Sulaiti Dungu v Kateera G. Akugizibwe (Civil Appeal No. 44 of 2015)

Court of Appeal · [2023] UGCA 82 · 2023 Appeal Dismissed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Second appeal from a High Court ruling striking out a civil appeal for failure to take an essential step (non-service of notice and memorandum of appeal)

Decision

Appeal dismissed with costs; High Court ruling striking out Civil Appeal No. 0010 of 2012 upheld

The full judgment

Read the complete, verbatim text of this judgment.

Cited — treatment unverified cited in 3 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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 dismissed a second appeal against a High Court ruling striking out a civil appeal for non-service of the notice and memorandum of appeal. The Court held that while there is no mandatory legal obligation on a party to obtain the record of proceedings, litigants must act diligently and take essential steps to prosecute an appeal. The appellant, having lodged a notice of appeal but failed to serve the respondent and taken no further visible step, exhibited dilatory conduct. The Court found the appellant had no defensible cause and that the trial judge did not err in considering the merits to impute dilatory conduct. Dilatory conduct defeats a party's right to be heard.

Facts

The respondent filed a summary suit against the appellant at the Chief Magistrate's Court at Masindi. Judgment was entered in default. The appellant applied for unconditional leave to file a defence and to set aside the default judgment, but the application was dismissed. The appellant obtained leave to appeal to the High Court and lodged Civil Appeal No. 0010 of 2012. The respondent applied to strike out the appeal on the ground that the appellant had not served the notice and memorandum of appeal within the prescribed time. The High Court allowed the application and struck out the appeal. The underlying dispute concerned the allocation of a civil service house to sitting tenants; the property had been allocated to a deceased person whose administrator sold it to a third party, while the appellant had already received a separate allocation and had been warned he could not receive a second. The appellant conceded that he served the respondent late but contended the irregularity was curable.

Issues

Whether the trial judge erred in striking out the appeal on technical grounds and thereby denying the appellant a hearing.
Whether the trial judge erred by relying on the merits of the matter and facts constituting matters for trial to infer dilatory conduct.

Orders

Appeal dismissed with costs.

Key headnotes

Civil Procedure — Appeals — Essential Steps — Service of Notice and Memorandum of Appeal

A party who lodges a notice of appeal but fails to serve the notice and memorandum of appeal on the opposite party and takes no further visible step exhibits dilatory conduct that may defeat the right to be heard, and the appeal may properly be struck out.

Civil Procedure — Record of Proceedings — Obligation under Order 43 Rule 10 CPR

There is no mandatory legal obligation on a party to an appeal to obtain the record of proceedings; that duty lies on the trial court, although it is prudent for litigants to take initiative and follow up on the records.

Civil Procedure — Setting Aside Default Judgment — Merits and Dilatory Conduct

A court is not barred from considering the merits of the underlying case when handling an application to strike out an appeal, and may rely on the absence of a probable chance of success together with a party's conduct to infer dilatory behaviour.

Civil Procedure — Second Appeal — Role of Second Appellate Court

On a second appeal, the appellate court is precluded from questioning the findings of fact of the trial court where there is evidence to support them, and may interfere only on questions of law, including whether the first appellate court fulfilled its obligations.

Legislation cited (3)

Judicature (Court of Appeal Rules) Directions S.I 13-10 r.2(2)
Judicature (Court of Appeal Rules) Directions S.I 13-10 r.30(1)(a)
Civil Procedure Rules Order 43 r.10

Cases cited (7)

Fr. Narcensio Begumisa and Others v Eric Tibebaaga (Civil Appeal No. 17 of 2002)
Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
Executive Director of National Environment Management Authority (NEMA) v Solid State Limited (Civil Appeal No. 15 of 2015)
Pandya Vs R [1957] EA 336
Okeno v Republic (1972) E.A. 32
Charles B. Bitwire v Uganda (Criminal Appeal No. 23 of 1985)
Ketteman v Hansel Properties Ltd [1987] AC 18

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.