Horizon Coaches Ltd v Francis Mutabazi & 3 others (Civil Appeal 20 of 2001)

Supreme Court · [2002] UGSC 43 · 2002 Appeal Dismissed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Second appeal to the Supreme Court from a Court of Appeal ruling striking out the appellant's notice of appeal as served out of time

Decision

Appeal dismissed; the Court of Appeal's order striking out the notice of appeal as incompetent upheld

The full judgment

Read the complete, verbatim text of this judgment.

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.

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 Supreme Court dismissed the appeal against the Court of Appeal's order striking out the appellant's notice of appeal. Rule 77(1), requiring service of the notice within seven days of lodging, is mandatory. The appellant's affidavit of service, sworn seven months after the allegedly refused service and containing a mistaken name, was rightly treated as suspect, and the appellant failed to discharge its burden of proving timely service. The appellant also failed to comply with Rule 82(3) by not serving the respondents with the letter requesting a copy of proceedings, so the appeal could not lawfully be lodged within time. The Court of Appeal was entitled to consider the lodging issue.

Facts

In 1997 the respondents sued the appellant in the High Court for special and general damages for negligence, and judgment was entered against the appellant on 23 June 2000. On 7 July 2000 the appellant filed a notice of appeal and wrote to the Registrar requesting a copy of the proceedings, but did not copy that letter to the respondents. On 4 December 2000 the appellant filed and served an application for stay of execution, to which the notice of appeal and the letter requesting proceedings were annexed. The respondents moved to strike out the notice of appeal, contending they were first served on 4 December 2000, out of time. The appellant relied on an affidavit of service by Adroni Wilfred claiming the notice and letter were served on the respondents' counsel's clerk on 10 July 2000 but that the clerk refused to endorse them. That affidavit, sworn seven months later and naming the clerk as Robert Okis rather than Richard Okis, was challenged. The respondents' clerk denied being served.

Issues

Whether the appellant's notice of appeal was served on the respondents within the seven days prescribed by Rule 77(1) of the Rules of the Court of Appeal.
Whether the affidavit of service sworn by Adroni Wilfred was rightly rejected as suspect.
Whether the Court of Appeal was entitled to find that the appeal had not been lodged within the prescribed time when that issue was not raised in the pleadings or supporting affidavit.

Orders

Appeal dismissed with costs here and in the court below.

Key headnotes

Civil Procedure — Appeals — Service of Notice of Appeal — Mandatory Nature of Rule 77(1)

An intended appellant must, before or within seven days after lodging a notice of appeal, serve copies of it on all persons directly affected; this requirement under Rule 77(1) of the Rules of the Court of Appeal is mandatory, and failure to comply renders the notice incompetent and liable to be struck out.

Civil Procedure — Affidavit of Service — Timing Where Service Refused

Although the Rules prescribe no time within which an affidavit of service must be sworn, where service is refused the affidavit ought to be sworn immediately as evidence of service; an affidavit sworn seven months after the alleged refusal is suspect and of diminished evidential weight.

Evidence — Burden of Proof — Proof of Timely Service of Notice of Appeal

The burden lies on the appellant to prove that service of the notice of appeal was effected within the prescribed time, and that burden is not discharged by a suspect or belated affidavit of service.

Civil Procedure — Appeals — Extension of Time — Letter Requesting Proceedings under Rule 82(3)

An appellant cannot rely on the exclusion of preparation time under Rule 82(2) unless the written application for a copy of proceedings was served on the respondent and proof of service retained as required by Rule 82(3); failure to serve that letter precludes lawful lodging of the appeal within the extended period.

Legislation cited (7)

Rules of the Court of Appeal (Directions) Rule 77(1)
Rules of the Court of Appeal (Directions) Rule 81
Rules of the Court of Appeal (Directions) Rule 82(1)
Rules of the Court of Appeal (Directions) Rule 82(2)
Rules of the Court of Appeal (Directions) Rule 82(3)
Rules of the Court of Appeal (Directions) Rule 83(3)
Rules of the Court of Appeal (Directions) Rule 17(4)

Cases cited (3)

Castelleno v Rodridgues (1972) EA 223
The Nordglimt (1988) 2 All ER 531
Utex Industries Ltd v Attorney General (Civil Application No. 52 of 1995)

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.