Wakilii

Nsubuga and 3 Others v Kamuje (Civil Application 12 of 97)

Supreme Court · [1997] UGSC 26 · 1997 Application Struck Out AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to the Supreme Court for leave to file a Memorandum of Appeal out of time
Decision
Application struck out as misconceived and incompetent.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The applicants sought leave to file a Memorandum of Appeal out of time. The Supreme Court held that the Rules contain no requirement to file a Memorandum of Appeal as a separate step in instituting an appeal: under Rule 81(1) it is lodged together with the record of appeal once leave to appeal out of time is granted. An application for leave to file only a Memorandum of Appeal out of time is therefore misconceived and incompetent. The court also dismissed a preliminary objection alleging defective service, applying Article 126(2)(e) of the Constitution to administer substantial justice without undue regard to technicalities. The application was struck out with costs, and counsel was ordered personally to pay those costs.

Outcome

Application struck out as misconceived and incompetent.

Facts

The applicants had earlier sought leave to appeal a High Court judgment (dated 12 July) without first securing leave to file a Notice of Appeal. Following rulings by Oder JSC and Tsekooko JSC, leave to file a Notice of Appeal out of time was granted on 21 March 1997, on condition that the notice and application be served on the respondent within five days. The applicants' counsel then brought the present application seeking leave to file a Memorandum of Appeal out of time, attributing earlier delay to a missing sketch plan that had been left out of the court record. The respondent, Margaret Kamuje, was served (through a member of her advocates' firm) by one of the applicants rather than an authorised process-server, prompting a preliminary objection. The respondent's counsel argued the delay was caused by counsel's lack of diligence and prudence rather than excusable cause.

Issues

  1. Whether the preliminary objection that service was not effected by an authorised court process-server should be upheld.
  2. Whether an application for leave to file a Memorandum of Appeal out of time is competent under the Rules of the Supreme Court.

Orders

  • Preliminary objection on service overruled; application allowed to proceed.
  • Application struck out as misconceived and incompetent.
  • Costs of the application awarded to the respondent.
  • Counsel for the applicants ordered personally to pay the costs of the application.

Rules and key headnotes

Civil Procedure — Rules of Court — Technicalities — Article 126(2)(e) and Substantial Justice
Where a respondent has in fact been served and does not deny service, an objection that service was not effected by an authorised process-server is a mere technicality; under Article 126(2)(e) of the Constitution the court administers substantial justice without undue regard to technicalities.
Civil Procedure — Appeals — Institution of Appeal — Memorandum of Appeal
There is no provision in the Rules of the Supreme Court requiring an intended appellant to file a Memorandum of Appeal as a separate step; under Rule 81(1) the Memorandum of Appeal is lodged together with the record of appeal when the appeal is instituted, so an application for leave to file a Memorandum of Appeal out of time is misconceived and incompetent.

Legislation cited (4)

Cases cited (3)

  • Sezi Busasi & anor v B. Kareeba & anor, Civil Appeal No. 30 of 1976
  • In re Almeida (Almeida case)
  • Parliamentary Elections case (Court of Appeal, unreported)

Full judgment

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

Nsubuga and 3 Others v Kamuje (Civil Application 12 of 97) [1997] UGSC 26 (24 November 1997)
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.