Afric Cooperative Society v Uganda Railway Cooperation (Civil Application 24 of 2001) [2004] UGCA 29 (30 April 2004)

## THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

#### CORAM: HON. JUSTICE J. P. BERKO, J. A. HON. JUSTICE S. G. ENGWAU, J. A. HON. JUSTICE A. TWINOMUJUNI, J. A.

#### CIVIL APPLICATION NO.24 OF 2001

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$10$

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# AFRIC CO-OPERATIVE SOCIETY ....................................

## **VERSUS**

#### UGANDA RAILWAYS CORPORATION.................................... $20$

#### **RULING OF THE COURT:** $25$

This application is made under rule 81 of the Court of Appeal Rules 1996 seeking for orders that:

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(a) the notice of appeal filed by the respondent in respect of H. C. C. S. No.35 of 1995 be struck out, and

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$(b)$ costs of this application be provided for.

The grourrds for this application at'e stated in the Notice of Motion to bc that

(a)The judgment sought to be appealed against is a consent judgnrent and accordingly no appeal lies;

(b)the Notice of Appeal was served on the applicant out oltinre, and

(c)the applicant was never served a copy of a letter requesting lor proceedings as required by law, yet the appeal was not filed within d0 days.

The application is sufrported by an affidavit of Riclrard Odinrbe, counscl lor the applicarrt, deponed to on 6'r'April 2001 ir.r rvhich he states:

- "1. That I am an Advocate of the High Court and all courts subordinate thercto practising larv undcr the firm of Odimbc & Co. Advocatcs. - 2. That I hnd thc pcrsonal conduct of this casc in thc I{igh Court and I anr conversant rvith all the issucs pcrtaining thcrcto having handlcd the nratter in thc High Court. - 3. That on thc l2tt' day of October 2000 bcforc the court could rcturn to rvritc judgment in thc I{igh Court Civil Suit No.35 of 1995, bchvecn thc partics hereto Mr. I\ilatovu, then counscl for thc defendant and nrvself as counsel for thc plaintiff reachcd a conscnt on the dccretal amount payable to thc plaintiff.

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- 4. Tlrat the s:rid agrccnrcnt rvas rccordcd in a tlccrcc. A cop5, of thc said tlccrce is hcrcrvith attachcd and nrarkcd "A" and a ccrtificd copy of thc procecdings shorving horv thc conscnt rvas arrived at is hcrcu,ith att:rchcd and nrarkcd "8". - 5. Thnt subscqrrcntl), thc defendant changcd counsel, and thcn applicd to tlrc l{igh Court for sctting aside thc conscnt judgnrcnt. A copy of thc application is heres,ith attachcd and nrarked ('C". - 6. That ttrc said npplication rvas heard and disnrisscd. A copl, of the certificd ruling is hcrervith attached and nr e r l<cd ('f)". - 7. That on tlrc 13rr' da1, of Novenrber 2000 I rvas scrvect rvith a noticc of appcal against the judgmcnt in thc ntttn casc. - 8. That as the said noticc of appeal ryas filcd on the l8(r' day of October 2000 the said noticc of appeal rvas scn,cd outside thc pcriod pcrmitted b1, larv. A copy of thc notice of appeal is attached and nrarked "E". - 9. That I havc cross-cltccl<ed the Court of Appcal Rcgistry and establishcd as a fact, that no appcal has to this datc becn filcd. - l0. That further, I verily believe that in as much as thc judgnrcnt handcd dos,n in the High Court rvas <sup>a</sup> consent judgnrcnt, no appeal lies to this court."

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The motion is opposed by the respondent through her counsel Jacqueline Kansiime of Sempasa & Co. Advocates who swore an affidavit the relevant parts of which state: -

- $``3.$ That a consent judgment was entered between the applicant and respondent on the 12<sup>th</sup> day of October 2000. - $4.$ That subsequently the respondent disassociated itself from the same Order since it had not given instructions to counsel Mr. Lubega Matovu, to enter into such an arrangement as the respondent believed it had a good defence. - $5.$ That our firm was subsequently instructed to represent the respondent in the matter with a view of setting aside the same Consent Order. - 6. **.................................**

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- 7. **..............................** - 8. . . . . . . . . . . . . . . . . . . . . - 9. **.....................................** - $10.$ That earlier on we had requested for proceedings from the High Court with a view of appealing against the judgment of Justice Magezi made on the 12<sup>th</sup> day of October 2000 thereafter we filed a Notice of Appeal on the 24t<sup>h</sup> day of October 2000. - That subsequently we wrote to the Registrar on the 11. 24<sup>th</sup> day of October 2000 requesting for the record of proceedings and served a copy of the same letter

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to counsel for the applicant who accepted service on the 13<sup>th</sup> day of November 2000. A copy of the letter is hereto attached and marked as Anneture "IJ".

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- That it is not true that the applicant has never been 14. served with copies of the letter requesting for proceedings. - That it is not true the respondent cannot appeal 15. against the judgment entered on the $12<sup>th</sup>$ day of October 2000 since it is the respondent's contention that he wasn't party to the said judgment and whatever counsel did was at his own volition and can't be held against the respondent. - That believe the applicant hasn't suffered any $16.$ injustice which can't be adequately compensated by way of damages and justice demands that the respondent's appeal be heard.

In their written submissions, learned counsel for the applicant abund to d the 20 third ground of application which averred that the applicant will never served with a letter requesting the Registrar to give them the remaind of proceedings in H. C. C. S. No.35 of 1995. In arguing the first group in this application, counsel for the applicant submitted that the learned trial judge الممالينة (1000) entered a consent judgment in the Civil Suit on 12<sup>th</sup> October $25$ section 69(2) of the Civil Procedure Act (Cap. 65) no appeal list. They contented that on this ground alone, this application should succeed.

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Tlre relevant parts of the respondent's reply states:

"On firrthcr scrrr(iny of the Ruling of hcr Lordship Justicc Magczi on 9'r' da1, o[ Janrrary, 2001 onc rcaliscs that u,hat transpirctl in court rvas just a conscnt judgrncnt or conrpronlise jrrdgnrcnt on the quantrrm of danragcs. but not on the,n,holc casc bcforc thc court sincc court had procecded as nornrally until only the respondent had t0 failcd to produce hcr last u'itness.

> With that factor in nrind, our client bclieved and so did rve, that there l,as no valid conscnt judgment."

I5 Section 69(2) of the Civil Procedure Act provides that: -

"No appeal shall lic fronr a decrcc passed b1, court rvith the conscnt of the pa rties."

<sup>20</sup> This clearly means that if the Courts Decree rvhich was passed on l2'r' October 2000 was a consent decree extracted from a consent judgment, then no appeal lies to this court from the decree. The only issue then is rvhether that judgment was a bonsent jr"rdgment. According to scanty records relatiug to H. C. C. S. No.35 of 1995 available on this file, there is no doubt that M/s Lubega-Matovu & Co. Advocates rvere duly instructed to represent the respondent in this case and they rernained so up to the I 2'h October 2001 . 25

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officer of the couft and a professiorral, acted u,ithin his autholity on behalf of the respondeut iu consentirrg to the judgnrent in this case. The judgrnent is therefore, bindirrg on the respondent. Under section 69(2) of the Civil Procedure ffi no appeal lies fi'orr such a decree. Wc agrec with counsel for the applicant that on this ground alone, this application succeeds.

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We wish to briefly colrrnent on the merits of the second ground of this application. The glound is that the Notice of Appeal in H. C. C. S. No.35 of 1995 was served out of time. We have carefully perused both affidavits in support and against the Notice of Motion, and the writterr subnrissions on this ground. The following facts ernerge: -

(a) Judgrnent in Civil Suit No.35/1995 was passed on 1211012000.

(b)Two notices of appeal were filed on behalf of the respondent, one by

- Lubega-Matovu & Co. Advocates on l8'h October 2000 and another by Sempasa & Co. Advocates on 24'r'October 2000. - (c)The notice ofappeal rvas served on the applicant on I3'h November 2000. This is not disputed by affidavit filed on behalf of the respondent or in arguments of counsel fol the respondent.

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Learned counsel for the applicant has contended that whatever date one accepts as the date of filing a notice of appeal, serice of the same on hinl on l3th November 2000 u,as clearly outside the seven days stiPulated by rule tc' 'i- 77(l) of the Court of Appeal Rules 1996 and\*on the authoritl' ol Skills 25 Co nsul ta n ts vs. Pea rl Florvcrs Ltd Civil Annlication No.4/96 (SC) unre <sup>o</sup>rtcd the appeal was incompetent and must be struck out. In reply,

On June 2000 they \\,rote to the r-espondent suggesting that the case be settled out of courl because it appeared to hirn that no defence to the suit was available. Tlre respondent replicd that they believed they had a defence and suggested the calling of three rvitrresses all of whom were folmer ernployees of the respondent. The respondent's counsel was given several adjournments to enable hinr produce these witnesses in cou(. Though counsel dutifully informed the responder.rt of various dates to rvhich the case was being adjoumed and tlre reasons thereof, the respondent did nothing to assist their advocate produce these witnesses in court. On 3'd October 2000, counsel for the respondent rvas given the last adjournurent to enable hirn produce the witnesses. TIre case was adjourned to l2tr'October 2000. On that day, counsel had no witnesses though he had notified the respondent of the hearing date. Being an officer olthe courl arrd realisirrg that he had been given the final adjournment, he realised that he had no choice but to close the defence which in fact had not began at all. The court then invited both counsel to make their final submissions.

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During the submission counsel for the respondent indicated that he rvould dispute only the quantum of darnages rvhereupon the courl gave both counsel opportunity to negotiate and conre to an agreed figure of a.just settlement in danrages. On that day and before both counsel the learned trial judge entered a consent judgment for shs.204,882,6851= in favour of the plaintiff/applicant and interest at court rates and the costs of the suit. These terms were extracted into a decree dated the same day to rvhich learned counsel for the respondent affixed his signature of consent. In these circumstances, we have no doubt that counsel for the respondent, as an

learned counscl lor tlre lespondent sought to distinguish this case on l'acts from Skills Consultants (supra) that the issue in the case was not about the time frame but applies only rvhere a litigant is not served rvith a Notice ot Appeal at all. Since it is adnritted in this case that the Notice of Appeal was duly served, the case does not apply.

It was furlher contended that the applicant had failed to shorv any injury suffered as a result of failure to serve tl-re notice in seven days that cannot be cured by paynlent of darnages or that he had been seriously prejudiced.

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With respect to learned counsel for the respondent tlris case is not distinguishable florn Sliills Consultants suDra. In that case, the Suprerne Court of Uganda held:

"On thc cvidencc by affidavit it is cvidcnt that tlrc intended appcllant (rcspondcnt in tlris application) filc<l their noticc on l8/6/95. Under rule 76 of the rulcs of this court, thc applicant should have been servctl rvith the Notice of Appeal (N/A) on or bcfore 516195. Rut ns lrc stated in tlrc affidavit supporting his application this rvas done on 20/6195.

> This ryas outsidc thc prcscribcd pcriod and no lcave has been obtaincd by the respondent for extension of tinre. This court has hcld in thc case of Francis Nansio I\{ichah vs. Nurva Walakira., Civil Anneal No.24 of 1994 (SCU)


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(unrcportcd) tlrat scrving a notice of appcal on a litigant affcctcd b5, thc intendcd appcal is An esscntial rcquircmcnt undcr rulc 80 of the Rules of this Corrrt. llcing an esscnti:rl stcp if it is not donc u,ithin timc it rcndcrs the appeal incompetcnt."

It should be noted that Rule 77 of the rules of this court (rvhich is sinrilar to Rule 80 of the Rules of the Suprenre Court) states: -

"An intended appcllant shall, bcfore or rr'ithin seven da1's after lodging noticc of appeal, serve copies of it on all pcrsons directly affcctcd b1'the appeal, ........"

In the instant case, the last of the two notices ofappeal on lecord rvas filed r5 on 24tr'October 2000. This notice should have been served on the applicant on or before 3l" October 2000. It was seryed on him on l3tl'Novenrber 2000 alnrost nvo weeks after the deadline.

Cornpliance r.r,ith Rule 77 of the rules of this court is rnandatory. Irailule to comply is not an irregularity that can be cured by belated service. Tlre only available rernedy under the rules is to apply fol leave of court to serve the Notice of Appeal out of time. See Sovan Sin h Rrlrra vs. Ilellirr 20 Manzoor Misc. Arlnl. No.27l99 (CA) unrenorted. In this case it rvas not 25 be atoned for in <sup>d</sup> ol that he had been seriousl <sup>y</sup>prejudiced. For tlris reason too, we hold that appeal is incompetent and must be struck out done. The applicant need not shorv that he had suffered injLrry rvhich caunot

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I t t In the result, this appeal is incompetent and is accordingly struck out with costs to the applicant.

Date at Kampala this .................................... $\mathfrak{s}$

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Hon. Justice-J. P. Berko. $10$ JUSTICE OF APPEAL

| $\overbrace{\cdots\cdots\cdots\cdots\cdots\cdots\cdots\cdots\cdots\cdots\cdots\cdots\cdots\cd$ | |------------------------------------------------------------------------------------------------| | Hon. Justice S. G. Engwau | | JUSTICE OF APPEAL |

$\mathcal{L}\mathcal{L}$ ... . . . . . . . . . . . . . . Hon. Justice A. Twinomujuni $20$ JUSTICE OF APPEAL

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## THE REPUBLIC OF UGANDA

### IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

#### CORAM: HON. JUSTICE G. M. OKELLO, JA HON. JUSTICE A. TWINOMUJUNI, JA HON. JUSTICE C. N. B. KITUMBA, JA

### **CIVIL APPLICATION NO.108/2003**

# 1. DR. S. B. KINYATTA 2. RUGYEYO COFFEE FACTORY LTD ......... APPLICANTS 15 **VERSUS** 1. SUBRAMANIAN GOPALAN

# .. RESPONDENTS 2. GOPALAN & ASSOCIATES

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## **RULING OF THE COURT:**

This application is brought under Rules $42(2)$ , $43(1)$ and 81 of the Court of Appeal Rules by Notice of Motion. It seeks the orders of this court to the 25 effect that:-

(a) The Notice of Appeal filed by the respondent on 2.2.2000 be struck out. (b) The cost of this application be provided for.

The background to the application as can be gathered from the Notice of Motion and the affidavit sworn by Dr. S. B. Kinyatta in support thereof is that the applicants were the successful party in High Court Civil Suit No.444/1998. Judgment was delivered on 19.1.2000. On 2.2.2000 the

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respondent lodged a Notice of Appeai. The Notice of Appeal rvas duly' served on counsel for the applicant on 3.2.2000, together u,ith a letter to the Registrar of the High Cout calling for the record of proceedings of the suit. According to Mr. Henry Rwaganika, leamed counsel who representc'd the applicant, though the Registrar wrote to the respondents on 13.9.200 <sup>I</sup> informing them that the record was ready for collection, they have never filed a Memorandum and a Record of Appeal. It is the applicants' case that these documents should have been filed within sixty days from the date the record of proceedings was made avaiiable and that since that was not done the appeal is incompetent and ought to be struck out.

In reply, Mr. Nsibambi leamed counsel for the respondent relied on an affidavit swom by Mr. Mohmed Mbabazi of Nyanzi, Kiboneka and Mbabazi Advocates, the firm which represents the respondent. Part olMr. Nlbabazi's affidavit makes the following averments:-

"3. That the respondents did comply with all the essential steps in respect of the said appeal and the delay in filing the appeal is beyond their control and/or province.

4. That upon the delivery of the court ruling in Civil Appeal No.l00 of 2000 dated 20th April counsel for the respondents M/s Nyanzi, Kiboneka and Mbabazi advocates on numerous occasions wrote to the Registrar (Civil) High Court of Uganda requesting for a typed record of proceedings but to no avail. (Copies ofthe said letters are hereto annexed as "A", "8" and rtcr').

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- That I havc read the affidavit of Dr. S. B. Kinvirttr dated I't Septembcr 2003, and I have realizctl that thc Registrar had written a letter dated Septembcr, l3tr' 2001 to the effect that typed proceedings in HCCS No.444 of 1998 are available for collection. - That the above said letter by the Registrar (Civil) has never been brought to the attention of our firnr either by the Registrar or Counsel for the applicant rvho rt all material times was served with our said nrrmerous reminders to the Registrar. 6 - That it is fair and just that in the circumstances that the respondents be given a chance to file antl argue their appeal since the necessary documents h:rve been prepared. (Copies of drafts of the Nlemorandum of Appeal and Written Submissions are hereto annexed as "D" and "E" respectively." 7

Contrary to Mr. Mbabazi's averment in paragraph 4 of his aftldavit, <sup>a</sup> scrutiny of the annextures to the affidavit reveals that since 20'h April 200 l, the firm wrote only one letter to the Registrar dated 6th November 2001. That letter was never copied to counsel for the applicant as alleged. The letter is annex "8". Annex "A" was written before 20th April 2001 and not after as alleged. That one was the first letter dated 27th January 2000 which was admittedly received by counsel for the applicant. Annex "C" 'uvas neither addressed.to the Registrar of the High Court nor was it requesting for <sup>a</sup>typed record ofany proceedings. This clearly shows that paragraph four of Mr. Mbabazi's affidavit is totally false. 20 25

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In the second part of Mr. Mbabazi's affidavit, he swears tlrat his llrm has never received the Registrar's letter dated 13'h September 2001 . With the above deceitful background, we can not believe him. We are satisfied that the Registrar of the High Court Mr. Lawrence Gidudu wrote to M/s Nyanzi, Kiboneka & Mbabazi Advocates on 13th September 2001 informing them that the court record in HCCS No.444l98 was ready for their collection.

It is now two and half years since and it is shocking to hear that up to this day, the respondent and his counsel have never bothered to check rvith the High Court to ascertain whether the record is ready or not. In tltex Industries Ltd. v5. AttOrrcV GelCral Ctyil Application No.52l95 (SCXunreported) the Supreme Court stated, as has been stated in other courts cases before, that it is the duty of an intending appellant to actively take steps necessary to prosecute an appeal. It is not the duty of <sup>a</sup> respondent or the court at all. Since September 2001, the respondents have done absolutely nothing towards the prosecution of Civil Appeal which the,," initiated on 2.2.2000, now more than four years ago. t0 l5

20 It is now settled law that failure to take an essential step in the process ol prosecuting an appeal renders the appeal incompetent. Even failure to do so within the prescribed time has the same effect. See Utex lndustries Ltd vs. The Attorney General (sunra) and Pearl Flowers Ltd Civil Arrrrlic:rtion No.4l of 1996 (SC) (unrerrorted).

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Rule 82 of the Rules of this court requires an intending appellant to tlle <sup>a</sup> Record and a Memorandum of Appeal within 60 days from the date a Notice

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of Appeal is lodged. This requirement is mandatory. Failure to comply with it renders the appeal incompetent. It is now four years since a Notice of Appeal in HCCS No.444/98 was lodged. There is no reasonable excuse being advanced for such a high degree of negligence on the part of the respondent and his counsel. The appeal is incompetent and it is accordingly struck out with costs to the applicant. The applicants are also awarded the costs of this application.

Dated at Kampala this 30 th April 2004.

Hon. Justice G. M. Okello **JUSTICE OF APPEAL.** $15$

nuue Hon. justice A. Twinomujuni PPEAL. STICE OF

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25 Hon. Justice C. N. B. Kitumba **JUSTICE OF APEAL.**