Tumushabe and Another v Ms Anglo African Limited and Another (Civil Application 14 of 98) [1998] UGCA 35 (19 June 1998)

Full Case Text

## THE REPUBLIC OF UGANDA

## THE COURT OF APPEAL OF UGANDA AT KAMPALA

TWINOMUJUNI J. A (Single Judge) CORAM: CIVIL APPLICATION NO. 14/98

JOY TUMUSHABE & ANOR.::::::::::::::::::::::::: APPLICANTS

## VERSUS

M/S ANGLO AFRICAN LTD & ANOR.:::::::::::::::: RESPONDENTS

(Application for extension of time to file an intended appeal from the judgment of the High Court of Uganda (Ntabgoba P. J.) dated 6th March 1996 in $H_0C_0C_0S$ No. 79 of 1995)

## RULING OF TWINOMUJUNI $J \cdot A$ :

This is an application for leave to institute an appeal out of time. The application is supported by an affidavit of the 1st applicant Joy Tumushabe in which she avers:-

- That immediately after the judgment was delivered in H. C. C. S No. 79 of $"2.$ 1995 we instructed our then advocate M/S Byenkya, Kihika & Co. Advocates to lodge an appeal against it. - That the said lawyers informed us $3.$ that they had taken the necessary steps to lodge the appeal. - That I have been informed by my $4.$ current lawyers M/S Katureebe, Twinomukunzi & Co. Advocates and verily believe the same to be true that the said lawyers did not apply for a copy of the proceedings and judgment and serve a copy of a letter within the prescribed time. - That I have been further informed by $5.$ my current lawyers and believe the same to be true that we cannot take advantage of the provisions of rule 82 of the rules of this court to file the appeal outside the prescribed 60 days.

- That it was due to the inadvertant- ness of the said lawyers that the application for proceedings a.d judgment was not made in time and such inadvertantness should not be visited 6. on us. - That we did all that was required of 7. us and we are not guilty of any dilatory conduct on our part."

The High Court (Itabgoba P. J) delivered judgment in H. C. C. S. No. 79/95 on 6th March 1996. M/S Byenkya, Kihika & Co. Advocates filed a notice of appeal on behalf of the applicants on 19th March 1996. This was clearly within prescribed time. The advocates applied for the Record of Appeal on 17th April 1996, which was clearly outside the prescribed time and made them ineligible to take advantage of Rule 82 of the Rules of this court. The record of appeal was filed on 25th September 1997, well over fifteen months out of time. Most of the delay after the 17th April 1996 was due to the courts failure to supply the typed record of appeal. The currect advocates of the applicants realising that the appeal was filed out of time filed this application on 17th April 1998.

When the application came up for hearing, both counsel agreed to restrict their arguments to the provision of Rule C3(a) of the rules of this court. In other vords counted for the respondent did not wish to contest the issue as to whether the applicants had "sufficient reason" for their failure to institute the appeal within prescribed time. He stated that if he lost the legal argument based on rule $\mathcal{C}3(a)$ then he would concede the application to the applicants.

Rule 33(a) of the Court of Appeal Rules Directions 1996 provides:-

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"If a party who has lodged a notice of appeal fails to institute an appeal within the appointed time -

(a) he or she shall 'e taken to have withdrawn his or her notice of appeal and shall, unless the court otherwise orders, be liable to pay costs arising from it of any persons on whom the notice of appeal was served."

Mr. Nkuruziza, learned counsel for the respondents submitted that it had been conceded by the applicants that the appeal was filed way out of time. According to him, under rule $83(a)$ the appellants' notice of appeal which was filed on 19th March 1996 must be taken to have been withdrawn after sixty days because of their failure to institute the appeal. This means that there is no valid notice of appeal on record. He argued that one cannot file an application to appeal out of time when there is no valid notice of appeal on record. According to learned counsel, the proper procedure open to the applicant should have been to apply for leave to file a notice of appeal out of time. If that application was granted, then all other necessary steps would have followed naturally as long as they are taken within prescribed time. In his view this application was misconceived and incompetent. He prayed that it be struck out with costs to the respondents.

Mr. Babigumira, learned counsel for the applicant conceded that where a party filed a notice of appeal and does no more thereafter, then rule $83(a)$ would apply. He submitted however that where a party after filing the notice of appeal goes ahead and takes other steps by filing a record of appeal, though out of time, the presumption in that rule would collapse.

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He cited the East African Court of Appeal decision in SHANTI VS. N. D. HINDLOHA & 2 OTHERS CIVIL APPLICATION NO. 34 OF 1972 reported $\frac{207}{1973}$ [1973]E. A. 207 to support this proposition. Learned counsel argued that the moment the registry accepted the appeal (which he was bound to do under rule 12 of the Rules of this Court) it was up to this court to validate or strike out the appeal exercising its powers under Rule 4 of the rules of this court. According to him pendancy of an incompetent appeal does not debar an application for leave to extend time within which that appeal can be lodged. For this submission he relies on Civil Application No. 8 of 1988 Estate of C. M. Namatovu Tibaijjukira -vs- Mary Namatovu & Shalita Stananzi & Civil Appl. No. 10 of 1993 Kabogere Coffee Factory Ltd. & anor -vs- Haji Twaibu Kigongo.

In the alternative but without prejudice to the foregoing submission, Mr. Babigumira submitted that the application was proper because it was framed to institute an existing appeal which this court has the power to grant under rule 4 of the rules of this court. That on granting the application, the applicant would still have to go through the procedure provided for under rule 75 of this courts rules.

Mr. Babigumira in conclusion prayed that on the authorities cited, this court should exercise its descretion and allow the application to institute the existing appeal out of time, especially when justice demands that the substance of all $d\acute{e}$ sputes between the parties be decided on their merits and errors and lapses should not debar a vigilant litigant from persuit of his or her rights.

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In reply Mr. Nauruziza for the respondents insisted that the effect of rule $$3(a)$ on the intended appeal was that since the notice of appeal is deemed withdrawn, there is no appeal at all. He conceded that the substance of desputes should normally be gone into but that this should be done in accordance with the law.

Rule 4 of the rules of this court provides:-

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"The court may, for sufficient reason, extend the time limited by these Rules or by any decision of the court of the High Court for the doing of any ant authorised or required by these Rules, whether before or after the expiry of that time and whether before or after the doing of that act, and any reference in these Rules to any such time shall be contrued as a reference to the time so extended."

A careful perusal of this Rule will reveal that this court is given very wide powers to extend time for doing anything required by law or these rules if sufficient reason is shown -Shanti vs. Hondacha (supra) in which the court held at page 209 paragraph C that:-

> "The position of an applicant for an extension of time is entirely different from that of the applicant for leave to appeal. He is concerned with showing "sufficient reason" why he should be given more time and the most persuasive reason that he can show, as in BHATTS case, is that the delay has not been caused or contributed to by delatory conduct on his part. But there may be other reasons and these are all matters of degree."

In Florence Nabatanzi vs. Naome Binsobedde (supra), Manyindo DCJ stated at page 3 that:-

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"Clearly under this rule (Rule 4) the court has . wide powers to extend the period provided sufficient reason is shown. As was pointed out by the

Court of Appeal for East Africa in Mugo vs. Wanyira & Another[1970]E. A.841, normally the sufficient reason depends on the circumstances of each case and the sufficient reason must relate to the inability or failure to take the particular step in time. Where an intending appellant has exercised all due deligence and done his best to obtain the necessary documents and file his appeal in time but has been frastrated by court which $\texttt{c}$ ould not supply them in time, then it would be a denial of justice not to extend the time."

In Shanti vs Hondacha (supra), it as also held that an extension may be granted even where the record of appeal has been lodged out of time before the application for extension of time. In that case, the record of appeal had already been lodged when an extension of time for lodging it was sought. Counsel submitted that the Rules only empowered the court to authorise a future act, and not to validate a past one. This submission was rejected at page 200 where SPRY V. P. stated:-

> "We think that when the time for lodging a document is extended the document is duly lodged if lodged within the time as 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 rule 11 (our rule 12) 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 deliverly of an appeal out of time may be excused or validated."

From the foregoing it is very clear that once an applicant for extension of time shows sufficient reason for failure to take any particular step, nothing will stop this court from granting an extension as to do otherwise would amount to a denial of justice.

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In the instant case both counsel agree, and correctly so in my view, that the applicants were not guilty of any dilatory conduct on their part and that the cause of the delays was their former advocates in part and the court which took so long to supply the record of appeal. In those circumstances, and it is trite law, that a vigilant litigant should not be penelised for delatory conduct of his advocate or the court if he/she has not directly or indirectly contributed to it. The faults of the advocate and the courts should not be visited on the applicants - see Gatti vs Shoosmith [1939]3 ALL. E. R. 916, Essaji vs Solanki [1968]E. A. 223 and Bhatt vs Tejwant Singh [1962]E. A. 497.

Mr. Didas Nkuruziza learned counsel for the respondent applied and argued that the appeal should be struck out because it was incompetent. It was conceded by counsel for the applicant that the appeal was incompetent but he submitted that the pendency of an incompetent appeal does not debar an application for leave to extend time within which that appeal can be lodged. I agree with this submission that the pendency of an incompetent appeal is no bar to applications for extensions of time. See Supreme Court decisions in Executix of the Estate of Christine Namatovu Tibajjukira vs Debora Namukasa Civil Application No. 8/1988 (unreported), Haji Nardin Matovu vs Ben Kiwanuka Civil Application No. 12/199. (unreported), and Kabogere Coffee Factory and another vs Haji Twaibu Kigongo Civil Application No. $10/1993$ (unreported).

Moreover it was held in the Christine Namatovu Tibajjukira Case (supra) that a single judge of this court has no jurisdiction to entertain an application to strike out a notice of appeal. See also Rule $52(2)(c)$ Court of Appeal Rules Directions 1996.

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In the result I hold the application to strike out the application or the appeal is not properly before this court and is therefore incompetent. There is merit in the application to grant leave in which to file Civil Appeal No. $38/97$ out of time. The application is granted and the said appeal No. 38/97 is accordingly validated.

Costs of the application to follow the event.

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

Amos Twinomu JUSTICE OF APPEAL.