Wakilii

Congo Trading Corporation Ltd v Alzahiri (Civil Application No. 191 of 2010)

Court of Appeal · [2016] UGCA 46 · 2016 Application Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application under Rule 82 of the Court of Appeal Rules to strike out a notice of appeal and the appeal for failure to take an essential step within the prescribed time
Decision
Application to strike out dismissed; time extended and late filing of the notice of appeal and appeal validated, with the appeal to be fixed for hearing

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Cited — treatment unverified cited in 1 (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 declined to strike out the notice of appeal and appeal despite both being filed out of time. Although failure to file within the prescribed time is failure to take an essential step under Rule 82, the Court found the respondent had acted diligently in pursuing his appeal and had already applied for extension of time to regularise the late filing. Invoking Article 126(2)(e) of the Constitution and Rule 42(2), the Court held that a document filed out of time is voidable and curable by extension of time rather than an incurable nullity. The application to strike out was dismissed and a consequential extension of time was granted, validating the late filing.

Facts

Judgment in High Court Civil Suit No. 664 of 2006 was delivered on 28 June 2010 in favour of the respondent against the applicant. The respondent's advocates extracted a decree on 14 July 2010. The respondent changed advocates and filed a notice of change on 19 August 2010, on which date his new advocates filed a notice of appeal and applied for the record of proceedings. The record was availed in September 2010, and the memorandum of appeal (Civil Appeal No. 89 of 2010) was filed on 8 November 2010. Both the notice of appeal and the appeal were filed out of time. On 22 November 2010 the respondent filed Civil Application No. 197 of 2010 seeking leave to regularise the late filing. The applicant then brought the present application under Rule 82 to strike out the notice of appeal and appeal. The respondent conceded the late filing but blamed his former advocates.

Issues

  1. Whether the notice of appeal and the appeal, having been filed out of time, should be struck out under Rule 82 for failure to take an essential step within the prescribed time.
  2. Whether the Court should instead exercise its discretion under Rule 42(2) to extend time and validate the late filing of the notice of appeal and the appeal.

Orders

  • This application is hereby dismissed.
  • Consequential extension of time for filing the Notice of Appeal and Court of Appeal Civil Appeal No. 89 of 2010 is granted.
  • The late filing of the Notice of Appeal and the appeal is validated.
  • Court of Appeal Civil Application No. 197 of 2010 between the same parties is struck out.
  • The Registrar is directed to fix Court of Appeal Civil Appeal No. 89 of 2010 for hearing at the earliest convenient date.
  • The costs of this application shall abide the results of the appeal.

Key headnotes

Civil Procedure — Appeals — Striking Out Under Rule 82 — Failure to Take an Essential Step
Filing a notice of appeal or appeal outside the prescribed time constitutes a failure to take an essential step in the proceedings within the meaning of Rule 82 of the Court of Appeal Rules, rendering the notice or appeal liable to be struck out.
Civil Procedure — Extension of Time — Late Filing Voidable Not Void — Rule 42(2)
A document filed out of time is voidable and not an incurable nullity; the Court may validate it by granting an extension of time under Rule 42(2) where the justice of the case requires.
Constitutional Law — Article 126(2)(e) — Substantive Justice Without Undue Regard to Technicalities
Article 126(2)(e) of the Constitution obliges courts to administer substantive justice without undue regard to technicalities, requiring examination of all the circumstances of a case before rejecting it on procedural grounds.
Civil Procedure — Appeals — Diligence — Where Party Promptly Applies to Regularise Late Filing
Where a party acts diligently in pursuing an appeal and promptly applies for extension of time on realising that time has lapsed, the Court may exercise its discretion to extend time rather than strike out the appeal, particularly where striking out would render a pending application for extension nugatory.

Legislation cited (4)

  • Judicature (Court of Appeal Rules) Directions, Rule 82
  • Judicature (Court of Appeal Rules) Directions, Rule 42(2)
  • Judicature (Court of Appeal Rules) Directions, Rule 6(2)
  • Constitution of Uganda 1995, Article 126(2)(e)

Cases cited (2)

  • Andrew Maviri v Jomayi Property Consultants Ltd (Civil Appeal No. 224 of 2014)
  • Multiple & Professional Services Ltd v Arvind City Properties Ltd (Civil Appeal No. 37 of 1997)
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.