Mustaq v Obol-Ochola (Civil Application 4 of 1987) [1987] UGCA 3 (20 November 1987)

Full Case Text

IN THE COURT OF APPEAJ.

### AT MEL'GO

(Coram: Manyindo, V. P., Luboro, Ag. J. A., Qdoki, J. A.)

CIVIL APPLICATION NO. 4 OF 1W

## BET W E E N

MUSTAQ ABDULLAN BHEGANI APPELLANT

AND

RESPONDENT JAMES J. OBOL-OCHCLA (Appeal from a Judgment of the High

> Court of Uganda at Kampala (Mr. Ekirapa, J.) dated 28th November, 1986

> > IN

#### Civil Suit No.548/36)

## RULINGOF MANYINDO, V»P.

The applicant and the respondent have a dispute over a house situated on Plot 15 Salmon Rise, Bugolobi, Kampala. The respondent took the dispute to the High Court of Uganda for determination. He lost the suit against the applicant. That was on 28 th November, 1936. On 1st December, 1986 he lodged a notice of appeal in this court. It is remarkable that that notice was dated 4th December, 1986. A copy of that notice was served on counsel for the applicant.

On 51st July, 198'7 counsel for the applicant brought this application to strike out the respondent's notice of appeal on the ground that the latter had not taken steps to file the record of appeal within the prescribed time (under rule 31 of this court) or at all.

At the hearing of this application counsel for the respondent conceded, albeit belatedly, that they had not taken any step what-

soever to file the record of appeal. He then went on to argue that have been withdrawn under rules 80 and 82 of this court. He submitted that the appeal must have lapsed and is non-existent. He thought that therefore this application was misconceived. In his view it would be improper to order his client to pay the costs of saipe in these circuinstances. Surprisingly, he did not ask for the application to be either dismissed or struck out with costs, hich ould have been the logical conclusion of his argument. this application was unnecessary since the appeal must be deemed to

Rules 80 and 82 provide thus:-

r *2* -

"8\$)o A person on whom a notice of appeal has been served may at any time, either before or after the institution of the appeal apply to the court to strike out the notice or the appeal, as the case may be*\* on the ground that no appeal lies or that some essential step in the proceedings has not been taken or has not been taken, within the prescribed time.

82. If a party ho has lodged ?. notice of a, peal fails to institute an appeal within the appointed time,

- (a) he shall be deemed to have withdrawn his notice of appeal and shall, unless the court otherwise orders, be liable to pay the costs arising therefrom of any persons on whom the notice of appeal was served. - (b) any person on vhom the notice of appeal was served shall be entitled to give notice of appeal notiwithstanding that the appointed time has expired, if he does so within fourteen days of the date by which the party who lodged the previous notice of appeal should have instituted his appeal

In view of the clear provisions of rule 80, I am unable to appreciate the submission of the learned counsel for the respondent that the application is misconceived. As I understand it rule 82

renders not been filed within the prescribed time of 60 days: See the decision of this court in Kitariko the provisions of rule 82(a) can be invoked. v. Kataama Civil Application Nc.6 of 1982 (reported) in 1982 HCB rule 80 simply empowers the respondent a notice of appeal invalid where the record of appeal has to move the court to strike out the notice of appeal with costs once

I am therefore the view that this application was properly brought. Since the respondent does not oppose it on any other ground, it should succeed. I would allow it with costs to the applicant and as Lubogo, Ag. J. A. and Odoki, J. A. agree, it is so ordered.

DATED at Mengo this 20th day of November, 1987\*

(S. T. MANYINDO) VICE PRESIDENT

## IN THE COURT OF APPEAL

#### AT MSNGO

(Coram: Manyindo, V-P», Lubogo, Ag\*J. A, Odoki, J. A.)

#### CIVIL- APPLICATION NO.^ OF 1987

# BETWEEN

MUSTAQ ABDULLAN BHEGANI APPELLANT

## AND

RESPONDENT JAMES J. OBOL-OCHOLA \*.......................... (Appeal from a Judgment of the High Court of Uganda at Kampala (Mr# Ekirapa, J.) dated 28th November, 1986

#### IN

## Civil Suit No\*5^8/86)

RULING OF LUBOGO, AG. J,A.

I havd had the opportunity of reading the ruling of Manyindo, V-P# I agree with him that the application be allowed with costs to the applicant•

DATED at Mengo this 20th day of November, 1987\*

(D. L. K. LUBOGO) AG. JUSTICE OF APPEAL

### IN THE COURT OF' APPEAL

#### AT MEIIGO

(Coram: Manyindo, V-P., Lubogo, Ag. J. A., Odoki, J. A.)

CIVIL APPLICATION NO.1\* OF1 1987

# BETWEEN

MUSTAQ ABDULLAN BHEGANI APPLICANT

## AND

RESPONDENT JAMES J. OBOL-OCHOLA (Appeal from a Judgment of the High Court of Uganda at Kampala (Mr. Ekirapa, J.) dated 28th November, 1986

#### IN

## Civil Suit No.5^8/86)

I have had the opportunity of reading in draft the ruling of application must be allowed with costs. Manyindo, V-P. and I agree that for the reason 'he has given this

DATED at Mengo this 20th day of November, 1987-

(B. J. ODOKI) JUSTICE GF APPEAL