Walugembe v Kagimu (Civil Appeal 27 of 1999) [2000] UGCA 34 (31 March 2000)

## . I'IIE RI]PT:BI,I(] OT T'GANDA IN THE COtrRT OF APPEAL OF trGANDr\ HOI,DEN AT KANIPAI,A

#### C'ORAN'I: HON.. ITISTICE S. T. MANYINDO, DCJ. HON. JI. ISTICE S. G. ENGWAT], JA. HON. JT]STICE C. N. B. KITI.,IMBA, JA.

#### CIVIL APPEAL NO.27 OF- 1999

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# ABDT I KARI NI \\ ALTIGI]i\IBE ::::APPELLANl. \. ERSI. IS

HABIBT KAGI}ITI RESI'ONDT]N1'

(Arising fntm Cfuil App. Na 61t98 on reference from lhe ruling and orders of (Ber\*o, JA) duted I A6/98).

### RT;I,ING OF THE (]OT]RT

This is a reference from the ruling and orders of a single Judge of this cout, Berko, JA in Civil Application No. 64 of 1998. The application before hirn was basically for leave to file an appeal out of time. It was brought under rules I (3), (4) and 4l of the Rules of this Court.

The background of the case is that the respondent was the defendant in H. C. C. S No. 84/97. He was represented by the late Mr. Francis Kabyesiza. Wren the case for the appellant closed, it was adjourned to the 7tl' of July 1998 for the defence side to begin. On that day the respondent was late llom Entebbe. He contacted his Counsel on a mobile phone and requested for an adjournment of the case for 30 minutes to enable hirn arrive and testify. The

court gTanted the short adjournrnent. The respondent did not arrive on time allegedly due to a traflic jam.

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The learned trial Judge refused to gant further adjournment and insisted that the Counsel for the respondent should proceed. The Counsel could not proceed in the absence of the respondent. He instead applied for and was allowed to withdraw frorn the case. The case was then adjourned to allow the appellant's Counsel to put in a written submission. This was done and thereafter judgment was delivered in fbvour of the appellant. The respondent was not told anything about the subsequent proceedings and tlre judgrnent.

When the respondent learned that judgrnent had been passed against hirn, he applied for an order setting aside the same. The trial Judge declined to grant the application on the ground that thejudgment was not ex-parte but that the court had proceeded under 0. I 5 r.4 of the Civil Procedure Rules.

By the time that application was disrnissed, the prescribed time within which to appeal had expired. The respondent made a second application to the High Court for extension of tirne during which to appeal. The application was also dismissed. Thereafter the respondent applied to this Court for leave to appeal out of tirne. Leave was granted by the single Judge on two gtounds. Firstly, that there was sufficient reason for leave to appeal out of time because the respondent had not been infonned about the withdrawal of his advocate from the case. Secondly, that the respondent had not been guilty of dilatory conduct as he filed the application barely seven days after the High Court had refused to gant him leave to appeal out of tirne.

The appellant brought this reference against that ruling on two grounds, narrely:

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- "The Honourable Judge erred in law when he allowed the Respondent's Application to file an appeal out of time when there was no Notice of Appeal, I - The Honourable Judge erred in law when he allowed the Respondent's Application to file an Appeal out of titne when there was no sufficient reason on record to do so." )

On ground l, Mr. Sekabanja Kato, learned Council for the appellant, contended that under rule 75 of the Rules of this Court, the procedure of commencing an appeal in this court is clearly prescribed. Any person who desires to appeal shall lodge a Notice of Appeal within fourteen days after the date of the decision against which it is desired to appeal. It was his subnrission that in the instant case, Berko, J. A., was \r'rong to grant the application for leave to appeal out of tirne when there was no notice of appeal. This point was conceded by Counsel for the appellant. Mr. Sekabanja subrnitted therefore that there being no notice ofappeal, there was no basis upon which to file the application to appeal out of time. The application, in his view, was misconceived. The learned Counsel argued that the correct course would have been to apply for extension of tirne to file <sup>a</sup> Notice ofAppeal out oftirne. Counsel for the respondent did not do that and the learned Judge wrongly applied the princip fe laid down h Essaii & others Vs Solonki 11968l EA.2/8 to cure the defect. The rnistake of the

Counsel should not have been visited in favour of the respondent when in fact there was no notice of appeal in court.

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Mr. Kituurna-Magala, learned Counsel for the respondent, opposed the reference. He subrnitted that under rule 4 of the Rules of this cotrrt, there is wide discretion for sufficient reason to grand an extension of tirne Following the order of Berko, JA on 18/6/99 to the effect that necessary steps be taken to prosecute the appeal, Counsel filed a Notice of Appeal on the same day.

We find that the application for leave to appeal out of tirne was lodged in court wlren no notice of appeal had been filed. Under rule 75 of the Rules of this Court a party intending to appeal shall lodge a notice of appeal within fourteen days after the date of the decision against which it is desired to appeal. [n the instant case, there was no notice of appeal lodged in court. It follows that the application for leave to appeal out of time was misconceived and should ltave been struck out on that account.

We think that this ground alone disposes offthe reference. There is no need for us to consider the second ground ofappeal in detail. Suffice to say that it has merit as the appellant did not explain the delay in taking the necessary step after the disrnissal of his application for extension of tirne. He only explained the delay after the disrnissal ofhis application for setting aside the judgrnent which was not relevant.

In the result, the reference is allowed with costs to the appellant

Dated at Kampala this $\Delta$ day of $\Delta$ 2000.

$\zeta_{\rm c}$

Shaypindo

$\quad \ \, ,\quad \ \,$

S. T. MANYINDO **DEPUTY CHIEF JUSTICE.**


**JUSTICE OF APPEAL**

Cresculumbe C. N. B. KITUMBA

**JUSTICE OF APPEAL**