessional act of justructing Mr. Nateoba of Nateoba & Co Advocate to take on the case, when the upplicant had not personally instructed Mr. Kateeba must not in all frimess, if this caused this delay, main of be attributed to the applicant. It must be conceded that if the applicant is blocked from purcuing his appeal because of his lawyers negligence, the applicant ran proceed against the larger on the grounds of professional negliaches, but then, must we not have an end to litigation? Instead of revolving the dispute between the applicant and the respondent, we shall be having litigation between the applicant and his labyer, thus having endless litigation.

In my considered origin, considering the decided cases of this Court and other Court of other jurisdiction on the point, it is now settled that errors of omission by Commod is no longer considered to be futul to an application under Role h of the Rules of this Court, writes there is evidence that the cyclicant was guilty of delatory conduct in the instruction of his lasger, which in my view, was not the case here, though it was contended that he was responsible because of changing lawers; but then when he instructed Mr. Hugambe to file the Appeal, it was Bone in time and Mr. Hugenba filed Notice of Appeal in time. And therefore, the applicant cannot in all fairness be condemned for that his Counsel outted to do or what he did that he ought not to knye done or for having instructed Mr. Emesu to take on the appeal and regularise it.

In all fairness, I think this being the final Court of Appeal, we would not be dispensing justice if a citizen's rights of appeal were-blocked on the ground of his lawyer's negligence, when he failed to take essential steps necessary under the law, to lodge the appeal; and especially when the lawyer had been instructed in time. As fer as I can see the fault squarely falls on the advocate who is actually an officer of the Court.

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Lastly, Lr. Arthur Maganyi, Counsel submitted on the ground of likelihood of the success of the intended appeal. He contended that it was incumbent on the applicant to space a constant the judgment so that this Court is able to determine the likelihood of the success of the eppeal.

Alt-is-true that in practice, colies of judgments intended to be appealed against should be made available to the Court considering the application. See Sam Nalumansi y Lule (supra) but then next does an ordinary citizen know about the Lawr Loes as know what the lawyer must present when he is making an explication of this nature?

Must the citizen be deprived of his rights, merely T because the lawyer courted to include all relevant documents?

In my view, the authority laid down in Gatti v Shoosmith (supra), Essaji v odiansi voliansi), Ben Kiwanuka v Murdin Matovu (supra) and Som Halumanni V C. Lule (supra) is sufficient to allow this ground, especially when there was no evidence to counter applicant's averament that his appeal had chances of likelihood of success. in fact, the failure to annex the judgment was something be found the applicant's understanding. This was purely within the exclusive knowledge of his advocate for which he should not be penalised, because the applicant had no control over his lawyer.

Finally and most importantly, I would like quote the observation by the former East African Court of Appeal in Essaji v Solanki (1968) EA 218 at page 224 para C where the Court stated:

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"The administration of justice normally requires that the substance of all disputes should be investigated and decided on their merits and that errors and lapses should not necessarily debar a litigant from the parault of his rights."

It would be very deployable for a vigilant litigant to be penalised by refusing his to appeal because of the negligent of his Counsel over those actions he had no control.

Therefore all in all, sufficient reasons have been shown in terms of Rule 4 of the chlos of this Court to extend the time for filing the motioe of Appeal and for filing/serving all essential decomants/paper. Applicant is given 14 days within alich he must file delice of Appeal and 30 days thereafter, for filing the model. Lith regard to costs of this application, they shall polde the results of the appendic

Delivered at kengo this....................................

Justice of Surkets CCURT.

I Certify that tilly is a pre Copy of the Original