[1996] UGCA 3

#### THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA

# AT KAMPALA

### CIVIL MISCEI,LANEOUS APPLICATION NO.12196 (From H. C. C. S. No.208 of 1996)

# THE ADMINTSTRATOR GENERAL APPLICANT VERSUS

#### GEORGE MWESIGYE SHARP RESPONDENT

# II. ULING OI' C. M. KAI'O. . I.

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This is an application brought by the applicant Kasoro Eric Sabiti for extension of tinrc for trring a Notice of Appeal. Thc application is by a Notice of Motion dated 30/09/96 and it is supported by a series of affidavits sworn by the applicant. The first affidavit was sworn on 01110196. There were two supplementary affidavits one dated 31/10/96 and another one dated 07111/96 The respondentiplaintiff filed an affidavit in reply, the affidavit is not dated and it is in form of a submission or an argument on legal points. The application was lodgcd undcr the provisionJof rr 4, 42(l) and 43(1) of the Supreme Court Rules which are applicable to this court by virtue of section 14 of the Judicature statute No.13 of 1996.

The background of the application is that the applicant is one of the beneficiaries of the late Erifazi Ochaki Buchekunyu who died in 1962. The applicant was at one time being reprcsented in this matter by the Administrator General who was the defendant in Civil Suit No.208/95 in the High Court. The court decided that case against the Administrator General

on 16th April, 1996. The following day i.e. 17th April 1996, an official from the Administrator General called Sam Zigira filed a Notice of Appeal in the High Court registry but failed lo serve copies of that Notice of Appeal to the plaintiff/respondent. The applicant discovered this omission when he had applied for stay of exbcution and he was told that there was no .ippeal pending therefore his application for stay of execution was dismissed. o Meanwhile the Administrator General decided to withdraw f'om the conduct of the case and gave powers of attorney to the present applicagwhom he (Administrator General) had been representing/on the 1st July 1996. The applicant decided to engage Balikuddembe and Co. Advocates to pursue the matter on his behalf. Later on a Notice of Appeal which had been filed by the Administrator General was withdrawn by the new counsel for the applicant on 0lll}196 on discovering that the notice of appeal was incompetent, He then instituted the present application to enablc thc appllcant to fllc I frcsh notlcc ol rppoal out of tlmc.

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At the hearing of the application' the learned counsel for the applicant Mr. Batikuddembe raised a number of points as to why he felt that this application should be granted. The first F was that the appeal was likely to succeed in view of the history of the case. The second was that the applicant should not be penalised for the mistake of his counsel. He pointed out that the applicant was not aware that his previous advocate had not served the necessary Notice of Appeal to the respondent's counsel. He relied on the cases of: Haii Sekaia vs Falida Saadi (Suoreme Court Civil Aooeal No.27 of 1992) and Swollc Y"Yi/4- Electrics vs F€rIr Makum h (Su oreme Court Civil Apoeal No.5 of 1993). On the other hand Mr. Kanyunyuzi who appeared for the respondent opposed the application on the ground that the applicant had made a blunder and he should not be rewarded for his blunder and that the possibility of thc intcndcd appcal succeeding was not there so he prayed for dismissal of the applicaticr with costs.

Rule 4 under which this application was lodged gives this court discretionary powers to enlarge time within which a notice of app"al may be lodged. Before this discretion can be exercised the court must-be satisfied that sufficient reason has been shown as to why the appeal was not filed in time. In exercising this discretion,the court must act judiciously by taking into account such matters as rhe conduct of the party who is applying for extergion of time, the rraturc of the subject matter and all other circumstances surrounding the case. In ?qfi.t" the two cases of: Haii Sekaia v Falida Saadi and Electrics ^v Ieier Makumbi (supra) the Supreme Court allowed the application and extended time where facts of the two cases were almost identical to the present application. In both cases the court pointed out that the 64R. I/rr^ryn appb\*lan1; and rheir counsel had acted prudently, diligently and had tried their best to have the notice of appeal filed in time. In the present case the applicant's representative, the Admlnlstrator Gencral, lodged a notlcc of appeal ono day aftcr tho judgmont had bcon delivered but omitted to serve the notice to,the other party and the applicant did not know of this omission until his new counsel applied for stay of execution on the 25109196. On discovering the omission the new counsel withdrew the notice of appeal which he realised was incompetent on the 1st of October and on the same day he filed this notice of motion. ln my opinion the applicant acted quite prudently in the circumstances of the case.

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Mr. Kanyunyuzi raised one issue to the effed that it was the applicant's counsel who hacl blundered therefore the applicant should not be rewarded for his blunder. The queslion whether or not a party should be penalised for the mistake of his counsel depends on each individual case. There is no hard and fast rule about this issue. Each case must be looked at in the light of its peculiar circumstances. In the present case the applicant and his former lawyer and the new lawyer did not deliberately or negligently act to the detriment of the applicant. The two lawyers acted diligently and seriously. The first counsel made a human

$e$ <del>v</del> $o$ $c$ mistake and that mistake cannot be attributed to the applicant and he (applicant) should not be penalised for it.

Considering the fact that the applicant and his counsel did everything possible to have their notice of appeal lodged in time and considering the fact that this is a case which involves a large estate comprising of 295 acres of land and a number of beneficiaries are involved. I feel the applicant has shown sufficient reason to have this application allowed so that the applicant and the other beneficiaries are able to pursue their rights exhaustively in the higher court. The application is accordingly allowed. The costs of the application shall follow the results of the appeal. The applicant is to lodge his notice of appeal within seven days from the day this ruling is delivered. In coming to this conclusion I have been greatly assisted by the decision of the Supreme Court in the two cases which were cited to this court by the learned counsel for the applicant.

Before I take leave of this matter, however, I would like to express my concern about the standard of the affidavit drawn up by the learned counsel for the respondent.

That affidavit left a lot to be desired as to what an affidavit should be. Strictly speaking it was not an affidavit but a legal argument and I am sure it was not drawn in accordance with the Provisions of O.17 r 3 of the Civil Procedure Rules which require affidavits to be restricted to facts not to involve legal arguments; it is hoped the learned counsel concerned will take this rider seriously.

Dated this 27th day of November, 1996.

C. M. KATO $\begin{array}{c}\nC. M. \\ JUDGE \\ 27/11/96\n\end{array}$

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