Hamdan v Malkan (Civil Application 4 of 2001)

Supreme Court · [2002] UGSC 13 · 2002 Application Dismissed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Application by notice of motion to strike out a notice of appeal and a civil appeal pending before the Supreme Court

Decision

Application to strike out the notice of appeal and appeal dismissed with costs; appeal allowed to proceed

The full judgment

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Holding

The Supreme Court dismissed an application to strike out a notice of appeal and appeal. It held that a decree is not among the documents that rule 82(2) of the Supreme Court Rules requires to form part of the record of appeal from the Court of Appeal, so the absence of an extracted decree did not affect the validity of the appeal. On the second complaint, the court accepted the respondent/appellant's unchallenged affidavit that he had instructed counsel to file the notice of appeal and to appeal before he left for England; the notice of appeal was therefore properly filed on instructions and the application could not stand.

Facts

The respondent/appellant had sued under section 15 of the Trustees Incorporation Act challenging membership of the Registered Trustees of Dawoodi Bohora Jamaat Corporation, Kampala. The trial court held he was not a member of the corporate body. His appeal to the Court of Appeal was dismissed on 18 October 2000. He then filed a notice of appeal dated 20 October 2000 and a civil appeal to the Supreme Court. The applicant moved to strike out both, arguing that no decree of the Court of Appeal had been extracted and filed, and that the notice of appeal had been filed by counsel without the client's instructions. The respondent/appellant deposed in an unchallenged affidavit that, before leaving for the United Kingdom, he had instructed his counsel to file the notice of appeal and to appeal, anticipating that he would lose.

Issues

Whether the absence of an extracted and filed decree of the Court of Appeal rendered the record of appeal incompetent.
Whether the notice of appeal was a nullity for having been filed by counsel without instructions from the dissatisfied party, so as to render the subsequent appeal incompetent.

Orders

Application dismissed.
Applicant to bear the costs of the application.

Key headnotes

Civil Procedure — Appeals — Record of Appeal — Documents required under Rule 82(2) of the Supreme Court Rules

A decree is not among the documents that rule 82(2) of the Supreme Court Rules (Directions) 1996 requires to form part of the record of appeal from a decision of the Court of Appeal to the Supreme Court, and the absence of an extracted and filed decree does not per se affect the validity of such an appeal.

Civil Procedure — Appeals — Notice of Appeal — Instructions of counsel to file appeal

Where the dissatisfied party's unchallenged affidavit establishes that he instructed counsel to file a notice of appeal and to appeal, the notice of appeal is validly filed on instructions and an application to strike it out as a nullity for want of instructions cannot succeed.

Legislation cited (9)

Supreme Court Rules (Directions) 1996 r.41
Supreme Court Rules (Directions) 1996 r.77
Supreme Court Rules (Directions) 1996 r.82(2)
Supreme Court Rules (Directions) 1996 r.42(1)
Supreme Court Rules (Directions) 1996 r.33(1)
Constitution of Uganda art.132(2)
Constitution of Uganda art.126(2)(e)
Judicature Statute 1996 s.5
Trustees Incorporation Act (Cap. 147) s.15

Cases cited (1)

Kibuka Musoke v Apollo Kaggawa (Civil Appeal No. 46 of 1997)

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.