Wakilii

Bahinguza & Anor v Attorney General (Miscellaneous Application No. 269 of 2013)

Court of Appeal · [2015] UGCA 5 · 2015 Application Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application to strike out a Notice of Appeal for failure to take an essential step in prosecuting the intended appeal
Decision
Application allowed; Notice of Appeal struck out with costs to the applicants

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Cited — treatment unverified cited in 3 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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Holding

The Court of Appeal held that service of the Registrar's notification upon the Attorney General's records assistant, which was received, stamped and acted upon by collecting the proceedings, was effective; the respondent could not benefit from his own failure to have an advocate endorse acknowledgement. The respondent's conduct in failing to file the Memorandum and Record of Appeal within the prescribed time, despite possessing the proceedings, was dilatory. Given the applicants' prolonged eighteen-year deprivation of terminal benefits and the abuse of process arising from protracted, dilatory litigation, the application was allowed and the Notice of Appeal struck out.

Facts

The applicants, representing themselves and 622 other former Ugandan employees of the defunct East African Airways Corporation, sued the Attorney General in 1996 (HCCS No. 1010 of 1996) seeking terminal benefits. A Consent Judgment was entered in 2000, followed by Consent Orders in 2003 and 2006 on the compensation formula. After dissatisfied employees sought review (HC Misc Application No. 448 of 2009), the High Court held on 7 February 2013 that the 2006 Consent Order was illegal and the 2003 formula applied. The Attorney General lodged a Notice of Appeal on 20 February 2013 and requested the record of proceedings. The Registrar notified readiness on 14 May 2013; the letter was received and stamped at the Attorney General's Chambers on 12 June 2013, and proceedings collected on 26 June 2013. No Memorandum or Record of Appeal was ever filed. The applicants applied to strike out the Notice of Appeal for failure to file within the prescribed sixty days.

Issues

  1. Whether service of the Registrar's letter notifying readiness of court proceedings upon a non-advocate records assistant constituted valid service under the Government Proceedings (Civil Procedure) Rules.
  2. Whether the respondent failed to take an essential step by not filing the Memorandum and Record of Appeal within the prescribed time.
  3. Whether the Notice of Appeal should be struck out in the circumstances.

Orders

  • The application is allowed.
  • The Notice of Appeal lodged in the High Court on 20 February 2013 is struck out for failure to file the Memorandum and Record of Appeal within the time prescribed by law.
  • The applicants are awarded the costs of the application.

Key headnotes

Appeals — Notice of Appeal — Nature as a jurisdictional instrument
A Notice of Appeal is the foundation of an appeal and a jurisdictional legal instrument; without it no appeal exists and the appellate court has no power to entertain the intended appeal.
Appeals — Failure to take an essential step — Striking out Notice of Appeal
Where an intending appellant fails, without plausible explanation, to file the Memorandum and Record of Appeal within the time prescribed after receiving the certified record of proceedings, that constitutes failure to take an essential step and may warrant striking out the Notice of Appeal, particularly where the conduct is dilatory.
Service on Government — Government Proceedings (Civil Procedure) Rules r.5 — Effective service
Where a document is received, stamped and acted upon by the Attorney General's Chambers, the Government cannot rely on the absence of endorsement of acknowledgement by an advocate-officer to deny valid service, as a party cannot take advantage of its own wrong.
Striking out pleadings — Discretion — Interests of justice and dilatory conduct
Striking out a pleading is an extreme measure to be taken as a last resort and in the clearest of cases, but a court must act firmly against dilatory conduct and abuse of process where further delay would deny the innocent party justice; rules and timelines must be complied with by all parties including the Government.

Legislation cited (10)

  • Rules of the Court of Appeal r.43(1)
  • Rules of the Court of Appeal r.76(1)
  • Rules of the Court of Appeal r.76(2)
  • Rules of the Court of Appeal r.82
  • Rules of the Court of Appeal r.83(1)
  • Rules of the Court of Appeal r.83(2)
  • Rules of the Court of Appeal r.83(3)
  • Rules of the Court of Appeal r.84
  • Government Proceedings Act, Cap. 77 s.11
  • Government Proceedings (Civil Procedure) Rules, SI 77-1 r.5

Cases cited (5)

  • Kasibante Moses v The Electoral Commission (Election Petition Application No. 07 of 2012)
  • Utex Industries Limited v The Attorney General (Civil Application No. 52 of 1995)
  • Court of Appeal of Nigeria case: DR. CHRIS NWEBUEZE NGIGE V PETER OBI and 436 Others: 2006 Vol. 18 WRN 33
  • The Kenya Case of: Civil Application No. NAI 293 of 2009: KARIUKI NETWORK LIMITED & ANOTHER vs DALY & FIGGS ADVOCATES
  • Court of Appeal of Kenya: Civil Appeal Application No. 228 of 2013: Nicholas Kiptoo Arap Korr Salt vs Independent Electoral and Boundaries Commission & Wilfred Rottich Lesan
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.