Global Capital Save 2004 Limited & Another v Alice Okiror & Another (Civil Application 57 of 2021)

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

On a preliminary objection that the notice of appeal had been served out of time, the court held that the operative date of 'lodging' under rule 74(1) of the Judicature (Supreme Court Rules) Directions is the final date the process is completed, namely when the Registrar dates and signs the notice as duly lodged (9 July 2020), not the earlier date when fees were paid and the document stamped (7 July 2020). Service effected on 16 July 2020 therefore fell within the seven days allowed after lodging. The preliminary objection was dismissed for lack of merit, with costs in the cause, and directions were given for filing the reply and rejoinder.

Outcome

Preliminary objection dismissed; the application for stay of execution to proceed to hearing, with directions for filing of reply and rejoinder

Facts

The applicants applied to the Supreme Court for a stay of execution of the decree and orders of the Court of Appeal in Civil Appeal No. 151 of 2012, pending disposal of a related application before the Supreme Court. At the hearing, counsel for the respondents raised a preliminary objection that the application was incompetent because the notice of appeal had not been served within seven days of its filing as required by rule 74(1). He contended that the notice was filed, stamped and paid for on 7 July 2020 but served on the respondent only on 16 July 2020, more than seven days later, and that no application for extension of time had been made. Counsel for the applicant replied that the notice bore two dates from the Registry: although fees were paid and the notice stamped on 7 July 2020, it was the Registrar who dated, signed and recorded it as duly lodged on 9 July 2020, so time ran from that later date.

Issues

1. Whether the notice of appeal was lodged on 7 July 2020 when fees were paid and the document was received and stamped, or on 9 July 2020 when the Registrar dated and signed it as duly lodged, for the purpose of computing the seven-day service period under rule 74(1).
2. Whether, in consequence, the notice of appeal was served within time so that the application was competently before the court.

Orders

• The preliminary objection raised by counsel for the respondents is dismissed for lacking merit.
• Costs to be in the cause.
• Counsel for the respondents to file and serve an affidavit in reply and skeletal arguments by 3 February 2022.
• Any rejoinder to be filed and served by the applicant by 16 February 2022.
• Ruling on the application to be delivered on 17 February 2022 at 2.30pm.

Rules and key headnotes

Legislation cited (6)

• Judicature (Supreme Court) Rules r.2(2)
• Judicature (Supreme Court) Rules r.6(2)(b)
• Judicature (Supreme Court) Rules r.41
• Judicature (Supreme Court) Rules r.42
• Judicature (Supreme Court) Rules r.43
• Judicature (Supreme Court Rules) Directions r.74(1)

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