Adiama v Elobu (Civil Application Number 04 of 2009)

Court of Appeal · [2016] UGCA 8 · 2016 Application Granted — Notice of Appeal Struck Out ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Application to strike out a notice of appeal under Rules 82 and 43 of the Court of Appeal Rules

Decision

Notice of appeal struck out; no order as to costs

The full judgment

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AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions — always read the source judgment before relying on it.

Holding

The Court of Appeal struck out the notice of appeal. It held that service of the notice of appeal directly on the applicant by a court process server, and on a secretary in the Attorney General's Chambers, was irregular and did not amount to effective service. The affidavits of service were defective, being drawn by the respondent's counsel and mistitled without case numbers. Critically, the appellant failed to serve the letter applying for a copy of proceedings and retain proof as required by Rule 83(3), so could not benefit from the exclusion of preparation time. Having failed to take essential steps as required by law, the notice of appeal was struck out, with no order as to costs.

Facts

The respondent had brought judicial review proceedings in the High Court at Soroti challenging his removal as Speaker of Amuria district and the election of the applicant in his place. The trial judge dismissed the judicial review application with costs in the applicant's favour. The respondent, dissatisfied, lodged a notice of appeal in the High Court at Soroti on 9 December 2008. The applicant then applied to strike out that notice of appeal, contending that the notice of appeal had never been served on his counsel, that the letter requesting proceedings was not served, and that the memorandum and record of appeal were not filed in time. The respondent relied on affidavits of service by a court process server and an advocate to show service on the applicant and the Attorney General. The applicant disputed ever being served and pointed to defects in those affidavits.

Issues

Whether the notice of appeal was effectively served on the applicant.
Whether the appellant complied with the mandatory requirement to serve the letter applying for a copy of proceedings and to retain proof of service.
Whether the notice of appeal should be struck out for failure to take essential steps within the prescribed time.

Orders

The Notice of Appeal is struck out.
No order is made as to costs since the applicant and applicant's counsel did not attend the hearing.

Key headnotes

Civil Procedure — Service of Process — Effective Service of Notice of Appeal

It is irregular for a court process server to serve process on behalf of one litigant upon another in a matter before the court without being directed by the court to do so, and such service is suspect and does not amount to effective service.

Civil Procedure — Affidavits of Service — Validity

An affidavit of service drawn and filed by counsel for a party, which is mistitled and fails to state the particular suit or application number to which it relates, is defective and cannot establish effective service.

Civil Procedure — Appeals — Letter Applying for Proceedings — Rule 83(3)

An appellant cannot rely on the exclusion of time taken to prepare proceedings unless the application for a copy of proceedings was in writing, a copy was served on the respondent, and proof of that service was retained; absent such proof the appellant cannot benefit from that provision.

Civil Procedure — Appeals — Striking Out Notice of Appeal — Failure to Take Essential Steps

Where an appellant fails to take essential steps in proceedings or to take them within the prescribed time, including effecting valid service, the court may strike out the notice of appeal under Rule 82 of the Court of Appeal Rules.

Civil Procedure — Proof of Service — Evidence from the Bar

A return of service can only be made through a valid affidavit of service filed on the court record; counsel's assertions from the bar do not constitute proof of service.

Legislation cited (8)

Judicature (Court of Appeal Rules) Directions SI 13-10 r.82
Judicature (Court of Appeal Rules) Directions SI 13-10 r.43(1)
Judicature (Court of Appeal Rules) Directions SI 13-10 r.43(2)
Judicature (Court of Appeal Rules) Directions SI 13-10 r.4(e)
Judicature (Court of Appeal Rules) Directions SI 13-10 r.83(2)
Judicature (Court of Appeal Rules) Directions SI 13-10 r.83(3)
Judicature (Court of Appeal Rules) Directions SI 13-10 r.90
Civil Procedure Rules SI 71-1 O.5 r.16

Cases cited (1)

Edison Kanyabwera v Pastori Tumwebaze (Civil Appeal No. 6 of 2004)

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.