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National Housing & Construction Co. Ltd. v Salome T.B. Kyomukama (Civil Applic. No 133 of 2009)

Court of Appeal · [2011] UGCA 7 · 2011 Application Granted — Notice of Appeal Struck Out AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application by notice of motion to strike out a pending civil appeal as incompetent
Decision
Notice of Appeal in Civil Appeal No. 82 of 2007 struck out with costs

Observed later treatment

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Holding

The Court of Appeal considered an application to strike out a pending civil appeal for non-compliance with time and service requirements. It held that service of the letter applying for the record of proceedings, endorsed by the respondent's advocate, is mandatory under Rule 83(3); without such endorsement the appellant could not claim the benefit of time exclusion under Rule 83(2). As the letter was never proved served, the notice of appeal was null and void and struck out. The second ground concerning an omitted document was dismissed, since the omitted affidavit had no bearing on the appeal and could be addressed by a supplementary record under Rule 90. Application allowed on ground one with costs.

Outcome

Notice of Appeal in Civil Appeal No. 82 of 2007 struck out with costs

Facts

The applicant, National Housing & Construction Co. Ltd, sued the respondent for trespass in the High Court (Land Division) seeking her eviction. The respondent applied for a temporary injunction to prevent eviction pending disposal, which was dismissed by Maitum J. on 20 April 2007. The respondent filed a Notice of Appeal on 7 May 2007 challenging the dismissal, together with a letter requesting typed proceedings. The applicant's advocate acknowledged and stamped only the Notice of Appeal, not the letter requesting proceedings. The memorandum and record of appeal were filed on 31 December 2007. An affidavit of service was filed on 12 November 2009, over two years after service. The applicant moved to strike out the appeal, contending the letter requesting proceedings was never properly served or endorsed, so the appellant could not exclude preparation time from the 60-day limit under Rule 83, and that the appeal was filed out of time. A second ground alleged omission of a document from the record of appeal without leave of court.

Issues

  1. Whether Civil Appeal No. 82 of 2007 was incompetent or incurably defective and ought to be struck out.
  2. Whether the appellant complied with the mandatory service requirement of Rule 83(3) so as to benefit from exclusion of time under Rule 83(2).
  3. Whether omission of a document from the record of appeal, without leave of court, rendered the appeal incompetent.

Orders

  • On the basis of Ground 1, the Notice of Appeal is struck out with costs.
  • Ground 2 is answered in the negative and dismissed as devoid of merit.

Rules and key headnotes

Appeals — Time Limits — Exclusion of Time Under Rule 83(2)-(3) Court of Appeal Rules
An appellant may only exclude from the 60-day period for lodging an appeal the time taken to prepare the record where the application for proceedings was in writing and a copy was served on the respondent; service and proof of such service are mandatory conditions.
Appeals — Proof of Service — Endorsement of Letter Applying for Proceedings
Proof of service of the letter applying for the record under Rule 83(3) can only be established by having the letter endorsed by the respondent; absent such endorsement the appellant cannot claim the benefit of time exclusion.
Appeals — Competence — Effect of Non-Compliance on Validity of Notice of Appeal
Where the letter applying for the record is never proved served, the notice of appeal is null and void and is liable to be struck out.
Appeals — Record of Appeal — Omission of Documents Under Rule 87
The omission of a document immaterial to the disposal of an appeal does not render the appeal incompetent, as the justices hearing the appeal may determine its materiality and a dissatisfied respondent may file a supplementary record under Rule 90.

Legislation cited (10)

  • Judicature (Court of Appeal) Rules S.I 13-10 r.43
  • Judicature (Court of Appeal) Rules S.I 13-10 r.44
  • Judicature (Court of Appeal) Rules S.I 13-10 r.82
  • Judicature (Court of Appeal) Rules S.I 13-10 r.83(1)
  • Judicature (Court of Appeal) Rules S.I 13-10 r.83(2)
  • Judicature (Court of Appeal) Rules S.I 13-10 r.83(3)
  • Judicature (Court of Appeal) Rules S.I 13-10 r.87
  • Judicature (Court of Appeal) Rules S.I 13-10 r.87(4)
  • Judicature (Court of Appeal) Rules S.I 13-10 r.90
  • Civil Procedure Rules O.5 r.16

Cases cited (4)

  • Enhas Limited v Henry Magino (Civil Application No. 26 of 2006)
  • Afmc Co-operative Society V Uganda Railways Corporation (2002) IEA
  • Shaban V ABC Holding Corporation (2004) 2 E A 262
  • Commercial Bank of Africa V Ndirangu (2000) 1 E. A. 29

Full judgment

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National Housing & Construction Co. Ltd. Vs Salome T.B. Kyomukama (Civil Applic. No 133 of 2009) [2011] UGCA 7 (2 September 2011)
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.