[1999] UGCA 30

# THE RFEPTIBLIC OF UGANDA IN THE COI. IRT OF APPEAL OF TIGANDA HOLDEN AT KAMPALA

# CORANI: HON. NIR. JUSTICE S. G ENGWALI, JA.

# CIVIL APPLICATION NO.6I OF 1999

### WESTMONT LAND (ASIA) Bh,D: : : : : : : : : : : : : : : : : : : : : : : : :: : : :APPLICANT

#### VERSTIS

I THE ATTORNEY GENERAL OF UGANDA}

#### ) TIGANDA COMMERCIAL BANK }:::RESPONDENTS

#### RT]LING OF ENGWAU . IA.

o

This application is presented by Notice of Motion under rules 4 and, 42 of the Rules ofthis court and section 13 (l) ofthe Judicature Act 1996. It seeks an order that the time for filing an application for leave to appeal be extended. The applicant had applied for leave to appeal in the High Court and the application was refused on 17l8l99 on the grounds that no sufficient reason had been shown and that the applicant had stubbornly refused to file a defence and hence had no locus to be heard. The application for stay of execution was also rejected because there was no security by the applicant for satisfaction of the due performance of the decree obtained from tlre default judgrnent.

After the rejection of the application for leave to appeal to this court on 1718199, the applicant was required to file an application in this court by 3ll8l99 (within fourteen days) but that was not done because the applicant was allegedly prevented by sufficient cause. The reasons for the delay according to Mr. Mubiru-Kalenge for the applicant are that the applicant gave instructions to appeal on l2l7l99 but the counsel for the applicant in their wisdorn and judgment could not effect the instructions because to appeal they had to apply for leave to appeal and also to apply for stay of execution.

o

Mr. Mubiru-Kalenge subrnitted that they could not apply for leave to appeal and at the same time apply for stay of execution because by that time they did not have speciflc instructions relating to security for the satisfaction of the due performance of the decree. The instructions which would satisfo the requirement lor a stay fbr execution were given to the counsel on l4l9l99 and tlre application was filed in this court 1619l99 (within two days only). It was their subrnission, therefore, tlrat the failure to file the application for Ieave to appeal and stay of execution before concrete instructions were given to the counsel by the applicant relating to the satisfaction of the decree, is a rnatter based on counsel's judgment of the circumstances of the case. Should it turn out that counsel for the applicant who insisted on specific instructions on security for performance of the decree, erred and rnisled the applicant, this error should not be visited on the applicant. See'. The Executrlt o the eslole o the late Christine Mar Namotovu Teba ukira & Anor Vs. Noel Grace Sholito Stunanzi, supre,ne Court-Civil Application No. I of 1988 I1992 - 1993l HCB 85. See also: C A C. A No. I of 1999, IJan ankole Kwelerunu Co-o erolive Union Ltd. Vs John Katsiko (unrenorled) and C.;|. C. A. No. -ll of 1999, The Monogetnent Cottttnittee Ruha a Girls Scltool Vs. Dr. Buro i Kttrr ere ^I lt ttr orted . Learned counsel subrnitted, therefore, that in the instant case where the delay was short, the applicant should not be shut out from pursuing his appeal bearing

in rnind that the applicant is based in Malaysia, thousands of rniles away while its shareholders and directors are scattered in England, Singapore and Malaysia. In addition, the applicant should in the interest ofjustice be given a chance to be heard on appeal on matters sorne of which are of great public irnportance and concern being diversture of the biggest Cornrnercial Bank in the country and the subject matter of which involves colossal amounts of rnoney of over Shs. 35br/:. There are also crucial matters of statutory interpretation involving the Arbitration Act and the effect of the new @[ Procedure Amendment Rules 5.1 26 of 1998.

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Learned counsel further submitted that it is now well settled that where the reason for the delay is attributable to the counsel, court will in most cases grant the application. However, where the delay is attributable to the applicant herself, she has to furnish sufficient cause for the delay. In the present case the delay was occasioned by a multiplicity of reasons already stated but the overriding one being counsel's insistence that security for the due perfonnance of the decree be put in place as a condition to counsel's pursuit of the application for leave to appeal in this court. However, the applicant in this case is not guilty of any dilatory conduct because there was sufficient cause in that she had to raise security for due performance of the decree for over Shs. 32bn/: and not Shs.200,000/: as submitted by counsel for the respondents. Rules 104 and ll2 of the Rules of this court are therefore irrelevant. In any case minimum delay may be condoned where the reason for the delay is understandable lapse due to human fallibility. See Haii Sekaiia Vs Farida Sood, Civil Application No. 27 of 1993.

On the other hand, Dr. Sernpasa, learned counsel for the respondents argued that tlre applicant had applied for leave to appeal in the High Court and the application was rejected because the applicant had stubbornly refused to be party to the proceedings. The application for stay of execution was also refused because the applicant had failed to furnish security for the due satisfaction of the decree. Both applications were struck out on l'718199 and, the applicant had fourteen (l4) days in which to seek leave from this court to appeal. That time lirnit expired on3118199.

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It was the contention of Dr. Sernpasa that the applicant was repeatedly advised by its counsel of the need to appeal and furnish security at the very earliest possible opportunity. The applicant, however, dilly dallied, was indecisive, indifferent or disinterested in pursuing the appeal until its 49% slrares in the Uganda Cornmercial Bank were advertised for sale that it authorised their local lawyers to pursue the appeal but that was two rveeks too late. He stated that the general rule of guidance on this matter is that in exercising its discretion under rules 4 and 42 of the Rules of this court, the court rnust first establish that the applicant's own dilatory conduct is not the reason for expiration of the tirne limit prescribed by the rules. See: Shanti Vs. Hindocha & ors I1973l EA. 207: Bhott Vs. Teiwont Sinsh 11962l EA 587 and Florence Nabatanzi Vs. Naama Bansobedde, Suoreme Court, Civil Aoolication No. 6 of 1987.

Dr. Sempasa submitted that in the instant case the delay has been caused by indecision, vacillation, incertitude and lack of interest by the applicant in prosecuting her appeal. Learned counsel was of the view that there is no good reason whatsoever wlry after counsel had received express instructions

to appeal as far back as 1217199, the applicant could not have provided the necessary fi"rnds to enable the application to seek leave to appeal from this court to be filed tirnewisely.

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Dr. Sernpasa contended further that under the authority of Shanti (supra), the uncertainty of the applicant herself or indecision in furnishing the required security are delays for which the applicant herself is responsible and they do not constitute sufficient reason required under rules 4 and 42 of the Rules of this Court. In any case, under rule 104 of the Rules of this Court, the security for costs that is contemplated therein is a mere Shs. 200,000/: and rule l12 of the Rules of this Court provides for relief frorn payment of fees and security in the event of showing any disability. The learned counsel submitted that in those circumstances, this application ought to be dismissed with costs.

When the applicant failed to file its Written Statement of Defence, the trial court rightly, in my view, entered a default judgment in favour of the respondents. The learned counsel for the applicant rightly requested the trial court for an extension of time so as to put in a formal application for leave to file a late defence and for a stay of execution. The learned trial Judge granted an adjournment on the matter until 1417199. On tlris day, counsel for the applicant informed court that their client had expressly instructed them to seek leave for appeal instead of leave to file late defence. Miscellaneous Application No. 815 of 1999 was filed on 1217199, seeking leave to appeal as well as for a stay of execution in the High Court. It was heard on 418199 and on 17 18199 the trial Judge declined leave to appeal as the applicant had surbbonly refused to be party to the proceedings. The application for stay of

execution was also rejected because the applicant had failed to furnish security for the due satisfaction of the decree as required. The decree is for over Shs. 32bn/:. I find that the applicant in those circumstances was shrck unless it resorted to this court by way of an application for leave to appeal out of time.

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The crucial question is, has tlre applicant shown sufficient cause for the delay? In this case the delay was caused by a number of reasons: Firstly, the insistence by counsel for applicant that security for the due performance of the decree be put in place as a condition to counsel's pursuit of the application for leave to appeal in this court. See. Lawrence Musiitwa Kvazze Vs Eunice Businsve, Suoreme Court, Civil Application No. l8 of 1990 (unreported).

The applicant is based in Malaysia, thousands of miles away while its shareholders and directors scattered in different countries. The decretal amount stands at over Shs. 32 bnl-. The applicant had to raise sufficient funds for the due satisfaction of the decree. She cornplied with the requirernent two weeks later. Her counsel filed this application within only two days after receiving security for the due performance of the decree. ^I think that in those circumstances the applicant is not guilty of dilatory conduct and her counsel acted diligently. See: Civil Application No. 133 of 1999, Emilv Kinvera Vs. Eria G. Musisha, Court of Appeal (unreoorted). In the prernises, counsel for the respondents' subrnission that it is threatened execution which prompted this application does not hold water.

Secondly, even if the applicant were to blame for the delay, in my view, they have shown sufficient cause and it is in the interest of justice that she should be given a chance to be heard on appeal as the subject matter involves large amounts of money of over Shs. 35bn/=. It also concerns the divestiture of the biggest Commercial Bank in this country which is a matter of great public importance.

In the result I find that sufficient reason has been shown for the extension of time and I allow this application. The counsel for the applicant shall lodge the notice of appeal within seven days from today and then serve it upon the counsel for the respondents also within seven days from the day of lodging the same in the registry. I make no order as to costs.

Dated at Kampala this 23^rd<br>Dated at Kampala this 23^rd

S. G. ENGWAU

JUSTICE OF APPEAL.