Shiv Construction Co.Limited V Endesha Enterprises Limited (Civil Application 15 of 1992) [1992] UGSC 26 (25 June 1992)

## IN THE SUPREME COURT OF UGANDA

## AΤ MENGO

(CORAML MANYIPUU, D. C. J, ODER, JSC, & PLATT, JSC) CIVIL APPLICATION NO. 15/92

SHIV CONSTRUCTION COMPANY LIMITED $\cdots\cdots$ APPLICANT

$A$ N D

ENDESIA ENTERPRISES LIMITED $\cdots$ RESPONDENT

> (Reference from the decision of a single Judge (Hon. Justice Seaton) dated 2nd day of April, 1992 in Civil Application No. $1/92$

## RULING OF THE COURT

This reference emanates from the ruling of a single Judge. It appears that after the High Court decision was given on $13/12/91$ . The client/applicant before this court was at that time represented by Mr. Mulira. Unfortunately, a dispute arose between client and Advocate whether or not the client could be present in court. Then there was some misunderstanding between client and Advocate as to what happened in Court, and it was only on 19th December 1991 that the client found that a ruling against the client had been delivered. It is a matter of inference that the client was dissatisfied and sought further advice. He wa ted to see Mr. Mangwala, who has appeared The latter counsel was away on holiday. for him today. It was not until 3rd January 1992 that saw Mr. Nangwala and gave him instructions.

Mr. Nagwala attempted to peruse the record. It was not until 6th January 1992 that he could do so, and a copy

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of the ruling was only delivered later on. On 17th January 1992 the application for extension of time was filed.

$\mathcal{L}$

On these facts, the time limited for appeal had elapsed on 27th December 1992. The client had caused the delay because of the dispute with his counsel Mr. Mulira from 19th December 1992 until 27th December 1992. It is not clear exactly what happened, but as the client wished to appeal, it is surprising that no notice. of appeal was lodged. It seems that due to the dispute further advice was sought.

It is, of course, a clear principle that a party may choose the advocate of his choice. But this should not delay the process of appeal. It is unfortunate that the absence of the new Counsel added to the misfortunes of the client.

It is claimed that this delay is inordinate. We do not think so. The client's description of what $\epsilon$ happened to him has not been challenged in an affidavit in reply. If the client feels oppressed, he should be able to choose different counsel. In Opoloto vs. Attorney General of Uganda (1969) E. A. 496, The C ourt of Appeal for East Africa excused a delay due to Counsel's absence through illness. We are of opinion that the delay here, through Counsel's absence would also attract the indulgence of this Court.

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## then

It is/said that the applicant was not diligent in getting this application presented quickly. From the time Mr. Nangwala received instructions to the time the application was filed was 14 days. That suggests to us considerable diligence. Overall the application was filed just outside one month.

The learned single Judge exercised his discretion on this matter by refusing leave. We loathe to to interfere with his discretion. But it does seem respect, that this decision was to us, with great quite unreasonable and out of keeping with the usual progress of trials. We think that indulgence should have been granted.

Some other points were raised. If this delay is quite short as in this case, the merit's of the appeal do not arise, if it is the ordinary type of appeal to be argued on the merits. It may be different as th re is an obvious point of law affecting jurisdiction. It will also be important there is a long delay. The Court of Appeal for East Africa sometimes examined the merits and took into account the public interest, in case a harsh application of the meaning of sufficient reason might lead to great hardship. But here, those considerations do not apply. In this case the merits of the Appeal are not of great importance.

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set aside The present applicant will have the costs of the application before the single Judge, but each party will bear his own costs of this reference. of time to lodge the Notice of Appeal within 7 days from today's date. Consequently, we would allow the reference, the ruling of the single Judge, and grant an extension

Delivered at ^engo this 25th day of June, 1992.

SGD: S . T.'MANYINDO ' DEPUTY CHIEF JUSTICE

SGD: A. H. O. ODER

JUSTICE OF THE SUPREME COURT

SGD: H. G. PLATT

JUSTICE OF THE. SUPREME COURT

<sup>I</sup> CERTIFY THAT THIS IS **o**

**0**

4 <sup>&</sup>gt; J

A. TRUE COPY OF THE ORIGINAL

B. F. B. BABIGUMIRA REGISTRAR SIT'REME COURT