East African Steel Corporation Ltd v Statewide Insurance Corporation Limited (Civil Application No. 10 of 1999) [1999] UGCA 68 (15 June 1999)

### TFTE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

## CIVIL APPLICATION NO.lO OF I999

# EAST AFRICAN STEEL CORPORATION LTD. .... APPLICANT

#### VERSUS

### STATEWIDE INSURANCE CO. LTD RESPONDENT

#### HON. MR. JUSTICE C. M. KATO, JA. HON. LADY JUSTICE A. E. MPAGI-BAHIGEINE, JA. HON. MR. JUSTICE S. G. ENGWAU, JA. CORAM:

### RULING OF THE COUR-f

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This is an application for striking out respondent's notice ofappeal dated l4ll2l95. The application is by a notice of motion dated25l2l99.lt is supported by the affidavit of applicant's counsel Dr. Byamugisha deponed on 2512199. Mr. Lwere respondent's counsel also swore an affidavit on 2715199 in reply to that of Dr. Byamugisha. The application was lodged under Rule 81 of the Rules of this court.

According to the submission of Mr. Charles Kabugo-Musoke and Dr. Byamugisha's affidavit there is only one ground upon which this application was based. The ground being that the intended appellant has delayed in filing its appeal and memorandum thereof.

Before proceeding to consider the merits and demerits of this application it is necessary to look at the sequence ofevents which led to the presentation of this matter before us, as may be gathered from the available documents. On l2ll2l95 judgment was entered in favour of the applicant against the respondent. On l8ll2l95 the respondent filed notice

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of appeal which was served upon the applicant's counsel on2ll12195. On 29112195 the respondent's counsel wrote to the Deputy Registrar of the High Courl requesting for typed copies of the proceedings and judgment. Having received no reply to his letter of 29112195 the counsel for the respondent sent the following reminders to the Deputy registrar on 22/4196,28/6196 and 2812197 . Mr. Lwere in paragraph I 1 of his affidavit says he personally went to the Civil Registry and a search was conducted but the file could not be found.

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These undisputed facts, in our view, sufficiently exonerate the respondent from any blame for not having filed its appeal up to now. The blame is with the Civil Registry of the High Court. With due respect, we do not agree with Mr. Kabugo-Musoke's contention that there has been inordinate delay on the part of the respondent to file the appeal. We agree with Mr. Niwagaba's submission that in order for the respondent to prepare its memorandum of appeal it had to get typed copies of the proceedings andjudgment or order from the High Court. The respondent has been trying to get those documents but in vain. Under the provisions of Rule 82(2) of the Rules of this court time taken while preparing the record is excluded from the time to be computed against the intended appellant, so it is not correct to say that the respondent is late in persuing his appeal since time has not yet started running against it. We find substance in Mr. Niwagaba's submission that the respondent has been diligent in this matter and that no blame should be placed on it.

Mr. Kabugo-Musoke made two requests to this court in the altemative to striking out the notice of appeal. The first request is that this court should order a retrial. While we agree that an appellate court may order a retrial in appropriate cases where record ofthe trial court is

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missing, we consider such a course to be inapplicable in the instant case because at the moment there is no appeal before us and this court cannot make an order on a non-existing appeal.

Mr. Kabugo-Musoke's second request was that this court orders the opening of a duplicate file. Mr. Niwagaba, the respondent's counsel, explained that such a suggestion could not be implemented as he did not have all the copies of the proceedings or judgment. Question of file reconstruction or opening of a duplicate file is an administrative exercise which ought to be considered and carried out by the trial court at the request of the parties involved in a particular case after exhaustive search for the missing file has proved fruitless.

We see no basis upon which this court can proceed to grant Mr. Kabugo-Musoke's two requests.

Considering all the steps taken by the respondent's counsel to obtain typed record of the lower court, we are of a firm view that provisions of Rule 81, under which this application was filed, are not applicable to the present application. The application is accordingly dismissed with costs to the respondent.

Dated at Kampala this $\ldots$ day of $\ldots$ $\ldots$ $\ldots$ 1999.

C. M. KATO **JUSTICE OF APPEAL**

lup A. E. MRAGI-BAHIGEINE **JUSTICE OF APPEAL**

S. G. ENGWAU JUSTICE OF APPEAL