The Executrix of the Estate of The Late Namatovu v Noel Grace Shalita Stananzi [1988] UGSC 3 (4 November 1988)


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## IN THE SUPREME COURT OF UGANDA

AT MCINGO

(CORAM: ODOKI, J. S. C.)

CIVIL APPLICATION NO. 8 OF 1988

**BETWEEN**

$\overline{1}$ . THE EXECUTRIX OF THE ESTATE OF THE LATE CHRISTINE MARY **MAMATOVU TEBAJJUKIRA**

$2.$ DEBORA NAMUKASA

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HOEL GRACE SHALITA STANAZI .... RESPONDENT

(Appeal from judgment of the High Court of Uganda Mukanza Ag. J dated 15th October 1987

**APPLICANTS**

in

Civil Suit No. 99 of 1987)

RULING OF ODOKI J. S. C.

This is an application under r.4 of the Court of Appeal Rules 1972 for extension of time within which to file either the decree or fresh records of appeal. The main ground for the application is that the applicants failed to file the appeal in time because no decree had been extracted, although the other documents of the record were ready.

The application is supported by an affidavit sworn by Mr. Owiny-Dollo, counsel for the applicants. According to this affidavit, the applicants filed a notice of appeal in this court on 19th October 1987. On 20th March 1988, the Deputy Registrar of the High Court certified that the records of proceedings was complete and handed it to his firm. With a view to expedite the appeal, his firm in his absence, filed the record of appeal in the court on the same day. However, this was done before a decree had been extracted. When counsel for applicants discovered this, he demanded that the respondent extract the decree

On 25/5/88, counsel for applicants filed a supplementary record of appeal containing the decree. Later he discovered that the extracted decree did not tally with the judgment of the trial court. He then caused the respondent's counsel to have the decree rectified, and this was done by the Deputy Registrar in August 1988.

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In his affidavit in reply, Mr. Mulira, learned counsel for the respondent, states that soon after the judgment was delivered he drafted a decree for the approval of counsel for the applicants. But by letter dated 16/10/07 counsel for the applicants refused to approve the draft decree on the ground that it was a court document. Mr. Mulira then submitted the draft decree to the Deputy Registrar who approved it on 15/4/88. Counsel admits that subsequently it was discovered that through an oversight, the decree did not mention one of the two plots which were the subject matter of the suit. He further admits that the Beputy Registrar corrected the mistake in the decree through the slip rule in August 1988.

In his submissions Mr. Owiny-Dollo conceded that he was in error when ho filed a defective record, but he argued that his mistake should not be visited on the applicants who had no professional control over him. He relied on the cases of Kyamulabi V. Zirondomu, civil Application No. 41/79 (1980) H. C. B. II and National Pharmacy V. Kampala City Council, Civil Replication No. 6/79 (1979) H. C. B. 132. He contended that this mistake was not due to dilatory conduct on his part because he acted on the strength of the certificate of completchess of record issued by the Deputy Registrar. He argued further that he could not be blamed sorely for the mistake since the decree drafted by counsel for the respondent and approved the court was found defective. On the authority of Bakitara Transport Bus Co. Ltd V. Biribonwa Civil Application No. 7/79, (1979) H. C. B. 95, he submitted that the applicants should not be penalized for the delays caused by the court.

Mr. Mulira, Learned counsel for the respondent submitted that since the application was brought under r.4 of the Rules of the court, the applicant had to show sufficient, cause for extension of time. He contended that there is no provision providing for time in which to file a decree and therefore extension of time could not be granted to file a decree. Secondly, he submitted that no leave is required to file a supplementary record of appeal, Thirdly, he contended that if any of the documents required to be included in the record of appeal the appeal is incompetent. In this case, counsel argued, the decree was not included in the record due to lack of diligence on the part counsel for the applicants. It was his contention that the draft decree was submitted to court before the end of October 1987 and was all along on the record and therefore it was difficult to understand why the Deputy Registrar gave a certificate of completeness to a record which did not include a decree.

Finally, Mr. Mulira submitted that since the absence of a decree makes the appeal incompetent, the only remedy is to strike out the appeal and then it is for the applicant to resurrect the appeal. In support of his submissions he cited the cases of Kiwenge and Mgude Sisal Estates Ltd V. M. A. Nathwani (1952) E. A. M160, Mukasa V. Ocholi (1968) E. A. 89 and Essaji V. Solanki (1968) E. A. 218.

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It is now trite law that no opeal lies to this court until the decree appealed from has been extracted; See, Farrab Incorporated V. The Official Receiver and Provisional Liquidator (1959) E. A. 5. Commissioner of Transport V. Attorney General of Uganda (1959) E. A. 329 and Kiboro V. Posts and Telecommunications Corporation (1974) E. A. 155. Rule 85 (I)(h) of the Rules of this court requires the record of appeal to contain copies of the decree or order appealed from and failure to do so renders the appeal incompetent. It is also well settled that the decree or order cannot be filed as a supplementary record since it is a basic and not a supplementary document.

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Sec: Kiboro V. Posts & Telecommunications Corporation (supra) Barclays Bank of Uganda V. Eddy Rodridges Civil Appeal No. 5 of 1987 (C. A.) (unreported). Therefore where time for filing the record of appeal has expired, and omitted decree can obly be filed aftor the court has granted extension of time in which to lodge the appeal.

I agree with Mr. Mulira that an appeal which is incompetent must be struck out and not dismissed. But I do not accept his submission that the present incompetent appeal should be struck out first before entertaining this application for extension of time in which to lodge the oppeal. In the first place, there is no proper application before me for striking out the appeal. (Secondly, a single judge of this court has no jurisidiction to entertain an application to strike out a notice of appeal or an appeal, as provided under r.52 (c) of the Rules of the court. In my opinion this court is properly seized of the application for extension of time, and it now proceeds to consider the merits of that application.

It is well settled that an applicant for extension of time in which to file the appeal must show sufficient reason before the court can exercise its discretion in his favour. In other words, the applicant must satisfy the court that he was prevented by sufficient reason from adhering to the time limit set out in the Rules. The sufficient reason must relate to his inablity to take a particular step in the fist instance. See: Mugo V. Manjira (1970) E. A. 481. The applicant can do so by showing that the delay has not been caused by his dilatory conduct. See Shanti V. Hhndocha & Others (1973)

$E. A. 207.$

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In Shanti V. Hindocha & Others (supra) Spry V-P said at p. 209,

"The position of an appoieant for an extension of time is entirely different from that of an application for leave to appeal. He is concerned with showing "sufficient reason" why he should be given more time and the most pursuasive reason he can show

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as in Batt's case (1962) E. A. 497, is that the dolay has not been caused or contributed to by dilatory conduct on his part. But there may be other reasons and these are matters of degree. He does not necessarily have to show that his appeal has a reasonable prospect of success or even that he has an arguable case, but his application is likely to be viewed more sympathetically if he can do so, and if he fails to comply with the requirement set out above, he does so at his peril."

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ine There is a time of authorities to the effect that a mistake or negligence by coupel is not necessarily a bar to his obaining an extension of time. See: Gatti V. Shoosmith (1939) 3 All E. R. 916 Shaber Din V. Ram Parkash Anand (1955) 22 E. A. C. A. 48, Ngoni - Matongo Cooperative Marketing Union Ltd V. A. Osman (1959) E. A. 577, Essalli V. Solanki (1968) E. A. 223, Kyamulabi V. Zirondomu, Eivil App. No. 41 of $1979$ (1980) II. C. B. II.

In Mgori - Matongo Cooperative Marketing Union Ltd V. Osman (supra) counsel applied for the decree in the case to file an appeal. He was handed a decree which was in fact an order made on a preliminary ruling in the case. At the hearing, objection was taken that the decree appealed from had not been filed in time. In granting an extension of time, the court said,

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"The general principle laid down in that case (Gotti V. Shoosmith (supra) that a mistake of counsel is not necessarily a bar to his obtaining an ortension of time has been followed by this court in a member of cases among which may be mentioned Shabir Din V. Ram Parkash Anand (1955) 22 E. A. C. A.48). Hore recently it is true that this court has laid down that in view of the clear terms of the relevant rules requiring the decree or order to be extracted before the appeal is lodged, in porticular r.56, an applicant who Mails to take steps to comply with that requirement cannot excuse himself by pleading that his failure was due to any error of judgment on his part, and such failure may not of itself be held to afford sufficient rensons for the purposes of $r.9$ . It was so held in the recent cases of Farrab Incorporated V. The Official Receiver and Provisional Liquidator (1959) E. A. 5 (C. A.) N. A. S. Airport Services Ltd V. Attorney General of Kenya (1959) E. A. 349 (C. A.) and Commissioner of<br>Transport V. The Attorney General of Ugenda and Another $(1950)$ H. A. 329.

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In the present case counsel for the applicant recaived the record of appeal on 28/3/88 without the decree appelaed from. Yet the Deputy Registrar issued a certificate of completeness of record on the same day. Counsels's legal assistant rushed to file the record of appeal on the same day without ensuring that the decree was included in the record. It is clear from affidavits of both counsel that the decree was not approved by the Deputy Registrar until 15/4/88. This is the dedree which counsel for the applicant sought to file as a supplementary record on $25/5/83$ .

Since the Deputy Registrar certified that the preparation of the record of appeal was completed and delivered to counsel for the applicant on 28/3/88 the 60 days in which to appeal started running against the applicant with effect from that day. (See r. 81 of the Rules of the Court). This means therefore that by the time the applicant filed the decree on 25/5/88, he was still within the prescribed time. In my opinion it would not have mattered whether the applicant called it a supplementary record or not. Once all the necessary appeal papers had been filed within the prescribed time, then there would have been no need for this application.

Unfortunately, the decree drafted by counsel for the respondent and approved by the Deputy Registrar, a copy of which was filed by the applicant in the so called supplementary record was defective. The error was corrected in August 1988. Counsel for the respondent and the Deputy Registrar were responsible for this error, although I am of the view that counsel for the applicant should have detected the mistake and had it corrected in time. In t ese circumstances it would be wrong to penalise the applicant who has shown deligence for the mistakes of the court, counsel for the respondent and his counsel. I agree with what Georges C. J. said in Essaji V. Solonki (supra) that the administration of justice should normally require 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 pursuit of his rights.

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For these reasons I am satisfied that the applicants have shown sufficient reason for this court to exercise its descreation in extending the time in which to file the appeal.

Counsel for the applicants asked the court to clarify the logal effect of extending time to file documents lodged in court out of time before application for extension of time is made. It seems to be the legal possition that when the time for lodging a document is extended, the document is duly lodged if lodged within the time so extended whether the actual lodging is before or after the order of extension. The legal effect is therefore to validate or excuse the late filing of documents. The applicant need not file fresh documents or document if those already filed are complete and in proper form.

There is support for t is view in the case of Shanti V. Hindocha & Others (supra) where Spry V-P said at p. 208.

> "Secondly the record of appeal had already been lodged when an extension of time for lodging it was sought. Mr. Khama submitted both hefore the judge and before us that r.9 of the Eastern African Court of Appeal Rules 1954 only empowers a judge to authorise a future act, not to validate a past one. This submission was rejected by the judge and again we think he was right. We think that when the time for lodging a document is extended, the document is duly lodged if lodged within the time so extended whether the actual lodging is before or after the order of extension. To hold otherwise would serve no purpose and would merely result in further costs being incurred. It is not irrelevant in this connection to note that under r. II the registrar has no power to refuse to accept an appeal on the ground that it is out of time, which clearly implies that the delivery of the appeal out of time may be excused or validated."

In the present case, the applicants have to file a fresh copy of the corrected decree and therefore the above authority does not strictly assist them.

In the result, this application is allowed. The applicants are granted an extension of 14 (fourteen days from the date of this ruling in which to file the appeal. Costs of this application shall abide the outcome of the appeal.

Dated at Mongo, this ..... $4$ th day of ... November. 1988.

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## B. J. ODOKI JUSTICE OF SUPREME COURT.

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