Lonrho Cotton (U) Ltd v Rwakiseta (Civil Application No.53 of 2000) [2001] UGCA 48 (30 July 2001)

# <sup>1</sup> Hl- REPUBLIC OE UGANDA

# IN THE ( OUR <sup>I</sup> ()!•• APPEAL OEUGANDA AT KAMPALA

COKAM: ' HON. LADY JUSTICE L. E. M. MUKASA-KIKOiWOGO, DC. J; HON. LADY JUSTICE A. E. MPAGl-BAIIIGEINE. JA HON. MR. JUSTICE S. G. ENGWAU, JA.

CIVIL A PLICATION NO.53 OE 2000

### <sup>10</sup> LONRHO COTTON (U) LTD APPELLANT

#### VERSUS

JACKSON RWAKISETA RESPONDENT (Arising on <sup>I</sup> of HCCS No.930 of *1998)*

## RULING OL THE COURT

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20 This was an application by way of Notice of Motion, tinder rules 1(3). 42 and 82 of the Rules of this Court seeking an Order (hat the Notice of Appeal, filed on 10.3.2000 be struck out with costs, on the ground that:

> an abuse of court process.' has refused and or neglected to collect the the premises the Notice of Appeal to Court amounts to " inspite of the appellant being notified that the record of proceedings in the High Court was ready for collection the appellant said record and in this Honorable

<sup>I</sup> here arc two affidavits in deponed to by *Ms Stella Alibateese, an* Katcera and Kagumire Advocates charged with die conduct of tins matter. support of the application One i> Advocate in the firm of M Ms Alibateese was spectlicalix 'I lie oilier afiiduvit w.b

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sworn by Mr. George William Nkuubi, a court-clerk assigned to Hon Lady Justice Caroline Atima Okello who presided over HCCS No.930 of 1998 out of which this matter arises.

The background as narrated by Mr. Kanyemibwa, learned counsel for the applicant; was that the applicant was the successful plaintiff in HCCS No.930 of 1998 where the respondent was the defendant. The Notice of Appeal was filed on the same day the judgement in the High Court was delivered, but that to date no appeal has been filed in court. The applicant therefore, brought this application to move the court to strike out the Notice. of Appeal under rine 1(3) of the Rules of this court on the ground that the Notice of Appeal is an abuse of court process. The respondents' counsel received notice that the proceedings were ready for collection but they have never collected them so as to file the appeal.

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Mr. Nkuubi's affidavit states inter alia, that on 16.5.2000 the Deputy Registrar notified the respondent's advocates by letter a copy of which is Annexture "N1" that the record of proceedings was ready and awaiting collection. Paragraphs 3, 4 and 5 of Mr. Nkuubi's affidavit state:

"(3) On $22^{nd}$ May 2001 I served a copy of the aforesaid letter on Mr. Ronnie Kisitu, an Advocate employed by M/s Alampurira and Co. Advocates.

(4) The said Kisitu duly acknowledged receipt of the aforesaid letter by signing a copy thereof which is annexed hereto and marked "N2".

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(5) That as of 24<sup>th</sup> July 2000 the Advocates acting for the respondent had not collected the record $-\mathop{\mathrm{of}}$ $\textbf{proceedings.}^n$

The affidavit of Ms Stella Alibateese, confirms the averments in Mr. Nkuubi's affidavit Ms Alibateese also annexed a copy of the Registrar's letter "C" to her affidavit

Paragraph 5 thereof states:

$\text{''}(5)$ On $\mathbb{T}^m$ (sequest 2000, I conducted a search at the High-Court Registry and established that the appellant's Advocates received the said letter on 22<sup>nd</sup> May, 2000. A copy-of the letter indicating acknowledgement of service upon the respondent's Advocates is annexed hereto and marked "D".

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There were two affidavits filed in reply to the application both sworn on 13.6.2001 One was sworn by Mr. Michael Akampurira denying knowledge of Romnie Kisitu alleged to have been served in his chambers. He contended that Kisitu was neither an Advocate in his chambers not an employee However, paragraph $\cdot$ of his affidavit states:

$\frac{100}{2}$ (7) that the latter dated 16<sup>th</sup> May 2000 was served on Ronnie Kesita who is neither an advocate nor an employee of the firm. A copy of the said letter is annexed hereto and marked "C".

These two affidavits challenge the contents of Mr. Nkuubi and Ms. Alibateese's affidavits. In effect Mr. Akampurira denies receipt of any notification from the High Court that the record of proceedings was ready.

When arguing this matter, Mr. Kanyemibwa pointed out that Mr. Akampurira does not state how he came by the letter from the Registrar Annex "C" Mr. Kanvemibwa further pointed out that if it purported to be a copy from the High Court which it is not at ought to have been commissioned by the same commissioner Mr. Mbopo who commissioned Sh. Nkuubi's copy and that of Ms. As things stand. Mr. Akampurira's copy was Alibateese commissioned by one Mr. John M. Mugisha on 13.06.01 and furthermore it appears to be an original letter and not a copy. He, therefore, asked court to draw one conclusion that Mr. Akampurira must have received the notification letter at the time it was sent by the Registrar and it must have been received by his employee. Rönnie Kisitu He prayed court to allow the application and strike out the appeal

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In reply Mr. Algorithm caused three issues to contest the application namely traff

The application was brought under a wrong law $( : 1 )$ rule 1(3) instead of rule 81 of the Rules of this court.

the applicant did not prove that the That $(b)$ respondent did not take sufficient steps to pursue his appeal or that the delay was caused by the respondent or his counsel.

He clauned that he had taken all the essential steps by filing the Notice of Appeal within the prescribed time and applied for the record of proceedings in time. He prayed count to disting the application with costs.

The application was brought under rules $1(3)$ , 42 and 82 of the Rules of this Court Mr. Kanyemibwa argued that he opted to proceed under rule 1(3) on the ground that rule $1(3)$ was wider than rule 81 which is too restrictive and only applies when proceedings have been received by this court.

We think that though rule $1(3)$ is wider in scope clothing this court with its inherent powers, rule 81 is more specific and relevant because it is procedural. When read together with rule 82 rule 81 offers guidelines to the appellant as to the essential steps to take when instituting an appeal. Nonetheless having regard to the facts of the matter before court Mr. Kanvennibwa a omission to cite rule 81 has not occasioned any miscarriage See Ayub Suleman vs Salim Kabambalo, Supreme Court of justice Civil Appeal No.32 of 1995, to the effect that citing a wrong provision of the law does not occasion any miscarriage of justice. The court under its inherent powers can correct the error.

Concerning lack of affidavits in rebuttal of Mi-Akampurira's affidavit, it is clear that rather it is his affidavit that has not rebutted the applicant's affidavit at all

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Regarding Mr. Altampurna's contention that the applicant has failed to prove that the delay was on the part of the appellant since he did all that was required by filing the Notice of Appeal and applying for the record of proceedings, we are not persuaded by Mr. Akampurira's smokescreen denials that he never received the notification that the record of proceedings was ready. We say so because he did not disclose in his affidavit how he had come by the original letter from the Registrar, annex "C" to his affidavit. Coupled with this is the fact that his affidavit does not state what steps he had taken since by came by that letter, or better still whether he even Bok the trouble to find out from the Registry as to the fate of his application for the record. This cack of diligence is most mexcusable, bearing in mind that the Registry is a very busy place churning out correspondence to innumerable litigants and Advocates. Most importantly it is most curious that Mr. Akampurira did not apply to have Mr. Nkuubi before court for cross-examination regarding service on Ronnie Kisitu as employee in Mis-Akampurita and Co. Advocates.

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It is now a year and three months since Mr. Akampurira's applied for the record of proceedings. It is a little difficult to imagine that anyone earnestly 20 desirous of prosecuting an appeal would just slot in an application for the record of processives and a back to wait that long for a reply. This is what the rules accided and be providing a time scheme for taking the essential steps. Has last on difficulties lends the lie to Mr. Akampulara's affidavit and that of the respondent.

We have no alternative but to allow this application. The notice of appeal is accordingly struck out with costs. It is indeed a gross abuse of court process.

Date at Kampala ................................... $\ldots 2001$

L. E. M. MUKASA-KIKONYOGO, DCJ; JUSTICE OF APPEAL

$\{ \begin{array}{c} \mathbf{r} \\ \mathbf{r} \end{array} \} \quad \mathbf{r} \quad \mathbf{r} \quad \mathbf{r} \quad \mathbf{r} \quad \mathbf{r} \quad \mathbf{r}$ A. E. MPAGEBAHIGEINE, JA JUSTICE OF APPEAL

S. G. ENGWAU, JA. JUSTICE OF APPEAL

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