Wakilii

Mulowooza and Brothers Ltd v N. Shah and Co. Ltd (Civil Application 20 of 2010)

Supreme Court · [2010] UGSC 36 · 2010 Application Granted ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application by notice of motion for extension of time within which to serve the Notice of Appeal on the respondent
Decision
Extension of time granted; applicant ordered to serve the Notice of Appeal on the respondent within two days

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Holding

The applicant filed its Notice of Appeal within time but, through the inadvertence of counsel and his clerk, served only the letter requesting proceedings and not the Notice of Appeal on the respondent's counsel; service was attempted about 20 days out of time and rejected. The court held that mistakes or lapses of counsel may constitute sufficient reason under rule 5 of the Supreme Court Rules to extend time, and that such failings should not be visited on litigants interested in having their appeal heard on its merits. Rejecting the respondent's claim of a deliberate scheme to delay, the court found the delay was not inordinate and granted the extension, ordering service within two days.

Facts

The Court of Appeal delivered judgment in Civil Appeal No. 57 of 2009 on 16 July 2010, and counsel for the applicant orally indicated an intention to appeal. On 26 July 2010 (the court elsewhere notes 25 July), counsel filed a formal Notice of Appeal together with a letter requesting the record of proceedings, within the time allowed by the Rules. On 28 July 2010 the respondent's counsel was served with the letter requesting proceedings, but no Notice of Appeal was served on him. The applicant's advocate, Mr. Tebyasa, and his clerk deponed that the Notice of Appeal was inadvertently not served, which Mr. Tebyasa discovered on 22 August 2010. On 23 August 2010 the applicant attempted to serve the Notice of Appeal out of time, but the respondent's counsel rejected it. About 20 days had elapsed beyond the time for service. On 31 August 2010 the applicant filed this application for extension of time.

Issues

  1. Whether the applicant was guilty of dilatory conduct or inordinate delay in seeking to serve the Notice of Appeal.
  2. Whether there was sufficient reason under rule 5 of the Supreme Court Rules for the court to exercise its discretion to extend the time within which to serve the Notice of Appeal.

Orders

  • Application allowed.
  • The Notice of Appeal shall be served on the respondent or its counsel within two days from the date hereof.
  • Each party shall bear their own costs.

Key headnotes

Civil Procedure — Extension of Time — Service of Notice of Appeal — Mistakes or Lapses of Counsel as Sufficient Reason
Mistakes or lapses by counsel may constitute sufficient reason under rule 5 of the Supreme Court Rules for the court to exercise its discretion to extend time so as to allow an appeal to be heard on its merits.
Civil Procedure — Extension of Time — Sufficient Reason — Unfettered Discretion
What constitutes sufficient reason for extending time is determined by the court in its unfettered discretion; where refusing the extension would shut out the appeal altogether and may cause injustice, the court may grant the extension.
Civil Procedure — Extension of Time — Failings of Counsel Not Visited on Litigants
The failings, mistakes, lapses or mutual misunderstanding of counsel should not be visited on litigants who are interested in the conclusion of their appeal.
Civil Procedure — Extension of Time — Inordinate Delay — Equitable Discretion
An application for extension of time is grounded in equity and the applicant must come with clean hands and act vigilantly; a delay of about twenty days, where counsel moved with speed on discovering the omission, is not inordinate delay disentitling the applicant to relief.

Legislation cited (5)

  • Supreme Court Rules r.2(1)
  • Supreme Court Rules r.2(2)
  • Supreme Court Rules r.5
  • Supreme Court Rules r.42
  • Supreme Court Rules r.50

Cases cited (3)

  • F.L. Kaderbhai and Another v Shamsherali Virji and Others (Civil Application No. 20 of 2008)
  • Attorney General v Lutaaya (Civil Application No. 12 of 2007)
  • Attorney General for Kenya v Prof. Anyang' Nyong'o & 10 Others (East African Court of Justice, Appeal No. 1 of 2009)
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.