Court name
Commercial Court of Uganda
Judgment date
27 June 2014

Tight Security Ltd v Chartis Uganda Insurance Company Ltd & Anor (Miscellaneous Application-2014/8) [2014] UGCommC 89 (27 June 2014);

Cite this case
[2014] UGCommC 89

THE REPUBLIC OF UGANDA,

IN THE HIGH COURT OF UGANDA AT KAMPALA

(COMMERCIAL DIVISION)

MISCELLANEOUS APPLICATION NO 8 OF 2014

(ARISING FROM CIVIL APPEAL NO 14 OF 2014 AND MENGO CIVIL SUIT NO 895 OF 2011)

TIGHT SECURITY LIMITED}...................................................................APPLICANT

VS

  1. CHARTIS UGANDA INSURANCE CO LTD}
  2. BRAZAFRIC ENTERPRISES LIMITED}.....................................RESPONDENTS

BEFORE HON. MR. JUSTICE CHRISTOPHER MADRAMA IZAMA

RULING

This is an application for leave to appeal out of time brought by the intending Appellant/Applicant under the provisions of sections 79, 96 and 98 of the Civil Procedure Act, section 33 of the Judicature Act and Order 52 rules 1 and 3 of the Civil Procedure Rules. The Applicant seeks orders for enlargement of time to file its appeal upon such terms and conditions as the justice of the case requires. Secondly that the costs of and incidental to the application should abide the final result of the appeal.

There are five grounds in the Notice of Motion namely that: on 24 January 2014, the Applicants appeal was struck out for having been filed out of time. Secondly the Applicants Counsel was solely responsible for the late filing of the appeal which was established by court; thirdly the Applicant is not guilty of any dilatory conduct; that the appeal has a very high chance of success and finally that it is just and equitable that the orders sought are granted and the appeal determined on its merits. The notice of motion is supported by the affidavit of Mohammed Allibhai, the Managing Director of the Applicant and that of the General Manager P.K. Sharma.

Mohammed Allibhai deposes that the Applicant instructed Messieurs Kibeedi and Company Advocates to handle their defence in the Chief Magistrates Court and made it categorically clear that the case had very important implications and touched on the very core of their existence in the business as a private security company when the suit sought to nullify the exemption and limitation clauses in their guarding contracts. As such they instructed their advocates that they were prepared to appeal the points to the highest courts of law in Uganda. When the Chief Magistrate entered judgment against the Applicants on 1 March 2013, the Applicant immediately instructed the said advocates to appeal against the decision. On the same day the advocates filed in the lower court a letter applying to the court for a certified copy of the judgment and proceedings to enable them file the intended appeal. Subsequently Mr Salim Waiswa one of the advocates in Messieurs Kibeedi and Company Advocates informed the Applicant about filing the letter and advised the Applicant that time of 30 days limited for appealing would be computed from the date the court would avail a certified copy of the judgment and proceedings. The Applicant’s officials continued reminding the advocates to do whatever it takes within the law to get the appeal expeditiously filed but by April 2013 the Applicant had not been availed certified copies of the proceedings and judgment by the trial Chief Magistrate. On 22 April 2013 the advocates made a second request to the Chief Magistrate's Court to avail them a certified copy of the trial proceedings and judgment by letter. Thereafter the Applicant's officials kept on requesting the advocate for regular updates but the advocates kept on telling them that the Chief Magistrate's Court had not yet availed a certified copy of the proceedings and judgment.

In mid June 2013 the advocates informed the Applicants that they had succeeded in getting a copy of the typed proceedings of the trial court but that the certification of both the judgment and the typed court proceedings by the Chief Magistrate was still pending. Upon assurance by the advocates that they could use the certified copy of the proceedings and judgment to frame the grounds of appeal, the Applicant agreed that their Advocates go ahead and expeditiously file the appeal as they continued pressing the lower court to certify both the judgment and the court proceedings and avail the Applicant and the appellate court the desired copies. On 20 June 2013 the advocates filed in the High Court a booklet entitled "Memorandum of Appeal and the Trial Court Record" consisting of the memorandum of appeal, the uncertified copy of the judgment and proceedings of the lower court. The appeal was filed before obtaining certified proceedings and judgment. By the time the parties closed their written submissions in Civil Appeal No 14 of 2013, the certified copy of the judgment and record of proceedings of the lower court had not been availed to the Applicant. Despite the vigilance of the Applicant in getting the appeal filed the Applicant was shocked to learn that on 24 January 2014 the appeal was struck out on the ground that it had been filed out of time.

The Managing Director deposes that as a litigant they were relying exclusively on the advice of their advocates regarding the computation of time within which to file the appeal and should not be penalised for any errors or mistakes of their lawyers. Secondly the Applicant is not in any way at fault and is still desirous of getting the appeal disposed off on the merits. The appeal has a very high chance of success based on the grounds of appeal sets forth in the Memorandum of Appeal (that had been struck out). Submissions in the appeal had been made in writing that it is in the interest of justice that the Appellant be allowed to file the appeal out of time. The Applicant further seeks an order for the court to make a consequential order regularising the memorandum of appeal which is already on the court record (though struck out). Secondly that the submissions made by the parties be considered on the merits. Finally that it is in the interest of justice that the questions regarding the limitation and exemption clauses in their guarding contracts be disposed of on the merits.

In further support of the Applicant's application is the affidavit of PK Sharma the General Manager of the Applicant. The affidavit generally reiterates the facts and grounds in the previous affidavit in support set up above and there is no need to repeat the same here.

The affidavit filed in opposition to the application is that of Absalom Mubangizi an advocate practising with Messieurs Barugahare and Company Advocates. He deposes that he had read the application and supporting affidavit and that he is familiar with the facts of the case. Paragraphs 4, 5 and 6 of the affidavit deposes that the appeal procedure is provided for by Order 43 of the Civil Procedure Rules and that Civil Appeal Number 14 of 2013 was filed outside the prescribed period of 30 days and was consequently struck out for being incompetent. Under order 43 of the Civil Procedure Rules, there is no requirement for an intending Appellant to obtain certified copies of the record of proceedings before an appeal can be lodged. Order 43 rules 10 of the Civil Procedure Rules specifically deals with or what ought to be done when a memorandum of appeal is lodged in the High Court. Counsel further agreed with the court that the Applicant did not have to wait for a certified record of proceedings before lodging an appeal because there was no record to talk about. The deponent further is of the opinion that the issues of been availed with a certified copy of the record of proceedings is res judicata having been finally considered and determined by this court. Furthermore he is of the opinion that the appeal was finally determined and there is no further appeal to be disposed off on the merits. Secondly the Applicant being dissatisfied with the decision of the court lodged and served a notice of appeal in the Court of Appeal. Consequently the court cannot make consequential orders regularising none existent appeals, the appeal having been struck out on 24 January 2014.

On the 12th of June 2014 the Counsel Muzamil Kibeedi addressed the court on behalf of the Applicant while Counsel Patrick Alunga addressed the court on behalf of the Respondent.

Submissions of the Applicant’s Counsel

The Applicant’s application is for extension of time within which to file an appeal.  There are two affidavits in support of the application namely that of Muhammad Allibhai dated 24th of February 2014 and that of P.K Sherman. The Respondent filed in reply one affidavit of Absalom Mubangizi dated 6th May 2014.

The application follows the order of the court dated 24th January 2014 by which the court struck out the appeal of the Applicant on the ground of being filed out of time. The Applicant is still interested in having an appeal on the merits properly filed and heard hence this application for extension of time.

The Applicant’s Counsel submitted that considerations for extension for time are well settled. Under section 79 (1) of the Civil Procedure Act, all that the Applicant must show is “good cause”. Secondly under section 96 of the Civil Procedure Act, the discretion of the court is unfettered. The question to be considered is what “good cause” is in this case? “Good cause” is established by paragraphs 4 – 11 of the two supporting affidavits which are identical. In those paragraphs the Applicant indicated to their lawyer that the questions of interpretation and application of exclusion and exemption clauses in their guarding contracts is core to the existence of their business. They instructed Counsel in advance to prepare an appeal against the Chief Magistrate’s decision in case it was unfavourable. On the date of judgment an application was filed for a copy of the record of proceedings. Thereafter the Applicant continued following up with their lawyers who indicated that they had not obtained certified copies of proceedings. The lawyers informed their clients not to worry because they thought that time would be reckoned from the time of being availed typed certified proceedings. After getting typed proceedings the appeal was filed before certification. However this court held that obtaining proceedings was not necessary and the Applicant has respected that decision.

The law is that a litigant should not be penalised for the faults, mistakes or dilatory conduct of Counsel when the litigant has been vigilant. The Applicant’s Counsel relied on the case of Bamanya vs. Zaver Court of Appeal Civil Appeal No. 70 of 2001. The affidavit in reply does not contest paragraphs 1 – 5 and 8 – 11. The other ground is also set out in the decision of Bamanya vs. Zaver (supra) at page 8 and last paragraph thereof.  Administration of justice requires that the substances of all disputes should be heard and decided on merits. The Applicant indicated that it has what it considers as a genuine grievance namely continued existence of its business where exclusion/limitation clauses are standard. On the above grounds the court should be pleased to find that this is a proper case to extend time within which to appeal and that costs should follow the final outcome of the appeal.

Lastly paragraphs 19 – 22 of affidavits in support contain the forward planning of the Applicant.  If application is granted, then the Applicant prays that the appeal be validated and the previous submissions used whereupon the court can set a date for delivery of judgment. On validation of appeals pursuant to extension of time, Counsel relied on the case of Shanti vs. Hindocha and Others [1973] EA 207.

Submissions of the Respondents Counsel in reply

The Respondent’s Counsel Mr. Patrick Alunga submitted that on the ground that the Applicant seeks to validate the appeal, the question is whether there is an appeal (the appeal having been struck out). Section 79 of the Civil Procedure Act gives jurisdiction to extend time for sufficient cause. The instant application is like one made under rule 5 of the Judicature Court of Appeal Rules. That rule was considered by the Supreme Court in Godfrey Magezi and Brian Mbabazi vs. Sudhir Rupaleria Supreme Court Civil Application  No. 10 of 2002 at page 13 where they held that extension of time envisages 4 scenarios. One is before expiry of limited time, secondly after expiration of time, thirdly before the act is done and fourthly after the act is done. In the ruling of the court discussed what it takes to file an appeal.

The Respondent’s Counsel submitted that was not necessary for a certified copy of the record of the lower court to be obtained. The fact that an appeal must be lodged upon the court providing a certified copy of proceedings is only good practice. Supreme Court held that the rule envisages the 4 scenarios stated above. The appeal was incompetent and was struck out. Extension of time could only be ordered before the decision in this matter was made. In other words the application is caught up by the rule of res judicata.  Where time is granted after the act, the act would be regularised.  The Applicant seeks to regularise what does not exist. In essence the matters raised by Applicants Counsel are matters caught by section 7 of the Civil Procedure Act. The application is therefore misconceived and ought to be dismissed with costs.

Rejoinder of Applicant’s Counsel

In rejoinder Counsel Muzamil Kibeedi submitted that the application was not caught by the rule of res judicata. The decision to strike out the appeal was not made after consideration of the merits of the appeal but was based on a preliminary point of law. The doctrine of res judicata does not apply where the cause or matter is not decided on the merits.

On whether the application falls within the 4 scenarios discussed by the Supreme Court in the case of Godfrey Magezi and Brian Mbabazi vs. Sudhir Rupaleria (supra), the answer is that it does. When the appeal was struck out, it had the effect in law of rendering a situation as if there was no appeal and it has ever existed in law.  This application is made after expiry of the period of limitation and comes under ground number two in the Supreme Court case of Godfrey Magezi and Brian Mbabazi vs. Sudhir Rupaleria (supra) and it is a proper application for extension of time.

As regards regularisation of what was filed on court record, it becomes relevant in the circumstances of this case. It is only after the court is satisfied that the Applicants have shown good cause that the question becomes on what terms the leave should be granted? (I.e. the appeal on record can be validated).

Ruling

I have considered the Applicant’s application and supporting affidavits together with the affidavit filed in opposition to the application, the submissions of Counsels, and authorities cited. This application was brought under the provisions of sections 79 (1), 96 and 98 of the Civil Procedure Act cap 71 and section 33 of the Judicature Act cap 13 of laws of Uganda.

Starting with section 96 of the Civil Procedure Act, the section is inapplicable because it does not deal with a limitation period set by statute but by court. Section 96 provides as follows:

            "Enlargement of time

Where any period is fixed or granted by the court for the doing of any act prescribed or allowed by this Act, the court may, in its discretion, from time to time, enlarge that period, even though the period originally fixed or granted may have expired."

Section 96 of the Civil Procedure Act deals with enlargement of any period of time fixed or granted by the court for the doing of any act prescribed by or allowed by the Civil Procedure Act. In other words the enlargement is of a period of time granted by the court under the law. It does not deal with enlargement of a period of time granted by statute. It only does so indirectly where the court fixes a period under an enabling statutory provision. Section 96 is not applicable to applications for extension of time where a period prescribed by the law has expired because the Civil Procedure Act has a specific provision conferring jurisdiction on an Appellate Court to enlarge time. Similarly section 33 of the Judicature Act was quoted out of context. The head note of section 33 provides that it is a general provision as to remedies and it provides as follows:

"The High Court shall, in the exercise of the jurisdiction vested in it by the Constitution, this Act or any written law, grant absolutely or on such terms and conditions as it thinks just, all such remedies as any of the parties to a cause of matter is entitled to in respect of any legal or equitable claim properly brought before it, so that as far as possible all matters in controversy between the parties may be completely and finally determined and all multiplicities of legal proceedings concerning any of those matters avoided."

The provision is applicable in the exercise of the jurisdiction of the court to grant remedies in respect of any matter properly brought before it. Before the court can exercise the jurisdiction conferred by section 33 of the Judicature Act to grant any remedy, it should be apparent that there is no other provision that is applicable for the grant the remedy sought and the court should have been properly moved. It may be that the parties may not have specifically pleaded for a particular remedy and the court may in the exercise of its general powers to grant the remedies, grant the appropriate remedy. Where there is a specific statutory provision granting a specific kind of remedy, it is unnecessary to invoke the provisions of section 33 of the Judicature Act which is of general application. The application of the provision seems to be relevant only with regard to the prayer for validation of the appeal which has been struck out and I will consider that point at the end of this ruling.

The applicable law under the Civil Procedure Act and enforceable by the rules of procedure made there under is section 79 (1) of the Civil Procedure Act which deals with enlargement of time limited by the Act upon its expiry. Section 79 of the Civil Procedure Act provides that except as otherwise specifically provided for in any other law; every appeal shall be entered within 30 days from the date of the decree or order of the court. Secondly section 79 (1) (b) of the Civil Procedure Act deals with enlargement of the limited period prescribed and it provides as follows:

"…; but the appellate court may for good cause admit an appeal though the period of limitation prescribed by this section has elapsed."

In the words of section 79 (1) (b) an appellate court may for good cause admit an appeal though the period of limitation prescribed by section 79 (1) of the Civil Procedure Act has elapsed. The section confers jurisdiction on an appellate court defined in the Civil Procedure Act, to admit an appeal though the period of limitation of 30 days has elapsed for good cause. All that the Applicant has to demonstrate is that it has a "good cause" to have the appeal admitted out of time. What is "good cause" is not defined. Good cause must relate to and include the factors which caused inability to file the appeal within the prescribed period of 30 days. The phrase “good cause” is however wider and includes other causes other than causes of delay such as the public importance of an appeal and the court should not restrict the meaning of “good cause”. It should depend on the facts and circumstances of each case and prior precedents of appellate courts on extension of time. The provisions of section 79 (1) (b) of the Civil Procedure Act are made operational by the provisions of Order 51 rules 6 of the Civil Procedure Rules which provides that:

"Where a limited time has been fixed for doing any act or taking any proceedings under these rules or by the order of the court, the court shall have power to enlarge the time upon such terms, if any, as the justice of the case may require, and the enlargement may be ordered although the application for it is not made until after the expiration of the time appointed or allowed; except that the costs of any application to extend time and of any order made on the application shall be borne by the parties making the application, unless the court shall otherwise order."

Rule 6 quoted above does not limit or restrict the limitation period sought to be enlarged to the time for doing any act or taking any proceedings prescribed by the law or ordered by the court. The limitation period may have been prescribed by the rules or fixed by order of the court that one may perform any act or take any proceedings for which time is limited. Under the Civil Procedure rules Order 43 which applies to appeals to the High Court does not prescribe a period of limitation to lodge an appeal but only makes operational the provisions of the Civil Procedure Act on appeals. In my opinion an application for enlargement of time may be made under Order 51 rules 6 of the Civil Procedure Rules. Reading the first line of the provision "Where a limited time has been fixed for doing any act or taking any proceedings under these Rules…" It is apparent that the provision is applicable to a limitation period for the filing of appeals under order 43 rule 1 of the Civil Procedure Rules read together with section 79 (1) of the Civil Procedure Act which prescribes a period of 30 days within which to appeal from a decree of a Magistrates Court.

In the premises any period of time for the lodging of an appeal under order 43 may be enlarged for "good cause" under the provisions of section 79 (1) (b) and Order 51 rules 6 of the Civil Procedure Rules. The question for determination in this application is whether the Applicant has shown any "good clause" for admitting an appeal out of time. However I cannot deal with the question unless the preliminary point of whether the application is res judicata is first answered in the negative.

I therefore have to consider a preliminary point raised by the Respondent’s Counsel on the ground that the Applicant’s application for enlargement of time is res judicata.

The Respondent’s Counsel submitted that the appeal was incompetent and was struck out and extension of time could only be ordered before the decision striking out the appeal was made. This follows interpretation of the holding in the case of Godfrey Magezi and Brian Mbabazi versus Sudhir Rupaleria Supreme Court Civil Application Number 10 of 2002 at page 13. In that case it was held that extension of time under the relevant provisions of the rules of the court envisages four scenarios. Rule 4 of the Rules of the Appellate Court provides that the court may for sufficient reason extend the time prescribed by the rules or by any decision of the court or of the Court of Appeal for the doing of any act authorised or required by the rules and the relevant part being:

"...whether before or after the expiration of the time and whether before or after the doing of the act…"

The Supreme Court applied the ratio in Crane Finance Company Ltd versus Makerere Properties Supreme Court Civil Application Number 1 of 2001 where the Supreme Court held that rule 4 of the Rules of Court envisages four scenarios in which extension of time for the doing of an act so authorised or required may be granted namely: before expiration of the limited time; after expiration of the limited time; before the act is done; and after the act is done. The Supreme Court further held (in the case of Godfrey Magezi (supra)) that when the time for lodging a document is extended, the document is duly lodged if lodged within the time as so extended. This is whether the actual lodging is before or after the order of extension. The court further agreed with earlier decisions that the legal effect of extension of time is to validate or excuse documents filed out of time because the registrar cannot refuse to receive documents filed out of time.

The arguments of the Respondent’s Counsel on the question of res judicata is apparently that the appeal had been filed albeit out of time and after been filed out of time, was struck out. Following the striking out, it did not fall under any of the four scenarios set up by the court namely whether the application was made before the expiry of the limited time; after the expiry of the limited time; before the act is done; or after the act is that. I agree with the Respondent’s Counsel that where an appeal has been struck out, the consideration for grant of an extension of time after the application is made does not fall within the four scenarios at first glance. However the issue requires a deeper analysis and consideration of the effect of striking out a pleading or an appeal. In the matter before the court the order made is that the Appellants appeal is incompetent for the reasons set out in the ruling and the appeal was accordingly struck out with costs. The Applicant’s Counsel submitted on that basis that striking out of the appeal did not determine the appeal on the merits and the rule of res judicata was inapplicable. Before conclusion of the matter, it is necessary to consider the rule of res judicata. Res judicata is a statutory bar to the hearing of any suit and is provided for by section 7 of the Civil Procedure Act which provides that:

"No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try the subsequent suit or the suit in which the issue has been substantially raised, and has been heard and finally decided by that court."

The test is whether the matter or issue in this application has been directly and substantially in issue in a former suit between the same parties and in a court competent to try the subsequent suit. In the East African Court of Appeal case of Kamunye and Others vs. The Pioneer General Assurance Society Ltd, [1971] E.A. 263 it was held at page 265 by Law Ag P that:

“The test whether or not a suit is barred by res judicata seems to me to be – is the Plaintiff in the second suit trying to bring before the court, in another way and in the form of a new cause of action, a transaction which he has already put before a court of competent jurisdiction in earlier proceedings and which has been adjudicated upon. If so, the plea of res judicata applies not only to points upon which the first court was actually required to adjudicate but to every point which properly belonged to the subject of litigation and which the parties, exercising reasonable diligence, might have brought forward at the time... The subject matter in the subsequent suit must be covered by the previous suit, for res judicata to apply...”

The matter in issue in this application is whether time should be extended for the Applicant to lodge an appeal in the High Court out of time. Secondly the matter in issue was whether the appeal which had been lodged was time barred. In this application the question of whether the appeal was time barred is conceded through an application for extension of time to lodge the intended appeal out of time. The application assumes that there is no appeal which has been filed in the High Court. Furthermore in my ruling of 24th of January 2014 and the last page thereof it is written that where the limitation period has expired before an application for a record of proceedings has been made, it is necessary to apply for extension of time within which to lodge the appeal. This is consistent with the Supreme Court ruling of Godfrey Magezi and Brian Mbazira versus Sudhir Rupaleria (supra) where one of the four scenarios was that an application for extension of time may be made after occurrence of the event. In other words an extension of time may be sought to file the appeal out of time in order to wait for the record of proceedings or upon obtaining the record of proceedings. In other words the ruling makes it clear that there was no application for extension of time before the court and therefore it was not a matter in issue. This restricts the consideration on the point of law of res judicata to whether the ruling on whether the appeal was time barred was on the merits.

As I have indicated, it is true that what the court ruled was that the appeal that had been lodged was time barred. The ruling specifically was a finding that the appeal was lodged out of the time prescribed by law. Because it was lodged out of time, the appeal was struck out. The issue of whether the Applicant’s application is res judicata turns on the effect of an order striking out the appeal. The fact that the appeal was filed out of time is conceded. Secondly the determination that the appeal was filed out of time was made on the preliminary point of law on the competence of the appeal. The question therefore is also whether a ruling that the appeal was incompetent is a ruling on the merits. The Applicant’s Counsel relied on the case of Isaac Bob Busulwa vs. Ibrahim Kakinda [1979] HCB 179 where the suit had been dismissed on a preliminary point that the Plaintiff had failed to submit their dispute to arbitration in accordance with the partnership deed. Hon. Justice Katinti held that the dismissal of the suit on the preliminary point of law not based on the merits of the case, does not bar a subsequent suit on the same facts and issues between the same parties according to the case of Kercarchand vs. Jan Mohammad (1919-2) 8 EALR 64. In Frederick Sekyaya Sebugulu vs. Daniel Katunda [1979] HCB 46 the Plaintiff's Counsel’s application for adjournment was refused and the Hon Judge dismissed the suit. Thereafter the Plaintiff applied under Order 9 rules 24 and Orders 9 rules 26 of the Civil Procedure Rules to set aside the dismissal of the suit. It was held that the dismissal could not be treated as res judicata because it was an order in the same case and not in a former suit, a necessary condition for application of the principle of res judicata. Finally by using the words "striking out", the decision of the court was not on the merits of the appeal. The effect of the striking out of the Applicants appeal resulted in an order for costs but did not determine any question in the merits of the appeal. Striking out of the appeal meant that there is nothing on record by way of an appeal. The merits of the appeal would deal with the appeal itself on the basis of the submissions on the merits of the grounds of the appeal.

In my opinion the only issue for consideration is whether there is "good cause" for extension of time to admit the appeal. I agree with the Applicant’s Counsel that the discretionary power given by section 79 (1) (b) of the Civil Procedure Act is wide enough for the court to consider an application for extension of time after an appeal has been struck out for being incompetent or a nullity. I will only emphasise the wording of section 79 (1) (b) of the Civil Procedure Act. It provides that the appellate court may for good cause admit an appeal though the period of limitation prescribed by this section has elapsed. I do not see any limitation to an application filed after the period of limitation prescribed by this section has elapsed and after an incompetent appeal has been struck out for being time lodged out of time. Whether the appeal is lodged and struck out or not does not change the fact that it is incompetent. The court cannot legitimise an incompetent appeal and therefore striking it out only recognises that it is incompetent and incapable of being lawfully acted upon. An application for extension of time may well be made when the appeal is still on the court record. Even if the appeal is pursued, its incompetence can be raised at a later stage of the proceedings and the court would pronounce that the proceedings are a nullity. A nullity cannot be dismissed on the merits. Consequently I will consider the merits of the application.

The Respondent’s Counsel does not dispute the affidavit evidence of the Applicant’s directors that it was not their fault but that of their Counsel who chose to wait for a certified copy of the record of proceedings before filing the appeal. First of all they gave timely instructions to their lawyers to appeal. They relied solely on the skill of their lawyers. Secondly there was no dilatory conduct on the part of the Applicant. Thirdly the Applicant is in the business of guarding or providing security services from burglars etc. They have indicated that the decision affects their business in the sense that the court refused to apply exemption/limitation clauses limiting their liability for theft etc in a standard contract document that is used by the company for their business. It is apparent that this is an important point from the business point of view. As to whether it has merit or not cannot be determined in this application. The Respondents have therefore shown "good cause" in that they cannot be faulted for failure of Counsel to file the appeal within 30 days. They cannot be faulted for the interpretation of law by Counsel. In the case of Andrew Bamanya vs. Shamsherali Zaver Civil Application Number 70 of 2001, the Supreme Court held that the mistakes, faults/lapses or dilatory conduct of Counsel should not be visited on the litigant. Secondly they held that the other principles governing applications for extension of time is that the administration of justice requires that all substances of disputes should be heard and decided on merit. In that case there was a delay of 2 1/2 years to file the application for leave to appeal out of time. The delay was caused by the Applicant’s lawyers. In that case the court found that it would be a denial of justice considering the circumstances of the case to shut the Applicant out from exercising his rights. The Supreme Court has inherent powers under its own rules to administer substantive justice.

Finally the question is whether the Applicant should be allowed to use what has already been filed on the court record. I have carefully considered the submissions of Counsel on the point of whether there is any appeal or the court record or not. The effect of the order of the court is that there is no appeal on the court record. The appeal had been struck off. This has implications on the question of costs if the appeal is to be reinstated. I do not agree with the Applicant’s Counsel that because the physical file remained in the court registry, the court can order that it should be validated to save the parties costs. Orders of court are not made in vain and are supposed to be implemented through execution. The appeal was struck out and I agree that there is nothing on record by way of a memorandum of appeal as prescribed by Order 43 rule 1 of the Civil Procedure Rules. It is a matter of law that there is no appeal or the court record and none can be adopted. An order for extension of time where an appeal has been struck out would operate as an order to file a fresh appeal and pay all the prescribed fees.

The Applicant’s case is distinguishable from the case of Shanti vs. Hindocha and others [1973] EA 207. In that case the Court of Appeal of East and Africa sitting at Nairobi. It was argued for the Respondent that the rules for extension of time only empowers a judge to authorise a future act, and not to validate a past act. The Court of Appeal agreed with the judge when he rejected the argument and held that when the time for lodging a document is extended, the document is duly lodged if lodged within the time so extended whether the actual lodging is before or after the order of extension. They held that to hold otherwise would serve no purpose and would merely result in more costs being incurred. This decision was applied by the Supreme Court of Uganda in Godfrey Magezi and Brian Bazira versus Sudhir Rupaleria Supreme Court Civil Application No. 10 of 2002. All the cases quoted therein in which an appeal which had been lodged out of time was validated by an order of extension of time cannot apply in the circumstances of this case where the appeal was struck out by order of court.

The act of striking out the appeal distinguishes the decision of the Supreme Court. Where an appeal has been struck out, the Applicant’s fees for lodging the appeal cannot be refunded. On the other hand where there is an extension of time when the memorandum has been lodged on court record, the appeal can be validated because it is already on the court record.

In the circumstances the Applicant will file a fresh appeal upon the order of this court allowing the application for extension of time. It does not matter whether the same documents are lodged afresh provided that the document are filed as a new appeal and given a new number the previous appeal having been struck out with costs.

In the premises the Applicant is granted leave to appeal out of time and the appeal shall be lodged within 14 days from the date of this ruling. Under Order 51 rules 6 of the Civil Procedure Rules, unless otherwise ordered by court, the costs of and incidental to an application for leave to appeal out of court shall be borne by the Applicant. In the premises the Applicant shall pay the costs of this application.

Ruling delivered in open court the 27th day of June 2014

 

Christopher Madrama Izama

Judge

Ruling delivered in the presence of:

Patrick Alunga for the Respondent

Salim Waisswa for the Applicant

 

Charles Okuni: Court Clerk

 

Christopher Madrama Izama

Judge

27/June/2014