Wakilii

The Management Committee Rubaga Girls School v Kanyerezi (Civil Application No.34 of 1999)

Court of Appeal · [1999] UGCA 83 · 1999 Application Granted ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application by notice of motion for extension of time to serve a notice of appeal and reinstatement of a struck-out civil appeal
Decision
Time extended for service of the notice of appeal; application granted

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Holding

The Court held that a short delay of four days in serving a notice of appeal, caused by a law clerk's honest misunderstanding of the prescribed time despite correct instructions from counsel, constituted sufficient cause to justify extension of time under Rule 4. While counsel remains responsible for a clerk's mistakes, a minimal delay due to human fallibility may be condoned, especially where the applicant has otherwise exhibited due diligence in prosecuting the appeal. Failure to include a statement of the nature of the judgment and reasons for appealing was not fatal and did not fetter the Court's discretion. The application was allowed and time extended.

Facts

On 23 February 1999 the applicant filed Civil Appeal No. 9 of 1999 in the Court of Appeal. The notice of appeal was lodged in court and ought to have been served on the respondent within seven days. Counsel for the applicant instructed his law clerk to file and serve the notice within seven days. The clerk, however, mistakenly believed service was due within 14 days and served the respondent four days late, beyond the seven-day period prescribed by Rule 77(1). This default came to light when the respondent applied to strike out the notice of appeal. On 24 May 1999 the notice of appeal was struck out, and Civil Appeal No. 9 of 1999 was struck out with it. The applicant then applied for extension of time to serve the notice and reinstatement of the appeal. All other steps to have the appeal heard had been complied with, and the appeal had been fixed for hearing.

Issues

  1. Whether sufficient cause had been shown within the meaning of Rule 4 to extend time for serving the notice of appeal.
  2. Whether a clerk's mistaken understanding of the time for service, despite correct instructions from counsel, constituted sufficient cause.
  3. Whether failure to include a statement of the nature of the judgment and reasons for appealing was fatal to the application.
  4. Whether the struck-out Civil Appeal No. 9 of 1999 should be reinstated.

Orders

  • Application allowed.
  • Time within which to serve the Notice of Appeal on the respondent extended to seven days from the date of the Ruling.

Key headnotes

Civil Procedure — Extension of Time — Sufficient Cause under Rule 4
A mistake by a legal advisor or clerk as to the time for service may constitute sufficient cause to justify the court exercising its discretion to extend time under Rule 4, particularly where the delay is short and not the result of dilatory conduct.
Civil Procedure — Extension of Time — Responsibility of Counsel for Clerk's Mistakes
Counsel is always responsible for the omissions and mistakes of his clerk, but such a mistake may nonetheless be condoned where the delay arises from an understandable lapse due to human fallibility.
Civil Procedure — Extension of Time — Statement of Nature of Judgment Not Mandatory
An applicant for extension of time need not establish that the appeal has good chances of success; failure to incorporate a statement of the nature of the judgment and reasons for appealing is not fatal and does not fetter the court's discretion.
Civil Procedure — Affidavits — Effect of Absence of Affidavit in Reply
Failure by a respondent to file an affidavit in reply does not amount to acceptance of the applicant's averments; the burden remains on the applicant to make out a credible case.
Civil Procedure — Extension of Time — Due Diligence in Prosecuting Appeal
Where an applicant has exhibited due diligence in having the appeal prosecuted, the court's indulgence to extend time will more readily be exercised in his favour.

Cases cited (9)

  • Kibirige v Lubega (Civil Application No. 8 of 1984)
  • Re Margetson and Jones (1897) 2 ch.314 at 319
  • Shah v Jamada & o. Ltd (1959) EA 838
  • Bhatt v Tejwant Singh 1952
  • Mugo and Others 1973 EA 207 at 209
  • Gatti v Schoolsmith (1939) 3 AER 915
  • Attorney General v Oriental Construction Co Ltd (Civil Application No. 7 of 1990)
  • Haji Sekajja v Farida Saad (Civil Application No. 27 of 1992)
  • Zam Nalumansi v Sulaiman Lule (Civil Application No. 2 of 1992)
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.