Wakilii

Buyungo v Nyansiano and 6 Others (Civil Application 10 of 2022; Civil Application 12 of 2021)

Supreme Court · [2023] UGSC 41 · 2023 Application for Extension of Time Granted ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Consolidated applications before the Supreme Court — one to strike out a notice of appeal for failure to institute the appeal in time, the other for extension of time within which to file the appeal, arising from Court of Appeal Civil Appeal No. 05 of 2016.
Decision
Extension of time granted; respondents ordered to file the record of appeal within 7 days; the application to strike out the Notice of Appeal dismissed.

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Holding

The Supreme Court, having consolidated an application to strike out the notice of appeal with an application for extension of time, held that the respondents' failure to institute their appeal within 60 days was caused by the negligence of their former lawyers, who did not file the appeal despite receiving the record of proceedings. Applying the settled principle that an error of counsel should not be visited on the client absent the client's privity or failure to instruct, the Court found sufficient reason under rule 5 of the Supreme Court Rules. It accordingly declined to strike out the notice of appeal and granted the extension so the underlying land dispute could be resolved on its merits.

Facts

The applicant sued the respondents in the High Court at Masaka seeking a declaration that he was the rightful owner of land comprised in Buddu Block 369, and ancillary orders. The High Court entered judgment in the applicant's favour. The respondents appealed to the Court of Appeal, which dismissed the appeal and upheld the High Court. Dissatisfied, the respondents filed a Notice of Appeal to the Supreme Court on 24 September 2020 and served it the same day, but did not lodge their appeal within the prescribed 60 days. Their former lawyers had requested the record of proceedings, which was typed and availed to them on 27 January 2021, but the lawyers did not file the appeal or inform the respondents. The respondents, who continued following up at the registries and with counsel, only learnt on 14 March 2022 — through newly instructed lawyers — that the record had been availed but no appeal filed. They engaged new lawyers and filed an application for extension of time. The applicant sought to strike out the Notice of Appeal for the inordinate delay.

Issues

  1. Whether the respondents' Notice of Appeal should be struck out for failure to institute the appeal within the prescribed time.
  2. Whether the respondents established sufficient reason under rule 5 to justify an extension of time within which to file their appeal.
  3. Whether the negligence or omission of the respondents' former lawyers in failing to file the appeal in time constitutes sufficient reason.

Orders

  • Application No. 12 of 2021 to strike out the Notice of Appeal is denied.
  • The application for extension of time is allowed.
  • The respondents are to file the record of appeal within 7 days from the date of delivery of this ruling.
  • Each party shall bear its own costs.

Key headnotes

Civil Procedure — Extension of Time — Sufficient Reason — Negligence of Counsel
The negligence, omission or mistake of counsel can constitute sufficient reason for extension of time under rule 5 of the Supreme Court Rules, and the default of an advocate ought not to be visited on the client unless the litigant is privy to the default or it results from the litigant's own failure to give due instructions.
Civil Procedure — Extension of Time — Meaning of Sufficient Reason
What constitutes sufficient reason under rule 5 is left to the court's unfettered discretion; the court will accept either a reason that prevented the applicant from taking the essential step in time or other reasons why the intended appeal should be allowed to proceed, and may grant an extension even after undue delay where striking out the appeal would occasion injustice.
Civil Procedure — Extension of Time — Burden of Proof
An applicant seeking an extension of time bears the burden of proving to the court's satisfaction that, for sufficient reason, it was not possible to lodge the appeal within the time prescribed by law.
Civil Procedure — Striking Out Notice of Appeal — Consolidation with Application to Extend Time
Where an application to strike out a notice of appeal under rules 78 to 80 is heard together with an application for extension of time, the court may decline to strike out the notice and instead extend time so that the substantive issues are resolved on their merits, where the justice of the case so demands.

Legislation cited (5)

  • Judicature (Supreme Court Rules) Directions S.I 13-11 r.5
  • Judicature (Supreme Court Rules) Directions S.I 13-11 r.78
  • Judicature (Supreme Court Rules) Directions S.I 13-11 r.79
  • Judicature (Supreme Court Rules) Directions S.I 13-11 r.80
  • Civil Procedure Rules Order XI r.1(1)(a)

Cases cited (10)

  • Godfrey Magezi and Another v Sudhir Ruparelia (SCMA No. 6 of 2003)
  • Molly Kyalikunda Turinawe and 4 Others v Engineer Ephraim Turinawe and Another (Civil Application No. 27 of 2010)
  • Shah Bharmal Vs Santosh Kumari (1961) EA 679
  • Attorney General v Oriental Construction Co. Ltd (Civil Appeal No. 7 of 1990)
  • Kitariko Vs Twino Katama [1982] HCB 97
  • Kaderbhai and Another v Shamsherali M. Zaver Virji and 2 Others (Civil Application No. 20 of 2008)
  • Boney M. Katotumba v Waheed Karim (Civil Application No. 27 of 2007)
  • Capt. Philip Ongom v Catherine Nyero Owota (Civil Appeal No. 14 of 2001)
  • Sepiriya Kyamulesire v Justine Bikanchurika Bagambe (Civil Appeal No. 20 of 1995)
  • Mulindwa George William v Kisubika (Civil Appeal No. 12 of 2014)
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.