[1992] UGSC 28

THE REPUBLIC OF UGANDA

IN THE SUPREME COURT OF UGANDA AT MENGO

CORAM:

MANYINDO, D. C. J., ODER, J. S. C., & PLATT, J. S. C.)

## CIVIL APPEAL NO. 35/92

BETWEEN

CLOUDS 10. LTD

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STANDARD CHARTERED BANK (U) LTD : : : : : : : : : RESPONDENT

(Reference from Ruling of Seaton J. S. C. of the Supreme Court of Uganda dated 21st February, 1992).

## RULING OF THE COURT

The intending Appellant, Clouds 10 Ltd, sought to review the decision of a single Judge of this court, by virtue of which the intending Appellant failed to obtain leave to appeal out of time.

The judgment of the High Court was delivered on the 12th July 1991 in which the $P_1$ aintiff's suit was dismissed. The Plaintiff sought to appeal and filed a notice of appeal on the 15th July 1991. On the same date, the then Advocate for the P aintiff applied for copies of the judgment and proceedings, and copied this request to the Defendant. The copies of the proceedings and Judgment were later received on the 5th September, 1991, and the Registrar has added his certificate certifying that the time taken to produce the proceedings, lasted from the 15th July 1991 to the 5th September, 1991.

Pausing there for a moment, the intending Appellant's then Advocate failed to serge the notice of appeal on the respondent as required by Rule 76(1) of the Supreme Court Rules.

On 5th September 1991 the present Aavocate for the intending Appellant, came on the record and was given the copied of the proceedings and Judgment on that day. Understandly, as the present Advocate had not been present at the trial, it took him some time to peruse the record; ascertain what grounds of appeal might be taken; and to find

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out that the notice of appeal had not been served. These duties took the present Advocate until the 30th September to decide what to do. He wrote to the previous Advocate on 15th October, 1991 asking whether the latter had served the notice of appeal upon the Respondent. On the 16th October 1991, the previous Advocate refused to give the present Advocate any information, because. the intending Appellant had not paid his outstanding bills. Apparently the present Advocate did not ask the Advocates for the Respondent, whether the latter had any record of service of the notice of appeal upon them. It was not until the 5th November that the present Advocate sought an accommodation with the Advocate for the Respondent, whereby it could be agreed that the appeal should be filed late. That request was refused on 6th November, 1991. At length on 19th November1 in 1991 the application was brought for leave to serve the notice of appeal out of time and secondly to serve the record of appeal out of time.

**I SHORE IF COURT I IDOADY!**

It will be convenient to state what the situation was at this stage, The notice of appeal ought to have been served within 7 days from 15th July 1991. Supposing that the notice of appeal had been served on the Respondent within the time specified in Rule 76(1) of the Supreme Court Rules, then the record of appeal would have to be filed within 60 days of the 15th July, 1991. But this period of time would be extended, because of the delay in providing the proceedings, as certified by the Registrar of the High in accordance with Rule $81(1)$ and $(2)$ of the Supreme Court Rules: so that the 60 days would run from the 5th September 1991 and would end on the 5th November, 1991. It should be observed that the record could not have been filed by the 5th November 1991, because it would need to include the matters required by Rule 85(1)(b) of the Supreme Court Rules; namely the address for service furnished by the Respondent as required by Rule 78. Unfortunately, the latter Rule only operates when notice of appeal has been served on the respondent. Hence in order to file the record of appeal before the 5th November 1991, the intending Appellant ought to have obtained leave to serve notime of appeal out time, and thus comply with Rule 85(1)(b) of the Rules. It will be further

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observed that the intending Appellant did not take this step, and, indeed, allowed the period for filing the record of appeal to elapse. After some 14 days later, on the 19th November 1991, he brought his application before the single Judge to extend both periods whihe had elapsed.

Two general deductions may be made. The previous Advocate should have put the record straight, by applying for leave to serve the. notice of appeal out of time, at any time from the 22nd July 1991 until he lost control of the case on the 15th September 1991. We cannot hold the present Advocate responsible for that. The present Advocate had the duty to put the record straight, as soon as he discovered that the notice of appeal had not been served upon the Respondent. Assuming that it was reasonable to tackle this rather difficult case after a thorough perusal of it up to the 30th September 1991, it was then vital for the present Advocate to act at once, and file a notice to extend time for service of the notice of appeal. Secondly, had the present Advocate applied in time, as he had the proceedings in hand, he should have been able to file the record of appeal within 60 days, unless prevented by some other sufficient reason. With hindsight, of course, the present Advocate could have applied at once, to the Advocate of the Respondent from the 30th September 1991 onwards, to ascertain whether the Respondent had been served. While there is no objection in principle to the inquiry made by the present Advocate to the previous Advocate to the previous Advocate, whether the latter had served the notice of appeal, that course was not likely to assist the present Advocate, since the previous Advocate might well be involved in admitting a failure. It would have been more profitable to inquire of the Respondent's Advocate, whether the latter had been served with the notice of appeal. The actual enquiry on the 5th November 1991, whether the Advocate for the Respondent would agree to the late filing of the appeal, was very properly refused, because there is no rule in the Supreme Court Ruless whereby the parties can consent to each an extension. DEVSHI VS DIAMOND CONCREVE CO. (1959) EA 529. The enabling Rule is Rule 4, and it is in the discretion of the Court alone whether or not to extend. $. . / 4$ the time for sufficient reason.

Following from these observations one is forced to the conclusion. that the present Advocate did not take any sensible action to put the record straight, once he had found out what had happened by the 30th September 1991. It is true that it was not his fault that the notice of appeal was not served by the previous Advocate. Having in mind that the matter could have been put right by an urgent application, so that the record of appeal could be filed in time, the crux of this application is whether time should be extended, because of the failure of the present Advocate to act in time. Sometimes an Advocate's error can be exchsed, sometimes not.

WELLE COURT LIBRARY

The learned single Judge refused to extend time because he held that the present Advocate had not acted with expedition. There are several findings, with which we would, with respect, take objection. The first one concerns non-payment of fees. We doubt whether the learned Judge's Statement of principle is correct in all circumstances, when he accepted a proposition from the Bar, that an Advocate whose fees had not been paid, is an Advocate without instructions. We leave the matter like that because it is not relevant to the final decision. The remark was made in connection with the finding that fees had not been paid, which was deduced from the previous Advocate's letter of 16th October 1991. All that we need say is that there is an equally strong if not averwhelming deduction, that fees had been paid, arising out of the letter of the previous Advocate dated 15th July 1991. In it he stated that the cost of preparing the copies of the proceedings and judgment would be paid for. The previous Advocate had filed a notice of appeal he had called for copies of the proceedings upon the Respondent; he had severed the letter in which he had called for copies of theproceedings; and therefore he could have at the same time served a copy of the notice of appeal. There was cavil contesting whether there had been sufficient fees for serving the notice of appeal. It is clear that as the copy of the letter requesting copies of proceedings was served, the noticecould have been served at the same time. Hence there was obviously no difficulty with regard to service fees. We are therefore

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unable to accept the submissions of Counsel or the reasoning of the learned Judge on the question of fees that the client company was itself responsible for the delay in this case. We think that in fact it is quite plain that the previous Counsel ought to have served the notice of appeal together with the copy of the request for proceedings, and neither the client nor the present Advocate are responsible for that lapse.

**ISUPPLIE COURT LIBRARY !**

There are two other findings with which we should not agree, and they are that the purport of the letter of the 16th Ocotber 1991 indicated that the notice of appeal had not been served. All that the letter indicated was that the previous A vocate would not give any information, one way or the other, whether or not he had served the notice of appeal. Secondly, it was rather too severe upon the present Advocate to criticise him for spending 25 days in September in ascertaining what should be done. What can be said, however, is that if such a period as 25 gays was spent on this matter, then the Court must certainly expect prompt and relevant action.

When one comes to the period between the 1st October and the 195h November, in which no expedititious or relevant action was taken, then the criticisms of the learned Judge are quite right. It is expected of a party, especially a party represented by counsel, to explain a delay such as this. There is no explanation whatsoever. The Court being distressed at the situation, allowed counsel to find some explanation evem from the Bar, outside his addidavit in support. It is unfortunate that the period spent in Nairobi did not really alter the situation. There was time to act before the Advocate left for Nairobi and there was time to act after F returned. What appears to be the case, which we state with regret is, that the Advocate did not take any expedititious step to cure the situation. What has happened is that the careless in attention of the first Advocate has been compounded by that of the second.

Authorities abound on this point, some of them cited to us and some to the Judge. We may refer to BETACHAND SHAH VS D. JAMAADS (1959) EA 838

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which requires an application for extension of time to be made at the earliest opportunity, providing a satisfactory explanation for excessive delay. It is clear that the Court is only entitled to grant an extension of time for sufficient reason, which must be shown to the Court. No reason at all has been shown to us, let alone a sufficient reason. The principle upon which this court must act, it that an a matter of the review of the exercise of his discretion by a single Judge, it is not for this court to overrule the exercise of that discretion, unless it is exercised upon a wrong principle of law or upon a misdirection as to the facts be that the decision was entirely unreasonable. Even though we have analysed the facts in a somewhat different way to that of the learned Judge, since we would not place any blame upon the the client company itself, there is no escaping from the Judge's connlusion that no sufficient reason was adduced by the present advocate for his dalay. We would add that there was no sufficient reason for the delay of the previous Advocate wither. It follows that the delay in applying for an extension of time to serve the notice of appeal lasted from the 22nd of July 1991 to the 19th November 19 91, less 25 days from the 5th Stepember 1991 to the 30th September, 1991. This long delay held up the filing of the record of appeal within the normal time, and after the period had passed an extension of time was applied for. The learned Judge substantially found that the carelessness of Counsel was not a sufficient reason and he cannot be said to have reached a wrong conneusion.

SUPREME COURT LIBRARY

It was not contended before this Court, that the principles of law decided at the trial, mor the considerable sums of money involved, could amount to matters of public importance in this instance. There was a wealth of authority on this point for trial from other jurisdictions. It was not a novel decision,

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Finally, even if the Res ondent was not prejudiced, that cannot by itself amount to a sufficient reason, (COMMISSIONER OF TRANSFORT VS. A. G. OF UGANDA (1959) EA 329).

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Consequently, this Court is unable to intervene, and the ruling of the single Judge must stand. In the result this application for review is dismissed with costs.

Dated at Mengo the ...................................

S. T. MANYINDO DEPATY CHIEF JUSTICE

ISUPREME COURT LIBRARY

ALL NO -

YEAR.

A. H. O. ODER JUSTICE OF THE SUPREME COURT

H. G. PLATT

JUSTICE OF THE SUPREME COURT

I CERTIFY THAT THIS IS A TRUE COPY OF THE ORIGINAL

**B. F. B. BABIGUMIRA** REGISTRAR SUPREME COURT.