Wakilii

Mparo General Contractors Ltd v Uganda National Examinations Board (Civil Application No. 82 of 2001)

Court of Appeal · [2004] UGCA 62 · 2004 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to strike out a notice of appeal for failure to take an essential step within the prescribed time
Decision
Notice of appeal struck out with costs to the applicant

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal held that it is the duty of the intended appellant to actively take necessary steps to prosecute an appeal, including diligently pursuing the record of proceedings; the burden does not lie on the respondent or the court. While the sixty-day period for filing a memorandum of appeal ordinarily runs from the Registrar's notification that the record is ready, an appellant must show he has exercised all due diligence to obtain it. As the respondent had done nothing to pursue the record for almost twenty-two months and had shown no keenness to prosecute the appeal, its dilatory conduct amounted to an abuse of court process. The notice of appeal was struck out with costs.

Outcome

Notice of appeal struck out with costs to the applicant

Facts

The applicant, Mparo General Contractors Ltd, obtained an arbitral award on 30 May 2000. The respondent, Uganda National Examinations Board, applied to the High Court to set aside the award, but that application was dismissed on 2 July 2002. The respondent filed a notice of appeal on 8 October 2002 and obtained a stay of execution on 28 November 2002. However, no memorandum of appeal was filed. The respondent's counsel wrote to the Registrar requesting the record of proceedings but claimed the record was never certified as ready. Almost twenty-two months after filing the notice of appeal, the respondent had taken no substantial steps to pursue the record, aside from a letter concerning taxation and settlement. The applicant managed to have the record certified itself and then applied to strike out the notice of appeal, contending that an essential step had not been taken within the prescribed time and that the delay abused the court process and denied it the fruits of its award.

Issues

  1. Whether the notice of appeal should be struck out for failure to file the memorandum of appeal within the prescribed sixty days.
  2. When time begins to run for filing a memorandum of appeal, and where the duty lies to take steps to procure the record of proceedings.
  3. Whether the respondent's delay in prosecuting the appeal amounted to an abuse of court process.

Orders

  • The notice of appeal is struck out.
  • Costs of the application awarded to the applicant.

Rules and key headnotes

Appeals — Duty to Prosecute — Procuring the Record of Proceedings
It is the duty of the intended appellant to actively take the necessary steps to prosecute an appeal, including diligently pursuing the record of proceedings; the duty does not lie on the respondent or the court to do it for him.
Appeals — Computation of Time — Registrar's Notification
The sixty-day period for filing a memorandum of appeal ordinarily begins to run when the Registrar advises the intended appellant, in writing, that the proceedings are complete and ready for collection.
Appeals — Due Diligence — Vigilance of Appellant
An appellant must show and prove that he has exercised all due diligence and done all in his power to obtain the record in time; it is not enough to write one letter and sit back, particularly where the registry may be unable to produce records promptly.
Abuse of Process — Dilatory Conduct — Striking Out Notice of Appeal
Prolonged failure by an intended appellant to take steps to prosecute an appeal constitutes an abuse of court process, entitling the court under its inherent powers to strike out the notice of appeal to attain the ends of justice.

Legislation cited (4)

  • Rules of the Court of Appeal r.1(3)
  • Rules of the Court of Appeal r.8
  • Rules of the Court of Appeal r.81
  • Rules of the Court of Appeal r.41

Cases cited (7)

  • Dr Sther vs Subramanian and Another C.A No.108 of 203
  • Standard Printers and Stationers Ltd v Uganda Commercial Bank (Civil Application No. 40 of 2000)
  • Plaxeda Sentabya Nkiwala v Libyan Arab Uganda Bank for Foreign Trade (Civil Application No. 6 of 1996)
  • Hannington Wasswa and Another v Maria Ochola and Others (Civil Application No. 12 of 1998)
  • Application No.52 of 1995 SC (unreported) relied on in Dr Kinyatta's application
  • Ribeero vs Siqueira & Facho (1936) 3 AER 916
  • Bhatt v Tewant Singh [1962] EA 497

Full judgment

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

Mparo General Contractors Ltd v Uganda National Examinations Board (Civil Application No. 82 of 2001) [2004] UGCA 62 (23 August 2004)
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.