Wakilii

Mbabazi and Kinkizi Bus Service v Matco Stores Ltd (Reference No. 60 of 2001)

Court of Appeal · [2003] UGCA 31 · 2003 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Reference to a full bench of the Court of Appeal from the ruling of a single judge who struck out an application as incompetent
Decision
Reference dismissed with costs; single judge's order striking out the application upheld

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal, sitting as a full bench, dismissed a reference from a single judge's ruling striking out an application to validate service of a notice of appeal. The Court held that once both parties lodged a notice of withdrawal by consent, rule 93(3) of the Rules operated automatically to strike the appeal out of the list of pending appeals, so no appeal remained to be reinstated. The Court further held that where an application seeks to validate an invalid notice of appeal, the applicant must state the law under which the application is brought; the relevant law was not obvious and could not be assumed. The reference was dismissed with costs.

Outcome

Reference dismissed with costs; single judge's order striking out the application upheld

Facts

A notice of appeal was filed in Civil Appeal No. 54 of 1999 on 17 August 1999 but not served on the respondent until 21 October 1999. On 30 May 2000, counsel for both parties lodged a notice of withdrawal of the appeal by consent, and a document signifying that consent was filed in the registry. The applicants later applied by notice of motion for an order validating the notice of appeal as having been served within seven days, or alternatively for leave to serve the notice of appeal out of time. Before the single judge, the respondent raised preliminary objections that there was no pending appeal and that the notice of motion did not cite the law under which it was brought. The single judge upheld the objections and struck out the application as incompetent. The applicants referred the matter to a full bench.

Issues

  1. Whether there was a pending appeal capable of being reinstated after the appeal had been withdrawn by consent and struck out under rule 93(3) of the Rules of the Court of Appeal.
  2. Whether failure to cite the law under which the application was brought rendered the application incompetent.

Orders

  • The reference (appeal) fails and is dismissed.
  • Costs to the respondent.

Rules and key headnotes

Civil Procedure — Appeals — Withdrawal by Consent — Effect of Rule 93(3)
Where all parties to an appeal consent to its withdrawal and lodge a document signifying that consent, rule 93(3) of the Rules of the Court of Appeal operates automatically to strike the appeal out of the list of pending appeals; the appeal ceases to exist and cannot thereafter be resurrected or reinstated, and no judicial order is required to effect the striking out.
Civil Procedure — Applications — Duty to Cite Enabling Law
An applicant must state the provision of law under which an application is brought; where the enabling law is not obvious, the court will not assume or speculate as to its authority or jurisdiction to grant the order sought, and failure to cite the applicable law may render the application incompetent.
Civil Procedure — Precedent — Distinguishing Authority on the Facts
Authority holding that a Registrar has no power to dismiss an appeal, so that a purported dismissal by the Registrar leaves the appeal pending, is distinguishable from a case where the parties themselves withdrew the appeal by consent, since in the latter the appeal is struck out by operation of the Rules and not by any ultra vires act of the Registrar.

Legislation cited (1)

  • Rules of the Court of Appeal rule 93(3)

Cases cited (2)

  • Polycarp Sekiboobo v Clare Obonyo (Civil Application No. 31 of 1993)
  • Joy Tumushabe and Another v M/s Anglo African Limited and Another (Civil Application No. 14 of 1998)

Full judgment

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

Mbabazi and Kinkizi Bus Service v Matco Stores Ltd (Reference No. 60 of 2001) [2003] UGCA 31 (1 January 2003)
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.