Hannington Wasswa Semukutu and Company v Onyango and 2 Others (Miscellaneous Application 12 of 1988) [1989] UGSC 6 (7 July 1989)

### IN THE SUPREME COURT OF UGANDA

#### hT MENGO

(CORAM: MaNYINDO D. C. J., ODOKI J. S. C. AND PLaT J. S. S.)

MISCELLANEOUS APPLICATION NO. 12 OF 1988

# between

HaNNINGTON WaSSWA applicants SEMUKUTU & COMPANY *i* 5 5

## AND

MARIA ONYANGO OCHOLa RESPONDENTS CHARLES ONDOV/A MARTIN ONDOWA 5 5 5 i

> (Appeal from judgment of the High Court of Uganda (Okello J.,) dated 1? April 1988 , ' in Civil Appeal No. 37 of 1985)

### RULING OF THE COURT:

This is an application for order striking out the respondents' notice of appeal filed in this Court It is brought under rules 80 and 81 of the East African Court of Appeal Rules (hereinafter referred to as the Rules of this Court). It is supported by two affidavits, one from Margaret Semukutu, the Managing Director of the second applicant, and the second from Dr. Byamugisha, counsel for the applicants. Mr. Matovu, counsel for the respondents has sworn as affidavit in reply. on 21 April 1988.

According to the affidavit of Margaret Semukutu, she was personally involved in the preparation of the record of proceedings by supplying necessary stattionery to the High Court Registry. On 23 August 1988 she received from the Deputy Registrar of the High Court a letter dated 22 August 1988 addressed to counsel for the respondents and copied to her counsel, and she gave the letter and its copy to her counsel. The letter stated:

/O

''This is to inform you that proceedings of the ruling in the last application in the above appeal is now ready. You can collect the same on payment of due fees".

Dr. Byamugisha confirms, in his affidavit, that he received this letter from his client and that he personally delivered it to the chambers of counsel for the respondents.

On his part Mr. Matovu admits having received the said letter, but he claims in his affidavit that when he went to collect the proceedings from the Deputy Registrar, he found that On that he had not received proceedings. It was not until 16 January 1989 when the Ag. Registrar wrote another letter to counsel for the respondents advising him that tiie proceedings were ready for collection. Mr. Matovu aversthat on receipt of that letter he record of appeal which he filed in this court. It was his contention that time within which from 16 January 1989 when he received the records of proceedings. But Mr. Matovu revealed to us at the hearing of this application that he attempted to file the appeal on JO March 1989. to appeal started running against his clients as they were not ready as they were still in hand-written notes. 8 September 1988 he wrote to the Deputy Registrar informing him collected the proceedings and prepared a

Dr. Byamugisha contended that the letter of 16 January 1989 the earlier letter of 22 August 1988 as It was counsel's submission that the respondents should have filed their appeal within 60 days from the 22 August 1988, and that therefore their attempt to file the appeal on JO March 1989 was out time. did not in any way nulli^ to the readiness of the record.

There are two simple matters to be detemined in this application. The first is the date when, the record of proceedings was ready, and the second is whether the respondents filed the appeal within the

prescribed time. As to the first matter we are satistied that the record of proceedings was ready on 22 August 1988 when the Deputy Registrar wrote to counsel for the respondents asking him to collect it. No explanation has been given as to why such a letter could have been written if the record was not ready as claimed by counsel for the respondent. Indeed the Ag. Registrar's subsequent letter of 16 January 1989 merely repeated the same information as the first one and it appears to us that it was a reminder rather than referred to at all. a reply to counsel's letter of 8 September 1988 which, was not

With regard to the second matter it is clear that the respondents have not yet filed the appeal. Mr. Matovu merely attempted unsuccessfully to file the appeal on 30 March 1989. Whether we take the date when time started running against the respondents as 22 August 1988, as we have held. or 16 January 1989» as the respondents contend, the purported filing of the appeal was clearly out of time.

Under rule 81 (1) of the Rules of this Court, the appeal should have been filed within sixty days from the date of receiving the proceedings if the respondents had applied for them within thirty days from the decision appealed against. A person on whom a . notice of appeal has been served is entitled under rule 80 of the same Rules to apply to this court to strike out the notice of appeal on the ground that some essential step in the proceedings has not been or has not been taken within the prescribed period. See Kitariko V. Twino Kataama (1982) H C B 97.

In the present application, we are satisfied that the respondents have not taken the essential step of filing the appeal within the prescribed time. Indeed Mr. Matovu informed us from the Bar that he had filed an application for extension of time within

which to file the appeal two days before the date of hearing of this application. It seems to us that the respondents have not exercised the required diligence in prosecuting their intended appeal.

We accordingly allow this application and order that the notice of appeal be struck out witn costs to the applicants.

Dated at Mengo this 7th day of July 1989\*

SIGNED:

S. T. MANYNDO DEPUTY CHIEF JUSTICE

B.. J. ODOKI JUSTICE OF THE SUPREME COURT

H. G. PLATT JUSTICE OF THE SUPREME COURT

I CERTIFY THAT THIS IS A TRUE COPY OF THE ORIGINAL.

B. F. B. BABIGUMIRA, REGISTRAR SUPREME COURT.