Titus Kidega Lak v Non-Performing Assets Recovery Trust (Civil Application No. 14 of 2000) [2000] UGCA 52 (1 January 2000)

Full Case Text

# o THE REPUBLlC OF UGANDA

#### IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

### CIVIL APPLICATION NO. 14 OF 2OOO

## CORAM: HON. MR. JUSTICE C. M. KATO , J. A.

ro TITUS KIDEGA LAK APPLICANT

#### VERSUS

## NON-PERFORMlNG ASSETS RECOVERY TRUST........ ................... RESPONDENT

## RULING OF C. M. KATO. J. A. (SINGLE JUDGE).

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> This is an application brought under Rule 4 of the Rules of this court for leave to file an appeal out of time. lt is supported by applicant's affidavit daled 171312000. The application is by a notice of motion dated 16/3/2000. An affidavit in reply dated 191512000 was sworn by the respondent's legal officer, tVIr. Herbert Kwikiriza.

> According to the contents of the applicant's affidavit and the notice of motion, there is only one ground upon which this application is based. The ground is that the applicant's counsel

made a mistake when he filed an appeal which he later on withdrew and that such a mistake should not be visited on the applicant.

The brief background of this application is that the applicant filed appeal No.48 of 1999 before this court. The appeal was withdrawn by the applicant's counsel on 10/3/2000 after the court had discovered that the appeal was incompetent as it was based on a point, which was a mere obita dictum. The withdrawn appeal was against the decision of the High Court dated 18/6/99 concerning CivilAppeals No. 899, 901, 902, 903, 904 and 905 all of 1998. The applicant having withdrawn his appeal No. 48/99 is now seeking for leave to file a new appeal out of time.

Mr. Emoru, learned counsel for the applicant, submitted that the delay by the applicant to file his appeal in time was Ouelne mistake of his counsel who filed an earlier appeal and later withdrew it. He contended that a mistake made by a counsel should not be visited on the litigant. He quoted: G.ll4. B era v 20 B. A. T. Uqanda t19841 Ltd. Civil Application No. 11 of 1998 unre ofted in support of his contention

On the other hand, [\/r. Nkurunziza for the respondent, opposed the application on the ground that no sufficient cause had been shown by the applicant as to why he did not pursue his appeal in time. He argued that the applicant had the opportunity of pursuing the issue of costs without necessarily having to withdraw the appeal.

Rule 4 of the Rules of this court under which this application was lodged reads as follows:

> "The coutT may, for sufficient reason, extend the time limited by these Ru/es or hy any decision of the court or of the High Court for the doing of any act authorised or required by Ihese Rules, whether before or after the expiration of that time and whether before or after the doing of the act; and any reference in these Rules to any such time shall be construed as a reference to the time as so extended."

My understanding of this Rule is that before an applicant who seeks for extension of time can succeed, he must prove to the satisfaction of the court that there was a sufficient reason why he could not file his appeal in time. The expression "sufficient reason" has not been defined in the Rules. ln the case o'f'. Muoo v Waniiru and Another [1970] EA 481 it was said that sufficient reason depends on the circumstances of each sufficient reason must relate to the inability or particular step in time. ln the instant case the lawyer's mistake as being the reason why he appeal in time. case and that the failure to take the applicant gave his delayed to file his

There are a number of authorities showing that the counsel's mistake may provide sufficient reason for purposes of extending applicant's time. Such authorities include: G,M, B era v

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**B. A. T. Uganda Ltd.** Court of Appeal Civil Application No. Mary Kyamulabi v Ahamad Zirondomu 11/98(unreported). [1980] 11 and Gutti v Shoosmith [1939] 3 All. ER 916. In the case now under consideration the applicant acted diligently and instructed his counsel to appeal on time. The counsel blundered and filed an appeal which later on he withdrew. The applicant was not to blame for the counsel's blunder which was beyond his (applicant's) control. In my view this is one of those cases where the mistake of a counsel should not be visited on the litigant.

$10$

Considering all the circumstances of this application I am satisfied that the applicant was prevented by sufficient reason to file his appeal in time. The application for extension of time is granted. The applicant is to file his appeal within 14 days from the day this ruling is delivered. Costs of this application are awarded to the respondent in any event.

Dated at Kampala this....................................

C. M. Kato Justice of Appeal.