Wakilii

Standard Chartered Bank (u) Ltd v Mwesigwa (Civil Application No. 0138 of 2013)

Court of Appeal · [2019] UGCA 2071 · 2019 Application Granted ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application to strike out a notice of appeal for being filed out of time
Decision
Application allowed and the respondent's notice of appeal struck out for being out of time

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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 of Appeal overruled preliminary objections, holding that advocates conducting a matter may swear affidavits on facts within their knowledge, distinguishing Banco Arabe Espanol, and that an undated affidavit was a curable oversight under Article 126(2)(e). On the merits, the Court held under rule 76(4) that it was not necessary to obtain leave or a certificate before lodging a notice of appeal, so the notice could and should have been filed without first awaiting leave. Since the respondent filed the notice of appeal on 12 February 2013, three months after the 9 November 2012 ruling, it was out of time. The application was allowed, the notice of appeal struck out, and costs awarded to the applicant.

Facts

The respondent filed HCCS No. 30 of 2010 against the applicant bank claiming UGX 12,994,762 for alleged breach of contract and negligence. The applicant filed a written statement of defence which was struck out for not having been served within the time appointed by law. The applicant then filed Miscellaneous Application No. 477 of 2012 seeking extension of time to file and serve the defence, which the court granted by ruling delivered on 9 November 2012. The respondent filed a notice of appeal against that ruling, together with a request for a typed copy of the proceedings, on 12 February 2013. The applicant brought this application to strike out the notice of appeal on the ground that it was filed about three months after the ruling and therefore out of time. The respondent contended the notice was timely because it was filed shortly after obtaining leave to appeal granted on 6 February 2013.

Issues

  1. Whether the application was incompetent because the advocates who swore the supporting affidavits lacked authority and could not depose to contentious matters.
  2. Whether an undated affidavit in rejoinder rendered the application incompetent.
  3. Whether the respondent's notice of appeal was filed out of time and should be struck out under rule 82.

Orders

  • The preliminary objections are overruled.
  • The application is allowed.
  • The Notice of Appeal lodged on 12 February 2013 is struck out for being filed out of time.
  • Costs are awarded to the applicant.

Key headnotes

Civil Procedure — Affidavits — Advocate Deposing to Facts Within Knowledge
An advocate instructed to conduct a matter may lawfully swear an affidavit in support of an application as to facts within the advocate's own knowledge arising from the conduct of that matter, and rule 44 of the Court of Appeal Rules permits an affidavit by any person having knowledge of the facts.
Civil Procedure — Affidavits — Undated Affidavit as Curable Defect
An undated affidavit served on an opposing party, where the copy on the court file is signed and dated, constitutes a mere oversight that may be cured under Article 126(2)(e) of the Constitution and does not render the application incompetent.
Civil Procedure — Notice of Appeal — No Requirement of Leave Before Lodging
Under rule 76(4) of the Court of Appeal Rules, where an appeal lies only with leave or on a certificate that a point of law of general public importance is involved, it is not necessary to obtain such leave or certificate before lodging the notice of appeal; the notice must therefore be filed within the prescribed time regardless of leave.
Civil Procedure — Striking Out Notice of Appeal — Failure to Take Essential Step Within Time
A notice of appeal filed out of time amounts to failure to take an essential step within the prescribed time and may be struck out under rule 82 of the Court of Appeal Rules on the application of a party served with it.

Legislation cited (7)

  • Judicature (Court of Appeal Rules) Directions S.I 13-10 r.76(1)
  • Judicature (Court of Appeal Rules) Directions S.I 13-10 r.76(2)
  • Judicature (Court of Appeal Rules) Directions S.I 13-10 r.76(4)
  • Judicature (Court of Appeal Rules) Directions S.I 13-10 r.82
  • Judicature (Court of Appeal Rules) Directions S.I 13-10 r.44(1)
  • Advocates (Professional Conduct) Regulations r.9
  • Constitution of the Republic of Uganda 1995 art.126(2)(e)

Cases cited (3)

  • Kasibante Moses v Electoral Commission (Election Petition No. 7 of 2012)
  • Banco Arabe Espanol v Bank of Uganda (Civil Appeal No. 8 of 1998)
  • Andrew Maviri v Jomayi Property Consultants Ltd (Civil Appeal No. 224 of 2014)
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.