Batabaire v Ngobi Siraj and Others (Civil Application No. 326 of 2017)

Court of Appeal · [2022] UGCA 274 · 2022 Application Granted ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Application by notice of motion to strike out a civil appeal for failure to take an essential step within the prescribed time

Decision

Application granted and Civil Appeal No. 194 of 2017 struck out with costs to the applicant

The full judgment

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Holding

The Court held that an intending appellant may exclude the time taken to prepare proceedings from the 60-day period for instituting an appeal only where the written application for the certified record was served on the respondent and proof of service retained, as required by Rule 83(2) and (3) of the Court of Appeal Rules. Proof of service is by endorsement of the letter. The respondents' generic affidavit and unendorsed letter failed to prove service. Time therefore ran from filing the Notice of Appeal, making the appeal filed out of time. Article 126(2)(e) does not excuse non-compliance with mandatory procedural rules. The application was granted and the appeal struck out with costs.

Facts

A land dispute over Plot 2 Bunya Road, Iganga was resolved in the applicant's favour by the Magistrate Grade One Court of Iganga in Civil Suit No. 91 of 2014. The respondents appealed to the High Court at Jinja (Civil Appeal No. 61 of 2014), which on 31 March 2017 dismissed the appeal and upheld the magistrate's judgment. On 11 April 2017 the respondents filed a Notice of Appeal and a letter requesting certified copies of the judgment and proceedings. The Notice of Appeal was served on the applicant's counsel on 21 April 2017, but the letter requesting the record was allegedly never served or endorsed. On 29 August 2017 the respondents filed the Memorandum and Record of Appeal instituting Civil Appeal No. 194 of 2017. The applicant filed this application on 13 October 2017 to strike out that appeal, contending it was filed outside the 60-day period because the request letter was never served, removing the respondents' entitlement to exclude the time taken to prepare the record.

Issues

Whether the respondents served the applicant with the letter applying for a certified copy of the High Court proceedings and judgment so as to rely on the exception in Rule 83(2) and (3) of the Court of Appeal Rules.
Whether Civil Appeal No. 194 of 2017 was filed within the prescribed 60-day period and, if not, whether it should be struck out under Rule 82.
Whether Article 126(2)(e) of the Constitution can cure non-compliance with the mandatory service requirements of Rule 83.

Orders

Application granted.
Civil Appeal No. 194 of 2017 struck out.
Costs of the application and of Civil Appeal No. 194 of 2017 awarded to the applicant.

Key headnotes

Appeals — Institution of Appeals — Computation of Time — Rule 83 Court of Appeal Rules

An appeal must be instituted within 60 days from the date the Notice of Appeal is filed in the High Court; the time taken to prepare the certified record is excluded only where the appellant applied in writing within 30 days, served the application on the respondent, and retained proof of that service.

Appeals — Proof of Service of Letter Requesting Record — Endorsement Requirement

Proof of service of the letter requesting the certified record of proceedings under Rule 83(3) is established by having the letter endorsed by the recipient; an unendorsed letter, without an affidavit of service, does not prove service.

Affidavits — Knowledge of Facts — Rule 44(1) Court of Appeal Rules

An affidavit deposing to service of a document must be made by a person with personal knowledge of the facts and disclose who effected service, when, where and on whom; a generic deposition lacking such particulars carries no evidential value and is inadmissible.

Evidence — Submissions from the Bar — Not a Substitute for Evidence

Facts not borne out by the affidavit evidence on record cannot be introduced through submissions from the bar; submissions, however well written, can never substitute for evidence.

Article 126(2)(e) — Substantive Justice — Compliance with Rules of Procedure

Article 126(2)(e) of the Constitution does not do away with the requirement that litigants comply with rules of procedure, and cannot be invoked to excuse breach of mandatory procedural rules of court.

Legislation cited (12)

Judicature (Court of Appeal) Rules S.I. No. 13-10 r.82
Judicature (Court of Appeal) Rules S.I. No. 13-10 r.83(1)
Judicature (Court of Appeal) Rules S.I. No. 13-10 r.83(2)
Judicature (Court of Appeal) Rules S.I. No. 13-10 r.83(3)
Judicature (Court of Appeal) Rules S.I. No. 13-10 r.44(1)
Judicature (Court of Appeal) Rules S.I. No. 13-10 r.43(1)
Judicature (Court of Appeal) Rules S.I. No. 13-10 r.53(2)(c)
Judicature (Court of Appeal) Rules S.I. No. 13-10 r.18
Judicature (Court of Appeal) Rules S.I. No. 13-10 r.23
Judicature (Court of Appeal) Rules S.I. No. 13-10 r.5
Judicature (Court of Appeal) Rules S.I. No. 13-10 r.2(2)
Constitution of the Republic of Uganda 1995 Article 126(2)(e)

Cases cited (9)

Enhas Limited v Henry Magino (Civil Application No. 26 of 2004)
National Housing & Construction Co. Ltd v Salome T.B. Kyomukama (Civil Application No. 133 of 2009)
Zam Nalumansi v Suleman Lule (Civil Application No. 2 of 1999)
Mulowooza & Bros Ltd v N. Shah & Co. Ltd (Civil Appeal No. 26 of 2010)
Kasirye Byaruhanga & Co. Advocates v Uganda Development Bank (Civil Application No. 2 of 1997)
Utex Industries Ltd v Attorney General (Civil Appeal No. 52 of 1997)
Horizon Coaches v Edward Rurangaranga (Civil Appeal No. 18 of 2009)
Mulindwa v Kisubika (Civil Appeal No. 12 of 2014)
John Matsiko v Banyankole Kweterana Co. (U) Ltd (Civil Application No. 43 of 1998)

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