Mwesige v Administrator General (Civil Application 7 of 1999) [1999] UGSC 29 (25 August 1999)

#### ANDA IN TTIE ST]PREME COURT OF UGANDA AT MENCO THE REPUBLI C OF UC

## (CORAM: WAMBUZI C. J, ODE& TSEKOOKO, KAROKORA AND MUKASA-KIKOI. IYOGO, JJSC.)

## CIVIL APPLICATION NO, 7 OF I999

### BETWEEN

AND

GEORGE MWESIGE SHARP ; APPLICANT

# ADMTNISTRATOR GENERAL RESPONDENT

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( An application to strike out a Notice ofAppeal arising from Coun ofAppeal Civil Appeal No. 7 of 1997)

## REASONS FOR THE RULING OFTHE COURT

The respondent, the Administrator General , lost his appeal in the Court ofAppeal. On 4ll2ll998 he lodged a Notice ofAppeal intending to institute an appeal to this Court against the decision ofthe Court ofAppeal. Since then the respondent has not taken the requisite steps to institute the appeal to this Court as prescribed by the provisions of rules 77 and 78 ofthe Rules of this Court. In consequence the applicant, George Mwesige Sharp, has made an application in this court praying that we strike out the Notice of Appeal because the respondent has failed to institute the appeal within 60 days as provided by rule 78. On 3d August , 1999 we heard Mr. Kanyunyuzi, Counsel for the applicant and Prof Kakooza, counsel for the respondent, allowed the application and struck out the notice of appeal.. We now give reasons.

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The facts in this application are not disputed. Indeed they are adequately summarised by Prof. Kakooza in his affidavit sworn on 29m July, 1999 in reply to that ofthe applicant . Paragraphs 3 to 9 state as follows :-

"3 THAT lwas personally engaged in the prosecution ofthe appeal .

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- 4 THAT the Court of Appeal delivered its judgement on 206 November, 1998. - 5. THAT the judgement being against them, the Respondent's instructed me to appeal to the Supreme Court. - 6, THAT accordingly the Notice of Appeal was filed on 46 December , 1998 <sup>a</sup> photocopy of the Notice of Appeal is attached and marked "A", and served to the Respondent personally as the endorsement shows. - 7. THAT thereafter, the parties being blood relatives ( the Appellants are uncles of the Respondent .) and in the desire to preserve and maintain the family harmonious relationships and in order to avoid further expenses in litigation, attempts were made to settle the matter out ofcourt. - 8. THAT as the settlement out of cou( was not forthcomlng I wrote to the Registrar of the Court of Appeal on l9n April 1999 requesting for a copy of the proceedings to enable me file the memorandum . A photocopy of the letter is attached hereon and marked "B". - 9. THAT no such copy ofproceedings has up to this date of this affrdavit beenobtained except the Record ofthe Proceedings on lOt July,l999 copies of which are attached hereon and marked "C. I ", 'C.2" and " C.3."."

Mr. Kanyunyuzi cited to us the cases of S. Mabosi Vs Ueanda Revenue Authoritv

Sup. Court Civil Application No. l6 of 1995 ( un reoorted) and H. Wasswa Semukutu & Comoany Vs Onvango Ochola and two others Sup. Court Civil Application No. 12 of <sup>1988</sup>( unreported ) to support his application to strike out the fttice of Appeal. In Mabosi case the majority decision dismissed the application to strike out the Notice of Appeal. ln any case the facts in the Mabosi case were peculiarly different in that in the notice ofappeal the intended appellant stated that -

" the appellant intends lo formulate ils grounds of appeal on receipl oJ lhe record of proceedings".

The majority view was that this statement amounted to an application for the record of proceedings.

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During the hearing of this application, Prof Kakooza canceded , as he did in his affidavit, that he did not comply with the requirements of rules 77 and 78 of the Rules of the Court. But he stated that he did not take the necessary steps in instituting the appeal because his client and the applicant (who are relatives) were engaged in trying to settle this matter out of Court. He cited Iron and Steel Wares Ltd Vs G. W. Martyrs & Co. ( 1956) 23 EACA 175 at page 177 for the view that procedural rules are handmaids of justice which should be used to advance and not to hinder justice. Therefore he urged us not to strike out the notice of appeal.

With all due respect to Prof. Kakooza, we are not persuaded that the case he cited supports his client's cause . In so far as is relevant to this application, rule 77 and subrules (l) (2) and (3) of Rule 78 read as follows:-

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- tc <sup>A</sup>person on whom a notice of appeal has been served may at any time, either before or after the institution ofthe 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. - (l),...,.anappeal shall be instituted in the court by lodging in the registry , within sixty days after the date when the notice of appeal was lodged:- 78 - (a) a memorandum ofappeal ; - (b) the record ofappeal;

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- (c) the prescribed fee; and - (d) security for the costs ofthe appeal. - (2) Where an application for a copy ofthe proceedings in the Court ofAppeal has been made within thirty days after the date ofthe decision against which it is desired to appeal, there shall, in computing the time within which the appeal is to be instituted, be excluded such time as may be certified by the registrar of the Court of Appeal as having been required for the preparation and delivery to the appellant ofthat copy. - (3) An appellant shall not be entitled to rely on subrule (2) , unless his or her application for the copy was in writing and a copy of

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it was served on the respondent , and the appellant has retained proof of that service."

It is clear from the provisions of rule 78 (l) that on the facts of this case since <sup>a</sup> notice of appeal was lodged on 411211998, the appeal should have been instituted before or by 2nd February, 1999, that is , sixty days after 4tl2ll998 when the notice of appeal was filed.

The application for a copy of the proceedings was not made till lll4/1999 over 100 days out of time. Apparently no copy of the letter was served on the respondent.

Subrule (2) of rule 78 was accordingly not applicable in this case

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The reasons advanced by Prof. Kakooza that he delayed to institute the appeal because the parties as relatives were engaged in attempts to settle the matter out ofcoun have no support in law and do not justify delay to institute an intended appeal to this court. These reasons may possibly be considered for purposes of an application for extension oftime.

For the foregoing reasons we granted the application and struck out the Notice of Appeal and granted msts to the applicant.

ktf^\*(-tssg Delivered at Mengo this ..}"!:.f(.day of ..

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S. W. W. WAMBUNZI

CHIEF JUSTICE.

A. H. O. ODER

JUSTICE OF THE SUPREME COURT.

J. W. N. TSEKOOKO

JUSTICE OF THE SUPREME COURT

A. N. KAROKORA JUSTICE OF THE SUPREME COURT

E. L. M. MUKASA-KIKONYOGO JUSTICE OF THE SUPREME COURT.