Wakilii

Tumushabe and Another v Ms Anglo African Limited and Another (Civil Application 14 of 98)

Court of Appeal · [1998] UGCA 35 · 1998 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to a single judge of the Court of Appeal for extension of time to institute an appeal out of time, with a cross-application by the respondents to strike out the appeal as incompetent
Decision
Extension of time granted; Civil Appeal No. 38/97 validated; respondents' application to strike out held incompetent

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

On an application to a single judge for extension of time to institute an appeal out of time, the court held that under rule 4 the court has wide powers to extend time where sufficient reason is shown, and a vigilant litigant should not be penalised for the dilatory conduct of his advocate or the court. The pendency of an incompetent appeal is no bar to an application for extension of time. A single judge has no jurisdiction to strike out a notice of appeal, so the respondents' cross-application was itself incompetent. Sufficient reason having been shown, the extension was granted and Civil Appeal No. 38/97 validated.

Outcome

Extension of time granted; Civil Appeal No. 38/97 validated; respondents' application to strike out held incompetent

Facts

The applicants sought to appeal against a judgment of the High Court (Ntabgoba P.J.) dated 6 March 1996 in H.C.C.S No. 79 of 1995. Their former advocates filed a notice of appeal on 19 March 1996, within time, but applied for the record of appeal on 17 April 1996, outside the prescribed time, and did not serve the required letter within time, rendering the appeal ineligible for the benefit of rule 82. The record of appeal was filed only in September 1997, over fifteen months out of time, partly because the court failed to supply the typed record in time. The applicants deposed they had instructed their advocates to appeal and were not personally guilty of any dilatory conduct. Both counsel agreed the applicants were not at fault and that the delay was caused by the former advocates and the court's delay in supplying the record. The applicants applied for extension of time under rule 4 to institute the appeal, while the respondents applied to strike out the appeal as incompetent.

Issues

  1. Whether the failure to institute the appeal within the prescribed time is fatal, given that the notice of appeal is deemed withdrawn under rule 83(a).
  2. Whether the pendency of an incompetent appeal bars an application for extension of time to lodge the appeal.
  3. Whether a single judge has jurisdiction to strike out a notice of appeal.
  4. Whether sufficient reason was shown to grant an extension of time to institute the appeal out of time.

Orders

  • The respondents' application to strike out the application or the appeal is not properly before the court and is incompetent.
  • The application for leave to file Civil Appeal No. 38/97 out of time is granted.
  • Civil Appeal No. 38/97 is accordingly validated.
  • Costs of the application to follow the event.

Rules and key headnotes

Appeals — Extension of Time — Wide Powers Under Rule 4
Under rule 4 of the Court of Appeal Rules the court has wide powers to extend the time for doing anything required by these rules, whether before or after the expiry of that time, where sufficient reason is shown.
Appeals — Extension of Time — Fault of Advocate or Court
A vigilant litigant should not be penalised for the dilatory conduct of his advocate or of the court where he has not personally contributed to the delay; the faults of the advocate and the court should not be visited on the applicant.
Appeals — Extension of Time — Pendency of Incompetent Appeal
The pendency of an incompetent appeal is no bar to an application for extension of time within which the appeal may properly be lodged.
Appeals — Jurisdiction of Single Judge — Striking Out Notice of Appeal
A single judge of the Court of Appeal has no jurisdiction to entertain an application to strike out a notice of appeal.
Appeals — Extension of Time — Validation of Record Lodged Out of Time
An extension of time may be granted even where the record of appeal has already been lodged out of time before the application; a document lodged within the extended time is duly lodged whether the actual lodging is before or after the order of extension.

Legislation cited (6)

  • Court of Appeal Rules Directions 1996 rule 4
  • Court of Appeal Rules Directions 1996 rule 82
  • Court of Appeal Rules Directions 1996 rule 83(a)
  • Court of Appeal Rules Directions 1996 rule 12
  • Court of Appeal Rules Directions 1996 rule 76
  • Court of Appeal Rules Directions 1996 rule 52(2)(c)

Cases cited (8)

  • Shanti vs. N.D. Hindocha & 2 Others Civil Application No. 34 of 1972 reported [1971] E.A. 207
  • Civil Application No. C of 1988 Estate of C.M. Namatovu Tibaijuka vs Nalita Stananzi
  • Civil Appl. No. 10 of ... Kabosere Coffee Factory Ltd. & anor -vs- Twaibu Kigongo
  • Florence Mabatanzi vs. Naome Einsobedde (supra)
  • Gatti vs Shoosmith [1939] 3 All E.R. 916
  • Essaji vs Solanki [1968] E.A.
  • Executrix of the Estate of Christine Namatovu Tibaijuka vs Debora Namukasa Civil Application No. 183 of ...
  • Nardin Mataru vs Ben Mutebi Civil Application No. 12/1991 (unreported)

Full judgment

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Tumushabe and Another v Ms Anglo African Limited and Another (Civil Application 14 of 98) [1998] UGCA 35 (19 June 1998)
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.