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Sirazali Gulamurali Merali Hudani v Jimmy Tejani (Civil Application No. 31 of 1997)

Court of Appeal · [1997] UGCA 1 · 1997 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for leave to file a notice of appeal out of time and to serve a copy of the application for proceedings on the respondent
Decision
Application for extension of time to file notice of appeal granted; applicant to lodge and serve notice within seven days

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court considered whether the applicant had shown sufficient cause for an extension of time to file a notice of appeal where his former counsel had inadvertently failed to serve the respondent with the application for the record of proceedings, depriving the applicant of the benefit of rule 82(2) and (3). The court held that a counsel's mistake does not automatically warrant an extension and each case turns on its circumstances, but found the omission here was an oversight or human error that should not be attributed to the applicant. As the proceedings were still not ready almost nine months after being applied for, sufficient reason was established. The application was allowed.

Outcome

Application for extension of time to file notice of appeal granted; applicant to lodge and serve notice within seven days

Facts

The applicant filed High Court Civil Suit No. 712 of 1995 against the respondent, which was dismissed with costs on 6 December 1996. A notice of appeal was filed in the High Court on 19 December 1996 and served on the respondent's counsel. On 13 January 1997 the applicant's then counsel applied to the High Court for the record of proceedings, followed by a reminder dated 28 February 1997. However, those letters were inadvertently not served on the respondent within the time prescribed. The record of proceedings remained unprepared while the 60-day period for instituting the appeal expired. Because the application for proceedings had not been served on the respondent, the applicant could not benefit from the period of grace under rule 82(2) and (3) of the Court of Appeal Rules Directions in computing time. The applicant therefore sought leave to file the notice of appeal out of time and to serve the application for proceedings on the respondent.

Issues

  1. Whether the applicant had shown sufficient reason under rule 4 of the Court of Appeal Rules Directions to be granted an extension of time to file a notice of appeal.
  2. Whether the former counsel's inadvertent omission to serve the application for proceedings on the respondent should be visited on the applicant.

Orders

  • The application is allowed.
  • The applicant is to lodge his notice of appeal and serve the respondent with a copy of the proceedings in the High Court within seven days from the date of this ruling.
  • The costs of the application shall follow the results of the appeal.

Rules and key headnotes

Civil Procedure — Extension of Time — Sufficient Reason for Filing Notice of Appeal Out of Time
Under rule 4 of the Court of Appeal Rules Directions the court has wide discretion to extend time, but the applicant must satisfy the court that he was prevented by sufficient reason from adhering to the time limit, and that reason must relate to his inability to take the particular step in the first instance and that the delay was not caused by his own dilatory conduct.
Civil Procedure — Extension of Time — Effect of Counsel's Mistake or Negligence
A mistake or negligence by counsel is not necessarily a bar to obtaining an extension of time, but extension is not automatic; each case must be considered on its own circumstances, and an inadvertent omission by counsel which amounts to an oversight or human error should not be attributed to the applicant nor penalise him.
Civil Procedure — Extension of Time — Likelihood of Success Not Determinative
The fact that an appeal appears likely to succeed cannot of itself amount to sufficient reason for an extension of time; the most persuasive consideration is that the delay was not caused by the applicant's dilatory conduct, though an arguable case may cause the application to be viewed more sympathetically.
Civil Procedure — Appeals — Application for Record of Proceedings — Service on Respondent
An appellant is not entitled to rely on rule 82(2) for excluding time spent awaiting the record of proceedings unless the application for the copy was in writing, a copy of it was served on the respondent, and the appellant retained proof of that service.

Legislation cited (5)

  • Court of Appeal Rules Directions 1996 rule 1(3)
  • Court of Appeal Rules Directions 1996 rule 4
  • Court of Appeal Rules Directions 1996 rule 82(2)
  • Court of Appeal Rules Directions 1996 rule 82(3)
  • Court of Appeal Rules Directions 1996 s.103(2)

Cases cited (8)

  • Delia Almeida v Dr Carmo Rui Almeida (Civil Application No. 15 of 1990)
  • Utex Industries v Attorney General (Civil Application No. 52 of 1995)
  • Muqo Vs. Waniiru & Another {1970} EA 481
  • Shanti V. Hindocha and others {1973} EA 207
  • Bhatt's (91962 EA 497)
  • Gatti VS. Shoosmith (1939) 3 All ER 916
  • Nqoni Mateng.o Cooperative Marketing Union Ltd Vs. A. Osinan {1959} EA 577
  • Zamu Nalumansi & Anor v Sulaiman Lule (Civil Appeal No. 2 of 1992)

Full judgment

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

Sirazali Gulamurali Merali Hudani v Jimmy Tejani (Civil Application No. 31 of 1997) [1997] UGCA 1 (23 September 1997)
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.