Wakilii

Della Almeda v Dr. Carmo Rui Almeida (Civil Application. no.6 1990)

Supreme Court · [1990] UGSC 28 · 1990 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for stay of execution and a cross-application to strike out the notice of appeal, in the Supreme Court
Decision
Notice of appeal struck out and the dependent application for stay of execution dismissed, both with costs

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The intending appellant lodged a notice of appeal but failed to copy his request for proceedings to the respondent within 30 days as required by the mandatory Rule 81(2). Consequently the time taken by the court to prepare the proceedings could not be deducted, and the record of appeal was not lodged within time, so an essential step had not been taken under Rule 80. The court held it could accommodate a blameless applicant delayed by the court but could not aid one who was at fault. The notice of appeal was struck out with costs. As an application for stay under Rule 5(2)(b) must be founded on a valid notice of appeal, the stay application necessarily failed and was dismissed with costs.

Outcome

Notice of appeal struck out and the dependent application for stay of execution dismissed, both with costs

Facts

Judgment in High Court Civil Suit No. 595 of 1987 was given on 14 March 1990. The intending appellant lodged a notice of appeal on 21 March 1990, after which she had 60 days to lodge the record of appeal. To obtain the proceedings needed to prepare the record, she had to apply to the High Court and copy that request to the respondent within 30 days under the proviso to Rule 81(1) and Rule 81(2). She applied for proceedings on 20 March 1990 but failed to copy the request to the respondent, and made no further application within the 30-day period. Other proceedings took place in June 1990, after the record should have been lodged by 20 May 1990, so the record was not lodged in time.

Issues

  1. Whether the notice of appeal should be struck out under Rule 80 for failure to take an essential step in the proceedings within the prescribed time.
  2. Whether an application for stay of execution under Rule 5(2)(b) can be maintained once the notice of appeal on which it depends is struck out.

Orders

  • Notice of appeal struck out with costs.
  • Application for stay of execution dismissed with costs.

Rules and key headnotes

Civil Procedure — Appeals — Record of Appeal — Mandatory Requirement to Copy Request for Proceedings to Respondent
Under the mandatory Rule 81(2), an intending appellant must copy the request for proceedings to the respondent within 30 days; where this is not done, the time taken by the court to prepare the proceedings cannot be deducted from the time allowed to lodge the record of appeal.
Civil Procedure — Appeals — Striking Out Notice of Appeal — Failure to Take an Essential Step in Time
Where an intending appellant fails to lodge the record of appeal within time, an essential step in the proceedings has not been taken within the time prescribed, and the notice of appeal falls to be struck out under Rule 80.
Civil Procedure — Stay of Execution — Dependence on a Valid Notice of Appeal
An application for stay of execution under Rule 5(2)(b) must be founded upon a notice of appeal having been lodged; once the notice of appeal is struck out, the application for a stay cannot be maintained and must fail.
Civil Procedure — Appeals — Discretion — Blameless Applicant Distinguished from Applicant at Fault
The court may take into account the situation of a blameless applicant faced with delay caused by the court, but it cannot assist an applicant who is himself at fault.

Legislation cited (4)

  • Court of Appeal Rules r.5(2)(b)
  • Court of Appeal Rules r.80
  • Court of Appeal Rules r.81(1)
  • Court of Appeal Rules r.81(2)

Full judgment

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

Della Almeda v Dr. Carmo Rui Almeida (Civil Application. no.6 1990) [1990] UGSC 28 (4 October 1990)
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.