Wakilii

Mutabazi & 3 Others v Horizon Coaches Limited (Civil Application 97 of 2000)

Court of Appeal · [2001] UGCA 23 · 2001 Application Granted ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application to strike out a notice of appeal under rules 42 and 81 of the Court of Appeal Rules
Decision
Notice of appeal struck out as incompetent; application allowed with costs

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Cited — treatment unverified cited in 3 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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Holding

The Court held that the provisions of rules 77(1) and 82(3) of the Court of Appeal Rules are mandatory. An intended appellant must serve the notice of appeal on all persons directly affected within seven days of lodging, and must serve and retain proof of service of the written request for the record of proceedings. The respondent's affidavit of service, sworn seven months after the alleged service, was held suspect, and there was no indication the letter of request was copied to the applicants. Finding non-compliance, the Court struck out the notice of appeal as incompetent, noting the appeal had not been and could not lawfully be lodged within time. The application succeeded with costs to the applicants.

Facts

The applicants were the successful plaintiffs in High Court Civil Suit No. 1087 of 1997 against Horizon Coaches Limited, in which judgment was delivered. The respondent filed a notice of appeal on 7th July 2000 and a letter to the Registrar requesting the record of proceedings. The applicants asserted they and their counsel were never served with either document until 4th December 2000, when they received Application No. 94 of 2000 (for stay of execution) with the notice of appeal annexed. The respondent's evidence was that its law clerk served counsel for the applicants on 10th July 2000, and that one Robert Okisi, the applicants' law clerk, refused to endorse the documents but retained them. The affidavit of service was sworn in February 2001, some seven months later. The applicants' actual law clerk was named Richard Okis, who denied any service. The letter of request bore no indication it had been copied to the applicants.

Issues

  1. Whether the notice of appeal was served on the applicants within the time prescribed by rule 77(1) of the Court of Appeal Rules.
  2. Whether the respondent complied with rule 82(3) by serving the letter requesting the record of proceedings on the applicants and retaining proof of service.
  3. Whether the notice of appeal should be struck out as incompetent.

Orders

  • The application is allowed.
  • The notice of appeal is struck out with costs to the applicants.

Key headnotes

Civil Procedure — Appeals — Service of Notice of Appeal under Rule 77(1)
An intended appellant must, before or within seven days after lodging a notice of appeal, serve copies of it on all persons directly affected by the appeal; the requirement is mandatory and a notice served out of time is incompetent.
Civil Procedure — Appeals — Request for Record of Proceedings under Rule 82(3)
An appellant may not rely on the exclusion of time under rule 82(2) unless the written application for the record of proceedings was served on the respondent and proof of that service has been retained; these requirements are mandatory.
Evidence — Affidavits — Delay in Swearing Affidavit of Service
Where a law clerk allegedly refuses to endorse a notice of appeal, a prudent counsel would immediately file an affidavit of service; an affidavit of service sworn seven months after the alleged service is suspect and may be rejected.
Evidence — Affidavits — Matters of Information and Belief
A deponent may include in an affidavit matters of information provided the source of that information is disclosed; such averments do not offend the law and do not render the affidavit defective.

Legislation cited (6)

  • Court of Appeal Rules r.42
  • Court of Appeal Rules r.77(1)
  • Court of Appeal Rules r.81
  • Court of Appeal Rules r.82(1)
  • Court of Appeal Rules r.82(2)
  • Court of Appeal Rules r.82(3)

Cases cited (6)

  • Utex Industries Ltd v Attorney General (Civil Application No. 52 of 1995)
  • George Mwesige Sharp v Administrator General (Civil Appeal No. 7 of 1999)
  • Delia Almeda v Dr. Carmo Rui Almeida (Civil Appeal No. 6 of 1990)
  • John Matsiko v Banyankole Kweterana Co. (U) Ltd (Miscellaneous Civil Application No. 43 of 1998)
  • Begumisa v Centenary Rural Development Bank Ltd (Civil Application No. 1 of 2000)
  • Life Insurance Corporation of India v Ponesar [1967] EA 614
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.