Wakilii

Byaruhanga and 2499 Others (suing through their lawful attorney representatives) v Attorney General (Civil Application No. 322 of 2021)

Court of Appeal · [2022] UGCA 238 · 2022 Application Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application to strike out a civil appeal for being instituted outside the prescribed time
Decision
Application to strike out the appeal dismissed; the original appeal directed to proceed by written submissions

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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 dismissed an application to strike out a civil appeal alleged to have been filed outside the 60-day period under Rule 83. The court held the applicants bore the burden of proving the respondent was served with the Registrar's letter of 10.12.2020 notifying readiness of the certified proceedings. The supporting affidavit, sworn by an advocate who did not show how he knew of the letter or its service, was hearsay and inadmissible under Rule 44(1). Service on the Attorney General was incomplete absent acknowledgement under Rule 5 of the Government Proceedings (Civil Procedure) Rules. The applicants' attempt to raise non-service of the notice of appeal in rejoinder was an impermissible change of case. The application failed on a balance of probabilities.

Facts

On 28 May 2019 the High Court at Fort Portal gave judgment for the applicants, declaring them wrongfully evicted and awarding special damages of UGX 52,658,658,633, general, exemplary and punitive damages of UGX 4,000,000,000, plus interest and costs. The Attorney General filed a notice of appeal on 30 May 2019 and, on 18 June 2019, applied in writing for certified copies of the proceedings, serving the request on the applicants' advocates. The applicants contended the Registrar notified the respondent that proceedings were ready by letter dated 10.12.2020 (annexture A3), so the 60 days for filing the appeal ran from that date and the appeal filed on 2 September 2021 was out of time. The respondent denied receiving that letter, asserting the record was certified on 31 August 2021 and the notification to collect issued on 1 September 2021, with the appeal filed on 2 September 2021. The respondent had sent reminders for the proceedings in 2020 and 2021.

Issues

  1. From what date should the 60-day period under Rule 83 of the Court of Appeal Rules for instituting an appeal be computed where the intending appellant applied for certified proceedings.
  2. Whether the applicants discharged the burden of proving that the respondent was served with the Registrar's letter of 10.12.2020 notifying readiness of the certified proceedings.
  3. Whether the applicants could introduce a new ground of non-service of the notice of appeal by way of an affidavit in rejoinder.

Orders

  • Application dismissed.
  • Each party to bear its own costs.
  • Appellant in Civil Appeal No. 246 of 2021 to file and serve written submissions within two weeks of delivery of the Ruling.
  • Respondents to file and serve their reply within two weeks of service.
  • Rejoinder, if any, to be filed and served within seven days of service.

Key headnotes

Civil Procedure — Institution of Appeals — Computation of Time under Rule 83(2) Court of Appeal Rules
Where an intending appellant applies in time for certified proceedings, the 60-day period for instituting an appeal runs from the date service of the Registrar's notice of readiness is effected (if the appellant does not collect) or from the actual date the certified proceedings are delivered to the appellant (where the appellant collects them).
Evidence — Affidavits — Hearsay and Personal Knowledge under Rule 44(1)
An affidavit deposing to a fact such as service of a court letter, without showing how the deponent acquired knowledge of that fact and where the document is neither copied to the deponent nor certified, is hearsay and inadmissible for breaching the requirement that supporting affidavits be of persons having knowledge of the facts.
Civil Procedure — Service on the Attorney General — Acknowledgement under Rule 5 Government Proceedings (Civil Procedure) Rules
Service of a document on the Attorney General in civil proceedings is not complete until the Attorney General or another government officer entitled to practise as an advocate endorses an acknowledgement of service on the document.
Civil Procedure — Affidavits in Rejoinder — Prohibition on Introducing a New Case
A party cannot introduce fresh issues or alter the substance of its claim by way of an affidavit in rejoinder; the rejoinder may only explain additional facts raised in the affidavit in reply and may not advance an entirely new case.
Civil Procedure — Application to Strike Out Appeal — Burden of Proof
An applicant seeking to strike out an appeal under Rule 82 for failure to take an essential step within the prescribed time bears the burden of proving, on a balance of probabilities, the date from which the prescribed period began to run.

Legislation cited (9)

  • Judicature (Court of Appeal) Rules S.I. No. 13-10 r.43
  • Judicature (Court of Appeal) Rules S.I. No. 13-10 r.44
  • Judicature (Court of Appeal) Rules S.I. No. 13-10 r.82
  • Judicature (Court of Appeal) Rules S.I. No. 13-10 r.83
  • Judicature (Court of Appeal) Rules S.I. No. 13-10 r.84
  • Judicature (Court of Appeal) Rules S.I. No. 13-10 r.18
  • Judicature (Court of Appeal) Rules S.I. No. 13-10 r.23
  • Civil Procedure Act Cap. 71 s.98
  • Government Proceedings (Civil Procedure) Rules S.I. No. 77-1 r.5

Cases cited (4)

  • Hannington Wasswa and Another v Maria Ochola and Others (Civil Application No. 12 of 1988)
  • Kenya Ports Authority Vs Maur Abdalla Bwanamaka [2018] eKLR
  • Wanume David Kitamirike v Uganda Revenue Authority (Civil Application No. 138 of 2010)
  • Mutembuli Yusuf v Nagwomu Moses Musamba and Another (Election Petition Appeal No. 43 of 2016)
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.