Mutanda v City Council of Kampala (CIVIL APPLICATION NO. 50 OF 1998) [1999] UGCA 71 (11 January 1999)

Full Case Text

# **THE REPUBLIC OF UGANDA**

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

## **CORAM:**

HON. MR. JUSTICE G. M. OKELLO, J. A.; HON. MR. JUSTICE S. G. ENGWAU, J. A.; AND HON. MR. JUSTICE A. TWINOMUJUNI, J. A.

### CIVIL APPLICATION NO. 50 OF 1998

#### BETWEEN

JULIUS MUTANDA:::::::::::::::::::::::::::::::::::

### AND

CITY COUNCIL OF KAMPALA:::::::::::::::::::::::::::::RESPONDENT

(Arising out from the Ruling of the High Court of Uganda (Mukanza J.) dated 17/9/97 in HCCS No.1083 of 1995).

### **RULING OF THE COURT**

This is an application for striking out the respondent's notice of Appeal filed in this Count on 21st November, 1997. It is brought under rules 81 and 83 (a) of the Court of Appeal Rules Directions, 1996 (hereinafter referred to as the Rules of this Court.) It is supported by an affidavit of the applicant Julius Mutanda, sworn on 26/10/9%. Mr. Sendege, counsel for the respondent has sworn an affidavit in reply dated 11/12/98.

The main ground of the application is that the respondent has not taken an essential step in the proceeding within the prescribed period. He did not file the appeal within the period prescribed by rule 82 $(1)$ of the rules of this court. This rule requires an appeal to be lodged within sixty days after the date when the Notice of Appeal was lodged. According to paragraphs 2 - 3 of

the supporting affidavit, the intended appellant applied for record of the proceedings within 30 days after the date of the Ruling appealed. The letter of request was copied to counsel for the applicant. Counsel for the intended appellant was supplied with and received the necessary record of the proceedings on $24/6/98$ . Paragraph 4 of the same affidavit states that 3 months since the receipt of the record of the proceedings, (now five months), the appeal has not yet been filed. Mr. Kimanje, learned counsel for the applicant, submitted that in those circumstances the Notice of Appeal is bad in law and should be struck out.

$\boldsymbol{10}$

On his part, Mr. Sendege, learned Counsel for the respondent, admits in his affidavit in reply having received the record of the proceedings on 24/6/98 but claims that on perusal, he found that the record was so riddled with many mistakes that it could not be used as a basis for preparation of the record of appeal and he requested the Registrar of the High Court to correct the mistakes. According to Counsel, by a letter dated $2/12/98$ (annexture BB1) the Deputy Registrar High Court notified him that a corrected record was ready for collection. Counsel said, that then promptly obtained the corrected record of he the In his view, the time started to run on $2/12/98$ proceedings. when they received the notification of the readiness of the corrected record of the proceedings.

Mr. Kimanje, contended that the time started to run on 24/6/98 when Counsel for the intended appellant received the record of the proceedings irrespective of whether or not the record was full of mistakes. He relied on Hannington Wasswa Semakutu & Co. Vs Maria Onyango Ochola and 2 others, Misc. Application No. 12 of 1998 SC (unreported). He argued that if the record was found to be full of mistakes, Counsel for the intended appellant should have applied for extension of time giving such mistakes in the records as a ground for application. He repeated his prayer for striking out the Notice of Appeal.

$\mathbf{2}$

The question for determination in this application is whether <sup>a</sup> record of proceedings irrespective of its quality once received by Counsel for the intended appellant sets the time running against the intended appellants. Mr. Kimanje answers in the affirmative and cites HannLnqton Wasswa Semakutu & Co. (Supra) as his authority for that proposition.

In that case, the intended appellant through his counsel had applied for record of the proceedings from the High Court. On 23/8/98 Counsel for the intended appellant received a letter from the Deputy Registrar High Court dated 22/8/88 a copy of which was sent to counsel for the opposite party. ifr. letter stated: -

> 'r Thi s i s to inf orm you that proceedings of the ruling in the last application in the above appea1 is now ready. You can collect the same on payment, of due f ees . rr

Counsel for the intended appellant admitted in his affidavit, receipt of that letter but cLaimed that when he went for the record it was not ready. on 8/9/88 he wrote to the Deputy Registrar informing him that he had not received the proceedings. Then on te/t/A9 the Ag. Registrar wrote another letter advising him that the proceedings were ready for collection. Counsel for the intended appellant contended that time started to run against his client on L6/t/89 when he received the record of the proceedings. Their Lordships in the Supreme Court did not believe the facts contained in the affidavit of Counsel for the intended appellant. They found that the letter of L6/l/89 repeated the information in the letter of 22/8/88 and was therefore merely a reminder. They accordingly held that time started to run on 22/8/88 when the Deputy Registrar wrote to CounseL for the intended appellant notifying him of the readiness of the record for collection.

We think that the above case is distinguishable from the instant case on facts. In Hannington's case (supra) Counsel for the

intended appellant was informed in writing by the Registrar of the High Court that the record of the proceedings was ready for collectj-on. Though Counsel claimed that when he went to collect the record, he found it not ready, the Supreme Court did not believe him. The Court found that the subsequent letter of the Registrar was a mere reminder of the earlier position. It therefore held that time began to run when Counsel was first notified of the readiness of the record for collection.

rc In the instant case, there is no dispute that the record was received by Counsel for the intended appellant on 24/6/98. There is i-. also no dispute that the record of those proceedings was riddled with mistakes and had to be returned to the Registrar for correction. The Registrar notified Counsel on 2/tz/gA that the corrected copy was ready for collection. In our view, that is when time started to run.

It is a legaI requirement that a copy of the record of the proceedings to be supplied by the Registrar of the High Court to an intended appellant for purposes of appeal must be a true copy of the original proceedings. That is why rule 53 (5) of the RuLes of this Court enjoins the Registrar to certify each copy of the record of appeal to be I'true copy of the original proceedings" except where the record is produced by printing, t)pe lithography, stencil duplicating, photography, xerography when he sha1l certify only one copy.

Where the record of the proceedings is so riddled with mistakes as to be different from the original proceediDgs, it cannot be a true copy thereof which the 1aw requires the Registrar to prepare and supply to the intended appellant. We are therefore unable to agree with ttr. Kimanje's argument that a record of the proceedings irrespectj-ve of its quality would suffice and that extension of time be sought for correcting errors in the record. If that were the 1aw, there would have been no 1ega1 requirement for the Registrar to certify copies of the proceedings to be true copies of the original before supplying to the intended

appellant. (See rule 53 (5) supra) nor would there be rul-e <sup>82</sup> (2) to exclude the time taken by the Registrar to prepare and supply the record of the proceedings to the intended appellant.

In our view, until a true copy of the original proceedings is supplied to the intended appellant, time does not start to run against him.

We agree with Mr. Sendege therefore, that in the instant case, time started to run against the respondent on 2/12/98 when the Deputy Registrar notified Counsel for the respondent of the readiness of the corrected record of the proceedings for coLlection. Time taken by the Registrar to correct the mistakes in the originally mistakes riddled copy cannot be visited on the intended appellant as that is excluded under rule 82 (2') of this Court. There is therefore stiIl time within which the intended appellant can file his appeal.

For the reasons given above, w€ dismiss the application with costs to the respondent.

Dat,ed at Kampala this. . . . l. L l. .1esq. f(

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