Wakilii

Nabunya v Wasswa and 2 Others (Miscellaneous Application 2885 of 2023)

High Court · [2023] UGHCLD 362 · 2023 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Interlocutory application to strike out or dismiss Civil Appeal No. 23 of 2020 for alleged non-service of memorandum of appeal
Decision
Application dismissed; appeal to proceed with memorandum to be served within 21 days

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court dismissed the application to strike out the appeal for non-service of the memorandum of appeal. Although the memorandum of appeal was not served on the applicant, the applicant had appeared twice in the appeal proceedings after being served with a hearing notice. The court invoked its inherent powers under Section 98 of the Civil Procedure Act and Article 126(2)(e) of the Constitution to ensure substantive justice over technicalities. The court ordered service of the memorandum within 21 days to allow the appeal to proceed inter-party.

Outcome

Application dismissed; appeal to proceed with memorandum to be served within 21 days

Facts

The respondents filed a memorandum of appeal in Civil Appeal No. 23 of 2020 on 3 March 2020, arising from a magistrate's court decision. The court fixed the appeal for hearing and served a hearing notice on the applicant. The applicant appeared twice before the High Court regarding the appeal proceedings, with parties proposing out-of-court settlement at the last appearance. Despite this, the applicant brought an application to strike out or dismiss the appeal on grounds that she had never been served with the memorandum of appeal itself. The respondents argued that the law does not require service of the memorandum in appeals from the magistrate's court to the High Court, as it is the court's duty to serve hearing notices. The applicant argued that failure to serve the memorandum meant the appeal had expired.

Issues

  1. Whether Civil Appeal No. 23 of 2020 should be struck out or dismissed for non-service of the memorandum of appeal.

Orders

  • Application dismissed.
  • Respondents to serve the applicant with the Memorandum of Appeal in Civil Appeal No. 23 of 2020 within 21 days from the date of issuing this ruling.
  • Costs of this application to abide the results of the appeal.

Rules and key headnotes

Civil Procedure — Appeals to High Court — Service Requirements
In appeals from the magistrate's court to the High Court under Order 43 of the Civil Procedure Rules, the appellant is not under a legal duty to serve the memorandum of appeal on the respondent. The appeal becomes valid upon lodging the memorandum signed by the appellant or their advocate. The court then fixes the appeal for hearing and serves a notice of the hearing date on the respondent.
Civil Procedure — Inherent Powers of Court — Justice Over Technicalities
The court has inherent powers under Section 98 of the Civil Procedure Act to prevent an abuse of process and ensure the ends of justice are met. Where a respondent has appeared and participated in appeal proceedings after being served with a hearing notice, dismissing the appeal on the technicality of non-service of the memorandum would shut the doors of justice.
Civil Procedure — Constitutional Duty to Administer Justice Without Undue Regard to Technicalities
Article 126(2)(e) of the Constitution of Uganda 1995 enjoins judicial officers to administer justice without undue regard to technicalities. Courts should invoke this provision to ensure substantive justice is administered and important issues requiring resolution are heard on their merits.

Legislation cited (7)

Cases cited (2)

  • Namiro v Uganda Marines Products Limited and Another (Miscellaneous Cause No. 78 of 2015)
  • Mulindwa v Kisubika (Civil Appeal No. 12 of 2014)

Full judgment

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

Nabunya_v_Wasswa_and_2_Others_(Miscellaneous_Application_2885_of_2023)_[2023]_UGHCLD_362_(10_November_2023)
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.