[1996] UGCA 4

IN THE COURT OF APPEAL OF UGANDA

## AT KAMPAIA

CIVIL MISCELLANEOUS APPLICATION

## (From H. C. C. S. No. 208 of 1996)

APPLICANT THE ADMINISTRATOR GENERAL VERSUS

GEORGE MIESIGYE SHARP **RESPONDENT**

## RULING OF C. M. KATO, J.

This is an application brought by the applicant Kasoro Eric Sabiti for extension of time for riling a Notice of Appeal. The 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 01/10/96. There were two supplementary affidavits one dated 31/10/96. and another one dated 07/11/96 The respondent/plaintiff filed an affidavit in reply, the affidavit is not lated and it is in form of a submission or an argument on legal points. The application was lodged. under the previsions of $rr$ 4, 42(1) and $\omega_1$ 1) of the Lereme 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 Erizing Chald Buchekunya who died in 1962. The applicant was at one time being represented 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 Idministrator General called Sam Zigira filed a Notice of Appeal in the High Court registry but failed to serve copies of that Notice of Appeal to the plaintiff/respondent. The applicant discovered this omission when he had applied for stay of execution and he was told that there was no appeal pending therefore his application for stay of execution was dismissed.

Meanwhile the Administrator General decided to withdraw from the conduct of the case and gave powers of attorney to the present applicant, whom 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 Later on a Notice of Appeal which had been filed by the Administrator General was withdrawn by the new counsel for the applicant on Ol/10/96 on discovering that the notice of appeal was incompetent. He then instituted the present application to enable the applicant to file a fresh notice of appeal out of time.

At the hearing of the application the learned counsel for the applicant Mr. Balikuddembe raised a number of points as to why he felt that this application should be granted. The first 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: Haji Sekaja vs Falida Saadi (Supreme Court Civil Appeal No. 27 of 1992) and Swolle

Electrics vs. Patrick Makumbi (Supreme Court Civil Appeal 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 blunde - jan and he should not be rewarded for his blunder and that the possibility of the intended appeal succeeding was not there so he prayed for dismissal of the application with costs.

Ruleja under which this application was lodged gives this court $\cdot,$ discretionary powers to enlarge wime within which a notice of appeal 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 the conduct of the party who is applying for extension of time, the nature. of the subject matter and all other circumstances surrounding the case. $11/3$

In the two cases of: Haji Sekaja v Falida Saadi and Electrics v Patrick 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 applicants and their 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 Administrator General, lodged a notice of appeal one day after the judgment had been 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 $25/09/96$ . 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. In my opinion the applicant acted quite prudently in the circumstances of the case.

Mr. Kanyunyuzi raised one issue to the effect that it was the applicant's counsel who had blundered therefore the applicant should not be rewarded for his blunder. The question 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 error 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 right: exhaustically 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 miling is delivered.

$\frac{1}{2}$

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 0.17 r 3' of the Civil Procedure Rules which require affidavit 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 JUDGE. $27/11/96.$

I CERTIFY THAT THIS IS A TRUE COPY OF THE ORIGINAL.

JOSEPH MURANGIRA for REGISTRAN COURT OF APPEAL.