Walube and Another v Nyende and Another (Civil Application No. 23 of 2000) [2000] UGCA 56 (30 November 2000)

# IN THE COURT OF APPEAL OF UGANDA HOLDEN AT IGMPALA l0 THE REPUBLIC OF UGANDA

#### COR{M: HON. JUSTICE A. TWINOMUJUNI, JA. (SINGLE JUDGE)

# CIVIL APPLICATION NO.23 OF 2OOO

wrLLY WALUBE ) MICHAEL OKWALINGA} APPLICANTS l. 2o 2.

### VERSUS

#### I FRANCISNT'ONDE }::::::::::::::::::::::RESPONDENTS

#### ) LIVINGSTONE NYANZI}

## RTILING

lo This is an application by Motion made under Rule 4 of the Court of Appeal Rules 1996 for extension of time within which to file <sup>a</sup> Memorandum of Appeal. The application is supported by an affidavit of Suleman Musoke, who is counsel for the applicants, sworn on 27th April 2000. The first respondent Francis Nyende swore an affidavit in reply dated l" September 2000.

The main grounds of the application appear in the Notice of Motion and are stated to be:-

> (l) That the applicants could not file a Memorandum of Appeal in time because they were still trying to obtain from the High Court a new Record of Proceedings, the original one having been inadvertently misplaced and/or lost by counsel.

(2) That the appeal stands a high chance ofsuccess.

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- l() These grounds are further explained in Suleman Musoke's affidavit in paragraphs 4 to 9 as follows:- - ,,4 THAT on the 2nd day of February, 2000 we collected the Record of Proceedings fiom the Registrar High Court whilst still operating our former office on Plot 33 Kampala road at Amber House. - (5) THAT we then relocated to our present offices but apparently in the process of relocation, the said proceedings got lost and/or were misplaced and since then all diligent efforts to trace them have been futile. - (6) THAT we could not take atry steps to prepare the Memorandum of Appeal and the Record of Appeal without the record of Proceedings. - (71 THAT we without delay applied for obtained another Record of Proceedings from the High Court. - (8) THAT the failure to file a Record of Appr:al was due to the above unforeseen circumstances which greatly disabled us in our preparation. - (9) THAT the Appeal stands very high chances of success and it would be in the interest of justice if

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# court granted extension of the time within which to file the Appeal.

On the hearing of this application Mr. Kigundu Mugerwa who appeared for the applicant reiterated the above points and prayed that the application be granted on the grounds stated in the Notice of Motion.

Mr. John Kiwuwa who appeared for the respondents opposed the application His main ground for the opposition was that counsel for the applicants was grossly negligent in failing to file the Memorandum of Appeal in trme because even if the file had been misplaced, counsel still had time to obtain another copy of the Record of Appeal in time to be able to file the Memorandum within stipulated time. In his view the Record could have been availed within one day since it had already been made. He dismissed the argument that the appeal had high chances of success as not being a ground to justifu extension of time under the rules ofthis court. He further submitted that counsel for the applicant had told lies to the High Court in a sworn affidavit to the effect that there was pending an appeal to this court whereas he knew that no appeal was pending. In hrs view, counsel for the applicants had not come to court with clean hands and therefore this application should be dismissed.

It is now trite that this court can only exercise its discretion to extend time fixed b-r" rules of this court where a party seeking extension shows sufficient reason for having failed to comply with the rules. The reason being advanced in the instant case is that between February and April 2000, the applicants firm of Advocates changed location and in the process misplaced the Record of Proceedings they had obtained from the High Court without which they failed to prepare a Memorandum of

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ll) Appeal and file it in time. Thev concede that the mistake was theirs but they do not accept that they were negligent. ln fact they claim to have acted with due diligence up to the time they filed this application. lt is also trite that the mistakes of counsel should not be visited on his client if such client has not been guilty of dilatory conduct.

I do agree with counsel for the respondents that the Advocates of the applicant were rather negligent in failing to file the appeal in time through their misplacement of the Records of Proceedings, But after the discovery of their fault they acted with reasonable diligence to file this application. The applicants themselves are not guilty of any dilatory conduct and in my view they should not be penalised for the faults of their counsel

I also do not agree that counsel for the applicant told a deliberate lie to the High Court when he swore an affidavit in support of an application for stay ofexecution to the effect that there was an appeal pending before this court. I think counsel could have been trying to inform the court below that the matter of his intention to appeal to this court was still pending in this court.

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ln the circumstances Ifind that the applicants have established \*sufficient reason" to lustify me to exercise my discretion to extend time in their favour to file the Memorandum of Appeal. The applicants are hereby given seven (7) days in which to file the Memorandum and the Record of Appeal.

The costs of this application will however be in the cause

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Dated at Kampala this. Do the day of November 2000. $10$

AMOS TANINOMO JUSTICE OF/APPEAL.