Wakilii

Buteera and Another v Kyairagwire and Another (CIVIL APPEAL NO. 28 OF 2009)

Court of Appeal · [2018] UGCA 246 · 2018 Appeal Struck Out AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Second appeal to the Court of Appeal arising from a High Court decision on appeal from the Masindi Land Tribunal
Decision
Appeal struck out as incompetent by majority of 2 to 1

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

By a majority of 2 to 1, the Court struck out the appeal. The Court held that the appellants had failed to take steps to substitute legal representatives for the deceased respondents under Rule 85(2), and that the memorandum of appeal, raising grounds of both law and fact, offended Section 72 of the Civil Procedure Act, which confines a second appeal to points of law. The combination of these defects and a nine-year delay rendered the appeal incompetent and an abuse of process, justifying striking out under Rule 2(2). The dissenting judge would have allowed substitution but agreed each party should bear its own costs.

Outcome

Appeal struck out as incompetent by majority of 2 to 1

Facts

The dispute arose from a 1997 sale agreement. The matter was decided by the Masindi Land Tribunal on 25 July 2005, and an appeal was then made to the High Court. The appellants brought a second appeal to the Court of Appeal in 2009, but the appeal remained outstanding for nine years as part of the Court's backlog. The memorandum of appeal dated 4 May 2009 raised three grounds based on both law and fact. Both respondents died (in 2014), and no legal representative had been appointed to be substituted as a party. The appeal had been fixed for hearing on several occasions, including 27 September 2010 and 7 February 2011, when the hearing aborted due to the absence of both parties despite service. The Court fixed the matter for hearing on its own motion to address the backlog.

Issues

  1. Whether the appeal should be struck out where the respondents had died and no legal representative had been substituted under Rule 85(2).
  2. Whether a second appeal raising grounds of both law and fact contravenes Section 72 of the Civil Procedure Act.
  3. Whether the delay in prosecuting the appeal amounted to an abuse of court process warranting striking out under Rule 2(2).

Orders

  • Appeal struck out under Rule 2(2) of the Rules of the Court.
  • Each party to bear their own costs.

Rules and key headnotes

Civil Procedure — Second Appeals — Restriction to Points of Law under Section 72
A second appeal under Section 72 of the Civil Procedure Act may only be brought on points of law; a memorandum of appeal raising grounds of both law and fact offends that provision and renders the appeal incompetent.
Civil Procedure — Death of a Party — Substitution of Legal Representative
Where a respondent dies, an interested party must apply under Rule 85(2) of the Court of Appeal Rules to have a legal representative substituted; failure by the appellant to take such steps to prosecute the appeal renders it liable to be struck out.
Civil Procedure — Abuse of Process — Striking Out for Delay under Rule 2(2)
Prolonged and unjustified delay in prosecuting an appeal, coupled with failure to cure defects, constitutes an abuse of court process and justifies striking out the appeal under Rule 2(2) of the Court of Appeal Rules.

Legislation cited (3)

Full judgment

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Buteera and Another v Kyairagwire and Another (CIVIL APPEAL NO. 28 OF 2009) [2018] UGCA 246 (4 June 2018)
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.