Sonko & 11 Others V Dick K. Banoba (Misc. Application No. 122 of 2018)

Observed later treatment

No later-treatment classification is recorded for this judgment.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

Holding

The Court of Appeal dismissed an application for extension of time to file a memorandum of appeal. It held that the discretion under Rule 5 of the Court of Appeal Rules may not be exercised unless a notice of appeal was lodged and served as required by Rules 76 and 78; here none existed. The court further held the application was misconceived because a prior application had been dismissed for want of prosecution, so the applicant ought to have applied to set that dismissal aside. As the intended matter was a second appeal, the applicant failed to identify any point of law and did not attach the judgment or draft memorandum, an omission not curable by Article 126(2)(e).

Outcome

Application for extension of time dismissed with costs to the respondent

Facts

The applicants sought an extension of time to file a memorandum of appeal in an intended second appeal arising from High Court Civil Appeal No. 71 of 2014 at Jinja, itself arising from Chief Magistrate's Court Civil Suit No. 71 of 1994. Counsel attributed the delay to the Jinja High Court's failure to release the record of proceedings and judgment, and to former advocates who filed extension applications but never notified the applicant of hearing dates, resulting in dismissal for non-appearance. The respondent averred that judgment was delivered on 5 February 2015 in the presence of the 12th applicant and with counsel's knowledge, that no notice of appeal was ever lodged or served, and that the application was filed after more than four years. A prior application (No. 113 of 2017) for extension of time had been dismissed for lack of prosecution on 21 March 2018. Several applicants were deceased or had settled with the respondent.

Issues

1. Whether the applicant had shown sufficient cause to warrant an extension of time to file a memorandum of appeal.
2. Whether an extension of time to file a memorandum of appeal can be granted where no notice of appeal was ever lodged or served.
3. Whether the mistakes of the applicant's former advocates constituted sufficient cause for the delay.

Orders

• Application dismissed with costs to the respondent.
• The 2nd, 4th, 6th, 7th, 8th, 11th and 13th applicants removed as applicants, with costs to be paid by Counsel Kikomeko personally.
• All other applicants save the 1st applicant struck off as their applications were filed without instructions.

Rules and key headnotes

Legislation cited (8)

• Civil Procedure Act s.98
• Civil Procedure Act Cap.71 s.72
• Judicature (Court of Appeal Rules) Directions S.I 13-10 r.5
• Judicature (Court of Appeal Rules) Directions S.I 13-10 r.43
• Judicature (Court of Appeal Rules) Directions S.I 13-10 r.76
• Judicature (Court of Appeal Rules) Directions S.I 13-10 r.78
• Judicature (Court of Appeal Rules) Directions S.I 13-10 r.83
• Constitution of Uganda 1995 Article 126(2)(e)

Cases cited (4)

• Mugo vs. Wanjiri [1970] EA 481
• Pinnacle Projects Limited v Business in Motion Consultants Limited (Miscellaneous Application No. 362 of 2010)
• Nicholas Roussos v Ghulam Hussein Habib Virani and Another (Civil Appeal No. 9 of 1993)
• Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1991)

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