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LUBEGA FRANCIS VERSUS NANYONGA KELEMENTINA

COURT OF APPEAL (CORAM: HON.JUSTICE S.B.K. KAVUMA, AG. DCJ)

CIVIL REFERENCE NO. 125 OF 2013

FEBRUARY 13TH, 2015

{(Arising from Misc. Appl. No. 202 of 2012) (Arising from Civil Appeal No. 068 of 2012)}

Civil Procedure: -------Appeals------Extension of time to file Notice of Appeal and Memorandum of Appeal---------When could court extend time to file Notice of Appeal and Memorandum of Appeal? -------Mistake of counsel not to be visited on the litigant.

This was a reference from the decision of the learned Assistant Registrar of the Court of Appeal in Miscellaneous Application No. 202 of 2012.

Background

The background to this reference was that the applicant filed Civil Appeal No. 068 of 2012 against the decision of the High Court at Nakawa. He consequently filed Miscellaneous Application No. 202 of 2012 under Rule 4 of the Court of Appeal Rules for extension of time within which to serve the Notice of Appeal and file a Memorandum of Appeal. The Assistant Registrar dismissed the application, hence this reference. There were three grounds of the reference as laid in the Memorandum of Reference:

1.   The learned trial Assistant Registrar erred in law and fact when she failed to properly evaluate the evidence on record and thus came to a wrong conclusion.

2.   The learned trial Assistant Registrar erred in law and fact when she applied wrong principles of law in dismissing the application and thus came to a wrong conclusion.

3.   The learned Assistant Registrar erred in law and fact when in the exercise of her discretion and in the circumstances of the case came to a wrong conclusion that effectively terminates Appeal No. 068 of 2012.

Counsel for the applicant submitted that the learned Assistant Registrar failed to properly evaluate the evidence as she had miscalculated the days taken before the Memorandum of Appeal was filed and to him that was erroneous and hence prejudicial to the applicant. He further submitted that the Assistant Registrar had not addressed the question of proper service of the Notice of Appeal which was very vital.

Counsel for the respondent on the other hand submitted that an order for extension of time could not be made granting the applicant the right to file the Memorandum of Appeal in the absence of a competent appeal. On the ground of evaluation of evidence as regards the date of filing the Notice of Appeal and Memorandum of Appeal, that the miscalculation was not fatal.

HELD:

1.   Court derived the jurisdiction to hear cases of that nature from Rule 5 of the Judicature (Court of Judicature Rules) Directions S.I. 13-10 which was to the effect that court could for sufficient reasons extend the time limited by the rules if it would help meet the ends of justice. That rule was to the effect that the court could extend time whether before or after the expiration of that time or whether before or after the doing of the act.

2.   The applicant in this case did his best to pursue the case but was let down by his counsel who did not do what the law required .And the mistake of counsel could not be visited on the applicant. This was a case where the provisions of Article 126(2) (e) could be properly invoked.

Reference was allowed and service of Notice of Appeal and the Memorandum of Appeal were validated and the costs in that matter abound the outcome of the appeal

Legislation cited and referred to in judgment

The Constitution of the Republic of Uganda, 1995 Article 126(2) (e)

Judicature (Court of Appeal Rules) Direction S.I. 13-10 Rules 4, 5, & 83

Cases cited and referred to in judgment

Godfrey Magezi & Brian Mbaziira Versus Sudhir Rupareria, Supreme Court Civil Application No. 10 of 2002;

Kabogerere Coffee Factory Ltd & Another Versus Hajji Twaibu Kigongo, Supreme Court Civil Application No. 10 of 1993;

Shabir Din Versus Ram Parkshanand, (1955) EACA 48 at 51;

Mr. Chris Bakiza for the applicant

Ms. Namutebi Alziik for the respondent

 

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