Egypt Air Corporation v Suffish International Food Processors Ltd & Anor (Civil Application 14 of 2000)

Supreme Court · [2000] UGSC 19 · 2000 Application Allowed — Notice of Appeal Struck Out ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Application by notice of motion to strike out a notice of appeal

Decision

Notice of appeal and any purported appeal struck out; application granted with costs to the applicant

The full judgment

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Holding

On an application to strike out a notice of appeal, the court held that the application for proceedings had been duly served under rule 78(2), the questioned document being authentic, and that the unsealed annexure was a technicality curable under Article 126(2)(e) of the Constitution as no injustice arose. However, the respondents failed to show that the period taken to obtain the proceedings was properly certified by the Registrar as time required for preparation and delivery under rule 77(2); the certificate fell far short of the subrule. The respondents had also not sought leave to file out of time under rule 4. The application accordingly succeeded.

Facts

The respondents sued the applicant in the High Court (HCCS No. 270 of 1997) and succeeded, but the applicant successfully appealed to the Court of Appeal. The respondents sought to appeal to the Supreme Court, filing a notice of appeal on 30 June 1999 and lodging an application dated 29 June 1999 for a copy of the Court of Appeal proceedings. The applicant moved to strike out the notice of appeal under rule 77, contending that it was never served with the application for proceedings as required by rule 78(2) and that the respondents had not taken essential steps within time. The applicant also challenged an annexure to the respondents' affidavit as fake and as unsealed contrary to the Commissioner for Oaths (Advocates) Act. The Registrar certified that proceedings were ready and supplied on 30 May 2000. The respondents did not disclose, and were evasive about, the date the record of appeal was actually filed.

Issues

Whether the respondents served the applicant with the application for a copy of the Court of Appeal proceedings as required by rule 78(2) of the Rules of the Court.
Whether the failure to seal, serialise and mark an annexure to an affidavit as required by the Commissioner for Oaths (Advocates) Act rendered the document unreliable.
Whether the respondents took the essential steps to institute the appeal within the time permitted, having regard to the requirements for excluding time under rule 77(2).
Whether the notice of appeal should be struck out.

Orders

Application allowed with costs to the applicant.
The notice of appeal and any purported appeal are struck out.

Key headnotes

Affidavits — Annexures — Sealing, marking and serialising under the Commissioner for Oaths (Advocates) Act

The sealing and marking of annexures to an affidavit is a legal requirement that facilitates the easy identification of annexures and must be adhered to; the practice of leaving documents unmarked on the basis that they appear on a court record is unacceptable and amounts to shoddy preparation of pleadings.

Technicalities — Curing non-compliance under Article 126(2)(e) of the Constitution

Failure to comply with the sealing and marking requirements of the Commissioner for Oaths (Advocates) Act may, on the peculiar circumstances of a case, be treated as a technicality curable under Article 126(2)(e) of the Constitution where the failure occasions no injustice.

Appeals — Application to strike out notice of appeal — Burden and duty of candour on the intending appellant

An intending appellant faced with an application to strike out a notice of appeal must file complete pleadings and be candid with the court, establishing the availability of a valid application for proceedings, the Registrar's certificate showing when the proceedings were ready, the date the proceedings were collected, and the date the appeal was filed; vague and evasive references will not suffice.

Appeals — Exclusion of time under rule 77(2) — Sufficiency of the Registrar's certificate

Time may only be excluded in computing the period for instituting an appeal where the Registrar of the Court of Appeal certifies the time required for preparation and delivery of the copy of proceedings to the appellant under rule 77(2); a certificate that merely records the date proceedings were ready and supplied falls short of the subrule and does not entitle the appellant to the benefit of the exclusion.

Appeals — Leave to file record out of time under rule 4

Where an intending appellant cannot bring itself within the time limits for instituting an appeal, it may apply under rule 4 of the Rules of the Court for leave to file the record out of time; failure to make such an alternative application leaves the notice of appeal liable to be struck out.

Legislation cited (7)

Rules of the Supreme Court r.77
Rules of the Supreme Court r.77(2)
Rules of the Supreme Court r.78(2)
Rules of the Supreme Court r.4
Commissioner for Oaths (Advocates) Act s.6
Commissioner for Oaths (Advocates) Act Regulation 8 of the Schedule
Constitution of Uganda 1995 Article 126(2)(e)

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.