Kasule & Anor v Muhwezi [1991] UGSC 14

Supreme Court · 1991 Application Allowed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Application to strike out a notice of appeal under rules 80 and 81 of the Rules of the Supreme Court for failure to institute the appeal within the prescribed time

Decision

Application allowed; respondent's notice of appeal struck out with costs to the applicants

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Holding

The Supreme Court struck out the respondent's notice of appeal for failure to institute the appeal within sixty days as required by rule 81. The respondent could not rely on the proviso to rule 81(1) because the evidence raised serious doubts that a written application for a copy of the proceedings had been made and a copy sent to the applicants, and the purported application bore no registry endorsement under rule 10. The court found the respondent dilatory, noting he had obtained a stay on the basis of a non-existent appeal, sought review of the ruling instead of appealing, and failed to apply for an extension of time. The application was allowed with costs.

Facts

Musa Kasule, the applicants' father, leased land at Wandegeya, Kampala in 1954. The lease passed through several hands until the respondent registered his interest as lessee in 1989. The applicants, as successors to the lessor, re-entered the premises on 18 August 1989 and registered their interest, relying on the lessee's default in paying rent for twelve years contrary to a covenant allowing re-entry after six months' default. The respondent's High Court application to declare the termination void and cancel the re-entry was dismissed by Ntabgoba P.J. on 5 January 1990. On 16 January 1990 the respondent filed a notice of appeal in the Supreme Court but did not lodge a memorandum or record of appeal, nor seek an extension of time. Instead he applied for review of the ruling and, faced with threatened eviction, obtained a conditional stay. The applicants then moved to strike out the notice of appeal for failure to institute the appeal within time.

Issues

Whether the respondent's notice of appeal should be struck out under rules 80 and 81 for failure to institute the appeal within the prescribed sixty days.
Whether the respondent could rely on the proviso to rule 81(1) excluding time required for preparation of the record of proceedings, given doubts about whether a copy of the proceedings was duly applied for and notified to the applicants.

Orders

Application allowed with costs to the applicants.
The respondent's notice of appeal struck out with costs to the applicants.

Key headnotes

Civil Procedure — Appeals — Striking Out Notice of Appeal — Failure to Institute Appeal Within Prescribed Time

A notice of appeal will be struck out where the appellant has failed to institute the appeal by lodging the memorandum and record of appeal within sixty days of the notice as required by the rules of court, and has neither sought an extension of time nor justified the delay.

Civil Procedure — Appeals — Proviso to Rule 81(1) — Exclusion of Time for Preparation of Proceedings

An appellant cannot rely on the proviso excluding time required for preparation of the record of proceedings unless he proves that a written application for a copy of the proceedings was made and that a copy of that application was sent to the respondent; doubts about whether such an application was made, and the absence of a registry endorsement, defeat reliance on the proviso.

Civil Procedure — Appeals — Diligence — Delaying Tactics

Where an appellant obtains a stay on the basis of an appeal not yet instituted, applies for review of the ruling instead of prosecuting the appeal, and fails to apply for an extension of time, the court may treat the conduct as dilatory and decline to excuse the delay.

Legislation cited (5)

Rules of the Supreme Court r.80
Rules of the Supreme Court r.81
Rules of the Supreme Court r.81(1)
Rules of the Supreme Court r.10
Rules of the Supreme Court r.112

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.