[2004] UGSC 48

## THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT MENGO

HON. JUSTICE KAROKORA. JSC.

CIVIL APPLICATION NO. 10 OF 2002 **BETWEEN**

1. GODFREY MAGEZI 2. BRIAN MBAZIRA: **APPLICANTS** $\cdots \cdots \cdots \cdots \qquad \cdots \cdots \cdots \cdots$ $A$ $N$ $D$ SUDHIR RUPALERIA: **RESPONDENT** <pre>.......... ..........................

## RULING OF KAROKORA, JSC:

**BEFORE:**

This is an application by Notice of Motion filed under Rules $1(3)$ , 4, 41 and 42 of the Rules of this Court seeking extension of time within which to file an appeal out of time against the decision of the Court of Appeal in Civil Appeal No. 61 of 1999. The application further seeks that the filing of Civil Appeal No. 16 of 2001 out of time against the decision of the Court of Appeal be validated. The application seeks the costs of the application to be in the cause.

The grounds for the application are stated as follows:

The applicants instructed M/s. Birungi & Co. Advocates to file an $\mathcal{I}$ ) appeal in the Supreme Court against the decision of the Court of Appeal No. 61 of 1999.

- That M/s. Birungi & Co. Advocates filed Supreme Court Civil $2)$ Appeal No. 16 of 2001 and paid all the requisite charges and fees for security for costs and filing fees amounting to Shs. $520,000=$ . - That Supreme Court Civil Appeal No. 16 of 2001 was filed out of $3)$ time due to the mistake, inadvertence and or omission of $M/s$ . Birungi & Co. Advocates, counsel for the applicants. - That the applicants have changed counsel to M/s. Nyanzi, Kiboneka $4)$ and Mbabazi Advocates who have discovered the mistake which mistake ought not to be visited on the applicants as litigant but requires to be corrected by Court. - That in the interest of justice, it is fair and just that the substance of $5)$ the appeal be heard on merit without debarring the applicants from pursuing their rights to be heard and accorded justice in accordance with article $126(2)$ (e) of the Constitution.

The application is supported by affidavit sworn by Godfrey Magezi c/o M/s. Nvanzi, Kiboneka and Mbabazi Advocates, which affidavit I feel constrained to reproduce the paragraphs which spell out mistakes of counsel and mix up of dates by either his counsel or the court.

$\overline{2}$

Godfrey Magezi stated in his affidavit as follows:

"(1) I am the applicant herein and the appellant on SSCA No. 16 of 2001.

- (2) That I did instruct my former counsel M/s. Birungi & Co. Advocates to file an appeal against the Court of Appeal decision in Civil Appeal No. 61 of 1999. - (3) That the said M/s. Birungi & Co. Advocates filed a Notice of Appeal together with a letter requesting for proceedings both of which are annexed hereto as annexes '1' and '2.' - (4) That on 23^rd August 2001, the Registrar of Court of Appeal did notify M/s. Birungi & Co. Advocates that the record of Appeal was ready for collection. Copy of the letter of the Registrar is hereto annexed annexture '3'. - (5) That the requisite fees were duly paid vide receipt No. 2171963 hereto annexed as annexture '4'. - (6) That according to the court file the Memorandum and Record of Appeal was duly filed on 9^th November 2001, and the security for costs and filing fees in the amount of shillings Four hundred thousand (Shs. $400,000=$ ) and shillings One hundred and twenty thousand (Shs. 120,000=) respectively was duly paid vide receipt No. 42608199 and 42608198. Copy of the extract of the court file is annexed as annexture $.5.$

- (7) That however, receipt No. 42608198 is dated 9^th November 2001, while receipt No. 42608199 is dated 9^th October 2001, copies of both receipts are annexed as annexes '6a' and '6b'. - (8) That the received stamp for the record of appeal is dated $9^th$ September 2001, as per copy of the extract hereto attached. - 9. That the Registrar's seal certifying judgment of the record is dated $20^th$ December, 2001. - 10. That the Court of Appeal Registrar's Certificate of completion delivery of the proceedings was sealed on $9^th$ November 2001. - 11. That it is therefore not easy to clearly tell the date when the appeal was filed although the date of $9^th$ November 2001, would logically be the date of filing as it was the date the filing fees and security for costs was paid. - 12. That the court stamp on the record of appeal together with the receipts of payment are equally misleading as to the date when the record of appeal was filed. - 13. That the filing of the appeal on 9^th November 2001, was clearly outside the prescribed time of sixty (60) days within which to file an appeal after the completion and delivery of the record of proceedings.

- 14. That all this mix-up of dates and when particular events occurred was done by my counsel M/s. Birungi & Co. Advocates without my knowledge. - 15. That I only discovered this after the hearing on 23^rd January 2002, whereupon I instructed M/s. Nyanzi, Kiboneka and Mbabazi Advocates to take over the full conduct of my appeal from $M/s$ . Birungi & Co. Advocates. - 16. That I had originally instructed M/s. Nyanzi, Kiboneka and Mbabazi Advocates to assist M/s. Birungi & Co. Advocates and jointly appear for the hearing on $23^{rd}$ January, 2002. - 17. That on my part I did all that was necessary and required of a diligent litigant seeking for justice including payment of all the court fees and charges to render my appeal ready for a hearing. - 18. That such omissions and inadvertence of my former counsel ought not to be visited on me leading to the striking out of my appeal thereby denying me justice. - 19. That I swear this affidavit in support of my application for leave to extend time to file my appeal out of time and/or the validation of the due filing of SCCA No. 16 of 2001."

The respondent's affidavit in reply was sworn by Paul Rutisya of M/s. Kasirve, Bvaruhanga & Co. Advocates. He averred as follows:

- That in reply to paragraph 6 of the deponent's affidavit in support of $"(3)$ the application, the respondent maintains that the appeal was filed on the 9^th September 2001, as the court stamp on the record and memorandum of appeal indicates. - That in reply to paragraph 7 of the applicant's affidavit the date of $(4)$ 9^th October is a reknown public holiday in Uganda depicting our Independence and all public officers and courts of judicature are closed and therefore, the receipt dated $9^th$ October 2001, is suspect. - $(5)$ That in reply to paragraphs 7 to 12 of the applicant's affidavit it cannot be that counsel for the applicant went to file an appeal on the 9^th of November as alleged in paragraph 11, and the court stamp was back dated by two whole months $(9^th September)$ , and the receipts issued for payment of filing fees and security for costs respectively appeared with two different dates a month apart, one of the days (9^th October) having a holiday on which the Registry was closed and, further the date of lodgment on page 4 of the Memorandum of Appeal clearly indicates tampering. - That in the absence of an affidavit from the Registrar $(6)$ acknowledging that errors were made by the staff of the Registry the generalization in the applicant's affidavit cannot suffice to explain the inconsistencies in the dates.

- (7) Thut prior h the muin uppeul the respondent in this upplicution hud filed Miscellaneous Applicution No. 3 of 2002 in which they xtught orders tir the dismissul t{' the uppeul for non-compliunce with rules ot'procedure. - (S) Tha, at the heuring of'the muin uppeul on lhe 23^t Junuury 2002, the grounds contuined in the suitl upplicution No. J ttl' 21102, were tliscussed in court which then odjourned lhe heuring lo enuhle the applicunt in this one tofile un ulJiduvil in reply. - (9) Thut ttt4ute the upplicunts in this one huve not filed the uflitluvit in reply to Miscelluneous Application Mt J of 2l)02, which is slill pending belbre the Honouruhle Court. - (101 Thut the orders sought in lhe present upplicution even if grunted, would not operute k, curc the deJect in Civil Appeul No. l6 ol'2001. - (ll) Thut the uffiduvit ttJ Godliey Mugezi in support of the present upplicution multes no mention of Briun Mhuziru even when he is numed us un upplicunt un it is aot cleur il'he is u kruruing purt kt lhis uppliculion - ( l2) Thut I sweur this ulfiduvit in reply to the ulfiduvil ol'Got[iey Mugezi und din opposition lo the orders sought.

## (lJ) Thur ult whut is sured herein is lrue and conecl in my \*nowledge ^un d p nttl ss itt n a I e-rp e r ie n c e.

Mr. Mbabazi counsel tirr the applicants submitted that thc application was seeking leave trr be granted to applicants to tile an appeal against the decision ol'the courr ot'Appeal civil Appeal No.6l ol'1999 out ot'time and also to validate the tiling ot'Civil Appeal No. l6 of l00l which was tiled out ol'time. He also sought costs tll'the application to be in the cause.

The grounds ot'the application are in the body ol'the application. Reasons tbr the application are set out in the body ol'the application as inadvertence. error und omission by the lbrmer counsel M/s. Birungi & Co' Advocates' The other ground conceming Supreme Coun Civil Appeal No. l6 ot'2001 is that thc applicants have already- paid Shs. 510.000= as spelt out in the 2"d parugraph ol'the grounds lirr the application'

ln the interest of justice. counsel submitted that it was t'air that the substantive appeal No. l6/1001 be validated and be heard on merit.

The application is supponed by atlidavit ot' Magezi dated 9rr' April 2002' Mr. Mbabazi submitted that the relevant paragraphs show 3 stcps takcn to the Notice ol'Appeal.

Paragraph 5 shows requisite t'ees duly paid vide receipt No. ^2171963 annexed as '4'.

t Paragraph 6 shows extracts of Court Rcgistcr and shows two receipts. These receipts have ditlerent dates but were issued by the Supreme Court one receipt No.4l60ttlgti is dated 9'r'November 1001. while the second receipt No. 41608 I 99 is dated 9tr' October 100 I . These receipts are anncxed as '6a' and '6b' respcctively. 'Ihe received stamp tbr the record ot'Appeal is dated 9'r' Septemher 1001. Yet the Registrar's seal certitying lodgment of the record is dated J0'r' Decemher 1001. 'that the Court ot'Appeal Registrar's certit'icate ol'ctlrnpletion and delivery- ol' the Proceedings was sealed on 9'r'November f001. Paragraph ll brings home the mix-up. lt avcrs that it is theretirre not eas) to clcarly tell the date when the appeal was tiled. though the date ol'9'r'November 1001. wtluld logicall-," be the date ot'tiling. as it was the date the tiling t'ees and securit;- tirr costs was paid.

Counsel submitted that ull the atxrve was done by M/s. Birungi & Co' Advocates without the knowledge ol'thc applicants. because payments were made b1 M/s. Birungi & Co. Advtrcates. He turther submitted that when those things were being donc by the PerPctrators. the applicants was not awarc. He contended that these things were done by court otlicials and tbrmer counsel. Counsel subrnitted that the law is that such mistakes. omission and inadvertence should not be visitcd on to the litigant' He contcnded thal there was no evidence that litigants Participarcd in these errors or mistakes.

Further. counsel tbr applicants re l'erred to Mr. Rutisya's atl'idavit sworn in reply. dated 8'r'October l(X)3. He submitted that thc thrust ol'Rutisya's utlidavit was that the appeal wus tiled tlut of time. Further in that atlidavit Mr. Rutas.v..a contirms mix-up in dates. Counsel also contirms tampering ol

the date when Memorandum of Appeal was received by the Registry which imputes tiaud - Mr. Mbahazi submitted that thc respondent's atlidavit drxs not attribute tiaud to an)., part]".

on the issue of hackdating of dates ol'receipt and issuance ot' receipt. counsel subrnitted that thcse receipts could not have been issucd by the applicants because the receipts bear LJganda covemment and were issued in t'avour ot'M/s. Birungi & co. Advocates. counsel submitted that emphasis in cases of this nature has been not to debar a litigant t'rom accessing court and also not t() cncourage tiesh suit or suing lawyers. counsel cited the cases trl' ExecutLr ol' the Estute of Christine Numutovu Tihuiiuku & Dehorah Numuliasu - vs - Noel G. Shutitu s.c. ciyil Appliculion No. I oJ', l98lt, Huji Nunlin Mutovu - vs - Ben Kiwunu\*u 6. C.) Civil Applicotion No. 12 of 1991, Duvitl Nsubugu & 3 Othen - P's - Margaret Kumuge (s.c.) civil Application No.3l/1997, in support ot'the ahove submission.

('trunscl I'urther subrnittcd that where thc couns havc tbund that there is already an appeal tiled. despite the mistake. which may amount to tarnpering. thc court has validated the appeal which had been tiled out of time. He relied on crune Finunce co, Ltd. - y.r - Makercre Properties Civil Applicution No. I o!' 2001 6. C.) (unreported) and Mansukhulul Rumji Kuria & Crune Finunce Co. Lttl. - u.\$ - Atlorney Generul &' ² Others Civil Applicution No. I of 2003 (5. C.).

Mr. Bvaruhanga. counsel tbr the respondent. in opposition to the application submitrerJ that the application did not set out suttrcient causc tirr the delay in tiling rhe application/appeal within the t'ramework of the rules. Further. he

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submittcd that the contradictions in the dates were not explained satistactorilr-. Counsei submitted that after realising that they were out of time. they, came up with this application alleging that the mistake or error was by counsell but Mr. Magez-i's atlidavit does not disclose that he gave mone).. to his counsel in time to tjlc the appeal. Counsel turther submitted that in the absence of the evidence that Magezi had paid money to his l.awyer to tile the appeul in tirne. the conclusirln leti was that there was complicitl- in tampering with the date ol' tiling the appeal betwecn counsel and the applicant. counsel turther submitted that this was a peculiar case. because the alleged mistake was calculated bl whoever chgse to state appeal was tlled on 9-ll-l(X)1. and 9'r'October and 9rr'september having the date on the court record which bears courl stamp. He submitted that it'it cannot he tilund that it was done by counsel. then the applicant bears respr:nsibility.

Moreover. counsel submitterJ that not all mistakes ot'counsel are excusable. Although court has wide pr.lwers t() cxtcnd thc period. sutlicient rcasons must bc shown. Counsel cited the case ot' Fhtrence Nuhatunzi - vs - Nuome Zinsohedtle civit Appticotion No. 5 ot' 1997 lirr proposition that suthcient reason depends on thc circumstanccs of cach case and must relate to thc inahilit,v- or tailurc to take a particular stcP in timc. Claim by the applicant that the tile could not be traced in time. in that case was not substantiated because it had been contradicted'

Counsel submitted that it would not bc proper cxercise of the court's discretion to extend time tirr the appli.-ant ttl tile appeal out of time or to validate the uppeal which wus tiled out ot'time.

Moreover, in Civil Application No. 3/2002 Mr. Mbabazi and Birungi appeared together. In that application the respondents were seeking leave to have the appeal struck out. That application was adjourned and applicant's In the circumstances, this would not be a application was still pending. proper case for this court to exercise discretion to grant the extension. Counsel cited the case of Karia & Anor - vs - Attorney General & Others Supreme Court Civil Application No. 1 of 2003 where extension of time was granted because it was found that the mistake was that of the court.

On the allegation of mix-up, this would not arise because the record of appeal was ready on 23^rd August 2001. The dates of 9^th November, 9^th October and 9^th September, were deliberately inserted and designed to justify mix-up. He submitted that the application should be dismissed.

Rule 4 of the Rules of this Court under which this application was filed reads:

"The Court may, for sufficient reason, extend the time presented by these Rules or by any decision of the Court or of the Court of Appeal for the doing of any act authorised or required by these Rules, whether before or after the expiration of that time and whether before or after the doing of the act; any reference in these Rules to deny such time shall be construed as reference to the time so extended."

There are many decisions of this Court and of the East African Court of Appeal which have interpreted Rule 4 of the Rules of this Court. I shall quote in extensio the portion of the decision of this Court from page 4 to

page 6 in the case of Crane Finance Co. Ltd. - vs - Makerere Properties (Supreme Court) Civil Application No. 1 of 2001 (unreported) which raised issues similar to those in the instant case. These we stated as follows

"The rule envisages four scenarios in which extension of time for the doing of an act so authorised or required, may be granted, namely -

- before expiration of the limited time; $(a)$ - after expiration of the limited time; $(b)$ - before the act is done; $(c)$ - after the act is done." $(d)$

The situation in the instant case is a combination of scenario (b) and (d). the appellant applied for, and Kitumba JA, granted extension of time for filing and serving of the record of appeal, long after limited time had expired, and also after the acts of filing and serving the record of appeal had been done. The bone of contention however, is in respect of scenario (d) namely the effect of such extension on the acts which had already been done. We thin that it is obvious that the contended effect is to bring an act within the time as so extended. There would have been no reason to include that scenario in the rule if an act done out of time was an incurable nullity. It is because it is not a nullity that under rule 12 of the same Rules, the Registrar is required to accept documents filed out of time, and only to endorse them to that effect. A reading of rr 4 and 12 together clearly indicates that while a document filed out of time is voidable, it may be validated by extension on time.

Secondly, we share the view that it could be futile to construe the provision otherwise. That view was succinctly expressed by the Court of Appeal for East Africa in Shanti - vs - Hindocha [1973] E. A. 207. In that case the Court considered r 9 of its

Rules (which was in identical terms as $r$ . 4), and all arguments (similar to that of Mr. Nangwala in the instant case), that the rule empowered the judge to authorise a future act not to validate a past one.

The Court held:

We think that when the time for lodging a document is extended, the document is duly lodged if lodged within the time as so extended, whether the actual lodging is before or after the order of extension. To hold otherwise would serve no purpose and would merely result in further costs being incurred. It is not irrelevant in this connection to note that under r 11 the Registrar has no power to refuse to accept an appeal on the ground that it is out of time, which clearly implies that the delivery of the appeal out of time may be excused or validated."

In an obiter dictum in The Executrix of the Estate of Christine Mary N Tebaijuka & Anor - vs - Noel Grace Shalita Civil Application No. 8 of 1999 (S. C.), Odoki JSC (as he then was) referring to the same scenario said:

'late filing of "The legal effect (of extending time for filing) is therefore, to validate or excuse the documents. The applicant need not file fresh documents - - - - - - if those already filed are completed and in proper form.' $\cdot$

On the evidence available and submission made by counsel on both sides I am satisfied that although Mr. Byaruhanga, counsel for the respondent submitted that the back-dating of dates on the receipts and the mix-up in the dates appearing in the filing of the appeal, payment of filing fees and security for costs were deliberately calculated by whoever chose to insert them by design to justify the mix-up, in my view, there was no evidence by

the respondent to prove that the mix-up of those dates was done by the applicants, as he was not personally handling the appeal. Those receipts were issued by the court officials on the Uganda Government receipts in favour of M/s. Birungi & Co. Advocates who was representing the applicants.

It is now settled that omission or mistake or inadvertence of counsel ought not to be visited on to the litigant, leading to the striking out of his appeal thereby denying him justice. There are many decisions from this Court and other jurisdictions in which it has been held that an application for extension of time, such as this one, where mistake or error or misunderstanding of the applicants' legal advisor, even though negligent have been accepted as a proper ground for granting relief under rules equivalent to rule 4 of the Rules of this Court, which is the rule under which this application was brought. See Getti - vs - Shoosmith [1939] B ALL ER 916, Bray - vs - Bray [1957] EA 302, Haji Nurdin Matovu - vs - Ben Kiwanuka (supra) Alex Jo Okello - vs - Kayondo & Co. Advocates Civil Application No. 17 of 1981, (SC), David Nsubuga & 3 Others - vs - Margaret Kamuge (SC), Civil Application No. 31 of 1997. Further, errors/mistakes of court officials have been held to be sufficient grounds for granting extension of time to the applicant to file his or her appeal out of time. Seen **Bhatt** - vs - **Tejwart** Singh [1962] EA 497, Mansulkalal Ramji Karia - vs - Attorney General & Others SCCA No. 1 of 2003.

In view of the above, I am satisfied that sufficient reasons in this case exist for granting extension of time to the applicants to appeal out of time. Accordingly, extension of time is granted.

However. in thc irstant cuse. Mr. Birungi o[ M/s. Birungi & Co. Advocates. had already tiled Supleme Court Civil Appeal No. l6 of 2002 and paid all the requisite t'ees tbr tiling the appeal which included t'ees tbr security lbr costs totalling to Shs. 520.(X)0=. 'Ihe appeal however. had been tiled in the Supreme Court out ol'time on 9'r' November 1001. due to the mistake. error or inudvenencc ol'the tbrmer counsel. which must not be visited on to the litigant. See Carac Finunce Co, Lttl. - vs - Mukcreru Properlies (supra) Gett. - vs - Shoosmith lsupra) Erecutdr of the Estate of Christine Mary Tebaijuhu &. Anor - vs - Noel Gruce Shulitu (supra) and Mansukhulal Rumji Kaniu (supra) Shunli - w; - Hindoctta (supra) tbr the proposition that the legal eU'ect of extending, timc to tile an appeal out of time when the appeal had already been duly- t\led ulheit out ol' time is to validate that appeal or to excuse thc latc tiling ol'that appeal. Consequently. the Suprerne Court Civil Appeal No. l6 ot'2001 is deemed to havc been validly tiled on 9'r' Novembcr. :001. Accordingl-"-. application tbr validation ot appeal No. l6 of 100t. is allowed.

Costs ot'this application to be in the cause.

Detiverett at Menstt thir\$fu duy of: \ffirWbr 2t)t)1.

A. N, XAROKORA

JUSTICE OF THE SUPREME COURT

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