Construction Engineers and Builders Limited v Attorney General (Civil Application 84 of 2001) [2006] UGCA 53 (31 March 2006)

Full Case Text

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

#### CORAM: HON. JUSTICE S. G. ENGWAU, JA. $\mathsf{S}$ HON. JUSTICE C. N. B. KITUMBA, JA. HON. JUSTICE S. B. K. KAVUMA, JA.

# **CIVIL APPLICATION NO. 84 OF 2001**

# **CONSTRUCTION ENGINEERS &** BUILDERS LTD. ::::::::::::::::::::::::::::::::::::

## **VERSUS**

## THE ATTORNEY GENERAL ::::::::::::::::::::::::::::::::::::

[Arising from High Court Misc. Application No. 588 of 1999] (Okumu Wengi, J.) dated 7/12/2999]

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# **RULING OF THE COURT**

This application is brought under Rules 42 and 81 of the Rules of this Court, by notice of motion. The applicant is seeking an order that the respondent's notice of appeal filed on 28th December 2000 be struck out with costs.

The application is supported by the affidavit of Steven Sserwadda of Kalenge, Bwanika, Kimuli & Co. Advocates sworn on 9th November 2001.

The grounds of the application are:

That the intending appellant did not file the appeal in $661.$ the prescribed time

- That the intending appellant lodged a notice of appeal in the High Court on 28fl' December 2000 and since then has not takcn any steps in earnest in furtherance of those matter. )

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It would be in the interest of justice that this Honourable Court strikes out the notice of appeal."

According to the affidavit in support of the notice of motion, on 28'h December 2000,the respondent lodged in the High Court the notice of appeal. On25ll0l200l, the deponent made a search in the Commercial Court to find out the position of the intended appeal. After payment of the required search fee, he perused the whole file but found no appiication tbr the copy of the proceedings by the intending appellant. On 26'h October 2001, in order to confirm his findings, M/s Kalenge, Bwanika, Kimuli & Co. Advocates wrote to the Registrar of the Commercial Court and their letter is Annexture "C" to the affidavit of Serwadda. They requested the Registrar to confirm whether their tinding was correct. The Registrar made an endorsement on the same letter asking the officer in charge of the Civil Registry to find out whether there was a request for proceedings. He also made another endorsement to the effect that the applicant's lawyers should make an affidavit since they made a search. It is deponed further in the affidavit that the intending appellant is time barred because he has not todged the appeal in time. Additionally, the inordinate delay by the intending appellant/respondent in furtherance of the appeal is dilatory and an injustice to the intended respondenVapplicant to realise the fruits of its judgement. l0 l-i t0 l5

The respondent did not file any affidavit in reply. When the application came up tbr hearing on 8/10/2002 the applicant was represented by leamed counsel Mr. Mubiru-Kalenge and Mr. Joseph Matsiko, learned Principal State Attomey (as then he was), appeared for the respondent. Counsel for the applicant was ready to proceed but counsel for the respondent applied for an adjournment. The grounds for the adjoumment were that there were negotiations going on between the parties with a view to coming to an amicable settlement. Mr. Matsiko indicated to Court that one month would be enough to conclude the process. As counsel for the applicant did not object, the Coufi granted the adj oumment.

The application came up for hearing on 3111012005. Mr. Joseph Matsiko, Ag. Director of Civil Litigation, appeared for the respondent and Mr. Mubiru-Kalenge represented the applicant. Mr. Matsiko attempted to apply to Court to grant him another adj ournment to continue with the negotiations to settle the matter. Counsel for the applicant opposed the application, as according to him, counsel for the respondent was simply delaying the applicant from enjoying the fruits of the judgement. Mr. Matsiko changed position and indicated to Court that he would file written submission, since applicant's counsel written submissions were already on record. This Court allowed Mr. Matsiko to file his written submission in Court by l4'h November 2005 and serve the same to the applicant's counsel. t5 o 20

On 14th November 2005 Mr. Matsiko filed in Court an affidavit in reply sworn on the same day by himself. The affidavit states:

- $\ll 1$ . That I am an adult male Ugandan of sound mind and I am the Acting Director of Civil Litigation in the Attorney General's Chambers. - $2.$ That I argued Miscellaneous Application No. 588 of 1999 in the High Court when I was a Senior State Attorney

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- That the ruling in the said Application was delivered on $3.$ the 15th December 2000 in my presence. Copy of the ruling is attached herewith as Annexture "A". - That on the $28$ th day of December 2000, I drafted a Notice $4.$ of Appeal against the said ruling and wrote a letter requesting for proceedings. Copy of the said Notice of Appeal and letter requesting for proceedings are attached as Annexture "B" and "C" respectively. - 5. That as this was a period of Christmas festivities I could not find anybody in the Civil Registry of the Attorney General's Chambers so I took both the Notice of Appeal and the letter requesting for proceedings myself to the High Court and filed them. - That I personally took the Notice of Appeal and the said 6. letter and served them onto counsel for the Applicant at Colline House on that same day. - $7.$ That I swore an affidavit in proof of service and the same is attached herewith as Annexture "D". - That on 24th January 2001, Counsel for the Applicant 8. wrote to us demanding payment in accordance with the above said ruling. - $9.$ That I replied to Counsel for the Applicant reiterating that we had filed a Notice of Appeal and a request for a copy of proceeding and stating that both documents were served on Counsel for the Applicant. Counsel did not reply, denying receipt of the two documents or at all. Copy of my letter is attached as Annexture " $E$ ". - That on $4^{th}$ December 2001, I wrote to the Registrar, High *10.* 10 *Court reiterating that we had filed a Notice of Appeal and*

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requested for proceedings on 28/12/2000 and in that letter I requested that the said proceedings be availed and that letter was copied to Counsel for the Appellant who never controverted it. Copy of the said letter is attached as Annexture " $F$ ".

- 11. That I know that shortly thereafter the parties started negotiations on an out of Court settlement of the dispute that gave rise to Miscellaneous Application No. 588 of 1999. - 12. That the allegations contained in the Affidavit in support of this Application, to the effect that no application for the record of proceedings was made, are not correct. - 13. That I swear this affidavit in proof of the fact that I filed the letter requesting for proceedings and served it on *Application opposition* Counsel for the to the Application."

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On 23rd October 2002 applicant's counsel filed written submissions in this Court. The substance of his submissions were that, according to rule 81 of the Rules of this Court, a person on whom a notice of appeal has been served, may apply to have that notice struck out on the ground that no appeal lies or some essential steps in the proceeding has not been taken or not taken within the prescribed time.

According to counsel, the intending appellant had not instituted the appeal within sixty days as required by law. The intending appellant 30 could not rely on the provisions of rule $82(3)$ of the Rules of this Court because there was no evidence that he had requested from the Registrar of the High Court a record of proceedings. In support of his submission he relied on John Matsiko Vs Banyankole Kweterana Co.

Society Ltd. Civil Application No. 43 of 1998. He prayed this Court 35 to strike out the notice of appeal.

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5 In the respondent's written submission Mr. Matsiko repeated what he swore in his affidavit in reply. He contended that since the respondent has swom that he filed a notice of appeal and a letter requesting for proceedings and served them on counsel and filed an affidavit ofservice as required by rules 82(2)(3) of the Rules of this Court, the notice of appeal should not be struck out. He argued further that according to Annexture "E" counsel for the applicant was reminded that the notice of appeal was served on them and for that reason they could not be paid. He further argued that Annexture "F" is a letter addressed to the Registrar of the High Court reminding him that the respondent had filed a notice of appeal and a letter requesting for proceedings. The same was copied to counsel for the applicant. He contented that, as counsel did not controvert the contents of these letters, that is an indication that they represented the correct position. He dismissed Annexture "D" to the affidavit in support as being of no evidential value. He argued that what appeared there was hand-scribed notes. He argued that according to Annexture "C" to the affidavit in support, the applicant requested for confirmation of their findings. However, no confirmation was made since the Deputy Registrar, according to his inscription on that letter, directed that an affidavit be swom. There is no affidavit from the officer-in-charge of the registry. He prayed Court to dismiss the application with costs. l0

On 30th November 2005 counsel for the applicant filed a reply to the respondent's submissions. He complained that counsel for the respondent did not at all serve the submissions to him as was directed by Court. He stated that on 16'h November 2005 he had called the Director of Civil Litigation and reminded him about the Court's order. The Director promised that service would be made but it was not done. l5

() On 18th November he wrote a letter to the Registrar of this Court. In that letter counsel for the applicant informed the Registrar that he had not been served with a copy of the submissions. Counsel for the applicant only discovered that the respondent's counsel had filed submissions by visiting the registry of this Court. It was counsel's prayer that this Court should ignore the submissions by the respondent's counsel because he did not comply with the court's orders. He went on to argue that the affidavit in reply was of no evidential value, incompetent and bad in law because of the following reasons:

- The affidavit in reply was too late. It was filed on l7'h November and was trying to reply the affidavit in support of the motion which was filed on 21" November 200. According to counsel it was filed long after the applicant had filed his submission and was not afforded the opportunity to address its contents. l. - The affidavit in reply offends rule 50 of the Rules of this Court which provides that any person on whom a notice of motion has been served may lodge an affidavit in reply as soon as practicable. In counsel's opinion, filing an affidavit in reply four years after receiving the application is not at all practicable. Besides, the affidavit in reply was not served on counsel for the applicant and its contents could not be addressed in rejoinder and ) - That the respondent should be rejected because it contained the following falsehoods: J

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Firstly, that the chambers ot, Kalenge, Bwanika, Kimulu and Co. Advocates on Colline House were closed for Christmas from 23'd December up to January 2001, and therefore the chambers of the said advocates were closed on 28th December. Secondly, Mr. Mubiru-Kalenge on whom the deponent, Mr. Matsiko, alleges to have served the letter requesting tbr proceedings on 28th December 2000 was out of the country and was in South Africa from lTth December 2000 and returned on 20'h January 2001. Counsel attached photocopies ofpages ofN&. Mubiru-Kalenge's passport showing when he Ieft the country and when he retumed. He submitted that the firm of Mubiru-Kalenge, Bwanika and Kimuli Advocates does not exist. Counsel for applicant are Kalenge, Bwanika, Kimuli & Co. Advocates not Mubiru, Kalenga, Bwanika, Kimuli and Co.

Counsel reiterated his arguments on Rules 82(2) and 83(3) that the intending appellant had to strictly comply with the provisions by retaining proof of service and to produce the same when a dispute arises. It was counsel's submissions that the respondent's counsel is trying to get out of an embarrassing situation by his falsehoods. ti

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We have carefully perused the submissions from counsel for both parties and considered the legal provisions concerning the application befbre us. We note that the crux of the application is that the applicant wants this Court to strike out the notice of appeal on the ground that the

intending appellant has not taken the necessary steps. He is relying heavily on the provisions of Rule 82(2)and (3) of the Rules of this Court. t5

The law on institution of appeals in this Court is contained in rule 82 of the Rules of this Court, which provides:

\*82(1) Subject to rule 112, an appeal shall be instituted in the Court by lodging in the Registry, within sLrty days after the date when the notice of appeal was lodged- (a) a memorandum of appeul, in sLr copies, or as the Registrar shall direct; (b) the record ofuppeal in six copies, , or as lhe Registrar shall direct; (c) lhe prescribedfee; and (d) security for the costs of the appeal"

Sub-rule (2) and (3) of the same rule provide:.

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"(2) Ilhere un application for a copy of the proceedings in the High Court has been made within thirty duys t{ier the date oJ the decision against which it is desired to appeal, they shall in computing the time within which the appeal is to be instituted be excl uded s uch time as may be certified by the registrar of the High Court as having been required for the preparation and delivery to the appellant of that copy..

(3) An appellant shall not be entitled to rely on subrule (2), unless his or her application for the copy was in writing and u copy of it was served on the respondent, and the appellant has retained proof of lb u!Js!!ice," (emphasis ours)

According to the above rule, an intending appellant is required to institute the appeal within sixt1, days after the date the notice of appeal was lodged. However, where the intending appellant has within thirty days, applied in writing for a copy of proceedings from the High Court and served a copy of the same to the intending respondent, then the sixty day begin to run after the expiration of the period certified by the High Coun Registrar as the time required to prepare the record of proceedings.

In the matter before us, according to the affidavit evidence of Serwadda, the intending appellant had never served a copy of the request of the proceedings on counsel for the respondent. There is no copy of the request on the file. Mr. Matsiko has swom affidavit to prove the contrary that on 28'h December 2000 he served counsel for the applicant with letter of request. He is relying on rule 82 (3 ). As rightly pointed out by counsel for the applicant, this Court has in a number of cases considered the provisions of Rule 82 (3)\_. We have held that the provisions of Rule 82(3) are mandatory. In John Matsiko vs

Banyankole Kweterana Co. U Ltd (supra) the position was all on fours with this application. The intending appellant alleged that he served the notice of appeal and the letter requesting for court proceedings to counsel for the respondent. Counsel for the respondent signed on the notice of appeal acknowledging receipt of the same. There was no similar endorsement on the letter requesting for proceedings. The law clerk of counsel for intending appellant had sworn an affidavit that he had served both documents together at the same time on counsel tbr the intending respondent. This Court ruled o It) Li

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that the duty is upon the intending appellant to make an application to

the High Court for a record or proceedings serve that letter of application on the respondent and retain a copy. See also Bagumisa vs Centenary Rural Development Bank Ltd. Civil Application No. 9 of 2000 (unreported).

It should be noted that this Court in Dr. S. B. Kinyatta & Another vs Suburamania Rajha Gopalan & Another Civil Application No. 1000 of 2000 (unreported) observed that Rule 82(3) in some instances would be unfair to one who has already got judgement. However, this Court held that as long as the intending appellant has requested for the record of proceedings from the High Cor-rrt, and served it on the respondent, he is not required to do anything more until the Registrar of the High Court has trnished compilation oIthe record of proceedings.

From the evidence available on record, counsel-for the respondent has failed to prove that a request for the record of proceedings from the High Coun was made and service of such request was effected on the applicant as is required by law. He did not retain a copy which was endorsed by counsel for the applicant to prove service. la

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Before we take leave of this application, we must comment on the way counsel for the respondent handled this matter. First of all, there was no affidavit in reply filed until after 4 years after receiving the notice of motion. Surely, if the respondent intended to dispute the truth of the contents in the affidavit he should have filed an affidavit in reply within reasonable time. Granted that there were negotiations for amicable settlement of the dispute, legal steps should have been taken in case the negotiations failed, as they have done presently. Besides, counsel who appeared before this Court on three occasions and apparently, in the

High Court, on realising that no affidavit in reply had been filed for the last four years should have sought the indulgence of the Court to do so. The Court order given on the $31/10/2005$ was for counsel to file written submissions and serve them on counsel for the applicant. Learned counsel for the respondent did not do so for some an inexplicable reasons known to him. To say the least, his conduct was dilatory and he was guilty of serious larches. That notwithstanding, we have considered his submissions and the affidavit in reply since it was not controverted by any affidavit in rejoinder. Counsel for the applicant resorted to written submission in reply, We appreciate that he was probably at a loss because of the respondent's counsel strange behaviour.

In the result, this application is allowed with costs to the applicant.

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Dated at Kampala this ....................................

S. G. Engwau JUSTICER OF APPEAL

C. N. B. Kitumba JUSTICE OF APPEAL JUSTICE OF APPEAL