Ms City African Textile Shop Uganda Limited v Jan Mohammed Jaffers Limited (Civil Application 130 of 2003)

Court of Appeal · [2004] UGCA 25 · 2004 Application Dismissed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Application by notice of motion to strike out a notice of appeal for failure to take an essential step within the prescribed time

Decision

Application to strike out notice of appeal dismissed with costs; appeal already withdrawn by consent settlement

The full judgment

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Holding

The applicant sought to strike out the respondent's notice of appeal under rule 81 of the Court of Appeal Rules for failure to institute the appeal within the prescribed time after service of the record of proceedings. The Court held that, before the prescribed time expired, the parties had reached a clear consent settlement by which the respondent withdrew the appeal and all subsequent applications and the applicant agreed to make no further claims. As the notice of appeal had already been withdrawn by agreement, there was no notice of appeal capable of being struck out. The application was therefore unnecessary, and was dismissed with costs.

Facts

On 25 July 1997 the High Court delivered judgment in HCCS No. 304 of 1994 in favour of the applicant. Aggrieved, the respondent filed a notice of appeal on 1 August 1997. On 16 September 2003 the respondent's advocates were served with the record of proceedings, which had been ready for collection. The appeal ought to have been instituted within sixty days, with time expiring on 16 November 2003. Before that date, the parties through their advocates reached a consent settlement dated 5 November 2003 by which the applicant (judgment creditor) accepted UGX 58,063,125 as full and final settlement of the decree, the respondent withdrew its appeal and all subsequent applications, and the deposited decretal sum was to be paid out through the advocates with no further orders as to costs. The applicant subsequently filed a notice of motion seeking to strike out the notice of appeal and to claim costs.

Issues

Whether the notice of appeal should be struck out for the respondent's failure to institute the appeal within the prescribed time.
Whether, in light of a consent settlement withdrawing the appeal, there remained a notice of appeal capable of being struck out.

Orders

The application to strike out the notice of appeal is dismissed with costs.

Key headnotes

Appeals — Striking Out Notice of Appeal — Effect of Prior Consent Settlement Withdrawing Appeal

Where parties have reached a consent settlement by which the appellant withdraws the notice of appeal, there is no longer a notice of appeal capable of being struck out, and an application to strike it out is unnecessary.

Appeals — Failure to Institute Appeal Within Prescribed Time — Rules 81 and 83 of the Court of Appeal Rules

Under the Rules of the Court of Appeal, an appellant who has lodged a notice of appeal must take steps to institute the appeal within the prescribed time, and a person served with the notice may apply to strike it out where an essential step has not been taken in time.

Legislation cited (4)

Rules of the Court of Appeal r.42
Rules of the Court of Appeal r.81
Rules of the Court of Appeal r.82
Rules of the Court of Appeal r.83

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.