Tumushabe And Another v M/s Anglo African Ltd and Another (H.C.C.S No. 14 of 1996) [1998] UGCA 58 (19 June 1998)

Full Case Text

## THE REPUBLIC OF UGANDA

COURT OF APPEAL OF UGANDA AT KAMPALA

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TWINOMUJUNI J. A (Single Judge) CORAM:

CIVII 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. C. C. S No. 79 of 1995)

RULING OF TWINOMUJUNI J. A:

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This is an application for leave to institute an appeal The application is supported by an affidavit of out of time. $\mathcal{L}(\mathcal{L}) = \mathcal{L}(\mathcal{L})$ the 1st applicant Joy Tumushabe in which she avers:-

- That immediately after the judgment was delivered in H. C. C. S No. 79 of 112. 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 my current lawyers and believe the same to be true that we cannot take $5.$ 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 inadvertantness of the said lawyers that the application for proceedings and judgment was not made in time and such inadverbantness should not be visited On us.

7. That we did all that was required of us and we are not guilty of any dilatory conduct on our part."

The High Court (Ntabgoba P. J) delivered judgment in H. O. 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 $\beta_3(a)$ of the rules of this court. In other words counsel 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 83(a) then he would concede the application to the applicants.

Rule $\&3(a)$ 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 -

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(a), he or she shall • •e taken to have 'withdrawn his or her notice of appeal and sha.il; unless the courtotherwise orders, be liable to pay costs arising from it of any persons on whom the notice of appeal was served.1'

tha' 19th March 1996 *i* This means that.. there is no.valid notice of appeal on record. He argued ...that According to learned He prayed that it be struck out with costs to appeal was o3(a) the prescribed time. and incompetent. the responden-tS According to him, under rule appellants' notice of appeal which was filed on one cannot file an application to appeal' out of time when there is no valid notice of appeal on record. 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 In his view this application was misconceived Mr. Nkurusisa, learned counsel for the respondents submitted it had been conceded by the applicants that the filed way out of time. must be taken to have been withdrawn after sixty days because of their failure to institute the appeal.

thereafter, 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. Mr. Babigumira, learned counsel for the applicant conceded that where a party filed a notice of appeal and does no more then rule £>3(a) would apply. He submitted however

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*\c:* cited the East decision in SHANTI **VS** D strike Twaibu Kigonga. . out ths snueal 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. o of *19&8* Estate of C,M. Hamatovu Tibaijjukira -vs- i--ary Namatovu & Shalita Stananzi & Civil Appl. No,. 10 of 1993 Kabogere Coffee Factory Ltd. & anor -vs- Haji HO. 34 OF K-72 support this proposition. t the no.'::o>-t tht.. registry accepted (which he was bound to do under rule 12 of the Rules of this Court) it was up to this court to validate or the appeal exercising its powers under Rule 4 cf the rules of this court African Court of Appeal 2 OTHERS OiVIL Inerted M E1973JE-A. 20/ to he-armg ecui.sol argued

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rules of this court, applicant would still have to go *for* under rule 75 this courts rules. 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 That on granting the application, the hrough the procedure provided

Mr. Babigumira in conclusion prayed that on the authorities cited, this court should exercise its descretion and allov.r the application to institute the existing appeal out of time, especially when justice demands that the substance of all dpsp&tes 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.

n reply Mr. Marusiza for the respondents insisted that the $\int_{\text{offset of radio}}$ S3(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 this that this challe be dete in accordance with the lew.

Rule $k$ 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 page3 that:-

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"Clearly under this rule (Rule 4) the court has a 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. Wanying & Another[1970]E. A.&A1, normally the sufficient reason depends on the circumstances of each case and the sufficient reason must relate to the Anability or failure to take the parti- cular step in time. Where an intending appellant has exercised all due deligence and done his best to obtain the propurity documents and fine his appeal in the bat has been frastrated by court which could not supply them in time, then it would be a denial of justice not to extend the time."

In Shanti vs Hondacha (supra), it was 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 208 where SPRY V. P. stated:-

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"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 so In those The faults of the advocate and the courts *'>* in' my view, circulate case both counsel agree, and correctly that the- applicants were not guilty of any dilc.tory conduct on their part that th- cause of the delays was t part un heir former advocates in port end the *court which* too;", so .!<;■ -y to supr-.ly the record of apnoc.1, cos, and it is trite- law, that a vigilant litigant should not be penelisod for delator/ conduct of his advocate or the court if he/she has directly or i-n-diraotly. / contributed to it. should not. be visited on the applicants - see Gatti vs Shoosmith £193913 ALL. E. P.. 916, Essaji vs Solan]:! C1965JE. A. 223 and Bhatt vs Tejwant Singh *[19^2JE. A.* 497-

See for leave to I agree with this submission that appeal is no bar to applications for extensions of time. Supremo Court decisions in Exccutix of the Estate of Christine Nanatovu Tibajjukira vs Debora Namukasa Civil Application No. 5/196\*# (unrenorted). Haji Nardin Matovu vs Den Kiwanuka Civil Application No. 12/1??^. (unreported)r and Kabogere Coffee Factory and another vs Haji Twaibu Kigongo Civil Application No. 10/1993 (unreported). 1 Mr. Didas Nkurusisa 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 extend time within which that appeal can be lodged. .he pendency of an incompetent

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

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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. 30/97 cut of time. The emplication is granted and the said appeal No. 33/97 is recordingly validated. Costs of the application to follow the event.

day of ... $N$ *in.n.e.*. 1998.1 Dated at Kampala this .......

Twinor $amos$ JUSTICE OF APPEAL.

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