Sezi Busasi and Another v Kareba and Another (Civil Application 6 of 1978) [1979] UGCA 2 (29 January 1979)

Full Case Text

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IN TH' COURT OF APPEAL FOR UGANDA

AT KAMPALA

(Coram: M. Saied, C. J., P. Nyamuchoncho, J. A. & F. M. Ssekandi, J. A.)

CIVIL APPLICATION NO. 6 OF 1978

**BETWEEN**

SEZI R. BUSASI ........ APPLICANTS ERIYA G. MUGISHA)

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ENOKA S. KARTBA ) $\cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \text{RESPONDENTS}$ JOHN P. RUZIGANA )' (Application to strike out the notice of appeal and application for leave to extend time to institute the intended appeal) in

High Court Civil Appeal No. 45/76)

$R$ U L I N G:

This litigation started in the court of a Magistrate Grade I in Mbarara where judgment was given against the defendants who are now the intending appellants. Their first appeal to the High Court was dismissed on 4th October, 1977. Their counsel Mr. Mulenga filed a notice of appeal against that judgment on 18th October, 1977 and it was duly served on Mr. Obol-Ochola, counsel for the original plaintiffs.

Almost a year later Mr. Obol-Ochola filed a motion for the notice of appeal to be struck out on the ground that the appellants had not taken any further step in the proceedings within the prescribed time. On 6th December, 1978 during the pendency of that application Mr. Mulenga applied for extension of time on the ground that "by the time the period prescribed for instituting the appeal expired copy of the lower and superior court records was not ready for supply to the applicants."

We heard $\ldots$ ...../2

We heard both applications together. It was not disputed, as is stated in Mr. Mulenga's affidavit ( (paragraph 5), that he received a copy of the court proceedings on 19th August, 1978. An appeal should thus have been instituted according to the Court of Appeal Rules on or about the 19th October, 1978. The pertinent portion of Mr. Mulenga's affidavit reads as follows:

- $16$ . That thereafter I wrote to my clients to call on me for further instructions and in particular to put me in funds for paying the necessary deposit in court on filing the appeal. - That it was not till late October 1978 $7.$ when the 1st appellant through whom I had sent the letter called on me to check on the progress when he informed me and I verify believe the same to be true that he had received the letter only recently as he had been transferred from Mbarara to Rukungiri and thereupon I was instructed to proceed with the appeal. - That in $\operatorname{my}$ humble opinion there is $\operatorname{merit}$ 8. in the proposed appeal and the same have a good chance of success."

Mr. Mulenga submitted quite properly that the main issue in so far as his application was concerned was whether there was sufficient reason for the delay, and he simply rehearsed the contents of his affidavit. Noting that the affidavit was silent about the apparent considerable delay subsequent to the receipt by him of firm instructions to proceed with the appeal we invited Mr. Mulenga to address us on the reason for such delay. He conceded that he did not have any explanation for his failure to institute the appeal immediately thereafter. This obviously explains the significant omission from the affidavit of this vitally $\ldots$ /3

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vitally important matter. Nevertheless, he submitted that as the intention to appeal had been indicated as long ago as the 19th October, 1977 his failure to institute the appeal within the stipulated time or immediately upon receiving instructions to pursue the appeal should not be used to "penalise" his clients. Mr. Obol-Ochola was not impressed by this argument and strenuously urged the court to dismiss the application for extension of time with costs and to allow his application for striking out the notice of appeal.

The power to extend time is governed by $r.4$ of the Court of Appeal Rules which SAIED, C. J. had occasion to consider in Charles Kangemiteto v. Uganda, U. C. A. Criminal Application No. 1 of 1978 and he said,

> "It is to be noted that the power can only be exercised ffor sufficient reason: which relates to the inability or failure to take the particular step in time - $\frac{10}{2}$ $\frac{10}{2}$ $\frac{10}{2}$ $\frac{10}{2}$ $\frac{10}{2}$ Mugo v. Wanjiro, (1970) E. A. 481,483. The matter being of discretion it is not possible to lay down an invariable rule, but it is necessary that time limits should be treated with respect, and in cpnsidering whether a time limit should be extended, one has to have regard to the excuse nut forward for not adhereing to the original time limit in the first instance."

In Ratnam v. Cumarasamy And Another, (1964) 3 All E. R. 933 $\left( \text{P. C.} \right)$ LORD GUEST expressed his opinion concerning rules of court in the following words:

> "The rules of court must, prima facie, be obeyed, and, in order to justify a court in extending the time during which some step in procedure requires to be taken, there must be some material on which the court can exercise its discretion. If the law were otherwise, a party in breach would have an unqualified right to an extension of time which would defeat the purpose of the rules which is to provide a time table for the conduct of litigation."

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We respectfully agree with this comment which conforms with the consistent view taken in East Africa. The only material before us is the affidavit of Mr. Mulenga, and his own concession that he did not have any explanation for the delay subsequent to the instructions to appeal. Any minimal delay in instituting the appeal pursuant to the instructions might well have been condoned but here the delay was quite substantial. With respect we should like to say that in such situations it seems to have become an irritating practice for counsel to endeavour to rely on his own inordinate laches as sufficient reason for not penalising the intending appellar. In Kangemiteto (supra) the court dealt with such a submission in the following terms:

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"Learned counsel has not advanced any reason for his own dilatoriness and the subsequent delay of some four months. On the contrary he has endeavoured to employ his own dilatoriness as sufficient reason for his elfort to be allowed to appeal out of time. This argument obviously lacks conviction and is manifestly illogical. Recalling Shah H. Bharmal v. Santosh Kumari, (1961) E. A.679, where the Court of Appeal, after considering Gatti v. Shoosmith, (1939) 3 All E. R. 916, expressed the view that mistakes of a legal adviser may amount to 'sufficient cause' under the Appeal Rules, what has to be stressed in my view is the distinction between such mistake and simple, clear inordinate delay which may spring from forgetfulness or default of the legal adviser. I firmly believe that in the circumstances of this case the delay in the learned counsel's meenting his instructions, chambers in for which incidentally no attempt was made to offer an explanation, was not the result of the relevant appeal Rules which are couched in clear and **un**ambiguous language, or any such other factor which could properly be construed as a mistake. Accordingly, here there was no question of mistake on the part of the legal adviser, but merely lack of diligence resulting in inordinate delay which I find inexcuseable."

This quotation applies with as much force to the submission made by Mr. Mulenga. With regard to his belief that the

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appeal has reasonable prospects of succeeding, that is a factor for consideration in applications of this nature but as has been consistently held previously the main factor, and the burden is on the applicant in this respect, is that the court must be satisfied that for sufficient reason it was not possible for the appeal to be lodged in the time $% \left\vert \mathbf{r}\right\vert$ prescribed. It is only after "sufficient reason" has been advanced that a court considers the question of prejudice or the possibility of success and such other factors before it exercises its discretion whether to grant or refuse an application for extension.

Substantial delay has occurred and in our opinon simply no explanation has been proffered. In the circumstances the intending appellants are not entitled to any indulgence and their application for extension of time is dismissed with costs. It follows that the other application for striking out the notice of appeal ought to succeed with costs. It is so ordered.

DATED AT KAMPSLA this 29th day of January, 1979.

Sgd: (M. Saied) CHIEF JUSTICE.

Sgd: (P. Nyamuchoncho) JUSTICE OF APPEAL.

Sgd: (F. M. Ssekandi) JUCTICE OF APPEAL.

Dr. J. B. Byamugisha of M/s. Byamugisha & Co. Advocates for Mr. Obol-Ochola advocate for applicants.

Mr. J. N. Mulenga of M/s. Mulenga & Karemora Advocates for respondents.

I certify that this is $a$ true copy of the original

Ssendereya) CHIEF REGISTRAR. $-5$ -

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