Boutique Shazim Ltd v Nipun Bhatia (Civil Miscellaneous Application No.62 of 1998)

Court of Appeal · [1999] UGCA 28 · 1999 Application Dismissed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Application for extension of time within which to file an appeal against a High Court ruling

Decision

Application for extension of time dismissed with costs

The full judgment

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Holding

The Court of Appeal dismissed an application under Rule 4 for extension of time to file an appeal. The applicant's previous counsel had filed a notice of appeal but failed to apply for the record of proceedings or institute the appeal in time. The court held that, under Rule 83(a), failure to institute an appeal within the prescribed time means the notice of appeal is deemed withdrawn, and the argument that it remained valid because the respondent had not applied to strike it out under Rule 81 was untenable. It would serve no purpose to extend time to file an appeal where there was no valid notice of appeal. The application was dismissed with costs.

Facts

The applicant company was the unsuccessful plaintiff in High Court Civil Suit No. 910 of 1995, in which a ruling was delivered on 14 April 1998. The applicant immediately instructed its counsel to appeal. Those counsel filed a notice of appeal within the prescribed time but did not write to court to apply for the record of proceedings, and did not institute the appeal. They assured the applicant the appeal was being handled. In December 1998 the applicant instructed new counsel, who advised that the sixty-day period had elapsed. On 21 December 1998 the new counsel filed an application for extension of time within which to file an appeal. The applicant argued its former counsel were negligent and that such negligence should not be visited on a vigilant client. The respondent argued no sufficient reason had been shown and that, under Rule 83(a), the notice of appeal was deemed withdrawn.

Issues

Whether the applicant had shown sufficient reason under Rule 4 of the Court of Appeal Rules to justify an extension of time within which to file an appeal.
Whether an extension of time to file an appeal could be granted where the notice of appeal is deemed withdrawn under Rule 83(a) for failure to institute the appeal in time.

Orders

Application dismissed.
Costs to the respondent.

Key headnotes

Civil Procedure — Extension of Time — Sufficient Reason under Court of Appeal Rules r.4

Under Rule 4 of the Court of Appeal Rules, an extension of time may be granted only for sufficient reason, which must relate to the inability or failure to take the required step in time, and the applicant must show that the delay was not caused or contributed to by dilatory conduct on its part.

Civil Procedure — Notice of Appeal — Deemed Withdrawal under r.83(a)

Where a party who has lodged a notice of appeal fails to institute the appeal within the prescribed time, the notice of appeal is deemed to have been withdrawn under Rule 83(a), and this consequence is not avoided merely because the opposing party has not applied to strike out the notice under Rule 81.

Civil Procedure — Extension of Time — No Purpose Where No Valid Notice of Appeal

It serves no purpose to grant an extension of time within which to file an appeal where there is no valid notice of appeal, the original notice having been deemed withdrawn for failure to institute the appeal in time.

Civil Procedure — Negligence of Counsel — Whether Visited on Client

A mistake or lapse by counsel over whom a vigilant litigant has no control may not always be visited on the client so as to deny an extension of time, but negligence causing inordinate delay may be visited on the client.

Legislation cited (5)

Court of Appeal Rules 1996 r.4
Court of Appeal Rules 1996 r.43(2)
Court of Appeal Rules 1996 r.81
Court of Appeal Rules 1996 r.82(2)
Court of Appeal Rules 1996 r.83(a)

Cases cited (7)

Haji Nurdin Matovu v Ben Kiwanuka S.C. Civil Application No.21/91 (unreported)
Mary Kyamulabi v Ahmad Zirondomu 1980 HCB 11
Clouds 10 ltd v. Standard Chartered Bank S.C. Civil Appeal No.35 of 1992 (unreported)
Sezi Busasi & Another v. Enoka S. Kareba & Another C.A. Civil App No. 6/7 8 (unreported)
Mugo v. Wanjiru [1970] E.A. 481
Bhatt v Tijirant Singh (1962) E.A. 497
Shanti Hundocha & Others [1973] E.A. 207

Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.