Tumushabe And Another v M s Anglo African Ltd and Another (H.C.C.S No. 14 of 1996)

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

A single Justice of Appeal held that the pendency of an incompetent appeal does not bar an application under rule 4 for extension of time to lodge that appeal. Where the delay was caused by the applicants' former advocates and by the court's failure to supply the record of appeal, and the applicants were not guilty of dilatory conduct, sufficient reason was shown. The faults of an advocate or the court should not be visited on a vigilant litigant. The court further held that a single Justice has no jurisdiction to strike out a notice of appeal, so the respondent's application to strike out was itself incompetent. Leave was granted and the appeal validated.

Outcome

Application for extension of time granted; appeal validated; respondent's application to strike out held incompetent

Facts

The High Court (Ntabgoba P.J.) delivered judgment in H.C.C.S No. 79 of 1995 on 6 March 1996. The applicants' then advocates, M/s Byenkya, Kihika & Co. Advocates, filed a notice of appeal on 19 March 1996, within the prescribed time. However, the advocates applied for the record of appeal on 17 April 1996, outside the prescribed time, making them ineligible for the benefit of rule 82. The record of appeal was ultimately filed on 25 September 1997, over fifteen months late, with most of the delay after 17 April 1996 attributable to the court's failure to supply the typed record. The applicants' current advocates, realising the appeal was filed out of time, filed this application for extension of time on 17 April 1998. Both counsel agreed to confine argument to rule 83(a), the respondent conceding the issue of sufficient reason and agreeing to concede the application if he lost the legal argument.

Issues

1. Whether an application for extension of time to institute an appeal is competent where the notice of appeal is deemed withdrawn under rule 83(a) and no valid notice of appeal is on record.
2. Whether the pendency of an incompetent appeal bars an application for extension of time within which to lodge that appeal.
3. Whether the applicants had shown sufficient reason for their failure to institute the appeal within the prescribed time.
4. Whether a single Justice of Appeal has jurisdiction to entertain an application to strike out a notice of appeal.

Orders

• The application to strike out the application or the appeal is not properly before the court and is incompetent.
• Leave to file the Civil Appeal out of time is granted.
• The said appeal is accordingly validated.
• Costs of the application to follow the event.

Rules and key headnotes

Legislation cited (6)

• Court of Appeal Rules Directions 1996 rule 4
• Court of Appeal Rules Directions 1996 rule 12
• Court of Appeal Rules Directions 1996 rule 52(2)(c)
• Court of Appeal Rules Directions 1996 rule 75
• Court of Appeal Rules Directions 1996 rule 82
• Court of Appeal Rules Directions 1996 rule 83(a)

Cases cited (9)

• SHANTI VS ... 2 OTHERS CIVIL ... NO. 34 OF 1972 ... [1973] E.A. 209
• Florence Nabatanzi vs. Naome Binsobedde
• Executrix of the Estate of Christine Namatovu Tibajjukira v Debora Namukasa (Civil Application No. 5 of 1988)
• Kabogere Coffee Factory Ltd and Another v Haji Twaibu Kigongo (Civil Application No. 10 of 1993)
• Haji Nardin Matovu vs Den Kiwanuka Civil Application No. 12/1994 (unreported)
• Gatti vs Shoosmith [1939] 3 ALL E.R. 916
• Essaji vs Solanki [1965] E.A. 223
• Bhatt vs Tejwant Singh [1962] E.A. 497
• Ngo vs Wanyira & ... [1979]

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