Mbabazi and Kinkiizi Bus Service Ltd v Matco Stores Ltd and Another (Civil Application No. 75 of 2000) [2001] UGCA 51 (13 September 2001)

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

### CORAM: HON. JUSTICE S. G. ENGWAU, JA.

### CIVIL APPLICATION NO. 75 OF 2000

#### **BETWEEN**

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$\ddot{i}$ 1. JAMES MBABAZI 2. KINKIIZI BUS SERVICE LTD } ====== APPLICANTS

### AND

1. MATCO STORES LTD 2. ABDUL YUSUF }==========RESPONDENTS

#### RULING OF S. G. ENGWAU, JA. $20$

This is an application for an order that the Notice of Appeal which was filed in the High Court on the 17<sup>th</sup> of August 1999 but served on the respondents on the 21<sup>st</sup> of October 1999 be validated as having been served within seven (7) days from the $17^{\text{th}}$ of August 2000.

In the alternative, but without prejudice to the foregoing that the applicants be granted leave to serve $30$ the said Notice of Appeal out of time.

The application is brought by Notice of motion under no specific law. It is supported by an affidavit of the on 1st applicant, James Mbabazi, deponed to 16.10.2000.'

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In High Court Civil Suit No. 933 of 1993, Mateo Stores limited and Abdul Yusuf were the successful plaintiffs. James Mbabazi and Kinkiizi Bus Service Ltd., the unsuccessful defendants, appealed to this court vide Civil Appeal No. 54 of 1999. By consent of both parties, this appeal was withdrawn on 30.5. 2000. M/S Lwere & Co. Advocates were acting on behalf of the appellants.

On 29.9.2000, James Mbabazi and Kinkiizi Bus Service Co. Ltd. instructed M/S Babigumira 8s Co. Advocates to file this application on the ground that by 30.5.99 when the appeal was withdrawn, Mr. Mbabazi was committed to a Civil Prison. He had not given instructions to M/S Lwere & Co. Advocates to withdraw the appeal. This application is therefore, for the restoration of the appeal which was withdrawn by the former Counsel without the applicants' consent.

was -By - At the commencement of the hearing, Mr. Madrama, learned Counsel for the respondent, raised three preliminary objections but abandoned one of them. . The first objection. was that the application is incompetent because the . substantive appeal '.withdrawn way back on 30.5.2000- by consent.

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operation of law, the appeal was struck out of the list of pending appeals under rule 93 (3) of the Rules of this co.urt. No more appeal was there before court.

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Mr. Babigumira, learned Counsel for the applicant does not agree. He submitted that until the notice of withdrawal was acted upon by the court, there is a pending appeal. He relied on the authority of Polycarp Sekiboobo v. Clare Obonyo, C. A. Civil Application No. 31 of 1993 (Unreported).

Rule 93 (3) states

"If all the parties to the appeal consent to the withdrawal of the appeal, the appellant may lodge in the appropriate registry the document or documents signifying the consent of the parties; and the appeal shall then be struck out of the list of pending appeals."

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In the instant case, b}<sup>7</sup> consent Civil Appeal No. 54 of 1999 was withdrawn on 30.5.99. A document was lodged in' the registry signifying the consent of the parties. By operation of law, it was mandatory there and then that the appeal was struck out of the list of pending appeals. There was no more appeal to be resurrected or reinstated. . Polycarp Sekiboobo case (supra) was, therefore, cited out of context.- . " "

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Second objection is that the Notice of Motion does not cite any rule (law) under which it is brought. Mr. Madrama submitted that it was incumbent upon a party to state the law under which an order of the court is being sought. In Counsel's view, by citing the relevant rule/law both the Court and the parties get guided pn what remedy or order the court is likely to make on the matter before court. In the instant case, it was Mr. Madrama's contention that the application is incompetent as rule under which it was brought was not cited.

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Mr. Babigumira conceded that the Notice of motion does not state the law under which it is brought, but contended that the law which is well known need not be cited. In his view, failure to cite a law does not vitiate the Notice of motion per se if the law is commonly known. He relied on **Joy Tumnshabe & Anor V. M/S Anglo African Limited & Anon Civil Application No. 14 of 1998 (Unprotected).** Mr. Babigumira submitted, therefore, that the application is competent before court.

It is common knowledge that before one goes to court, one must know the reason and how to go about it. Any party seeking an order or redress from court must state the law under which such order or redress can be

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obtained from court. Failure to cite the law/rule or regulation' may amount to an ambush on the opposite party and the court. It is desirable that relevant law be cited a s a guide. Failure to do so may not vitiate per se what the party is seeking from court.

In the instant case, the applicants are seeking an order that the Notice of Appeal which was filed in court on 17.8.99 but served on the respondents on 21.10.99 be validated as having been served within seven days. It was incumbent upon the applicants to cite law under which court would operate to grant such order. Failure to do so, court should not assume or speculate an authority/jurisdiction on the matter.

In the result, <sup>I</sup> would uphold both objections and dismiss the application as incompetent with costs to the respondents.

**<sup>20</sup>** Dated at Kampala this.... I day of.. Sj>t.. 2001.

S. G. ENGWAU *JUSTICE OF APPEAL.*

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# THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA

# HOLDEN AT KAMPALA

## CIVIL APPLICATION NO. 75 OF 2000

#### 1. JAMES MBABAZI

#### $2.$ KINKIIZI BUS SERVICE LTD....................................

### **VERSUS**

$\ddagger$

#### **MATCO STORES LTD)** 1.

#### ABDUL YUSUF) .................................... $2.$

### ORDER.

THIS Application coming up for final determination before His Lordship Honourable JUSTICE S. G. ENGWAU, JA in the presence of Mr. Babigumira Counsel for the Applicants and Mr. Frederick Ssentomero Counsel for the Respondents.

IT IS HEREBY ORDERED as follows: -

That the Applicants application is Incompetent and is hereby dismissed with costs to the Respondents.

GIVEN under my hand and the seal of this Honourable Court this ..........day of ovenue 2001.

**REGISTRAR**

**WE APPROVE** COUNSEL FOR AP

Drawn & Filed by Katende, Ssempebwa & Co. Advocates, Solicitors, And Legal Consultants P. O. Box 2344 KAMPALA. KJM.