Uganda Telecom Limited v Tanzanite Corporation (Civil Application 91 of 2003) [2003] UGCA 17 (12 September 2003)

THEREPUBLIC OF UGANDA

IN THE COURT OF APPEAL OF UGANDA

AT KAMPALA

*CORAM:*

⁵ HON. LADY JUSTICE C. K. BYAMUGISHAJA

CIVIL APPLICATION No.91/03

BETWEEN

UGANDA TELECOM LTD APPLICANT

I\*

¹⁰ AND

TANZANITE CORPORATION RESPONDENT

Ruling ofByamugisha, JA

- ¹⁵ The applicant herein, filed this application under Rules 4, 42(1) and 43(1) ofrules ofthis Court seeking two orders namely: - (1) The time limited by the Court of Appeal Rules Directions, 1996 for the filing of a Notice of Cross-appeal be extended, and the Notice of cross-appeal fded out of time be validated.

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²⁰ (2) Costs of this application be provided for.

The grounds upon which the application was premised were:

- (1) The High Court delivered judgement in civil suit No.710 of 2000 partially in favour of the respondent. - (2) The respondent being dissatisfied with the decision of the High - ⁵ Court filed an appeal in the Court of Appeal against such part of the decision as was decided against the respondent - (3) That the applicant has now advised counsel to cross-appeal against the judgement of the High Court - (4) The applicant has valid grounds of cross-appeal with a high - io probability ofsuccess.

(5) In the interest ofjustice the application ought to be allowed.

These grounds were supported by the affidavit of one Paul Rutisya an advocate ofM/S Kasirye, Byaruhanga &Co Advocates. The respondent opposed the application by deponing an affidavit through its Managing

¹⁵ Director one Frank Batamula.

The brieffacts ofthe matter now before me is that the applicant was adjudged to pay a sum ofUs \$ 260,000/= to the respondent in the judgement delivered on the 19th December 2002. The respondent filed a notice of appeal against the judgement on the 20lh December 2002. On the 29th April ²⁰ 2003 the respondent/appellant's counsel served a record of appeal on

counsel for the applicant/respondent. Under rule 90(2) ofrules ofthis Court the applicant ought to have filed its notice of cross-appeal within a period of not more than thirty days after service ofthe record of appeal. It was claimed that whereas counsel for the applicant indicated the date ofthe receipt ofthe

⁵ record of appeal on the copy of counsel for the respondent/appellant, he omitted to endorse on his own file the same date-hence his failure to file the notice of cross-appeal within the time allowed by the rules. It was contended that counsel for the applicant/respondent discovered this mistake in July and lodged the instant application together with the notice of cross-appeal in the

io registry on 23rd July 2003.

When the matter came before me, Mi- Byaruhanga, learned counsel for the applicant, submitted on the application generally. In support ofhis application he relied on the case of Crane Finance Co Ltd &Another Vs

¹⁵ Attorney General &2 Others Civil Application No.l/2003(S. C) and Easton Vs Ford Motor [1993] W. L. R.1511 for the legal proposition that the discretion ofthe court in enlarging time is unfettered. The Crane case also is authority that blunders by an advocate should not be visited on the litigant unless it is shown that the litigant was involved in causing the delay.

On the other hand learned counsel for the respondent, Mr Byenkya, strongly opposed the application. He contended that no sufficient reason has been given for the delay or that the reason given by the applicant does not constitute sufficient cause. He contended that the delay is inexcusable in the

⁵ circumstances ofthis case. He relied on the case of Omari Ali Vs Abdallah Civil Application No.54/2000(C. A.)(unreported) in which this court held *inter alia* that each case would depend on its peculiar circumstances and that not every blunder by an advocate should constitute sufficient cause to justify enlargement oftime. He invited court to dismiss the application.

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According to rule 90(1) ofRules ofthis Court, a respondent who wishes to have the decision ofthe High Court reversed or varied on appeal, is required to give notice to that effect specifying the grounds of his or her contention and the nature ofthe order he or she proposes to ask the court to make.

¹⁵ Under sub-rule 2 the said notice has to be lodged in the Registry not more than 30 days after service on the respondent ofthe memorandum of appeal. The applicant was served with the record of appeal on the 29th April 2003 May 2003. and the latest time it should have filed the notice should have been the 30th

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Rule 4 under which this application was filed gives this Court power to enlarge time. It provides that:

*"The Court may, forsufficient cause, extend the time limited by these*

⁵ *Rides or by any decision ofthe Court or ofthe High Courtfor doing of any act authorised or required by these Rules, whether before or after the expiration ofthat time and whether before or after the doing ofthe act; and any reference in these Rules to any such time shall be construed as a reference to the time so extended. "*

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The provisions ofthis rule have received judicial consideration in a wealthy of authorities and it is not necessary to refer to them. However, in order for the applicant to succeed in an application ofthis nature he or she or it has to show that he or she or it was prevented from taking the right step at the right

¹⁵ time for *sufficient reason.* It has also been held in many cases that mistakes, faults, lapses or dilatory conduct of counsel should not be visited on a litigant except in exceptionally circumstances.

The facts before me show that the applicant was not responsible for what its advocates did. The appeal of the respondent has not yet been cause-listed November this year. There is no guarantee that the appeal will be fixed in ⁵ the session. People come to court seeking justice. Therefore a party should not be driven from tire judgement seat without giving it an opportunity of being heard. The time between now and November in my view is sufficient to enable the applicant to file the relevant papers so that this court will be in a position to determine the matter in controversy between the parties. for hearing. The next civil session of tills court will not be held until

¹⁰ Furthermore Article 126(2)(e) of the Constitution enjoins courts in this Country to administer substantive justice without undue regard to technicalities. What this means in real terms is that courts are charged with resolving disputes without being unduly hindered by legal technicalities. It 15 has not been shown that the respondent will suffer any injustice if time is enlarged in favour of the applicant. However, Mr. Byenkya, complained that he has filedan- application to have the applicant's Notice of Cross-Appeal is my understanding that the court has a duty to examine all the circumstances of the case before rejecting an application of this nature. It

struck out for being incompetent. That may as well be true. . An award of costs in those circumstances can compensate the respondent.

I have examined the circumstances ofthis application and considered the

⁵ authorities that both learned counsel cited. lam satisfied that the applicant has made out a case for this court to exercise its discretion and grant the prayer of enlarging time and validating the Notice ofCross- Appeal filed on 23rd July 2003. The respondent will have the costs ofthis application.

0 io Dated at Kampala thisfi

L *rU* C. KJByamii'gisha Justice of Appeal