5 July 1972

     
 

Criminal Appeal No. 67 of 1971

 
     

Court of Appeal for East Africa

     
     

Daniel Intemba

 

v.

Festo Zikanga

     
     
 

Order

 
     
 

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BEFORE:

PRESIDENT: The Honourable Mr. Justice M. Saied

   

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Citation:

Intemba v. Zikanga, Order, File No. 67 of 1971 (CAEA, July 05, 1972)

Represented By:

 

Editor's Note:

Original Civil Suit No MKA.52/69 of the Magistrate's Court of Kabale at Kabale before Mr. S.A. Pinto, Magistrate Grade 1) at the Civil Sessions holden at Kabale on 1st June, 1972

 
     
 
 
 

ORDER.

[1] The applicant seeks leave to appeal out of time. He filed an affidavit, which I treated as such an application. It is presumably brought under the proviso to sub-section (1) of section 80 of the Civil Procedure Act, which empowers the Court to admit an appeal although the prescribed period of 30 days has elapsed "for good cause shown".

[2] The respondent had sued the applicant for damages for injuries sustained by him in an assault by the applicant. The applicant was served with the summons to enter appearance on 29th October, 1969. He is alleged to have refused to sign the summons. An affidavit of service was duly filed by the process server. The applicant did not enter appearance.

[3] The suit was then set down for formal proof under the provisions of 0.9, r.6 of the Civil Procedure Rules. For some reason the applicant was served with a hearing notice, and he attended the hearing. Judgment was entered against him on 1st October, 1970 in his presence, and he was ordered to pay damages of shs.770/-, plus costs fixed at shs.484/-.

[4] On 23rd April, 1971 an order to attach his salary in execution of the decree was issued. On 23rd July, 1971 he applied for stay of the execution pending his appeal to this Court. His application for leave to appeal was received by the Registry in Kampala on 20th July, 1971, but it was not till 18th September, 1971 that he paid the filing fees.
This then is the background leading to the present application. After stating that he had not been served with the summons to enter appearance, and admitting attending the hearing for assessment of the damages, he states in his affidavit:

“7. That I could not appeal in time for my duties as advised necessitate my staying away from my home or even from town.
8. That I have now seized time to appeal against the judgment of the 1st Grade Magistrate"

[5] The application was resisted on the main ground that it does not disclose any good cause for the delay in appealing. The court has a wide discretion in these matters. Like any other discretion it too has to be exercised judicially. This is not a case where the applicant was taken by surprise.

[6] Judgment was delivered in his presence. Ignorance of Court Rules has not been pleaded as one of the grounds for this application. His conduct was such that even if it had been raised I would not have given it much thought. Not¬ withstanding the fact that judgment was passed on 1st October, 1970 it was not till his salary was attached in April, 1971 (after about 7 months) that he seems to have woken up from his slumber. As stated earlier it was on 18th September, 1971 that he paid the court fees for this application.

[7] He was thus out of time by a little more than ten months. The Court may exercise its discretion only if good cause is shown for the entire period of the delay. Courts now insist that the rules of court be obeyed. The principle involved in such cases as enunciated in Ratnam v. Cumarasamy, (1964) 3 All E.R. 933 at p. 935 has been approved and followed by this Court in at least two very recent decisions, Castelino v. Rodrigues. E.A.C.A. Civil Appeal No. 4 of 1972 and Janson Male v. Samwiri Mukasa, Miscellaneous Cause No. 13 of 1972. In another English case, Revici v. Prentice Hall Incorporated, (1969) 1 All E.R. 772 Lord Denning H.R. emphasised the same point when he said at p.774:

"Counsel for the plaintiff referred us to the old cases in the last century of Eaton v. Storer (1) and Atwood v. Chichester (2), and urged that time does not matter as long as the costs are paid. Nowadays we regard time very differently from what they did in the nineteenth century. We insist on the rules as to time being observed. "

[8] And Edmund Davies, L.J., said at p.774:

"On the contrary, the rules are there to be observed; and if there is non¬ compliance (other than of a minimal kind), that is something which has to be explained away. Prima facie, if no excuse is offered, no indulgence should be granted.”

[9] With these views I respectfully agree. The only explanation for this rather inordinate delay is that the applicant was mostly out of town. I consider as a very flimsy excuse for the excessive delay in bringing this application. I am of the view that the material l before me does not disclose any good cause for exercising my discretion to allow this application.

[10] I am satisfied that it must be dismissed.

[11] It is therefore dismissed with costs.

 
 

 

 
     

 

 

 

 

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