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David Nsubuga and 3 Others v Maggret Kamuje (Civil Application No.31 of 1997)

Supreme Court · [1999] UGSC 45 · 1999 Application Granted ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application to the Supreme Court for leave to file an appeal out of time under rule 4 of the Rules of the Court
Decision
Leave to file the appeal out of time granted; applicants to file the appeal within 14 days

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Holding

On an application for leave to appeal out of time, the court reckoned the relevant period from the date of an earlier order extending time for service of the notice of appeal. It held that a mistake or misunderstanding by an applicant's legal adviser, even if negligent, may constitute sufficient reason for granting an extension of time under rule 4. The inordinate delay here had been caused by the applicants' former counsel, who pursued misconceived applications instead of instituting the appeal; the applicants themselves had acted promptly once they appreciated the position and were not dilatory. The court was satisfied that sufficient cause had been shown and granted leave to file the appeal within 14 days.

Facts

The applicants sought to appeal to the Supreme Court against a 1995 High Court appellate judgment concerning property boundaries and a sketch plan. They had lodged a notice of appeal and applied for a copy of the proceedings in time, and were granted an extension by Tsekooko, J.S.C. on 21 March 1997 to serve those documents on the respondent. Instead of then instituting the appeal within 60 days under the Rules, the applicants' former counsel filed an application for extension of time to lodge a memorandum of appeal, which Karokora, J.S.C. struck out on 24 November 1997 as misconceived and incompetent, ordering counsel personally to pay costs. A week later the applicants, acting on their own, filed the present application; they subsequently instructed new advocates who filed an amended notice of motion. This was the fourth application brought in the matter, the appeal still being unfiled some years after the original judgment.

Issues

  1. Whether the applicants had shown sufficient cause to justify the court exercising its discretion to grant leave to file their appeal out of time.
  2. Whether the delay in filing the appeal was caused by the mistake of the applicants' former counsel or by the applicants' own dilatory conduct.

Orders

  • Application granted.
  • The applicants to file their appeal within fourteen (14) days from the date of this order.
  • Costs of this application awarded to the respondent.

Key headnotes

Civil Procedure — Extension of Time — Sufficient Cause — Mistake of Counsel
A mistake or misunderstanding on the part of an applicant's legal adviser, even though negligent, may be accepted as a proper ground constituting sufficient reason for granting an extension of time to appeal under rule 4 of the Rules of the Supreme Court.
Civil Procedure — Extension of Time — Discretion of the Court
The court's discretion to extend time under rule 4 is unfettered, and an applicant need only show sufficient reason to justify the court exercising that discretion in his or her favour.
Civil Procedure — Extension of Time — Diligence of Applicant — Effect of Acting in Person
Where an applicant acts promptly upon realising that former counsel has failed to take the proper steps in an appeal, the applicant is not to be treated as dilatory, and acting in person for a period while seeking new representation does not amount to a lack of diligence.
Civil Procedure — Institution of Appeal — Memorandum of Appeal — Rule 81(1)
Under rule 81(1) of the Rules of the Supreme Court an appeal is instituted by lodging the memorandum of appeal together with the record of appeal, the prescribed fee and security for costs within the prescribed time; there is no provision for separately instituting or seeking leave to file a memorandum of appeal out of time, and such an application is misconceived.

Legislation cited (5)

  • Rules of the Supreme Court r.4
  • Rules of the Supreme Court r.78
  • Rules of the Supreme Court r.81(1)
  • Rules of the Supreme Court r.112
  • Constitution of Uganda art.280

Cases cited (11)

  • Isaac Bishari v Vitafoam (Civil Application No. 2 of 1994)
  • Executrix of the Estate of the Late Christine Mary Namatovu Tebajjikira and Another v N.G. Shalita Stanazi (Civil Application No. 8 of 1988)
  • Shanti v Hidocha and Others (1973) E.A. 207
  • John William Kihuku & Others vs. Personal Representative ofRt. Rev. Eric Sabiti andAnor (SCU)(unreported)
  • Shah Hemiraj Bharinal and Brothers vs. Santosh Kimari w/o J.N. Bhola (1961) 679
  • Kevorkian v Burney (1937) All E.R. 97
  • Gatti v Shoosmith (1939) 3 All E.R. 916
  • Shabir Bin Ram Prakarsh Anand (1955) 22, E.A.C.A.; 48
  • Bray v Bray (1957) E.A. 302
  • Haji Nurdin Matovu v Ben Kiwanuka (Civil Application No. 12 of 1991)
  • Alexander Jo Okello v Kayondo & Co. Advocates (Civil Application No. 17 of 1996)
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.