Sadrudin v Kamya (Civil Application 15 of 2013) [2014] UGSC 410 (21 August 2014)

# THE REPUBLIC OF UGANDA

\

## IN THE SUPREME COURT OF UGANDA AT KAMPALA

# (CORAM: TUMWESIGYE, ARACH-AMOKO, JJ. SC; ODOKI, TSEKOOKO AND KITUMBA, AG. JJSG)

## CIVIL APPLICATION NO. 15 OF 2013

### BETWEEN

#### APPLICANT SADRUDIN ALIRAZAK PANJWANI (ADMINISTRATOR OF THE ESTATE OF THE LATE ALIRAZAK NAZARALI PANJWANI) :::::::::::

### AND

### PAUL KAMYA RESPONOENT

lApplication arising from the decision of the Court ot ApPeal at KamPala (Mukasa Kikonyogo DCJ, Mpagl-Bahlgeine and Kavuma JJA) in Civit ApPeal No. 83 of 2006, dated 1st June 20111

### RULING OF THE COURT

t

The applicant, Sadrudin Alirazak Panjwani, has brought this application for striking out the appeal filed by Paul Kamya (the respondent) on the ground that an essential step in the proceedings has not been taken. The application is brought under Rules 2(2),42,43,45,78, and 80 of the Supreme Court Rules.

The general grounds on which the application is founded are that

rq(

- The respondent has not filed the appeal and the time within which to file the appeal has laPsed. 1 - 2. An essential step in the appeal has not been taken.

3. The respondent is guilty of dilatory conduct in prosecuting his appeal,

The application is supported by an affidavit sworn by Muhammed Noordin Thobani (who holds a power of attorney from Sadridin Alirazak Nazarali Panjwani) and another affidavit sworn by the same Thobani in rejoinder. The respondent swore an affidavit in reply and another one in reply to the rejoinder.

The background to this application is contained in the affidavit of Mohammed Noordin Thobani. He depones that the applicant obtained judgement against the respondent in Civil Appeal No. 83 of 2006, decided by the Court of Appeal on 1't June 201 1 . Dissatisfied with that judgment, the respondent filed a notice of appeal in the Court of Appeal on 2oth Ju[ 2011. on the same day, the respondent wrote <sup>a</sup> letter to the Registrar of the Court of Appeal requesting for a copy of the proceedings.

On 23'd August 20'l 3, the Court of Appeal wrote to the respondent's counsel informing him that the record of proceedings and judgment in the appeal were ready. Counsel for the respondent received the letter on 28th August 2013. The deponent avers that to date, the respondent has not yet filed the appeal and time for doing so has run out, and

therefore, the respondent is guilty of dilatory conduct, and has failed to take essential steps in prosecuting his appeal.

ln his affidavit in reply, the respondent states that his counsel wrote <sup>a</sup> letter dated 20th July 2013, and another reminder dated 9th August 2013, to the Court of Appeal requesting for copies of the proceedings and judgment. On 23'd August 2013, the Court of Appeal wrote informing counsel for both parties that the Court proceedings and judgment as requested were ready for collection upon payment. He was informed by his counsel that the certified copy of proceedings and judgment were actually ready on 24th October 2013. The Registrar issued a certificate for the certified proceedings and judgment on 24th October 2013. The respondent avers that he filed the appeal on 3'd December 2013 and served the applicant on 20th December 2013, within the mandatory 60 (sixty) days, upon the receipt of the certified copies of proceedings and the judgment supplied by the Court of Appeal on 24th December 2013. He denied being guilty of dilatory conduct or failure to take essential steps as alleged by the applicant.

ln his affidavit in rejoinder, the applicant alleges that the proceedings were ready for collection on 23'd August 2013 as certified by the Registrar. He states that the respondent has not explained why he did not collect the Court proceedings from 23'd August 2013 up to 24th October 2013, when he collected them.

The applicant also alleges that the respondent misled the Registrar to sign a certificate dated 24th October 2013 when he had already certified the availability of the proceedings on 23'd August 2013, and

1\_o o

should not be assisted by the Court to perpetuate this malafide. He further claims that the application itself for proceedings was made out of time, more than 30 days after the delivery of the ruling which was on l"tJune 2011. Therefore, the respondent is not entitled to benefit from the extension of time for the preparation of the record of proceedings.

ln his submissions, Mr. Salim Makeera, counsel for the applicant, raised two grounds upon which he founded his application. The first ground was that the respondent had not taken the essential step of applying for a copy of proceedings in time. The second was that the respondent has not taken the essential step of filing the appeal within the prescribed time. lt was his argument that the respondent is therefore guilty of dilatory conduct.

It is necessary to refer to the law relating to the filing of appeals in this Court. The first step in lodging an appeal is to file a notice of appeal. Rule 72(1) of the Rules of this Court provides that any person who desires to appeal to the Court shall give notice in writing which shall be lodged in duplicate with the Registrar of the Court. Sub rule (2) of the same rule states that the notice of appeal must be lodged within fourteen days after the date of the decision against which it is desired to appeal.

The second step in filing an appeal is to lodge the appeal itself as provided in rule 79(1) of the Rules of this Court as follows:

"subject to rule 109 of these Rules and Sub rule 4 of this rule, an appeal shall be instituted in Court by

)o\

in which to lodge his notice of appeal. That application was heard and allowed by Tsekooko JSC on 20<sup>th</sup> July 2011. The learned Justice ordered the respondent to file his notice of appeal within five days from the date of the ruling. On the 21<sup>st</sup> July 2011, the respondent lodged his notice of appeal and served it on the applicant. On the same day the respondent wrote to the Registrar of the Court of Appeal requesting for the record of proceedings and gave a copy of the letter to counsel for the applicant.

In our view, the extension of the time within which to lodge the notice of appeal automatically extended the time within which to request for the record of proceedings. Therefore, the request for the record of. proceedings was made in time.

The second ground on which the application to strike out the appeal is based is that the appeal was not filed within 60 days after the record of proceedings was ready. It was submitted on behalf of the applicant by Mr. Salim Makeera that the record of proceedings was ready on 23<sup>rd</sup> August 2013 but the respondent filed his appeal on 3<sup>rd</sup> December 2013 when the period of 60 days had lapsed on 28<sup>th</sup> October 2013. Learned counsel relied on a certificate given by the Registrar of the Court of Appeal dated 23<sup>rd</sup> August 2013 which stated;

# "The proceedings and judgment you requested for in the above matter are ready for collection upon payment for the same."

Learned counsel for the respondent, Mr. John Matovu, argued that although he received that notification from the Registrar, his attempts

lodging in the Registry within 60 days when the notice of appeal was lodged –

- (a) a memorandum of appeal - $(b)$ the record of appeal, - $(c)$ the prescribed fee, and - (d) security for the costs of the appeal"

Sub-rule (2) of Rule 79 provides for enlargement of the period of 60 days as follows:

"Where an application for a copy of the proceedings in the Court of Appeal has been made within thirty days after the date of the decision which it is desired to appeal, there shall in computing the time within which the appeal is 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 of that copy."

In Sub rule (3) of Rule 79, it is provided that an appellant shall not be entitled to rely on Sub-rule (2) of this rule, unless his or her application for a copy of proceedings was in writing, and a copy of it served on the respondent, and the appellant has retained proof of that service.

In the present case, it was argued for the applicant that the respondent had not requested for a copy of proceedings in time nor had he sent a copy of the request to the appellant in time.

The circumstances of this case are that the respondent did not file a notice of appeal in time because he was not aware of the judgment of the Court of Appeal. He then filed an application for extension of time

$203$

to obtain the full record of proceedings hit a snag as one of the Justices of the Court had retired which made it difficult to compile the complete record of proceedings. He submitted that the correct certificate of completion of preparation of the record was given by the Registrar of the Court when he stated;

"I John Arutu, Registrar of the Court of Appeal of Uganda hereby certify that the preparation of the copies of proceedings which M/S Matovu & Matovu Advocates applied for in their letter of 20<sup>th</sup> July 2011 with their reminder letter dated 9<sup>th</sup> August 2013, and the letter from the Court of Appeal dated 23<sup>rd</sup> August 2013 informing Applicant's counsel of the readiness of the said proceedings was completed, paid for and collected on 24<sup>th</sup> day of October 2013."

Counsel for the applicant claimed that the above certificate could be a forgery, but he produced no evidence to substantiate his claim. It is clear that there was a discrepancy between the two certificates issued by the Registrar, but given the explanation given by counsel for the respondent, we are unable to hold that the latter certificate was a forgery or in any way not properly issued by the Registrar of the Court of Appeal.

We accept the latter certificate as valid, and the appeal was, therefore, filed within sixty days of receipt of the record of proceedings. The respondent is not guilty of any dilatory conduct, nor has he failed to take any essential step in the proceedings as alleged by the applicant warranting the striking out of the appeal filed by the respondent.


In the result, we find no merit in this application, and it is accordingly, dismissed with costs to the respondent.

Dated at Kampala this ....................................

J Tumweslgyè

JUSTICE OF THE SUPREME COURT

S Arach-Amoko JUSTICE OF THE SUPREME COURT

eorg

Dr B J Odoki AG JUSTICE OF THE SUPREME COURT

J W N Tsekooko AG JUSTICE OF THE SUPREME COURT

CNES. Riturnal C N B Kitumba AG JUSTICE OF THE SUPREME COURT