[1987] UGSC 5

I Certify tiia. ^~ ORICu oyoh **R. 1. s.** *[k* Registrar Cour; DateJ... . A. ...

IN TH 3 COURT 0? Al PEAL

AT M NGO

(CORAM: MANYINDO V-P*.* LUBOGO, ^j. G. J. A, & CDOKI J. A )

CIVIL APPLIC.'TION NO. 6. OF 1986

B E T V E E N

PLAXEDA SEMBATYA NAKIVJALA APPLICANT

A N D

LIBYAN ARAB UGANDA BANK FOR FOREIGN. TRADE RESPONDENT

(Appeal from the Judgment and Decree of the Hi h Court (Kantinti J) dated 14th September, 1984

in Civil Suit No. 422 of 1983)

## RULING OF OD. OKE' JUA\*..

This is an application by the respondent/applicant for an order stricking out the notice of appeal filed by the appellant. The main ground for the application is that the appellant has failed to take an essential step of lodging the appeal within the proscribed time.

In his affidavit in support of the application Mr. Kayondo S. C., learned Counsel for the appliednt/respondent, states that judgment was obtained in favour of his client on 29th August, 1984 and notice of appeal was served on him on 11th September, 1984. He ^eposes further that the record of proceedings was ready since 18th September, 1985 and he bought this fact to the knowledge of Counsel for the appellant by a letter dated 18th September,1985• Since then the appellant has failed or neglected to file the appeal.

The Regi'trar ?did not reply to the two letters. In his affidavit in reply Mr. Ndozireho, for the appellant, states that after filing the notice*•*of appeal in this case he wrote to the High Court on 25th September,1984, applying for a copy of proceedings to enable him to lodge the appeal. On 6th June,1985 he wrote again to the High Court requesting for the proceedings and certificate under Rule 8 (1) of the Rules of this Court, of the High Court ?did not reply to the two letters. On receipt of a letter date 1Sth^eptember, 1985 from Counsel for the applicant, he replied pointing out that the proceedings were- not ready for him to purchase

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since they were pending correction of mistakes. His firm then briefed M/s Kawanga and Kasule Advocates to take over the appeal. This firm also wrote to the High Court on 25th eptember, 1985 asking for a copy of proceedings. They also wrote to Counsel for the applicant informing him that the proceedings were not ready despite their claim that they were ready. M/s Kawanga and Kasule Advocates also received no response from the ; High Court.

Mr. Ndozireho further deposes that during 1986, he used to check at the High Court and ^Enquire verbally about the position of proceedings only to be told that the file was missing. He therfore denies that his firm or that of Kawanga and Kasule Advocates are responsible for the delay or failure to procure the record of proceedings from the High Court.

This application under r. 80 of the Rules of this Court which provides:-

"A person on whom a notice of appeal had been served may, at any time, either before or after the institution of the arreal apply to the Court to strike out the notice or the appeal; as the case may be, on the ground that no appeal lies or that some essential step in the proceedings has not been taken or has been taken within the prescribed time."

Mr. Kayondo for the applicant submitted that for the last two years, the appellant a had done nothing to enable thim take the essential step in the proceedings of lodging the appeal within the prescribed period of sixty days. He arqued that it is the duty of the appellant to take necessary steps to prosecute his appeal. He contended that he was able to @btain the record of proceedings because he was vigilant while $\overset{\text{Counsel}}{\text{ }}$ for the appellant ras negligent. He submitted further that since herwas able to procure the record of proceedings, it means that the record was ready. Since no application had been made for extension of time, Counsel contended, the appeal should be struck out or considered to be withdrawn.

Mr. Ndozireho who strongly opposed the application submitted that the essential step which the appel ant was required to take was to apply for a copy of proceedings and that this step had been taken by his letter dated 25th September, 1984. He pointed out that he wrote even another letter on 6th June, 1985 asking the Deputy Chief Registrar for a copy of the proceedings and a certificate r.81. He had gone personnally to the High Court Civil Registry and seen the stencils on which proceedings were typed and had been informed that they had not been corracted. Even M/s Kawanga and Kasule Advocates. had written to the High Court requesting for a copy of proceedings. Counsel for the appellant submitted that having taken those essential steps the appellant was protected by the proviso to r.81 of the RuleSof the Court.

$\mathsf{2}$

An appeal to this Court is required by r. 81 to be instituted within sixty days of the date when the notice of appeal was lodgej/ by filing in the registry the appropriaye documents which include a memorandum of appeal and a record of appeal. Where an application for a copy of proceedings in the superior ourt has been made within thirty days, the time required for preparation of record is excluded when computing the time within which to file the appeal. The Court has power under 4r.4 of the Rules of the Court to extend time in which to appeal where suffucient reason has been shown.

*5*

The proviso to r,8l (1) which Counsel for the appellant relies provides,

/made "Provided that where an application for a copy of the proceedings in the superior Court has been/within thirty days of the date of the decision against which it is to appeal, there shall, in computing the time within which the a peal is to be ^instituted, be extended such time as may be certified by the Registrar of the Superior Court as having £een Required for the prepara tion and delivery to the appellant of such a copy"

Mr. Kayondo learned Counsel for the applicant submitted that the above proviso could not be relied on by the appell nt because he did not comply with Sub-rule(2) of r.8l which provides,

> "An appelJ.lant shall, not be entitled to rely on the proviso to sub-rule (1) unless his application for such a copy was in writing and a copy of it was sent to the respondent."

Mr Kayondo pointed out that the letter by Counsel for the appellant requesting for a copy of proceedings was not copied to the respondent.

As AU ER ⁵³⁷ (1936) A. C, JOCX quoted with approval in Commissioner of Transport V. Attorney General of Uganda (1959) E. A. 329, I accent the submission of hr. Kayondo that it is the duty of the appellant to take all necessary steps to prosecute his appeal, the Privy Council said in Ribeiro V. Siqueira & Facho (1936) 3

> opportunity if not "There can bo no doubt that the appellant had a duty in the event of desiring to appeal to take steps to have the judgment of August 1? 1932 drawn up in the

> > A

from the Decree. The Court of Appeal say, "Once the judgment was delivered he (the appellant) could and should have taken steps to ensure his appeal being within time, and having failed to do so, there are no special circumstances which would justfy our granting the application".

The substantial issue for determination is therefore, whether the appellant has taken ths necessary steps to prosecute its appeal. It is common .ground that the appellant requested in writing for a copy of proceedings by the letter of 25th September,1984 and that this request was made within thirty days of the judgment of the High Court delivered on 29th August,1984. There are other subsequent letters which counsel for the appellant wrote to the High Court requesting for a copy of the proceedings but with no response.

I have looked at the original, case file in the High Court and found that all the correspondence referred to by both Counsel are on record. I cannot, therefore, accept Mr. Kayondo's contention that the letters written by Counsel for the appellant may not have been received by the High Court. Indeed, all along Counsel for the applicant had been aware of the appellant's in obtaining the record of proceedings from the High Court, and he even volunteered information that the record was then r\*\*\$dy. I do not, therefore find that the failure to copy to the applicant/respondent the first letter requesting for a c py of the proceedings caused him any prejudice.

are still handwritten, notes on the file, applicant secured a is not certified by the liegictrar of the High Court. circumstances, I am left ewith no alternative but to conclude that Furthermore, Mr. Ndozireho's claim that he used to cheek personally at the registry of the High Court for the proceedings only to be told that they were not ready, has not been refuted. Mr. Ndozireho also c^aim that he had seen proceedings typed on stencils and pending correction. The original case file however, contains only duplicated copies of the Judgment. The Judge's notes and there-, ys no typed copy, of these It remains a mystery how learned Counsel for the copy of the typed proceedings which unfortunately In these

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the typed proceedings of the lower court have never been ready for delivery to the appellant.

The Registrar of the f'i^h Court has failed to certify the time required for the preparation of the record. It may be that he is not in a position to estimate the period to be excluded in computing time with which to file the record of appeal, until the record is ready • In my opinion however, he ought to have responded to the letters of Counsel .for the requesting for the proceedings so that the appellant was informed of the true position regarding the preparation of the record of proceedings. This was necessary especially in view of the claim by Counsel for the applicant/respondent that the proceedings were ready.

It is of proceedings to enabl a state of affairs to be deplored. In my Judgment, the appel.'ant tyas exercised all due diligence in taking the necessary steps to prosecute the appeal byut was frustrated by the inordinate delay of the Sigh Court in preparation and delivery to him the record of proceedings as required by law. Unfortunately, this is one o f the many cases whei4^ the appeals cannot be prosecuted due to the failure of the High Court to type^ out record appellants to lodge their appeals. It would be X denial of justice if parties were to be penalised for the shortcomtn ; of the Courts. In this connection, I think that the words of Sir Trevor Gould Ag. V-P in the case of fihatt V. Te jyc.t Singh 919^2^ EA ^97 at P.^98 are a useful reminder,

> ''This is merely an example o^ a case, now of frequent occurrence in which the intending appellant is unable to lodge his appeal within the period of sixty days allowed by r.58 of the rules of this court, because through pressure of work, the Supretn? Court is unable to complete in time the typing of the copies of the notes and proceedings or other documents which form a necessary part o^ the record of appeal. -Lf the intending appellant (in the ordinary case by his legal representatives) has exercised all due diligence aad done all in his power to obtain the necessary copies of documents in time, but has been prevented from doing so because the Supreme Court has not been able to supp'y them, it would in the absence of other special circumstances be a denial cf justice not to extend the specified

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G» ... /6

period. He would be deprived of his right of appeal, which in the tyfe of case now under consideration is an absolute one, through the circumstances which through the faults of no-one, are attributable to the Courts and beyond the intending appellants control5,.

with costs. For the reasons I have given, I would dismiss this application I would direct the High Court to expedite preparation of the record of proceedi-j,?s to enable the appellant to lodge his appeal.

3RD JULY Dated at I'lengo this day of ¹⁹⁸⁷

:gd: J. ODU<I JUfiCL CF IP'. FAL

eep.

Mr. E. F. S^mpebwa holding brief for M/S Kayondo & Co., Advocates. Counsel fou. the respondent absent. Respondent absent.

I certify that this is a true copy of the Original.

R.1.3. OYOIT REGISTRAR COURT CF

AT lEFGO

(CORAM: MANYTNDO V-P, LUBOGO AG.-'. A, & CDOKI J. A)

CIVIL APPLIC TION NO. 6 OF 1986

bet ;; 3. ^E ^N

PLAXEDA SEMBATYA NAKIWALA RESP APPLICANT

A N D

LIBYAN ARAB UGNADA BANK FOR FOREIGN \R DE.... ..*.*. RESPONDENT

(Appeal from the Judgment and Decree of the High Court (Kantinti J,) dated 14th Setember,1984

in

Civil Suit Eo» 422 of 1983

## RULING OF MANYINDO, V-P.

I have had the advantage of reading in draft the Judgment prepared by Odoki J. A. I agree with it entirely as well as the proposed order for costs, and as Lubogo Ag. J. A agrees, this application is dismissed with costs to the respondent.

3rd July Dated day of ¹⁹⁸⁷ at Kongo this

Sgd; S.l. KANYINDO

VICE •I'FNT

I Certify tha: a 1. UN-ORIGINAL R. OYOir I. S. *hl* **Bi** Registrar Courvxu Appeal K<mj^ala. / ^I Date... Q.

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## IN THE COURT OF AIRPAL

## $AT$ 1. NGO

CORAM: MANYINDO V-P, LUBOGO AG. J. A. & ODOKI J. A)

CIVIL APPRICATION NO. 6 OF 1986

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PLAXEDA SEMBATYA NAKITALA................................... LIBYAN ARAB UGANDA BANK FOR FOREIGH TRANZ....................................

> (Appeal from the Judgment and Decree of the High Court (Kantinti J) dated 14th Setember, 1984

> > $ln$

Civil Suit No. 422 of 1983

JUDGMENT OF D. L. J. LUBO O AG. J. A.

I have had the opportunity of reading judgment of Odoki J. A. in draft and I agree with it and orders made thereunder.

Da:ed at Mengo this....................................

Sgd: D. H. K. LUBOGO AG. JU TICE OF APPEAL

I Certify that. **CRIGINAL** A Registrar Court c. Appea Kampala. 1987 Date... O

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