Wakilii

Bujjingo & 3 Others v Abubakari & 2 Others (Civil Application 228 of 2022)

Court of Appeal · [2024] UGCA 200 · 2024 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application by notice of motion in the Court of Appeal for extension of time to validate a Notice of Appeal filed out of time and the Memorandum of Appeal
Decision
Application allowed; time extended and the Notice of Appeal and Memorandum of Appeal on record validated, with 30 days to file the Record of Appeal.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court overruled the objection that the application was brought under the wrong rules, holding that the error was counsel's fault, the substance of the motion sought extension of time, and the respondents suffered no prejudice. On the merits, applying Rule 5 of the Court of Appeal Rules, the Court held that the mistakes of counsel (late filing and failure to seek leave) should not be visited on the client and constituted sufficient reason. The alleged backdating was not established: the differing dates were the date of the Notice of Appeal and the date of its endorsement by court. Given the valuable property in dispute and the absence of dilatory conduct by the parties, time was extended and the application allowed.

Outcome

Application allowed; time extended and the Notice of Appeal and Memorandum of Appeal on record validated, with 30 days to file the Record of Appeal.

Facts

The applicants were defendants and the respondents plaintiffs in HC-FD Civil Suit No. 558 of 2016, which was decided in favour of the respondents. The dispute concerned a house on Plot 139 Block 12 at Kasaato Zone, Kisenyi II Parish, Central Division, Kampala. The applicants' application for stay of execution before the trial court was refused. They lodged a Notice of Appeal and filed a Memorandum of Appeal in the Court of Appeal, but the Notice of Appeal was lodged out of time. Their subsequent application for stay of execution in the Court of Appeal was dismissed because no appeal lay, as they had not first sought leave to file the Notice of Appeal out of time and validate the Memorandum of Appeal. They therefore brought this application for leave to validate the late filing. The late filing was attributed to previous counsel, and the failure to apply for leave to an oversight by counsel. The respondents alleged the Notice of Appeal had been fraudulently backdated.

Issues

  1. Whether the application was incompetent for having been brought under the rules of the High Court rather than the rules of the Court of Appeal.
  2. Whether the applicants established sufficient reason under Rule 5 of the Court of Appeal Rules to extend time to file the Notice of Appeal out of time and validate the Memorandum of Appeal.
  3. Whether the Notice of Appeal was fraudulently backdated such that the defect could not be cured by validation.

Orders

  • The Application is allowed.
  • Leave is granted to extend time within which to file a Notice of Appeal and consequently the Notice of Appeal and Memorandum of Appeal on record are validated.
  • The Applicant is given 30 days within which to file a Record of Appeal at the High Court.
  • Costs shall be in the cause.

Rules and key headnotes

Civil Procedure — Extension of Time — Mistake of Counsel as Sufficient Reason
An omission, mistake or inadvertence of counsel, even where negligent, ought not to be visited on the litigant and may constitute sufficient reason for extending time within which to file a notice of appeal.
Civil Procedure — Extension of Time — Sufficient Reason — Unfettered Discretion
What constitutes sufficient reason for extension of time is left to the court's unfettered discretion; the court may extend time where shutting out the appeal would cause injustice, and the proper exercise of appeal rights, particularly over valuable property, favours hearing disputes on their merits.
Civil Procedure — Application under Wrong Rules — Substantive Justice
Where an application for extension of time is brought under the wrong court rules through the fault of counsel, but its substance clearly seeks the relief available under the correct rule and the opposing party is not prejudiced, the court may overrule the objection in the interests of substantive justice.
Civil Procedure — Notice of Appeal — Allegation of Backdating
A difference between the date a notice of appeal bears and the date it was endorsed by court is not, by itself, evidence of backdating; the former is the date of the notice and the latter the date of its endorsement.

Legislation cited (8)

Cases cited (9)

  • James Bwogi and Sons Enterprises v Kampala City Council and Kampala District Land Board (Civil Application No. 9 of 2017)
  • Shamsheralizaver Virji v F. L. Kadibhai & 3 Ors (Civil Application No. 81 of 2004)
  • Makula International Ltd v His Eminence Cardinal Nsubuga & Anor [1981] HCB 11
  • Utex Industries Ltd v Attorney General (Civil Application No. 52 of 1995)
  • Bonney Katatumba v Waheed Karim (Civil Application No. 27 of 2007)
  • Florence Nabatanzi v Naome Binsobodde (Civil Application No. 6 of 1987)
  • Tropical Africa Bank Ltd v Grace Were Muhwana (Civil Application No. 3 of 2012)
  • Godfrey Magezi and Brian Mbazira v Sudhir Rupaleria (Miscellaneous Application No. 6 of 2003)
  • Kasaala Growers Cooperative Society v Kakooza Jonathan & Anor (Civil Application No. 24 of 2010)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Bujjingo & 3 Others v Abubakari & 2 Others (Civil Application 228 of 2022) [2024] UGCA 200 (2 August 2024)
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.