[1992] UGSC 27

# IN THE SUPREME COURT OF UGANDA

#### AT MENGO

(CORAM: . HON. E. E. SEATON, JUSTICE OF THE SUPREME COURT)

## CIVIL APPLICATION NO. 2/92

#### BETWEEN

ERNEST NDIWALANA KAKEMBO

ZAMU NALUMANSI applicants

AND

sulaiman lule . RESPONDENT

(APPeal from the decision of the High Court of Uganda at Kampala (Mrs. Justice Byamugisha) dated 21st December, 1990)

IN

### HIGH COURT CIVIL SUIT NO. 558 OF 1989

#### J. S. C. RULING BY SEATON,

It'^s necessity arose and to file the record of appeal put of time, in the following circumstances. This is an application to file Notice of Appeal out of time

Notice of Appeal therefrom was filed in 2nd January, 1991\* ByaMugisha in favour of the Respondent in the High Suit No. 558 pf 1989. On 21st December, 1990, judgment was delivered by the Ron. . Justice court Civil

According to R.8l(l) of the Rules of this Court (nR. S. C.n) the record of appeal should have been filed within 60 days from the date of.filing the Notice of Appeal, i.e. by 2nd March 1991» A copy of the record of appeal was requested by letter to the Registrar of the High Court dated J1st December, 1990.

Under Rule 81 (1) of R. S. C. a copy of such letter should have been ^R addressed to the espondent or his counsel. It was not so addressed because of inadvertence, according to the affidavit of Hr, Ignatius Malinga, from counsel of the applicants«

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Despite this omission and in erroneous belief that he was expediting the appeal process? Counsel Malinga had a Memorandum of Appeal drawn out of the original judgment and filed in May, 1991, while the record of appeal was filed on loth July, 1991-

This Court struck out both the Notice of Appeal and Memorandum °f aPPeal on January, 1992, partly because after filing the Notice thereof. of Appeal the appeal was not filed within 60 days from the date

. The second applicant, Mr, Ernest Ndiwalana Kakembo, who was the instructed the firm of Messrs Katende, Ssemp^Mya & Co Advocates, of which the former counsel, Mr\* Malinga is ^a day after judgment was delivered in the High Court, to pursue an appeal in the matter« member, on the 10th second defendant in the original High Court Suit No. 558 of 1\$89 has deponc/l in an affidavit sworn in support of. the application that he

Thereafter the second applicant checked on the said firm numerous tiroes, whereupon he was informed that the Notice of Appeal had been • In July, 1991 the second applicant was informed by Counsel Malinga and. as a lay-man believed, that all the papers relating to the appeal had been filed'- He submits in his affidavit that the said firm was negligent and/or ' careless in not espying to the respondent cr his counsel the letter lodged on 2nd January, 1991, with this Court..

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requesting the copy of the record dated 31st December, 1990 addressed to the Registrar of the High Court.

In his submissions at the hearing of this application, counsel for the. applicants, who is of the same firm as the former counsel, urged that the applicants should not be made to suffer fcr the He further submitted that the intended appeal has overwhelming chances of success as the Hon. Mrs. Justice Byamugisha in her decision erred in law and in fact. consequences of their former counsel's error.

In support of the application a number of authorities have been cited: Executrix of the Estate of the late Christine Mary Namatoyu (Unrep,); 207; Gatti vs Shoosmith Wanjiru (1970) E. A. ^84. (1939) 3 All e. R. 9l6; Mary Kyamulabi vs Ben Kiwanuka vs\* Haji Nurdin Matovu Civ. APP- No. 17/1990; Mugo vs Attqrney General vs. Orient Construction Co. Ltd•, Civil APP- No. 7 of 1990 (unrep.); Shanti vs Handocha & Ors. (1973) E. A. Nirondomu (198O) H. C. B. 11; Essagi vs. Solanki (1968) E. A. 218; Tebajjukira & ys Noel G. Shalita, Civ\* APP. No\* 8 of 1988

Learned Counsel for the Respondent opposed the application, distinguishing the instant case from those cited above in that the counsel in all the said cases realised their mistakes and took time to seek the mercy of the courts. counsel for the applicant proceeded to file documents at various stages as if the R.g. C. did not exist. They even went to the extent of arguing their appeal without conceding to the .irregularities they had committed. . It was only after their appeal was struck out, In the instant case, however,

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on the initiative of counsel for the Respondent, that the applicants are coming to seck leave of the court for an extension of time.

Learned Counsel for the Respondent urged that even if there has been negligence on the part of Counsel for the applicants, they themselves have been guilty of dilatory conduct and must share the blame.

It was pointed out that the applicants' omission to copy the letter applying for proceedings of the trial court to the respondent or his counsel was not the only error. A more serious fault was the failure to extract the Decree, which was an essential pre-requisite for filing the appeal. The Decree was only extracted and filed by counsel for the respondent on 5th June, 1991.

The explanation offered by the applicants' counsel that the Decree could not be extracted before the copy of the record of proceedings was obtained, was brushed aside by counsel for the applicant who pointed out that applicants' counsel had been aware of the points of law on which they wished to base the appeals as the judgment of the High Court had been delivered on 21st December, 1990 and a duly typed copy thereof was obtained in April, 1991.

It was also pointed cut that in filing the appeal, there had been an emission to include a document, Annex "C", without which an appellate Court could not properly adjudicate the points in dispute. This was a breach of Rule 85 (i) which sets out all the documents that must be included in the record of appeal. Annex "C" was an exhibit at the trial and has been attached to an affidavit in manply filed by counsel Simeon L. Lutaakome.

Asadi Woke v. Livingstone Ool- (2007) u c R 50. 52 was cited, wherein Odoki, J. (as he then was) observed that a party who reads. to appeal also has the duty to take steps' to enable him to prosecute his appeal.

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I have to consider the present application in the light of all the circumstances, including the inadvertence offormer counsel and failure to extract the Decree. The error of omission by counsel is no longer considered to be fatal to an application under R.4 of the R. S. C. On the other hand, Rules of Court are made to ensure stability in the decision-making process and avoid uncertainty and inconvenience to successful litigants.

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stay of execution pending the intended appeal\* Failure to do sohas resulted, according to the affidavit in reply of the Respondent, in his prejudice. The name of the second applicant was cancelled from the register consequent upon the Decree in the said suit and the land reverted to him. He subsequently cleared the site and prepared 20,000 bricks on the land for construction of a modern commercial building. He has expended about shs. 800,000/- in such site clearance brick preparation and drawing the plan. In the instant case, the applicants could have applied for a

I would here observe, however, that the expenditure of such sums of money will not necessarily result in prejudice to the Respondent's rights of ownership. Nor has it been shown that damages might not be a sufficient remedy for any inconvenience that may be suffered\*

Although I am not at this stage called upon to adjudicate on the merits of the intended appeal, it is appropriate to consider the likelihood of its success\* For this reason, I have looked at the judgment and tried to comprehend the issues that were involved. It appears that the plaintiff (the present Respondent) brought the original suit praying for: (a) an order to the' Registrar of Titles to cancel the name of the second defendant (the present second applicant) from the certificate of title relating to the suit property certificate of titl5 and the reinstatement on the register and a

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be issued to him (the plaintiff);

(b) damages and costs\*

The suit property was comprised in Mail© Register, Kibuga Block 14, Plots 501 and 5^2 situated at Najjanankumbi in the City of Kampala\* Among the issues were:

- (1) whether the plaintiff transferred the suit property to the first defendant; - (2). if not, whether the first defendant was guilty of fraud; - (3) if so, whether the second defendant was prior to the fraud; and *(V* whether the plaintiff was entitled to the relief sought\*

The learned trial Judge found inter alia, that even if the court accepted that the suit property was purchased for shs 5m/-, this did not af-foxa the protection of S.189 of the Registration of Titles Aot (RTa) to the 2nd defendant because by filing the transfer form (i • e • Annexe "Cn) without stating the consideration, concisely as the law requires, he defrauded the government of revenue. The learned Judge was of the view that in terms of s. 199 of R. T. A.; this rendered the transaction void, "failure to obtaining consent of the commissioner / of Lands and Survey notwithstanding. (sic)•"

^I must say that at this stage ^I cannot share the confidence of **\ ^I** ••■■'•••"•J learned counsel for the applicant that the intended appeal has There are, however circumstances which appear to be of more significance. From 30th December, 1991, when the applicants gave instructions to their counsel to pursue an appeal until July 1991, the applicants waited to be informed of the date when their appeal would be fixed for hearing. . overwhelming chances of ^success.

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They received assurances from time to time that all the necessary papers were being or had been filed. Admittedly these assurances were falso and deceptive. Should the applicants have accepted them and thereby been lulled into a false sense of security? Or should they have been less passive and either pressed their counsel for vigorous action to expedite the appeal or reolaimed their papers with a view to briefing new counsel?

In Bahitara Transport Bus Co. Ltd. v Biribonwa (Civ. Appl. No. 7 of 1978) (unrep.) the predecessor of this Court held (per Ssekand; $J. A.)$ that:

$1.$ If intending appellant has exercised all due diligence and dono all in his power to obtain the necessary copies of documents in time, but been prevented from so doing because the High Court has/been able to supply them, it would in the absence of other special circumstances be a denial of justice not to extend the specified period. As counsel for the appellant had exercised such diligence $\overline{2}$ . and sounded for the respondent raised to openial dirgumstances. the time in which to file the memorandum of appeal was extended to 60 days thence forward.

In the instant case, the conduct of the applicants has been, in my view, close to the borderline of what learned counsel for the Respondent described as"delatory". A more agressive litigant would have exercised greater diligence and done more to protect his rights. But I bear in mind that the applicants are laymen. There is nothing in the evidence to indicate their degree of education or sophistication. I cannot say that in relying as they did on

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the assurances of negligent counsel, they were usually naive or was an the new counsel, who eventually discovered the former counsel's error of omission, appear to have been guilty of such delay as would justify depriving the applicants of the right to have their intended appeal adjudicated on its merits.

I held that sufficient reason has been shown in terms of Rule 4 of R. S. C. to extend the time for filing the Notice of Appeal and for filing the woord of moment. Ise time in which to file such documents is accordingly extended to 3rd April, 1992, for filing the Notice of Appeal and 30 days thereafter for filing the appeal, With regard to costs of this application, they should small the decision of the main appeal.

Delivered at Menge this Stat day of March 1992.

Sand: E. E. SEATON JUSTICE OF THE SUPREME COURT

I CERTIFY THAT THIS IS A TRUE COPY OF THE ORIGINAL.

B. F. B. BABIGUMIRA REGISTRAR SUPREME COURT $\cdot 8 \cdot$