Kuteesa v Nantumbwe & Ors [2015] UGSC 123

Supreme Court · 2015 Application Granted ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Application in the Supreme Court under Rules 2(2) and 78 of the Supreme Court Rules to strike out a notice of appeal, a civil appeal, and an interim order of stay of execution

Decision

Application granted; the notice of appeal and Supreme Court Civil Appeal No. 11 of 2014 struck out and the interim stay of execution vacated.

The full judgment

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Holding

The Supreme Court held that service of a notice of appeal under Rule 74(1) on a law firm that the applicant had never instructed was invalid, depriving the persons directly affected of notice. An affidavit may be sworn by any person with knowledge of the facts under Rule 43(1), so the applicant's attorney had locus standi. As the application for extension of time to file the notice of appeal had earlier been dismissed, there was no appeal on record and the High Court decree had already been fully executed; the respondents' continued attempts to overturn it through invalid consent orders were an abuse of process under Rule 2(2). The notice of appeal and civil appeal were struck out and the interim stay vacated.

Facts

The applicant and another sued the respondents in the High Court (HCCS No. 95 of 2009) claiming ownership of property at Makerere as administrators of an estate. The respondents filed no defence and an ex parte judgment and decree were entered against them on 19 October 2010; the decree was fully executed and the applicant was registered as proprietor. The respondents pursued numerous applications, references and appeals in the Court of Appeal seeking to set aside the decree, including obtaining and reviving consent orders later found unlawful. An application to extend time to file a notice of appeal had been dismissed, yet the respondents continued, filing a notice of appeal served on M/S Kintu Nteza & Co. Advocates and Supreme Court Civil Appeal No. 11 of 2014, together with applications for stay of execution. The applicant maintained she was represented throughout by Muhwezi Law Chambers and had never instructed Kintu Nteza & Co., and applied to strike out the appeal and notice.

Issues

Whether a person other than the applicant, as her attorney with knowledge of the facts, had locus standi to swear the affidavit in support of the application.
Whether the notice of appeal was validly served on the applicant or her duly instructed advocate as required by the Supreme Court Rules.
Whether the appeal was competent where no essential step in the proceedings had been validly taken.
Whether the interim order of stay of execution was valid where it was not supported by a valid notice of appeal.
Whether the respondents' continued litigation amounted to an abuse of the process of the court.

Orders

The Notice of Appeal in Court of Appeal Civil Application No. 294 of 2013 filed on 30 December 2013 is struck out.
Supreme Court Civil Appeal No. 11 of 2014 is struck out.
The interim order of stay of execution in SC Misc. Application No. 02 of 2014 issued on 23 January 2014 is vacated forthwith.

Key headnotes

Affidavits — Locus Standi to Depose — Person with Knowledge of the Facts

Under Rule 43(1) of the Supreme Court Rules a formal application may be supported by the affidavit of the applicant or of any other person having knowledge of the facts, so an attorney who has followed the matter from the outset has locus standi to swear the supporting affidavit even where the applicant proceeds in person.

Appeals — Notice of Appeal — Service under Rule 74(1) — Mandatory Requirement

Service of a notice of appeal under Rule 74(1) of the Supreme Court Rules is mandatory and must be effected on the persons directly affected by the appeal; service on a law firm that the party never instructed to represent it is invalid and of no legal consequence.

Appeals — Striking Out under Rule 78 — Essential Step Not Validly Taken

Where the notice of appeal has not been served on the persons directly affected, an essential step in the proceedings has not been taken, and the notice of appeal and any appeal founded upon it may be struck out under Rule 78 of the Supreme Court Rules.

Abuse of Process — Rule 2(2) — Pursuit of Proceedings Lacking Legal Basis

Continued pursuit of appeals and applications after an application for extension of time to file the notice of appeal has been dismissed, and after the decree appealed against has been fully executed, has no basis in law and constitutes an abuse of the process of the court which the court is enjoined to prevent under Rule 2(2) of the Supreme Court Rules.

Legislation cited (6)

Judicature (Supreme Court Rules) Directions r.2(2)
Judicature (Supreme Court Rules) Directions r.43(1)
Judicature (Supreme Court Rules) Directions r.74(1)
Judicature (Supreme Court Rules) Directions r.74(2)
Judicature (Supreme Court Rules) Directions r.74(4)
Judicature (Supreme Court Rules) Directions r.78

Cases cited (2)

Makula International Ltd v His Eminence Cardinal Nsubuga and Another [1982] HCB 11
Francis Micah v Nuwa Walakira (Civil Appeal No. 24 of 1995)

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