[2016] UGCA 104

# ⁵ THE REPUBLIC OF UGANDA

#### IN THE COURT OF APPEAL OF UGANDA

#### AT KAMPALA

## MISCELLANEOUS APPLICATION NO. 23,8 OF 2015

¹⁰ (Arising out of Court of Appeal Ciuil Appeal No. 147 of 2015, itself arising from HCCS No.445 of 2011) Stanbic Bank (Uganda) Limited Applicant

#### YERSUS

| 15 | 1. Ssenyonjo Moses | | |----|---------------------|---------------------------------------------------------------------------------------------------------| | | 2. Nakibuuka Nusu1a | : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : Respondents |

### coram: Hon. Justice Remmy Kasule, JA sitting as a single Justice

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### RULING

The applicant, a Commercial Bank, through this application seeks orders that the time within which to file and serye the Notice of Appeal to this Court against the decision of the High Court in HCCS No. 445 of 2O11 (Ssenyonjo Moses and Another vs Stanbic Bank uganda Limitedl delivered on 22.o6.201s, be extended, the Notice of Appeal already filed in this Court be validated and costs of the application be provided for.

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bo The application made under Rules 212l,, 5 and 43 of the Rules of this Court is supported by an affidavit deponed to by advocate Joseph Luswata of Sebalu & Lule, Advocates for the applicant.

The respondents through an affidavit in reply deponed to by the l"t respondent opposed the application.

3s At the hearing, Counsel Patson Arinaitwe represented the applicant while counsel Robert okalang was for the respondents.

The background to this application is that the respondents sued the applicant in HCCS No. 445 of 2OI. L (Commercial Divisionf seeking a number of reliefs arising out of a transaction whereby the 40 applicant, through a leasing agreement, advanced money to the respondents to purchase two (2) passenger carrying Scania buses. The respondents were to re-pay the money advanced in monthly installments during a period of 48 calendar months commencing 06.08.09. The respondents took possession and use of the buses 4s and the applicant deducted moneys from the respondent's accounts with the applicants, by way of repayment.

Later, the applicant asserted that the respondents were in arrears of their due paymnents, seized the two buses and sold them through public auction at the end of March, 2olL lnspite of the sale, the applicant still remained demanding shs. 133,10g,g02.5g= from the respondents as money still owing.

The respondents, asserting that the applicant had fraudulently tricked them to sign the contract leasing documents which they did

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not understand as the sarne were in the English 1anguage, in respect of which they were illiterate, contended that the applicant had defrauded them. They thus sued the applicant, who denied the claim and counter-claimed against the respondents for the sum of shs. 133,108,802.58=.

The High court, (Adonyo, J.,) heard the case and delivered oo Judgment on 22.06 .20 1 5. The learned Judge held that the applicant acted in the whole transaction contrar5r to the interests of the respondents. He thus entered Judgment for the respondents against the applicant. The applicant was ordered to pay to the respondents US \$ 54,000= being the respondents, contribution to 6s the purchase of the buses, refund all moneys deducted from the respondents' account for payrng for the buses, refund shs. 83,000,000=being vAT deductions, and pay shs. 30,000,000= assessed as general damages and also pay interest on the said amounts. The applicant's counter-claim was dismissed and the 70 applicant was to pay the costs of the suit and those of the dismissed counter-claim. Dissatisfied, the applicant appealed against the said Judgment to this Court under Civil Appeal No. 147 of 2015.

The applicants' Counsel filed the Notice of Appeal in this Court on 14. O7.2015, whereas under Rule 76(2llof the Rules of this Court the same ought to have been lodged by the 06.0Z.2015. Hence the Notice of Appeal was lodged out of time by some z to g days.

It is the applicant's case that through an inadvertency by the said Counsel who represented the applicant at the hearing of HCCS No. 445 of 2o^11, it was not possible for the applicant to file in time the Notice of Appeal intending to appeal against the decision in HCCS No.445 of2O11.

The inadvertency was committed by Counsel Joseph Luswata also of Messrs Sebalu & Lule, Advocates, who represented the applicant 8s at the hearing of HCCS No. 445 of 2O11. Through an affidavit in support of this application, Counsel Joseph Luswata asserted that he attended Court on 25.04.2015 representing the applicant for the hearing of the said case. At the end of taking testimonies of defence witnesses on that d"y, the trial Judge, His Lordship H. P. Adonyo, eo directed that written submissions be filed by Counsel for the respective parties on the dates that were set out by the trial Judge.

It is what exactly the learned trial Judge ordered after setting out the time lines for filing in and senring the written submissions by the respective Counsel, that becomes material in this application.

es According to the then applicant's Counsel, Joseph Luswata, what he heard the trial Judge state in Court is that the learned Judge adjourned the case for mention on22.06.2015. On that date he did not attend Court because he was engaged in two other cases before the High Court, Commercial Division. He was thus not aware that 1oo Judgment had been delivered on that day against his client, the applicant, until he read a newspaper article reporting about the Judgment in the New vision newspaper dated L3.oz.2ors.

However, according to Counsel for the respondent, and the Court record supports him, the trial Judge specifically adjourned the case for Judgment on 22.06.2015 at 11.00 O'clock, and this date was frxed after Court had first ascertained from all Counsel present that the date was available and convenient to all Counsel.

The applicant thus contends that, in the circumstances, the failure to Iile the Notice of Appeal and serve the sa.me in time was due to 110 the mishearing by the applicants' Counsel, Joseph Luswata,of the trial Judge as to what was to happen in the Suit on 22.06.2015, and being engaged in other cases before other Judges in the High Court, Commercial Division by his then sarne Counsel, Joseph Luswata, or that day of 22.06.2015. Whatever Counsel Joseph 11s Luswata failed to do or did improperly should not be visited upon the applicant as the client. The applicant thus prays that the time within which to file and selve the Notice of Appeal intending to appeal against the Judgment in Hccs No. 44s of 2oI.]- be extended and the said Notice of Appeal already filed in Court and Lzo served upon the respondent be validated.

The respondent opposed the application on the grounds that no representative of the applicant had asserted, either through an affidavit or othenuise, to the effect that the applicant was not at fault and should therefore not be visited with suffering for the mistake of the then applicant's Counsel, Joseph Luswata. Respondent's Counsel further contended that the affidavit supporting the application was deponed to by the applicant,s then

Counsel, Joseph Luswata, and not by any authorized representative of the applicant. Thus, there was no explanation from the applicant why some other lawyer from Ms. Sebalu & Lule, advocates for the applicant, did not attend Court on 22.06.2015, if Counsel Joseph Luswata, who was aware of the date, even if for mere mention of the case as he claimed, was busy in another Court.

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135 This Court has carefully considered the pleadings, submissions and authorities availed by respective Counsel for the applicant and the respondents.

In resolving this application, it is appreciated that Rule S of the Rules of this Court provides that the Court ffioy, for sufficient reason, extend the time limited by the Rules or by the decision of Court for the doing of any act authorised or required to be d.one, whether before or after, the expiration of the time within which the act had to be or had been done.

Rule 5 thus places upon the applicant seeking the extension of time the burden of satis\$ring Court, to which the application is mad.e, 745 that there is "sufficient reason" as to why the extension of time should be granted. In turn, the Court determining the application, must, in the judicious exercise of its discretion, determine whether or not the grounds advanced by the applicant in support of the application amount to sufficient or insufficient reason to grant or 1so not to grant the extension of time. The Court does so by taking the relevant circumstances into consideration, and where the matter was first handled in a lower Court, then the appellate Court will

also consider and note what the lower Court considered and what it did not. see: supreme court (ugandaf civil Appeal No. 20 of 1995: sepiria Kyamulesire vs Justine Bikancwika Bagambe

and also

supreme courtl (uganda) civil Appeal No. L4 of 2ool capt. Philtp Ongom vs Catherine Nyero Owota

and also

160 :Mugo & Others vs Wayiru & Anothet ll.g70] EA 481

and

:Njogi vs Munyiri [19751 EA 179.

165 The rationale for the Rule was expounded upon by the Uganda supreme court in civil Appeal No. s2 of l99s: urEx INDUSTRTES LIMITED v ATToRNEY GENERAL when the court stated:

> 6To aaold delags, Rules of coura, proulde q. tlmetable nithtn ru.hlch certaln steps ought to be to,ken. For ang delag to be excused, lt must be explalned satlsfactorllgr.

770 The same Uganda Supreme Court had earlier on in civil Application No. 7 of 1990: Attorney General vs orient Constructions Company Limited stated that where a period of delay for doing an act is great, then the Court must scrutini ze the facts of the application more carefully so as to be sure that

- L7s sufficient reason can be given for the extension of time. The Court insisted that for the applicant to succeed there must be adequate excuse for the delay or the interests of justice must be such as to require the indulgence of the Court to enlarge time upon such terms as the Court may consider. - AIso Article L26l2llet of the Constitution enjoins Courts of law to administer substantive justice and this places a duty upon the Court entertaining an application for extension of time to examine all the circumstances of the case before rejecting or allowing such an application. 180 - 185 The applicant seeks not to be made to suffer the consequences of the errors of his then advocate Mr. Joseph Luswata, a member of the Law Firm of Messrs Sebalu & Lule, Advocates still representing the applicant.

190 This lawyer claims to have misheard the trial Judge as stating that HCCS No. 445 of 2O15 in which the applicant was defendant, had been adjourned for mention on 22.06.2015. The true position, as the Court record of the case clearly shows, is that the learned trial Judge adjourned the case to that date for delivery of Judgment.

195 The second error by the same Counsel, Mr. Joseph Luswata, was that on22.06.2015, he did not appear before the trial Judge in that case whether for mention or othenrise, and yet he was aware of that date. He also made no attempt at all for another Counsel, whether from his firm or elsewhere, to attend Court on behalf of the applicant on that date in the said HCCS No. 445 of 2O15. Instead, 2oo on that d"y, the said Counsel appeared in two other cases before the High Court, Commercial Division. He took no steps at all on that d"y, or soon thereafter, to find out what had happened in the applicant's case HCCS No. 445 of 2O15. The said Counsel claimed that he only ca.me to know that Judgment had been passed against 2os his client, the applicant, in Hccs No. 445 of 2ol5, when he read about the same in the New Vision newspaper of 13.07.2015. By that time the statutory period within which to file the Notice of Appeal had already expired.

- The respondent's contention is that this application ought to be 2Lo dismissed for lack of merit because Counsel Joseph Luswata, having been Counsel for the applicant at the material time, whatever mistakes he made were also the mistakes of the applicant and as such the applicant has to equally suffer the consequences of those mistakes. - ²⁷⁵ The general principle of law is that a litigant represented by an advocate is bound by the acts/omissions of his/her advocate in the course of the representation: See: Supreme Court (Ugandaf Civil Appeal No. 14 of 2oo1: capt. philip ongom vs catherine Nyero Owota (Supra), and also: - court of Appeal (Ugandal Civil Appeal No. 67 of 2oo3: Handon Daniel vs Yolamu Egondi. 220

However, the application of the above principle is not wholesale in that it does not indiscriminately apply to every situation wherever and whenever an advocate fails to carry out or carries out some act negligently or wrongly or for some other cause. Courts of law have, over time evolved a jurisprudence where the litigant, depending on the special circumstances of each case, may not be visited with suffering resulting from the act or omission of his/her Counsel.

The application of the stated general principle must not be at the 230 suffocation and stifling of the applicant's right to a fair hearing in the determination of the civil rights and obligations or any criminal charge under Article 28(1) of the Constitution. Accordingly, unless the facts of a particular case dictate otherwise, in the normal course of events, the consequence of a mistake by an advocate, though 23s negligent, may not be visited upon the litigant. In the Sepiria Kyamulesire's case, (supra) Karokora, JSC (as he then was) stated:

33rt l.s ln,oa) settled, that etrors o.,f omlsslon bg counsel are no longer cottsldered to be fatal to an appl#,catlon under Rule 4 of the Rules o, thls court untess there ls euldence that the appllcant wo,s gullty of dllatory conduct ln the lnsttttctlon of hts lanoger.o

Courts of law have also to consider the fact that a citizen's right of appeal should not be blocked on the mere ground that the lawyer who is properly instructed in a matter and in time, has failed, through negligence or otherwise, to take some essential steps

necessarJr to prosecute the cause on behalf of the client. Were that to be the case, then justice would not be dispensed. Thus ^a mistake by an advocate, though negligent, may be accepted as sufficient cause once no dilatory conduct can be attributed to the client in the instruction of his/her lawyer. See: SHABIN DIN V RAM PARKASH ANAND [1955122 E,ACA 48

255 260 In applying the general principle of the litigant being bound by the acts/omissions of his/her Counsel in the course of the representation, Courts of law must not lose sight of the necessit5r to avoid abuse of the legal system resulting into unjust and I or ridiculous results. A litigant ought not to bear the consequences of the advocate's default, unless the litigant is prl\y to the default, or the default results from failure, on the part of the litigant, to give to the advocate due instructions.

Whether or not the applicant has a cause of action against his/her former advocate, in respect of what that advocate failed to do or did. negligently or wrongly, is immaterial and/or irrelevant to the issue whether or not the applicant should be made to suffer the consequences of what the advocate failed to do or did negligently or wrongly. See: Sepiria Kyamulesire's case (Supra).

when an award of adequate costs would compensate for any inconvenience that might be caused as a result of the conduct of such an advocate and thereby no injustice would be occasioned, then the award of costs should be resorted to. ²⁷⁰

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However, failure by a litigant to instruct Counsel to pursue a cause and that failure results into adverse consequences to the litigant, cannot amount to sufficient cause, and the litigant must suffer the consequences of what his/her Counsel has failed to do or has done by reason of the litigant's failure to instruct the Counsel: See: MITHA v LADAK: [1960] EA 1os4.

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Likewise the general principle that a litigant is bound by the Acts/omissions of his/her Counsel will apply where such ^a Counsel draws incompetent pleadings, submits them to Court and relies upon them: See: Capt. Philip ongom vs Catherlne Nyero owata (supra) and Handon Daniel vs Yolamu Egondi (supra).

The above stated general principle will also apply in respect of situations where, by law, a requirement has to be complied with or a restriction is imposed and the lawyer for the litigant acts contrar5r to the law setting up the requirement or restriction. For example, statutory limitation provisions of law are in their nature strict and inflexible with the purpose that litigation has to stop after expiry of a fixed length of time. A litigant \Mill be bound by the act/omission of his/her lawyer who fails to act appropriately with the limitation provisions of the law: See: HILTON VS SUTTON STEAM LAUNDRY 11946l IKB 61 at 81.

Further, in Court of Appeal Parliamentary Election Petition Appeal No. 31 of 1996: Jesse Gulyetonda vs Henry Muganwa Kajura, the litigant was held to be liable for the act of his lawyer of filing the Election Petition in tJ:e wrong Registry of Court, when the

law on elections mandatorily required that the petition had to be Iiled through a specified Court Registry depending on the situation of the Constituency whose election was being questioned in the petition.

3oo Bearing the above set out principles in mind, in this application, it is not in dispute that the applicant's Counsel, Joseph Luswata, was not only negligent but also very incompetent and careless in the way he handled the applicant's case on 22.06.2015 and thereafter. Whether the trial Judge adjourned the case to that date for 3os mention, which Counsel Luswata asserts is what he heard, or for delivery of Judgment, which is what actually the trial Judge announced, there is no reason given to this Court as to why Counsel Joseph Luswata did not make necessary arrangements for some other Counsel, or a representative from the applicant, to 310 attend Court on 22.06.2015 to be able to know what would transpire in Court on that day.

315 Counsel Joseph Luswata in his affidavit in support of the application does not state whether or not he ever informed the applicant, in writing or otherwise, that the case had been adjourned to 22.06.2015 whether for mention or some other reason. The respondents themselves do not show, let alone, claim that the applicant knew that the case had been adjourned to 22.06.2015. It has not been shown, for example, that when the date of 22.06.2015, was being fixed in court, apart from Counsel Joseph ³²⁰ Luswata, there was a representative of the applicant in

to

note down the date of 22.06.2015 to which the case was adjourned. It is also not claimed by the respondents, and no evidence was adduced at all, to the effect that the applicant, other than through Counsel Joseph Luswata, could have known that Judgment had been delivered in the case on22. O6.2OLS.

This Court, on appreciating all the facts pertaining to this application, and being guided by the principles herein set out above, finds and holds that there was no negligence, let alone dilatory conduct on the part of the applicant, as regards the 330 conduct of their Counsel, Joseph Luswata, when he failed to do what he was supposed to do as counsel for the applicant.

The respondents' Counsel has submitted that since the application is only supported by the affidavit of Counsel Joseph Luswata and there is no supporting affidavit from a representative of the 33s applicant, therefore the application is without the instructions of the applicant and as such it ought to be dismissed.

340 This Court is unable to agree with that submission. It is not in dispute that the applicant, a commercial Bank, was represented by Messrs Sebalu & Lule, Advocates, in Hccs No. 44S of 2011. It is also not denied that, at all material time, Counsel Joseph Luswata was and still is a member of Messrs Seba1u & Lule, Advocates. It is the sa.me firm of lawyers that Counsel Patson Arinaitwe who represented the applicant at the hearing of this application also comes from. The above being the case, it becomes merely speculative of the respondents to submit that this application ³⁴⁵ is

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without the instmctions of the applicant. The submission stands rejected.

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Having appreciated the law and the facts of this application, this Court finds and holds that Counsel Joseph Luswata, was grossly 3so negligent and incompetent in what he did and failed to do, which resulted in the Notice of Appeal being filed out of time. However, there was no dilatory conduct or other type of conduct, on the part of the applicant, that would make the applicant to suffer the consequences of the negligent and incompetent acts and/or 3ss omissions of Counsel Joseph Luswata.

Accordingly this application is allowed. The time within which to file and serve the Notice of Appeal against the Judgment of His Lordship Hon. P. Adonyo in HCCS No. 445 of 2OI.]- delivered on 22. O6.2OL5 is hereby extended and the same is also hereby 360 validated so that as from the date of this Ruling the same is to be taken as having been properly filed in this Court. For the sake of completion, since both Counsel for the applicant and respondents, are also agreed that the applicant has already filed the Memorandum and record of Appeal in this Court, namely Civil 35s Appeal No. 147 of 2O15 against the Judgment/decree in HCCS No. 445 of 2O11, the said Appeal No. 147 of 2O15 is also validated so that the next steps to be taken are to effect senrice and file appropriate pleadings within the time set by the Rules of this Court, where these have not yet been filed and served, so that the appeal ³⁷⁰ proceeds to hearing at the earliest possible.

' As to costs, this Court notes that the conduct of Counsel Joseph Luswata, who personally attended these proceedings throughout, as set out in this Ruling is most regrettable. He offered no explanation for his regrettable conduct. He must in the considered view of this 37s Court personally bear the costs of this application. He is thus ordered to personally pay to the respondents the costs of this application. Should the quantum of costs be agreed upon between Counsel Joseph Luswata and Counsel for the respondents, within 7 days from the date of this Ruling, then the same must be paid in 380 full within a period of thirty (30) days from the date of the agreement. If there is no agreement reached within the said seven (71 days, then Counsel for the respondents is to submit in this Court a Bill of Costs for taration, and once to<ed, Counsel Joseph Luswata, is to pay in full the taced costs within a period of thirty 38s (30) days from the date of the Ruling on ta<ation. Otherwise execution is to issue against him personally.

It is so ordered.

Dated at this SOth day of March, 2016 Hon. Justice Remmy Justice of Appeal aaaaaaaaaaaao a aaaaaaaaaaa

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