[1993] UGSC 44

### IN THE SUPREME COURT OF UGANDA

AT MENGO

(CORAM: ODER, J. S. C.)

# CIVIL APPLICATION NO.5 OF 1993

#### **BETWEEN**

::::::::::::::::::::::::::::: APPELLANT SOLE ELECTRICS (U) LTD

AND

PATRICK MAKUMBI $1.$

:::::::::::::::::::::: RESPONDENTS

NAKIBUKA ENTERPRISES LTD $2.$

> (Appeal from the judgment of the High Court of Uganda (Egonda-Ntende J.) dated 15.7.1992)

> > IN

# CIVIL SUIT NOI 355 OF 1992

### RULING OF ODER, J. S. C.

This is an application under Rule 4 of the Rules of this Court for an extension of time in which to serve the record of appeal on the 1st and 2nd respondents or alternatively to validate the service of the record of appeal which was effected out of the prescribed time.

As set out in the Notice of Motion, the grounds of the application are that:-

- The record of appeal was not originally compiled and numbered $(a)$ properly, thus necessitating re-binding and re-numbering the record after it had been lodged at the Registry of the Supreme Court; 理路 - Counsel for the appellant negligently and/or inadventently. $(b)$ amitted to re-lodge the record after numbering and rebinding the record within the prescribed time; - (c) Counsel for the 1st and 2nd respondents are in breach of Rule 78 in so far as the counsel for the 2nd respondent has never lodged nor served on the appellant notice of address for service while counsel for the 1st respondent did lodge and serve the notice of address for service outside the prescribed time; and

after Mr. Kayondo's preliminary objection to the effect that the 2nd respondent had not been served with the notice of appeal. Accordingly, the hearing of the appeal was adjourned for the purpose of giving Mr. Mbabazi as the appellant's counsel time in which to prove that the notice of appeal had been served, which was his contention. Mr. Kayondo S. C. is therefore surprised that the present application is not related to the respondent's position that it had not been served with the notice of appeal. Instead the application is seeking leave to serve the record out of time. The affidavit also pointed out that blame is being laid on the Assistant Registrar and other officials of this Court in connection with the delay that allegedly occurrred, yet no affidavit from the Assistant Registrar and other Court officials has been filed to explain their versions $asserted$ of events. Finally Mr. Kayondo's affidavit asserts that the delay having been caused negligently or inadvertently by Mr. Mbabazi as counsel for the applicant no sufficient reason has been shown for the extension of time now being sought.

In his submission, Mr. Mbabazi, learned counsel for the applicant, said that it was his mistake that had led to the delay in serving the record in time. It had been inadvertently or negligently caused, not deliberate. He contended that such a mistake should not be visited on the applicants as his client; and that administration of justice required that the applicants should lenot be debarred from justice. For his contentions Mr. Mbabazi relied on the cases of The Executrix of the Estate of Christine Namatovu Tebajjukira vs Debora Namukasa vs Noel & Shalita Stanazi Civil Application No.8 of 1988(Supreme Court of Uganda) (unreported).

It is also contended that the failure to serve the record of appeal was due to the 2nd respondent's failure to serve on the applicants its address for service under Rule 78 of the Rules of this Court and the 1st respondent's service of his address outside

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the prescribed time. Mr. Mbabazi's third reason for seeking extension of time is that the 2nd respondent has lodged a crossappeal the fate of which is dependent on the applicant's appeal. If the latter is struck off the former cannot proceed. In the case of N & S Airport Services Ltd vs The Attorney General of Kenya (1959) EA53, existance of a cross-appeal was held to constitute sufficient cause to extend time under Rule4.

Thes application is opposed by both the respondents. Mr. Sendege learned counsel for the 1st respondent, did so for the reasons, first that blame is being laid on the Assistant Registrar of this Court, which is unjustified. On the contrary the applicant should have been grateful to the Assistant Registrar for having pointed out the error of lodging only four copies of the record of appeal instead of six. The learned counsel contended that the cause of the delay is that the record was lodged when it was unfinished. This was not a case of ordinary negligence or mistake. It was one in which the firm's law clerk, Wamala was the one sent to correct the record, not Mr. Mbabazi or another advocate who had professional responsibility for the conduct of the case.

Secondly, it is contended that the applicant was treating the Court with candour for having said different things when the appeal was called for hearing and at the hearing of this application as indicated by Mr. Kayondo's affidavit in reply. Thirdly, the applicant cannot have it both ways by invoking negligence on the part of his counsel the alleged and failure by the respondents to file their addresses of service as grounds for extension of time to serve the record.

In his submission, Mr. Kayondo, S. C. contended that the applicant ought to have made the record of appeal one of the documents in this application in order to show what transpired when the appeal had been called for hearing and the mistakes now being relied on as grounds for seeking extension of time.

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The record would also have shown that the 1st respondent had not been served with the notice of appeal, making it impossible for the 1st respondent to comply with Rule 78 of the Rules of this Court. regardinglodging and serving of notice of address for service by a respondent in an appeal. According to Mr. Kayondo it appears that the record of appeal was not lodged in time at all for even if only four copies instead of six had been lodged in time, one or other of the respondents would have been served in time. As it is, and in the absence of affidavit from the Assistant Registrar, it is not possible to know whether the delay was caused by failure to act in time or by only four copies having been lodged in the first place or because there were irregularities in the record. Moreover the affidavit in support of the application should not have come from Mr. Mbabazi. Affidavits explaining what happened should have come from the law clerk and secretaries - who are not named in Mr. Mbabazi's affidavit and from the Assistant Registrar. Regarding the 2nd respondent's cross appeal, Mr. Kayondo S. C. contended that it cannot be a ground for this application for, if the appeal is struck out, the cross-appeal would be withdrawn.

Finally, the learned S. C. submitted that the applicant not having shown whether there is a likelihood of success of the appeal, as it ought to have done so, the application must fail.

This application was made after the appeal to which it relates, Civil Appeal No. 28 of 1992 had been called for hearing and adjourned previously, when the counsel for the 2nd respondent had indicated that the repondent had not been served with the notice of appeal. In the circumstances I agree with Mr. Kayondo S. C. that the record of appeal ought to have been made a part of this application therpurposes, inter alia, of verifying what transpired on the occasion

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when the appeal was adjourned and matters referred to in Mr. Mbabazi's affidavit. But since the record is available in the Court's Registry and has been accessible to the Court, I do not think that the failure to attach it to this application is a fatal omission.

From the affidavit supporting this application, it does not appear to be clear when the record of appeal was lodged in the Court's Registry It was done either on 21/9/1992 when Mr. Mbabazi's law clerk took four copies of the record to the Registry, or on $6/10/1992$ when he completed the correction of amendments and rebinding of copies of the record at the Registry and they were released to him. The affidavit states that counsel inadvertently and by mistake forgot to "re-lodge" the record of appeal with this Honourable Court in order to enable the serving of the record on the respondents within the prescribed time of seven days. Rule 81(1) of the Rules of the Court provides for "lodging" of inter alia, the record of appeal; and under Rule 87 the appellant is required to serve copies of the record of appeal on the respondents within seven days after "lodging" the record of appeal. The rules do not provide for "re-lodging" of the record of appeal. The learned counsel did not explain what he meant by "re-lodging". However since the affidavit states that the record of appeal was served on the respondents on $6/10/1992$ it must be taken that the record was lodged at the Court Registry on 21/9/1992,<br>Garnice of the Record world world<br>Otherwise extension of time for or validation of the that was the date on which the record was lodged, then it was necessary to serve the respondents with the record on or before $28/9/1992$ . As this was done on $6/10/1992$ , the service was effected outside the prescribed time. Hence the necessity for extension of time or validation of the service.

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The causes of the service not having been done in time were, essentially, the initial preparation and delivery at the Court's Registry of only four copies of, and irregularities in the record of appeal. These with respect, are matters which should have been obvious to the learned counsel for the appellant. Rule $81(1)$ requires four copies of the record to be lodged. But in this case since there are two respondents and not one, it was necessary to prepare and lodge more copies. Similarly it appears obvious to me that had the learned counsel been more diligent in the compilation of the record it is likely that the irregularities in it would have been avoided. What happened in my view, appears to have been more than inadvertences on the part of the learned counsel. Consequently the crucial question to be decided is whether the mistake, or whatever else it may be called, should make the litigant suffer by having its appeal struck out because its counsel . served the respondents outside the prescribed time. On this point, this Court said this when reviewing a single Judge's decision which extended time for lodging a record of appeal in the recent case of N. Matovu vs Kiwanuka (supra). "... Nevertheless, it is difficult to see that lack of diligence does not operate in some degree in all mistakes. (Compare the opinion in Ngoni-Matengo Co-operative Marketing Union Ltd vs Alimohamed Oswam (1959) E. A. 577 and Getti vs Shoosmieth (1939) 3 All E. R. 916) In Getti's case it was said at page 920 that the reason for the appellant's failure to institute his appeal in due time, was a mere misunderstanding, deposed to an affidavit by the managing clerk of the appellant's solicitors. - a misunderstanding which to anyone who was reading the rule might very well have arisen. It was truly not only a legal misunderstanding, but it was a failure to check to find out the true meaning of the rule ..... It is important to remember that when dealing with Rule 4 of the Supreme Court Rules,

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the Court has a free discretion to determine what is sufficient reason, and that if an advocate has made a blunder it is important not to visit that blunder on an innocent litigant. We would entirely not. agree with the learned Judge, with respect, that damages is /usually a sufficient remedy.

..... Instead of finishing one piece of litigation, a litigant must embark on a second piece of litigation in suing his advocate. It is true that one has to bear in mind the delay that has been forced upon the successful party and indeed must weigh up all these circumstances. But damages can rarely be a satisfactory answer. if

In that case (Matovu) the court upheld a single Judge's extension of time to file the record of appeal which extension had been sought on the ground that the record which had been lodged earlier did not contain the decree in the suit. What the court said in the passage referred to above does not in my opinion mean that every application made under Rule 4 will always receive a positive decision by the court in the exercise of its discretion. Each case should be considered on its merit. Extension of time will be granted only where there are sufficient reasons to do so.

The court also said in that (Matovu's) case that on the one hand one has the necessity for following the rules and on the other hand there is need for the courts to control their proceedings and not to be stultified by the rules of procedure. It agreed with what Georges C. J. said in Essaji vs Solanki (1968) E. A. 218 at page 224 to the effect that the administration of justice should normally require that the substance of all disputes should be investigated and decided on their merits and that errors and lapses should not necessarily debar a litigant from the pursuit of his rights.

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I would however, add that what the court said there must be subject to the order I have suggested above in the application of Rule 4.

In the instant case it is apparent that after the mistake he had made was pointed out to him by the Assistant Registrar, the applicant's counsel tried to do all that was necessary to correct what had gone wrong and actually had the respondents served with the record of appeal. In the circumstances and applying the principles of Matovu in this case, I think that the applicant has shown sufficient reason to obtain the extension of time sought in the application.

I find no merit in the contention that the respondents had not been served with the record of appeal on time because they had not given notice of their addresses for service or had done so outside the prescribed time contrary to Rule 78 of the Rules of this Court. The simple reason is that the applicant in the end served the respondents, which it would not have if the addresses were unknown. As I have said, the cause of the delay on the applicant's part was its counsel's lack of diligence in preparing and lodging the necessary number of copies of the record of appeal and in failing to correct irregularities therein before the same were lodged.

With regard to what transpired when the appeal was called for hearing, I think that that is a matter which has no bearing on the merit of this application. Where a notice of appeal has not been served on the respondent under Rule 76 of the Rules of this Court, such an appeal would be incompetent and struck out, which can only be done by a full court. It follows, therefore, that an objection on the ground that a notice of appeal has not been served on the respondent can only be properly taken at or before the hearing of the appeal. That is what Mr. Kayondo S. C. did when the appeal was called for hearing.

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Considering all the circumstances of this case I think that the application should succeed. It is, therefore, allowed. The applicant is granted an extension of seven (7) days from the date of this ruling in which to serve both the respondents with the record of appeal. The cost of the application shall follow the results of the appeal.

Dated at Mengo this 5th day of April, 1993.

A. H. O. Oder

Justice of the Supreme Court

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