Wakilii

Anyait v Barclays Bank (U) Ltd and Another (Civil Appeal No. 33 09)

Court of Appeal · [2011] UGCA 21 · 2011 Appeal Struck Out ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Preliminary objection to the competence of a civil appeal from the High Court
Decision
Appeal struck out as incompetent with costs to the respondents

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Holding

The Court of Appeal granted leave for the respondent to raise a preliminary objection under rule 102(b) despite no application under rule 82. It held that the appellant's failure to serve on the respondents the letter requesting a typed copy of proceedings, as required by rule 83(2), was fatal: time for instituting the appeal could not be computed in the appellant's favour. The appeal, filed almost four years after the decision without leave to enlarge time, was incompetent. Rule 83 applies equally to appeals filed with or without leave. The objection regarding late service of the memorandum failed because the first respondent had not furnished an address for service under rule 80. The appeal was struck out with costs.

Facts

The High Court (Mwangusya J) made a decision on 14 November 2005 in HCCS No. 142/04. The appellant filed a notice of appeal on 21 November 2005 and a letter requesting the typed record of proceedings on 15 November 2005, but this letter was never served on the respondents. The Registrar certified the record of proceedings on 3 May 2006, and the memorandum of appeal was filed on 11 May 2009, almost four years after the decision and without seeking leave to enlarge time. The memorandum was served on the first respondent on 27 November 2009, beyond the seven days required. The Administrator General's counsel sought and obtained leave under rule 102(b) to raise a preliminary objection challenging the competence of the appeal, although no formal application under rule 82 had been filed.

Issues

  1. Whether the appeal was instituted out of time contrary to rule 83 of the Court of Appeal Rules.
  2. Whether failure to serve the letter requesting a copy of the proceedings rendered the appeal incompetent.
  3. Whether the memorandum of appeal was served on the second respondent out of time.

Orders

  • Preliminary objection upheld.
  • Appeal struck out as incompetent.
  • Costs of the appeal to the respondents.

Key headnotes

Civil Procedure — Appeals — Institution of Appeals — Time Limits under Rule 83
Time for instituting an appeal runs from the date of the decision appealed against, and rule 83 of the Court of Appeal Rules applies equally to appeals filed with or without leave of court.
Civil Procedure — Appeals — Computation of Time — Service of Request for Proceedings under Rule 83(2)
An appellant may rely on rule 83(2) to exclude time only where the written application for a copy of the proceedings was served on the respondent and proof of service retained; failure to serve that letter is fatal because time within which the appeal must be filed cannot be computed in the appellant's favour.
Civil Procedure — Preliminary Objections — Leave to Challenge Competence of Appeal under Rules 82 and 102(b)
The existence of rule 82 does not fetter the court's discretion under rule 102(b) to grant a respondent leave to raise objections to the competence of an appeal even where no formal application under rule 82 has been filed.
Civil Procedure — Illegality — Effect on Proceedings
Once an illegality is brought to the attention of the court it overrides everything, including any admissions the parties may have made.
Civil Procedure — Service — Address for Service — Rule 80
Where a respondent served with a notice of appeal fails to furnish an address for service as required by rule 80, an objection based on late service of the memorandum of appeal on that respondent cannot succeed against the appellant.

Cases cited (4)

  • Priamit Enterprises v Attorney General [2000] KALR 603
  • Uganda Electricity Board v Bagamuhunda & others [2004] KALR 357
  • Beatrice Kobusinge v Fiona & George Nyakona [2002] KALR 299
  • Mukulu International v His Eminence Cardinal Nsubuga & another [1982] HCB 12
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.