Wakilii

China Civil Engineering Construction Corporation Ltd v Bubera General Construction Ltd (Civil Appeal No. 23 of 2020)

High Court · [2022] UGHCCD 221 · 2022 Appeal Struck Out AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from Chief Magistrate's Court decision, dismissed on preliminary objection
Decision
Appeal struck out as incompetent for procedural defects

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court held that an appeal to the High Court must be commenced by memorandum of appeal, not notice of appeal, as required by Order 43 Rule 1 of the Civil Procedure Rules. A memorandum of appeal filed two years after judgment without leave of court is incompetent. The appellant's failure to correct counsel's procedural error or seek leave to file out of time cannot be excused. The appeal was struck out with costs.

Outcome

Appeal struck out as incompetent for procedural defects

Facts

The appellant filed a notice of appeal on 10 March 2020 against a Chief Magistrate's judgment of 28 February 2020 in a claim for UGX 38,855,654. The appellant later changed advocates in July 2020. A memorandum of appeal was only filed on 10 March 2022, two years after judgment. The respondent raised preliminary objections that the appeal was improperly commenced by notice of appeal rather than memorandum of appeal, and that the memorandum was filed out of time without leave. The appellant argued that the initial error was counsel's mistake and that delay was caused by difficulties obtaining the trial record.

Issues

  1. Whether the appeal is competently before the court.
  2. Whether the appeal was properly commenced by notice of appeal contrary to Order 43 Rule 1 of the Civil Procedure Rules.
  3. Whether the memorandum of appeal was filed within time under section 79(1)(a) of the Civil Procedure Act.

Orders

  • The preliminary objections are upheld.
  • The appeal is struck out as incompetent.
  • Costs awarded to the respondent.

Rules and key headnotes

Civil Procedure — Appeals from Magistrate's Court — Mode of Commencement
An appeal from the Magistrate's Court to the High Court must be commenced by memorandum of appeal signed by the appellant or advocate and presented to the court, not by notice of appeal.
Civil Procedure — Appeals — Time Limits — Thirty-Day Rule
Every appeal must be entered within thirty days of the date of decree or order under section 79(1)(a) of the Civil Procedure Act. A memorandum of appeal filed out of time without leave of court is incompetent and will be struck out.
Civil Procedure — Counsel's Errors — Visiting on Litigant
Although mistakes of counsel should not ordinarily be visited on a litigant, where new counsel takes over and fails to correct a known procedural error or seek leave to file out of time, the litigant cannot escape the consequences of that omission.
Civil Procedure — Appeals — Extension of Time — Good Cause
The court has discretion to admit an appeal out of time for good cause under section 79(1) of the Civil Procedure Act. Good cause must relate to factors which caused inability to file within the prescribed period. Leave is not granted as a matter of course and requires materials upon which to base the exercise of discretion.

Legislation cited (3)

Cases cited (10)

  • Ogbuonye v Kawooya (Civil Appeal No. 40 of 2016)
  • Miggadde Richard & Ors vs Nakibuule Sandra & Ors
  • Makula International Limited v His Eminence Cardinal Nsubuga & Anor [1982] HCB 11
  • Godfrey Magezi & Anor v Sudhir Ruparelia (Civil Application No. 10 of 2002)
  • Maria Onyango Ochola and others v J. Hannington Wasswa [1996] HCB 43
  • Andrew Bamanya v Shamshendi Zaver (Court of Appeal Application No. 7 of 2001)
  • Nicholas Roussos v Ghulam Hussein Habib Virani (Civil Appeal No. 9 of 1993)
  • Capt Phillip Ongom v Catherine Nyero Owota (Supreme Court Civil Appeal No. 14 of 2001)
  • Tight Security Ltd v Chartis Uganda Insurance Co. Ltd (High Court Miscellaneous Application No. 8 of 2014)
  • Hajji Mohammed Nyanzi v Ali Sseggane [1992-1993] HCB 218

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

China Civil Engineering Construction Corporation Ltd v Bubera General Construction Ltd (Civil Appeal No. 23 of 2020) [2022] UGHCCD 221 (31 October 2022)
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.