Mustaq v Obol-Ochola (Civil Application 4 of 1987)

Observed later treatment

No later-treatment classification is recorded for this judgment.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

Holding

The Court of Appeal held that an application under rule 80 to strike out a notice of appeal is properly brought where the appellant has failed to file the record of appeal within the prescribed 60 days. Rule 82 renders such a notice invalid by deeming the appeal withdrawn, and rule 80 empowers the respondent to move the court to strike out the notice with costs once rule 82(a) is invoked. The respondent's argument that the application was misconceived because the appeal had lapsed was rejected. The application was allowed with costs to the applicant.

Outcome

Notice of appeal struck out with costs to the applicant

Facts

The applicant and the respondent were in dispute over a house situated on Plot 15 Salmon Rise, Bugolobi, Kampala. The respondent took the dispute to the High Court of Uganda, where he lost the suit against the applicant on 28 November 1986. On 1 December 1986 the respondent lodged a notice of appeal in the Court of Appeal, a copy of which was served on counsel for the applicant. The respondent thereafter took no step to file the record of appeal within the prescribed time or at all. On 31 July 1987 counsel for the applicant brought an application to strike out the notice of appeal on the ground that the respondent had failed to file the record of appeal within the time prescribed under rule 31. At the hearing, counsel for the respondent conceded that no steps had been taken to file the record but argued that the application was unnecessary because the appeal was deemed withdrawn under rules 80 and 82.

Issues

1. Whether an application to strike out a notice of appeal under rule 80 is misconceived where the appeal is deemed withdrawn under rule 82 for failure to file the record of appeal within the prescribed time.
2. Whether the application was properly brought and the applicant entitled to costs.

Orders

• Application allowed.
• Costs awarded to the applicant.

Rules and key headnotes

Legislation cited (3)

• Rules of the Court of Appeal rule 31
• Rules of the Court of Appeal rule 80
• Rules of the Court of Appeal rule 82

Cases cited (1)

• Kitariko v Kataama (Civil Application No. 6 of 1982)

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