Wakilii

Hon.Francis Mukama v Uganda Wildlife Authority (Civil Application No. 75 of 2004)

Court of Appeal · [2008] UGCA 14 · 2008 Application Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application to strike out a notice of appeal for failure to serve within the prescribed time, arising from a pending civil appeal
Decision
Application to strike out the notice of appeal dismissed; notice of appeal stands

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Holding

The Court of Appeal dismissed an application to strike out a notice of appeal for alleged late service. The notice of appeal and letter requesting proceedings were filed on 4 May 2004 and served on the applicant's counsel on 5 May 2004 — one day later and well within the seven days allowed by rule 78(1). The Court found it more probable that counsel was served on 5 May 2004, but omitted to stamp the notice of appeal until 1 June 2004, and rejected as untruthful the affidavit in rejoinder claiming service of the letter on 3 May 2004 before it was filed. Service having been timely, the notice of appeal could not be struck out.

Facts

The applicant was the successful plaintiff in High Court Civil Suit No. 290 of 2002 against the respondent, with judgment delivered on 30 April 2004. The respondent filed a notice of appeal on 4 May 2004, together with a letter requesting a typed copy of proceedings. The applicant contended he was not served with the notice of appeal within the time required by rule 78(1) of the Court of Appeal Rules, asserting service only occurred on 1 June 2004 when the documents appeared annexed to a stay-of-execution application. The respondent's evidence was that both documents were served on the applicant's counsel on 5 May 2004, but that counsel stamped only the letter and asked the process server to collect the stamped notice of appeal later, which was eventually stamped on 1 June 2004. The Court examined the affidavits and annextures to determine when service actually occurred.

Issues

  1. Whether the notice of appeal was served on the applicant or his counsel within the time prescribed by rule 78(1) of the Court of Appeal Rules.
  2. Whether the burden of proving service of the notice of appeal lies on the intended appellant or on the applicant seeking to strike it out.
  3. Whether the notice of appeal should be struck out for non-compliance with an essential step in the proceedings.

Orders

  • Application dismissed with costs to the respondent.

Key headnotes

Civil Procedure — Appeals — Service of Notice of Appeal — Rule 78(1) Court of Appeal Rules
An intended appellant must, before or within seven days after lodging a notice of appeal, serve copies on all persons directly affected by the appeal; where service is effected within that period the notice of appeal cannot be struck out for non-service.
Civil Procedure — Striking Out Notice of Appeal — Burden of Proof of Service
Where the validity of a notice of appeal turns on whether it was served in time, the court determines the question on the affidavit evidence as a matter of probability, and an applicant cannot succeed in striking out where the respondent establishes timely service.
Evidence — Affidavits — Credibility — Inconsistency and Improbability
An affidavit asserting that a document was served before it was filed and received in court is inconceivable and may be rejected as untruthful; a court may accept a plausible explanation for a delayed stamping of a served document.

Legislation cited (4)

  • Judicature (Court of Appeal Rules) Directions S.I. 13-10 rule 43
  • Judicature (Court of Appeal Rules) Directions S.I. 13-10 rule 76
  • Judicature (Court of Appeal Rules) Directions S.I. 13-10 rule 78(1)
  • Judicature (Court of Appeal Rules) Directions S.I. 13-10 rule 82

Cases cited (1)

  • Francis Mutabazi and 3 Others v Horizon Coaches Ltd (Civil Application No. 97 of 2000)
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.