Kahunde v Nabakooza (Civil Appeal No. 142 of 2012)

Court of Appeal · [2015] UGCA 46 · 2015 Appeal Dismissed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Application to formalise withdrawal of a civil appeal from the High Court, opposed by the respondent who sought dismissal with costs

Decision

Leave granted to withdraw the appeal; appeal dismissed without interfering with the judgment appealed against

The full judgment

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Holding

The Court held that the notice of withdrawal did not comply with rule 94, as there was no evidence of service on the respondent or her consent, and no application was made under sub-rules 4 and 5. Outside the rule, withdrawal of an appeal is only possible with leave of Court, following British American Tobacco (U) Ltd v Sedrach Mwijakubi. The Court observed that a withdrawal does not delve into the substance of the case; its consequence is simply dismissal without interfering with the judgment appealed against. Leave was granted to withdraw, the appeal was consequently dismissed, and no order was made as to costs because the respondent's objection was not well grounded.

Facts

The appellant filed a civil appeal against the respondent on 23 October 2012, challenging the whole judgment and orders of the High Court at Fort Portal. Before the appeal was called for hearing, the appellant's counsel lodged a notice of withdrawal on 20 May 2015, purportedly under rule 94 of the Judicature (Court of Appeal Rules) Directions, stating the appeal had been overtaken by events relating to ownership of estate property enforced by a separate judgment. At the hearing on 4 June 2015, counsel came to formalise the withdrawal, asserting service and consent. The respondent's counsel opposed the withdrawal, denied being served, and objected to the contents of the notice which referred to ownership of the estate property; they prayed that the appeal be dismissed with costs.

Issues

Whether the notice of withdrawal of the appeal complied with rule 94 of the Judicature (Court of Appeal Rules) Directions.
Whether an appeal that has been fixed for hearing may be withdrawn without leave of Court.
Whether the appeal should be dismissed with costs given the respondent's objection to the withdrawal.

Orders

Leave granted to the appellant to withdraw the appeal.
Appeal dismissed.
No order as to costs.

Key headnotes

Civil Procedure — Withdrawal of Appeal — Compliance with Rule 94 of the Court of Appeal Rules

A notice of withdrawal of an appeal must comply with rule 94 of the Judicature (Court of Appeal Rules) Directions, including service on the respondent and, where consent is absent, the making of an application under sub-rules 4 and 5; failure to do so renders the withdrawal defective.

Civil Procedure — Withdrawal of Appeal — Requirement of Leave of Court

Outside the framework of rule 94, withdrawal of an appeal is only possible with leave of Court, particularly where the appeal has already been fixed for hearing.

Civil Procedure — Effect of Withdrawal — No Determination of the Merits

A withdrawal of an appeal does not delve into any matter concerning the status or substance of the case; its consequence is dismissal of the appeal with or without costs, and it does not interfere with the judgment appealed against.

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 80

Cases cited (1)

British American Tobacco (U) Ltd v Sedrach Mwijakubi (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.