Sadrudin Dhamji Sayani v Mpresse Nsubuga (Civil Application 10 of 1995) [1995] UGSC 34 (11 May 1995)

IN THE SUPREME COURT OF UGANDA

3.

AT MENGO

(CORUM: TSEKOOKO, $J. S. C.$ )

CIVIL APPLICATION NO. 10 OF 1995

BETWEEN

SADRUDIN DHAMJI SAYANI :::::::::::::::::::::::: APPLICANT

$A$ $N$ $D$

EDWARD MPRESSE NSUBUGA ::::::::::::::::::::::: RESPONDENT

(Appeal from the decision of the High Court of Uganda at Kampala (Byamugisha J.) dated 31/12/1994

I N

HIGH COURT CIVIL SUIT NO. 364 OF 1993)

RULING OF TSEKOOKO J. S. C.

This is an application instituted by notice of motion under Rule 4 of the Rules of this Court and order 48 Rule 1 of C. P. Rules seeking for extension of time within which to lodge notice of appeal against the judgment of Byamugisha J. delivered on 31st December, 1994 dismissing the suit. To the notice is annexed an affidavit sworn on $28/2/1995$ by Mr. James Mukasa Sibagenyi an advocate who undoubtedly was the applicant's advocate in the Court below.

Rule 4 under which the application was instituted states in its relevant part that:-

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"The Court may for sufficient reason extend the time limited by these Rules or by any decision of the Court or of a superior Court for the doing of any Act authorised or required by these Rules whether before or after the expiration of such time $\cdots$ $\cdots$ $\gamma$

The rule gives the Court wide discretionary power to extend time.

Paragraphs 3 to 8 of Mr. Mukasa See bagenyi's affidavit contain the grounds upon which this application is based. They state (excepting paragraph $6$ ):-

- "3. That upon judgment being passed I requested to have a typed copy of judgment so as to know its legal implications fully by perusing the same. - 4. That up to date I have not received copy of the said judgment but after looking through the handwritten copy I discovered that there were saligant points of law which needed adjudication by the Supreme Court. - 5. That all this above stated in paragraph 4 was discovered well after expiry of 14 days within which to lodge the appeal. - That due to my failure to lodge a notice 7. of appeal within 14 days from date of judgment the applicants now discovered available remedies of appeal are at state. - 8. That there is a likelihood of success in this appeal since the matters to be considered are an interpretation of the Expropriation Laws pertaining to lesses and re-entry on land formerly expropriated."

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On 3/5/1995 Mr. Ssekandi, counsel for the respondent, swore an affidavit in reply contending that Mr. Mukasa's affidavit does not disclose a good cause why a notice of appeal was not filed in time and thus there is no justification to grant the leave sought.

During the hearing of this application Mr. Mukasa justified part of the delay on the basis that between 31/12/1994 and 7/1/1995 Courts were in vacation and therefore proceedings could neither be typed nor could he peruse the Court record. This is hardly a justifiable reason in view of the fact that even after 7th January, 1995, it took the learned counsel almost two months in order to lodge this application on 3rd March, 1995. In any case since he had prosecuted the suit and presumabaly was present during delivery of judgment, it would not be expecting too much of him if he lodged the notice of appeal without perusing the judgment. The notice of appeal is a very simple document which doesn't necessitate study of the proceeding and of judgment before drafting and lodging the same.

Mr. Mukasa then complained that the learned trial judge erred when she held that a letter of repossession of Expropriated Property given to the applicant had no legal affect.

That this is an important legal point which caused the delay because learned counsel was involved in consultations before lodging the notice of appeal. He further submitted that blunders of an advocate should not be visited upon the applicant. Counsel cited Supreme Court Civil Application No. 30/94 (L. A. M.

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Hussein Vs. G. I Kakiiza & 2 others (unreported) in support.

$\text{Mr}_\bullet$ Ssekandi for the respondent reiterated the contents of his affidavit to the effect that the applicant has not shown a good reason to justify granting leave to file notice of appeal out of time. He alternatively submitted that in case the Court was of the view that an important legal point is : involved and therefore leave should be granted, the applicant be ordered to lodge Notice of appeal and the record of appeal within abridged period of time say a fortnight in each stage.

I think that counsel for the applicant and the applicant were casual in the handling of this applicatiom. First no extract of the judgment was filed with the application. Secondly no copy of the letter of repossession was filed either, and no copy of the letter requesting for typed judgment was attached. It is not easy to guage the claim by the applicant that there is a likelihood of success in the appeal since the matters to be considered are an interpretation of the Expropriation Laws pertaining to leases and re-entry on land. The expropriation laws were not mentioned by learned counsel for the applicant.

I have had the benefit of perusing section 5(1) of the Expropriated Properties Act 1982 and Regulation 10(3) of the Expropriated Properties (Repossession And Disposal) Regulations, 1983 (S. I. 1983 No. 6) and noted that the two provisions authorise the Responsible Minister to issue to the applicant a certificate authorising repossession in the form set out in the second schedule to the Regulations (Forms 3) and not a letter

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of repossession. But this doesn't matter much.

and the mission of many

I have not had the benefit of perusing any part of the judgment of the learned trial judge so as to guage the likelihood of success of the proposed appeal. However, likelihood of sucess by itself is not sufficient reason. It has been held by this Court that consideration of matters such as likelihood of success or prejudice likely to be caused would be appropriately considered by Court after the applicant has established as sufficient reason his inability or failure to take a particular step. See Supreme Court Civil Application No. 5 of 1988 (Attorney General Vs. N. N. Mulji Huda & 4 others) (unreported).

I am aware of a number of decisions of this Court including that of Hussein's case (Supra) to the effect that a bluder by an advocate may or may not be a sufficient reason to extend time and to save the applicant from prejudice. See Supreme Court Civil Application No. 15 of 1990 D. Almeida Vs. Dr. C. Ruid Almeida (unreported); Haji Nurdin Matovu Vs. Ben Kiwanuka (Supreme Court Civil Application No. 12 of 1991) (unreported) and Cloud 10 Ltd Vs. Standard Chartered Bank (U) Ltd. (unreported): I think that each case or application must be decided on its own facts. Otherwise if it is held that in every case where delay in taking a necessary step in litigation was due to a blunder by an advocate an application for extention of time to take necessary step ought to be granted would easily

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lead to abuse and deliberate disregard of the rules of the Court. That would provide an easy way of circumventing the requirements of the rules whose effect is that certain necessary steps in litigation ought to be taken within the time prescribed by the rules so as to conclude particular litigation. In this particular application I think that there was a deliberate risk taken not to file the Notice of appeal.

$$\rm \textit{m}_{me}$$ On the facts before I am not satisfied that sufficient reason has been shown why the applicant did not or could not lodge the notice of appeal after $31/12/1994$ and before $3/3/1995$ which is a period of two months. Proviso to Rule $81(1)$ (d) does not apply in the case of Notice of appeal.

In the result I dismiss the application with costs to the respondent.

OF THE SUPREME COURT 11/5/1995

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Mukasa for the Applicant Ssekandi for Respondent Ruling delivered.

$J \cdot \cdot \cdot N$ TSEKOOKO

JUSTICE OF THE SUPREME COURT

$12/5/1995$ .