Wakilii

Kanobolic Group of U Ltd v Sugar corporation U Ltd (Civil Application 40 of 1995)

Supreme Court · [1996] UGSC 21 · 1996 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application in the Supreme Court to strike out a notice of appeal on the ground that the record of appeal was filed out of time
Decision
Application to strike out the notice of appeal dismissed; the appeal may proceed to be heard on its merits

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court held that Rule 81(2) of the Supreme Court Rules is mandatory: an intending appellant may rely on the proviso to Rule 81(1) to exclude record-preparation time only where a written application for the proceedings was made and a copy served on the respondent. On the affidavit evidence of the respondent's clerk, the court found that counsel for the applicant had in fact been served with the letter requesting the record. Objections to the clerk's affidavit (that he was not shown to be a process server and that the jurat omitted the place of swearing) were rejected as technicalities. The application to strike out the notice of appeal was accordingly dismissed with costs.

Outcome

Application to strike out the notice of appeal dismissed; the appeal may proceed to be heard on its merits

Facts

The applicant and respondent entered a contract under which the applicant undertook to repair lorries used by the respondent. The applicant claimed it carried out the repairs but the respondent failed or refused to pay the full contract price. The dispute was referred to arbitration under the contract, and the arbitrator made an award in favour of the applicant. The respondent's applications in the High Court to set aside the award (and later for review and stay of execution) were dismissed, partly on grounds of res judicata and incompetence of counsel. The respondent obtained leave to appeal and filed a notice of appeal, but filed the record of appeal about 53 days out of time. The applicant applied to strike out the notice of appeal. The respondent relied on the proviso to Rule 81(1), claiming it had applied in writing for the record of proceedings; the central question was whether the written application had been served on the applicant's counsel as Rule 81(2) requires.

Issues

  1. Whether the respondent could rely on the proviso to Rule 81(1) of the Supreme Court Rules to exclude the time taken to prepare the record of appeal, the record having been filed about 53 days out of time.
  2. Whether the respondent complied with the mandatory requirement of Rule 81(2) by serving on the applicant's counsel a copy of the written application for the record of proceedings.

Orders

  • Application to strike out the notice of appeal dismissed.
  • Costs of the application awarded to the respondent.

Rules and key headnotes

Civil Procedure — Appeals — Time for filing record — Proviso to Rule 81(1) Supreme Court Rules
The time required for the preparation and delivery of a copy of the proceedings is excluded from the period for instituting an appeal only where the conditions of the proviso to Rule 81(1) of the Supreme Court Rules are satisfied.
Civil Procedure — Appeals — Rule 81(2) Supreme Court Rules — Mandatory service of written application for proceedings
Rule 81(2) of the Supreme Court Rules is mandatory; an intending appellant cannot rely on the proviso to Rule 81(1) unless the application for a copy of the proceedings was in writing and a copy of it was served on the respondent.
Civil Procedure — Service — Affidavit of service by advocate's clerk
An advocate's clerk is competent to serve court process, and an affidavit of service deposed by such a clerk is not rendered defective merely because he is not shown to be a professional process server.
Civil Procedure — Affidavits — Defective jurat — Technicality
The omission from a jurat of the place where an affidavit was sworn is a technical defect that will not invalidate the affidavit where the place of swearing can otherwise be established, and such technicalities should not stop the court from hearing a matter on its merits.
Civil Procedure — Affidavits — Absence of affidavit in reply
Where there is no affidavit in reply, the deponent's sworn claim of service of process stands unchallenged.

Legislation cited (4)

  • Rules of the Supreme Court r.42
  • Rules of the Supreme Court r.80
  • Rules of the Supreme Court r.81(1)
  • Rules of the Supreme Court r.81(2)

Cases cited (3)

  • De Almeida v Almeida (Civil Application No. 5 of 1990)
  • Robert Kitariko v David Tinyefuza-Katana (Civil Application No. 6 of 1992)
  • Kagulire and Another vs. Tongoa, Civil Application No. 5 of 1990, Supreme Court (unreported)

Full judgment

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

Kanobolic Group of U Ltd v Sugar corporation U Ltd (Civil Application 40 of 1995) [1996] UGSC 21 (15 March 1996)
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.