Mbabazi and Kinkizi Bus Service v Matco Stores Ltd (Reference No. 60 of 2001) [2003] UGCA 31 (1 January 2003)

Full Case Text

### THE REPUBLIC OF UGANDA

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

### CORAM: HON. JIISTICE L. E. M. MUKASA KtKONYOGO, DC., HON. JUSTICE A. TWINOMUJUNI,. IA HON. JUSTICE C. N. B. KITUMBA.. IA

#### REFERENCE NO.6O OF 2OOI

t5 I. JAMES MBABAZI } 2. KINKIZI BUS SERVICE )............ .... A1'PLICANT

## VERSI]S

### MATCO STORES LTD RESPONI)ENT l0

(Refercnce to a Full Bench against the ruling and order of a single judgc (Hon S.(J. Engrvau,,lA) in Civil Application No.75 of 2000 darcd l-1tr'Scptcmber 2001)

### RT]LING OF THE COURT:

30 This is a reference to a full bench from the decision of Hon. Justice S. G. Engwau sitting as a single judge in which he struck off the applicants application as being incompetent.

The application was filed in this court by Notice of Motion seeking an order that a Notice of Appeal filed in this court in C ivil Appeal No.54l I 999 on I 71h August 1999 but served on the respondent on 21'1 October 1999 be validated as having been served within 7 days on l7't' August 2000. -i5

In the alternative, that the applicants be granted leave to serve the Notice of Appeal out of time. when the application came up for hearing before the single judge, the respondent raised two preliminary objections, namely that:-

(a) There was no appeal pending. -5

(b)The Notice of Motion did not cite the law under which the appeal was brought.

I0 The learned single judge upheld the objections and ordered the application struck out as incompetent, hence this reference to the full bench.

The reference is based on six grounds as follows:-

"1. That the learned trial judge was in error whcn he hcld that failure

- to cite obvious provisions of the Rules is fatal to thc application. - 2- That the Iearned trial judge was in error when he herd that the case of Polycarp Sekiboobo vs. Clare Obonyo, C. A. Civil Applicatirn No.3l of 1993, was quoted out ofcontext. - 20 3. That the learned trial judge was in error whcn he stated that the application was for restoration of the appeal which was withdrawn by the former counsel without the applicant's consent. - 4. That the learned triar judge was in error when he hertr that by operation of the law, it was mandatory there and then that the appcal was struck out of pending appeals. - 5. That the learned trial jutlge was in error and misdirccted himself when he stated that we cited the case of Joy Tumushabe & Anrr vs. M/s Anglo African Limited & Anor civir Appriczrtion No.r4 of r99g 2-s

in support of the legal proposition that failure to cite larv does not vitiate the Notice of Motion if the law is commonly kno\*,n.

6. That the learned trial judge was in error when he dismisscd the application instead of striking it off."

Both counsel for the parties filed written submissions. We find some of these grounds of reference to be somewhat confusing in that some of thern do not address to two issues which were raised before the learned single judge, i.e.

(a) That there was no appeal pending. t0

(b)That the notice of motion did not cite the law under which it was brought.

We propose to deal with this refbrence by directly addressing the above two lssues.

()

We now first deal with the issue that there is no appeal pending. In his judgrnent, the leamed single judge dealt with the issue as fbllows:-

"At the commencement of the hearing, Mr. Madrama, learned counsel for the respondent, raiscd three preliminary objections but abandoned one of them. Thc first objection was that the application is incompetent because the substantive appeat was rvithdrawn way back on 30,5.2000 by consent. By operation of larv, the appeal rvas struck out of the list of pending appeals under rulc 93(3) of thc Rules of this Court. No more appeal rvas there before cou rt.

Mr. Babugumira, 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. l{e relied on the authority of polycarrr Sekiboobo vs. Clare Obonyo, Civil Aprrlication No.3l of 1993 (unrenorted).

Rule 93(3) states:-

"If ttll lhe porlies to the appetl c,onsent to the withdrawol of the tppeal, the appellont nru.t, lotlge in the appropriate registry the document or documents signtfying the consent of the parties; and the qpeal shall then be struck out of the list of penditrg t5 ttppeols."

In the instant case, by conscnt Civil Appeal No. S;l of 1999 was withdrawn on 30.5.99. A document rvas lotlgetl in the registry signifying the consent of the parities. llv l0 operation of law,itw as mandatorv there and then that the aoneal was struck out of the list of rrendins appeals. There was no more appeal to be resurrected or reinstated. Polycar p Sekiboobo case (supra) was, therefore, cited out of context."

Learned counsel fbr the appellant attacked this holding as erroneous on the grounds that although both parties filed documents in the courts Registry

requesting that the appeal be withdrawn, that request \$,as not acted upon by the court and therefore the appeal remained pending. He again cited and relied on the case of Polvcarp Sekiboobo vs. Clare Obonyo (supra) where the Supreme Court of Uganda held as follows:-

"There is no provision enabling the Registrar of this court to dismiss an Appeal. An order that an Appeal stands dismissed can only be made by the court nnd the Registrar is not a member of this court. lt foltorvs therefore that this order was ultra vires his powers. It must be vacated. It is set aside. This leaves the Appeal still pending."

The learned single judge held that this case was not applicable to the facts before him and that it was therefore cited out of context. We agree. The facts of that case are distinguishable from those of the instant case. In that case, it is the Registrar who ordered a dismissal of an appeal whereas he had no powers to do so. In the instant case, counsel tbr both parties filed a Notice of Withdrawal of the appeal dated 30th May 2000. Once that happened, then Rule 93(3) ofthe Rules ofthis Court (supra) applied. It says that l5 l0

# "the appeal shall then be struck out of the list of pending appeals."

This is a directive to the Registrar to strike out the appeal frorn the list of pending appeals. It does not require a judge to do this. The obvious meaning of those words is that the appeal is no longer pending befbre the court and ceases to exist as such. It cannot any longer be resurrected or

reinstated. The learned single judge was correct to disrrriss the apprication seeking to resurrect or reinstate the appeal on that ground.

This is enough to dispose of this appeal. However, we rvourd like to observe that we do not fault the learned single judge when stated that:\_

"lt 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 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 as a gu ide. Failure to do so maY not vitiatc per se what the narty is seekins from court.

l()

In the instant case, the applicants are seeking an order that the Notice of Appeal which was filecl in court on 17.8.99 but served on the res nden ts on 21.10.99 be validatcd as having been served lvithin seven da s. It n'as l0 incumbent upon the applicants to cite law untler rvhich court would operate to grant such order. Failure to <.lo so, court should not assume or speculate an a u thority/j u risdiction on the matter." IErrphasis oursl

The application in question was seeking an order to varidate a Notice of Appeal which was invalid. we do not agree that the law under which such an application can be brought is obvious. It was the duty of the appricant to l5

state under what provision of the law the application was being made. In the circumstances of this case the applicant should have stated the law under which the application was brought.

In conclusion,, we hold that the leamed single judge was correct to dismiss the application to re-instate an appeal which no longer existed. This appeal fails and is dismissed with costs to the respondent.

Dated at Karnpala this day of 2003 l0

Hon. Justice L. E. M. Mukasa Kikonyogo rs DEPIITY CHIEF JUSTICE.

20 Hon. Justice A. Twinomujuni JT]STICE OF APPEAL.

Horr. Justice C. N. B. Kiturnba JUSTICE OF APPEAL.