Wakilii

Tomusange v Kirumira (Civil Appeal No. 37 of 2006)

Court of Appeal · [2015] UGCA 44 · 2015 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Civil appeal from High Court judgment, with a cross appeal; application to withdraw the appeal
Decision
Leave to withdraw granted; appeal and cross appeal dismissed with no order as to costs

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Holding

The appellant sought to withdraw his appeal after it had been called for hearing, where the respondent had died and no legal representative had been appointed, making compliance with Rule 94 of the Court of Appeal Rules impossible. Relying on British American Tobacco (U) Ltd v Mwijakubi, the Court held that outside Rule 94 an appeal may be withdrawn with leave of court, and granted leave, dismissing the appeal with no order as to costs since there was no respondent at the hearing. The cross appeal, though not abated under Rule 97, was also dismissed with no order as to costs because no one had shown interest in prosecuting it or in being substituted as the deceased respondent's representative.

Facts

The appellant filed an appeal against the High Court judgment delivered on 19 July 2005, lodging the appeal on 26 May 2006. The respondent filed a notice and grounds of cross appeal on 28 June 2006. The appeal and cross appeal were not fixed for hearing until January 2015. The respondent died on 19 September 2008, and no legal representative was appointed to take over his case. When the appeal was called for hearing, only the appellant's counsel attended. Counsel reported that the appellant had lost interest in the appeal after meeting the respondent's widow, who had not obtained letters of administration and could not afford a lawyer. Counsel applied to withdraw the appeal, invoking Rule 94(4) of the Court of Appeal Rules and the British American Tobacco authority, praying that the appeal be withdrawn without an order for costs.

Issues

  1. Whether the appellant could be granted leave to withdraw the appeal where compliance with Rule 94 of the Court of Appeal Rules was not possible because the respondent was deceased and had no legal representative.
  2. Whether the cross appeal filed by the deceased respondent should be dismissed where no one had taken steps to be substituted as his legal representative.

Orders

  • Leave granted to the appellant to withdraw the appeal.
  • Appeal dismissed with no order as to costs.
  • Cross appeal dismissed with no order as to costs.

Key headnotes

Civil Procedure — Withdrawal of Appeal — Withdrawal after appeal called for hearing requires leave of court
Where an appeal has already been called for hearing, the withdrawal procedure under Rule 94 of the Judicature (Court of Appeal Rules) Directions does not apply, and the appeal may be withdrawn only with leave of the court.
Civil Procedure — Withdrawal of Appeal — Compliance with notice requirements impossible where respondent deceased without legal representative
Where the respondent has died and no legal representative has been appointed, compliance with the notice and service requirements for withdrawal under Rule 94 is impossible, and the court may grant leave to withdraw the appeal with no order as to costs since there is no respondent to be served or represented.
Civil Procedure — Cross Appeal — Effect of death of cross appellant and absence of substituted representative
Under Rule 97 of the Judicature (Court of Appeal Rules) Directions a cross appeal does not abate on the death of the cross appellant, but where no interested person has applied to have a legal representative substituted, the court may dismiss the cross appeal with no order as to costs.

Legislation cited (2)

  • Judicature (Court of Appeal Rules) Directions S.I. 13-10 rule 94
  • Judicature (Court of Appeal Rules) Directions S.I. 13-10 rule 97

Cases cited (1)

  • British American Tobacco (U) Ltd v Mwijakubi and Others (Civil Appeal No. 1 of 2012)
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.