[2006] UGCA 54

## THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

# CORAM: HON JUSTICE A. E. N. MPAGI BAHIGEINE, JA HON JUSTICE C. K. BYAMUGISHA, JA HON JUSTICE S. B. K. KAVUMA, JA

### CIVIL APPEAL NO. 67 OF 2003

# HADONDI DANIEL ::::::::::::::::::::::::::::::::::::

#### VERSUS

#### YOLAMU EGONDI ::::::::::::::::::::::::::::::::::::

(An appeal from the ruling and order of the Hon. Mr. Justice Rugadya Atwoki in the High Court of Uganda at Mbale dated 28^th April 2003 in Civil *Miscellaneous Application No. 88 of 2003)*

### JUDGEMENT OF HON. JUSTICE A. E. N. MPAGI BAHIGEINE, JA

This appeal arises from the ruling and orders of the High Court, 20 dated 28-04-2003, dismissing the appellant's application for extension of time within which to file an appeal.

The subject matter of the suit is a piece of land situated at Butenge, Lunyo in Tororo District. Following a dispute over this 25 piece of land, the appellant filed a suit in 1996, against the respondent, in the L. C court and won. The respondent appealed to the L. C 11 court, which allowed the appeal. The appellant then appealed to the L. C.111 court, which allowed the appeal, and restored the L. C. 1 court decision, which was originally in 30 his favour.

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^a The respondent appealed to Tororo Chief Magistrate's court. The Chief Magistrate allowed the appeal and overruled the L. C. 111 court decision. The appellant through M/S Natsomi and Wandera Advocates filed HCCA No. 10 of 1997. However, he changed counsel and instructed M/S Ofjambo, Wejuli and Wabwire Advocates to prosecute the appeal. In September 2001, the appellant's counsel withdrew the appeal on the ground that the decree extracted by the former counsel had not been drawn in accordance with the law. At the time of the withdrawal, the court granted the appellant 10 days within which to file a fresh appeal, with the proper decree. 5 l0

> The appellant's counsel, however, did not file the fresh appeal as directed and thus execution proceedings ensued on 1lth September 2OOl.

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On loth December 2OOl , the appellant's counsel filed an application for review of the Chief Magistrate's decision, which was dismissed with costs on 1ltt'July 2OO2. lt had been filed in the wrong court. Another one was hence filed in the Chief Magistrate's court, Tororo. It was also dismissed in November 2002.

The appellant then sought leave of the court vide High Court Miscellaneous Application No 38 of 2003 for an extension of the time within which to file an appeal. This application was dismissed, with costs by the learned trial Judge. Hence this appeal on the following grounds, namely that:

1. The learned Judge erred in law and fact when he held that the mistake and/or lapse of counsel retained on

record over whose actions the appellant had no control, was not a good enough ground to extend time within which to file an appeal.

s2 The learned Judge erred in law to refuse to grant an extension of time to file an appeal when he found as a fact that the appellant had been vigilant and diligent in trying to pursue his rights.

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3. The learned Judge's ruling and order complained against has accasioned a miscarried of justice. l0

Both counsel opted to file written submissions under rule 97 of the Rules of this court.

- Concerning grounds 1 and 2, learned counsel for the appellant, Mr. Dagira Suza, pointed out that the issue before the High Court was that the appellant was unable to take the right course on time due to the inability of his counsel to act appropriately. This, in his view, was sufficient reason for the appellant to seek leave of court to extend time. He submitted that the appellant was vigilant and diligent in pursuing his rights. He was not guilty of any dilatory conduct. His failure to file a memorandum of appeal in time was solely due to the lapse of counsel retained on record which mistake cannot be visited on the appellant. l5 20 - Learned counsel relied on the authority of Shabir Din as Ram Parkshqnqnd ( 7955) 22 EACA 48 at 5l where it reads: 25

"... In particular, mistake or misunderstanding of the appellant's legal advisors, even though negligent,

may be accepted as a proper ground for granting relief, but whether it will so be accepted depends on the facts of the particular case."

- Submitting that the appellant was vigilant and diligent he criticised the learned Judge for relying on Rwenzori Investments Limited vs NPART (L996) HCB 14 CA where it was emphasized that the applicant's main concern was to show sufficient reason why he should be given more time and to show that the delay was not from his dilatory conduct. In his view, the appellant 5 l0 - had shown sufficient reason and had not been dilatory. He argued that the learned Judge erred to hold that the appellant's case did not fall within the ambit of tl:e Rwenzori case on the ground that the appellant's case did not involve delay to - frle the appeal, but was of failed strategr by counsel. Counsel cited a number of authorities regarding a vigilant litigant who ought not to be penalised by refusing him relief because of the negligence of his counsel over whose actions the litigant has no control. He insisted the appellant's case fell within that ambit of l5 - 20 law- Karveiia & Another vs Kabunsa CAC Apolication No 6O of 1998. Grindlavs Bank lUl Ltd vs Katende And Brothers l198ol HCB 12: Twisa Chemical Industries Ltd vs Viola Bamisede t/a Triple B. Enterprises. CACA No 9 of 2OO2. (This case went on appeal to the Supreme Court, which dismissed the appeal) - 25

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In reply, it was submitted for the respondent that the appeal was frivolous, vexations and an abuse of court process as the appellant was guilty of dilatory conduct. It was pointed out that the appellant was given sufficient time in which to file a fresh

appeal, from the date, when the appeal had been dismissed on a procedural ground; instead the appellant chose to frle two applications for review in the lower court which were all dismissed one after the other. In the meantime, the respondent executed the judgement thus rendering all the applications nugatory. The matter therefore ended leaving nothing to appeal from on ground of the completed execution.

It was pointed out by learned counsel that the appellant's failure to file a fresh appeal on the ground that his counsel was sick could not qualify as sufficient reason or mistake. There was no evidence of such incapacity, either by an a-ffidavit accompanying the notice of motion or otherwise. Instead of hling the two applications for review of the Magistrate's decision, the appellant l0

ought to have straightaway filed an application to extend time in which to appeal, and he also ought to have stayed execution of the judgement/decree at the same time. I5

It was submitted that the authorities relied on by the appellant relate to mistake and/or omission on part of counsel whereas the

instant application is one of dilatory conduct and taking a wrong step/action. 20

The learned trial Judge held:

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"... But in the case before me, counsel decided that he could pursue the interests of his client best by applying for a review of the decision of the Chief Magistrate. He was fully aware of the possibility of pursuing an appeal, and indeed previous counsel had

filed one, which this counsel withdrew. When court granted the withdrawal of that appeal, it offered him a chance to file a fresh appeal within a given time. At that time there had not been any previous application to extend time. Counsel allegedly fell ill and this is given as the reason why he did not file the appeal. It does not answer the question why he did not file an application to extend the time, but rather chose to file not one but two applications for review. The only inference is that that was his chosen course of action. The matter of illness therefore is of little relevance. There was therefore no mistake..."

It is trite that time can only be extended if sufficient cause is shown. The surfficient cause must relate to the inability or failure to take the necessaql step within the prescribed time. It does not relate to takine a wrons decision (emphasis added). Muso and Others vs Wani iru and Another l1-g70l EA 481 at 483. If the applicant is found to be guilty of dilatory conduct, the time will not be extended - Shanti vs Hidocha and Others {19731 EA 2O7. It is not necessary for the applicant to establish that the appeal has good chances of success but where that fact is established the court will normally take it into account. l5 20

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I entirely agree with the learned Judge that in the case before us, there was no negligence, mistake, omission or oversight on the part of counsel which would have worked in the appellant's

favour - Senvange vs Nakks Ltd (19801 HCB 30. Rather , the l0 appellant's counsel took a deliberate and calculated step which happened to be wrong. The court having exercised its indulgence in his favour by allowing him to withdraw a defective appeal and file a fresh one within a specified time, he boldly rejected the court's grace and chose to file two successive applications for review of a magistrate's decision which were dismissed one after the other. In the meantime he never even envisaged staying execution of the decree. It cannot be said that by acting in this fashion counsel was labouring under a mistake or oversight. He clearly knew what he was doing believing it to be in the best interests of his client. That being the case, the learned Judge quite properly drew a comparison with the English system as stated in Halsbury's 4th Edition, vol. 3 (1) paragraph 518:

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- "Counsel has, with regard to all mdtters that properlg relate to the conduct of the case, unlintited authoritg to d.o uthdtever he considers best Jor the interest of his client. This authoritg extends to all mo:lters relating to the action, including the calling qnd cross' exqmination oJ witnesses, challenging aiuror, deciding what points to take, choosing uhich oJ tuto inconsistent deJences to putforutard and eaen agreeing to a cotnprotnise of the action, or to a aerdict, order or judgernent." 15 20 - ²⁵ Commenting on the same princiPle in Capt. Phillip Onqom vs Catherine Nvero Owota(SCCA No.14lO1 (unreported), Mulenga JSC, in the lead judgement at page 9, had the following to say:

'/ "... It is an elementary principle of our legal system, that the acts and omissions of the advocate in the course of the representation bind a litigant who is represented by an advocate. However, in applying that principle, the court must exercise care to avoid abuse of the system andlor unjust or ridiculous results. To my mind, a proper guide in applying the principle is its premise, namely that the advocate's conduct is in pursuit of and within the scope of what the advocate was engaged to do..."

It is enough for me to say that the appellant put himself in the hands of the advocate. In the process the advocate was doing his very best to discharge that mandate. He, however, took a wrong course of action. It was a wrong decision. The appellant was thereby lock, stock and barrel bound. It would indeed be absurd or ridiculous that everytime an advocate takes a wrong step, thereby losing the case, his client could seek to be exonerated. This is not what litigation is all about.

Counsel applied a wrong strates/ as put by the learned Judge. No 'sufficient cause'has been shown to entitle the appellant to the relief sought. Grounds I and 2 would, in my view, fail. 20

Regarding ground No. 3 it was argued for the appellant that the ruling and order occasioned a miscarriage of justice. Citing Matavo Okum vs I'ransiko Amudhe &2 Others ^I 19791 HCB 229, that substantial miscarriage of justice occurs where there has been misdirection by the trial court on matters of fact t5

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relating to evidence tendered or where there has been unfairness in the conduct of the trial, learned counsel submitted that the appellant was diligent and vigilant in pursuing his case and that the mishap was caused by the lapse of his counsel over whom he had no powers of control. He prayed court to set aside the ruling, without pointing out any incidents in the trial which would be tantamount to a miscarriage ofjustice.

For the respondent it was denied that the appellant was likely to suffer any miscarriage of justice since the status quo changed, the decree having been executed. Learned counsel invoked the common law principle of approbation and reprobation to the effect that the appellant having waived his right to appeal granted to him and execution having been completed, marked the end of litigation. He cited Ddegeya Trading Store vs Uganda Revenue Authoritv CA No. 44196 (unreported) and Christine Bitarabeho vs Edward Kakonge CA No. 1Ol99 all to the effect that where an appellant accepts a court decision and complies with it, he waives his right of appeal. t(l 1,5

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In rejoinder by the appellant, it was contended that the principle of approbation and reprobation was misapplied to the facts before court. The alleged execution was for recovery of costs yet the subject matter of the suit was recovery of vacant possession of land. There was no warrant giving vacant possession of the suit land to the respondent so as to determine the end to

litigation.

The learned Judge, while considering the lapse of time from the date of the decision appealed, observed:

"... All this time, the respondent, who was the successful party, had to come up and defend himself. The decision sought to be appealed from was handed down in 1996. Surely there must be an end to litigation. The Judge concluded:

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"... In order to justify court in extending time during which some step in procedure requires to be taken, there must be some material upon which court can exercise its discretion....."

Whether there has been approbation or reprobation by the appellant will depend on the facts of the case. In the end the Judge has a discretion to grant the relief sought at any time depending on those facts. It is, however, important to clarify the position regarding an application to extend time vis d. vis an application for leave to appeal. The appellant was concerned with showing sufficient reason why he should be allowed more time. He had to convince the court that delay had not been caused or contributed to by delay on his part. l-5 20

The learned Judge after scrutinizing all the facts before him ruled:

"In this case, I was not satisfied that there was satisfactory material for court to exercise its discretion to extend time. This was an attempt to revive a matter which was completed in court." 25

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- I have been unable to find or discern the slightest evidence of a miscarriage of justice as contended by the appellant. - I have thus no reason to differ from the Judge's finding. I would dismiss the appeal. - Since Byamugisha and Kavuma JJA both agree, the appeal fails $\mathsf{S}$ with costs.

$10$

Dated at Kampala this ....................................

A. E. N. MPAGI BAHIGEINE JUSTICE OF APPEAL

$15$

## THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA **AT KAMPALA**

CORAM:

HON. LADY JUSTICE A. E. N. MPAGI-BAHIGEINE, JA HON. LADY JUSTICE C. K. BYAMUGISHA, JA HON. MR. JUSTICE S. B. K. KAVUMA,JA

### CIVIL APPEAL NO.67/2003

$10$

$\overline{5}$

#### **BETWEEN**

HADONDI DANIEL::::::::::::::::::::::::::::::::::::

AND

YOLAMU EGONDI:::::::::::::::::::::::::::::::::::: $15$

Appeal from the ruling and order of the High Court of Uganda sitting at Mbale (Rugadya -Atwoki J) dated the $28^{th}$ April 2003 in Miscellaneous Application No.88/2003

$20$

### **JUDGEMENT OF BYAMUGISHA, JA**

I had the benefit of reading in draft form the lead judgment prepared by

Bahigeine $\int$ . I agree with the reasons she has given in dismissing the

appeal. I have nothing useful to add. $25$

Dated at Kampala this. 16 /t<br>day of Massel 2006

C. K. Byamugisha **Justice of Appeal**

# THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

## ⁵ CORAM: HON. LADY JUSTICE A. E. N. MPAGI-BAHIGEINE, JA. HON. LADY JUSTICE C. K. BYAMUGISHA, JA. HON. MR. JUSTICE S. B. K. KAVUMA. JA.

# CIVIL APPEAL NO.67 OF 2OO3

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HADONDI DANIEL . APPELLANT

### VERSUS

# rs YOLAMU EGONDI RESPONDENT

(An appeal liom the ruling and order ofthe Hon. Mr. Justice Rugadya Ahvoki in the High Court of Llganda at Mbale dated 28rh April 2003 in Civil Miscetlaneous Application No. 88 of 2003)

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# JUDGMENT OF HO]T. MR. JUSTICE S. B. K. KAVUMA, JA.

I have. benefited from reading in draft the judgment prepared by Mpagi-Bahigeine, JA.

25 I concur.

Dated at Kam IS /ee day of ¹⁴ 2006.

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s. B. I (lt'lt Jus o Ap