THE REPUBLIC OF UGANDA
IN THE SUPREME COURT OF UGANDA
CIVIL APPLICATION NO. 20 OF 2008
B E T W E E N
(2) G. R. KAPACEE } :::::::::: RESPONDENTS
(3) SHABEER KAPACEE }
The background facts leading to this application are briefly that dissatisfied with the said judgment of the Court of Appeal, the applicants promptly instructed M/s. Godfrey Lule, SC and A. F. Mpanga Advocates to prefer an appeal against the judgment. Acting on that instruction, the advocates filed Notice of Appeal on 15th November 2007, and followed with a letter on 30th November, 2007, requesting for certified copy of the proceedings. However, the lawyers inadvertently failed to serve the Notice of Appeal to the opposite party within the time prescribed by rule 74(1) of the Rules of this Court. They also inadvertently failed to copy and serve the letter requesting for the certified copy of the proceedings on the opposite party as required by rule 79 (2) and (3) of the Rules of this Court.
On 29th April, 2008, when the Registrar, Court of Appeal in a letter to the counsel for another intended appellant, but copied to the applicant’s counsel, advised the availability of the record of proceedings, the time for filing the appeal had long elapsed. Counsel for the applicant stated that due to communication difficulty between them as the applicants who live in the United Kingdom had changed their e-mail address, they could not contact the applicants until early July, 2008. Until then, they had no way to obtain professional and disbursement fees necessary to file the appeal and thereby obtain instructions to proceed in the matter. The application was not filed until 16-09-2008, after the current counsel for the applicants perused application No. 07 of 2008 which seeks to strike out the Notice of Appeal.
The grounds on which the application is based, as appear in the Notice of Motion, may be summarised as follows:
Daniel Byaruhanga and Geoffrey Otim both care of Muyanja & Associates, Advocates, Solicitors and Legal Consultants representing the 2nd and 3rd respondents filed affidavits in reply.
The first respondent opposed the application and relied on the affidavit evidence sworn by Joy Ntambirweki, an advocate from M/s. Ntambirweki Kandeebe & Co. Advocates, representing the first respondent.
At the hearing, the affidavits in reply sworn by Daniel Byaruhanga and Geoffrey Otim were by consent struck off the record.
Mr. Masembe-Kanyerezi, learned counsel for the applicants, submitted that the former counsel for the applicants had lodged the Notice of Appeal and written the letter requesting for copy of the proceedings within the prescribed time but inadvertently failed either to serve the Notice of Appeal or to copy and serve the letter requesting for the record of the proceedings on the opposite party as required by the rules of this court. He added that the reason for these failures was inadvertence. He pointed out that by reason of the failure to copy and serve the letter requesting for the proceedings on the opposite party, the applicants could not take advantage of rule 79(2) and therefore, the period certified by the Registrar, Court of Appeal as having been taken in preparing the record could not be deducted when computing the 60 days within which to file the appeal. Consequently, the period within which the applicants’ appeal should have been filed elapsed on 15-01-08, by which time even the record of the proceedings had not yet been made available until 29-04-2008.
He asserted that these mistakes had not been realised until the application to strike out the Notice of Appeal was served on them hence the late filing of this application.
He pointed out that the applicants, as laymen, did not know the requirement to serve a copy of the letter requesting for the proceedings on the opposite party and retain evidence of such service. In his view, the applicants had all along been interested in having their appeal heard and decided on the merits since at stake is the ownership of the property, the subject matter of the case, which is of great importance to them and their families. They would suffer great loss if their rights to the property were lost without their appeal being heard and decided on the merits. He urged that negligence of counsel should not be visited on his client.
Counsel stated that the record of proceedings and the memorandum of appeal were ready and could be filed within 48 hours if the application was allowed. He concedes to costs of the application since the applicants were at false.
Mr. Kandeebe, learned counsel for the first respondent, opposed the application. He contended that the application was brought merely to buy time to deny the first respondent justice since justice delayed is justice denied.
Citing Boney M Katatumba - vs - Waheed Kerrim, Civil Application No. 27 of 2007, (SCU), learned counsel submitted that for an application for extension to succeed, sufficient reason must be shown and that the applicant must be vigilant.
He stated that in the instant case, the delay in instituting the application had been inordinate. The applicants and their counsel had both been guilty of dilatory conduct. They were availed opportunity to take the necessary steps in time but they just sat back. The Registrar, Court of Appeal by a letter dated 29-04-2008, notified all counsel of the availability of typed proceedings. The letter was served on all counsel on 07-05-08. Despite that information, counsel for the applicants took no action to collect the record. They woke up only when the Registrar of the Supreme Court by a letter dated 22nd August 2008, invited them to appear at the pre-hearing conference scheduled for 29-08-08.
He stated that there is no former counsel for the applicant. The letter inviting counsel for the applicants for the pre-hearing conference was served on M/s. A. F. Mpanga Advocates, a firm which jointly with MMaks Advocates still represent the applicants. They jointly drew this application No. 20/2008 for extension.
Learned counsel rejected the claim in Mr.