Wakilii

Rashid Kibirige v Dr. A.Lubega [1987] UGSC 4

Supreme Court · 1987 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for restoration/reinstatement of an appeal (application) withdrawn by counsel, with an application for extension of time, under rules 67 and 4(3) of the Court of Appeal Rules; heard ex parte.
Decision
Application for restoration granted; the withdrawn application reinstated for hearing at the next convenient session.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court granted the application to restore the withdrawn matter. Counsel had sought an adjournment to consult his client and, when refused, withdrew the application on his own without instructions. An advocate is retained to advance the client's case strictly on instructions; a withdrawal made without authority and by mistake does not bind the client and may be reinstated under rule 67(3). Although rules 67 and 93 appear to address withdrawals made in writing before hearing, the court held that rule 67 must also cover withdrawal at the hearing, since a litigant must be able to withdraw at any stage. The application withdrawn on 18 July 1986 was reinstated for hearing.

Outcome

Application for restoration granted; the withdrawn application reinstated for hearing at the next convenient session.

Facts

The underlying litigation had begun about 25 years earlier in the now defunct Buganda Principal Court and had passed through various courts. In April 1986 the applicant's counsel, Mr. Kateeba, obtained an adjournment because he had not had time to prepare. On 18 July 1986 counsel sought a further adjournment to consult the applicant; the adjournment was refused, whereupon counsel asked for and was granted leave to withdraw the application. The applicant contended that counsel had acted without instructions when he withdrew, that former counsel had been negligent in preparing the record, and that the matter raised serious points of law that ought to be adjudicated. The applicant applied to restore the withdrawn matter and for extension of time.

Issues

  1. Whether an appeal or application withdrawn by counsel without the client's instructions can be restored or reinstated under rule 67 of the Court of Appeal Rules.
  2. Whether the rules provide for restoration of an appeal or application that was withdrawn at the hearing rather than in writing before hearing.

Orders

  • Application to restore allowed.
  • The applicant's application which was withdrawn on 18th July 1986 be reinstated for hearing at the next convenient session.
  • Costs to abide the result of the appeal.

Rules and key headnotes

Civil Procedure — Withdrawal of appeal or application — Restoration under rule 67(3)
An appeal or application withdrawn by counsel without the client's instructions, and thus by mistake rather than fraud, may be reinstated under rule 67(3) of the Court of Appeal Rules.
Civil Procedure — Advocate's authority — Acts done without instructions
An advocate who appears for a client is retained to advance or defend the client's case, not his own, and must act strictly upon instructions; a withdrawal made without the client's authority does not bind the client.
Civil Procedure — Withdrawal at the hearing — Scope of rule 67
Although rules 67 and 93 appear directed at withdrawals made in writing before hearing, rule 67 must be read to cover withdrawal of an appeal or application made at the hearing, as a litigant must be able to withdraw at any stage of the proceedings.

Legislation cited (4)

  • Court of Appeal Rules r.67
  • Court of Appeal Rules r.67(3)
  • Court of Appeal Rules r.4(3)
  • Court of Appeal Rules r.93

Cases cited (2)

  • A.P.C. Lobo & Another v Saleh Salim Dhiyebi & Others (1961) E.A. 223
  • Hansraj Ranmal Shah v Westlands General Stores Properties Ltd & Another (1965) E.A. 642

Full judgment

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

Rashid Kibirige v Dr. A.Lubega [1987] UGSC 4 (19 November 1987)
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.