Utex Industries Ltd v Attorney General (Civil Application No. 52 of 1995) [1995] UGSC 38 (4 August 1995)

THE REPUBLIC OF UGANDA

IN THE SUPREME COURT OF UGANDA

## AT MENGO

(CORAM: ODER, J. S. C., TSEKOOKO, J. S. C., KAROKORA, J. S. C.) CIVIL APPLICATION NO. 52/95

**BETWEEN**

UTEX INDUSTRIES LTD ............................ APPLICANT **AND** ATTORNEY GENERAL ........................... RESPONDENT

(Arising from High Court Civil Appeal No. 4/1995)

## RULING OF THE COURT

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The applicant, Utex Industries Ltd., brought an application Notice of Motion under Rules 42(1) and (2), 76, 80 and 81 of the Rules of this court seeking for an order that the Notice Appeal filed in this matter by the Attorney General, the respondent, on 18th August 1995, be struck out because the respondent failed to take certain essential steps within the prescribed time. The application is supported by two affidavits sworn on 6/12/1995 and on 14/1/1997 by Tony Wasswa, stated to be the Managing Director of the applicant. In reply to these affidavits, Mr. Barishaki Cheborion, a Principal State Attorney in the Attorney General's Chambers, swore two affidavits, the first on 3/5/1996 and the second on $22/1/1997$ .

The background to this application is a little interesting. According to Mr. Cheborion, prior to the institution of H. C. C. S. No. 4/1993 the Managing Director of the applicant was involved in business with a certain Asian. There was a misunderstanding at some stage. Apparently, the Police were called upon to investigate the dispute as a result of which the Police handed the shop goods to the Asian. This aid not go well with the applicant. The applicant filed a suit in the High Court against the respondent seeking for damages because of the Police action. An attempt by the respondent to join the Asian in the suit was rejected by the High Court. Consequently the High Court

(Ntabgoba, P. J.) passed judgment in favour of the applicant -against the respondent. the judgment was delivered on 4th August 1995. the affidavits filed in these proceedings show that on 18th August 1995 the respondent filed a Notice of Appeal in the High Court and on the 5th September 1995 it wrote a letter (annexture B to the affidavit of Cheborion) to the Deputy Registrar of the High Court requesting for proceedings of the Trial Court to be typed out. This letter was not copied to the applicant nor was it sent to the applicant. The respondent did not file any memorandum and the record of the appeal until 3/12/1996. Even then these were in fact filed in the Court of Appeal but not in this Court.

There is no evidence when the respondent received or collected the record of the trial Court proceedings from the High Court. But from Cheborion's affidavit, it is abundantly clear that the record of proceedings was available to him in his office on 20/4/1996 which was a Saturday. Clearly by then the respondent was late in filing memorandum and or the record of appeal. This situation was made worse, according to Mr. Cheborion, by the fact that the respondent did not have money, estimated by Mr. Cheborion to be shs. $167,000/$ = to enable it prepare the record of appeal so as to file it. The respondent had to requisition for that money. This appears to have lasted about 6 months, i.e., up to time the memorandum and record of appeal were lodged not in this Court, but in the Court of Appeal. Mr. Turyakira for the applicant submitted that on these facts the Notice of Appeal should be struck out because:-

> (a) the respondent did not institute the appeal within 60 days as prescribed by Rule $81(1)$ and

> (b) that the Notice of Appeal was served on the applicant out of time, i.e., on $5/9/1995.$

We will start with the second of these arguments. It is not disputed that the respondent filed in the High Court the Notice

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of Appeal on $18/8/1995$ and that the same notice was served on one Musiime of Turyakira & Co., Advocates, Counsel for the respondent. The borne of contention on this point is that Mr. Turyakira maintains that service was effected on 5/9/1995 which is 18 days after it was filed and therefore 11 days out of the time of 7 days prescribed by Rule 76. For his part, Mr. Cheborion maintains that service was effected in time on $18/8/1995.$ Each of these two learned Counsel relies on a different copy of Notice of Appeal. The copy annexed to the application and relied on by Mr. Tryakira has the date 5/9/1995 written below the signature of Musiime. On the other hand the copy annexed to Mr. Cheborion's affidavit and relied on by him has no date below Musiime's signature. In these circumstances we think that Musiime should have sworn an affidavit to explain his failure to date the copy of the Notice of Appeal which was retained by Mr. Cheborion. In the absence of such evidence, the probability that 5/9/1995 could have been written on a date different from the date when service was effected is real. We accordingly prefer the story given by Mr. Cheborion that he served the notice on 18/8/1995. Therefore we hold that service of the Notice of Appeal was within the prescribed time.

The first argument appears unassailable. The relevant Rule is R. $81(1)$ and (2) states:-

> "81(1) ......... an appeal shall be instituted by lodging in the appropriate registry within sixty days of the date when the Notice of Appeal was lodged,

(a) a memorandum of appeal ....................................

(b) the record of appeal

(c) - (d) ...................................

Provided that where an application for a copy of the proceedings in the ......... Court has been made within thirty days of

With respect we are not persuaded by Cheborion's arguments. The effect of the proviso the Rule $81(i)$ $81(2)$ is that it is mandatory that the intended appellant makes a written request within thirty days of the date of the decision appealed against $% \left\vert \mathbf{r}\right\vert$ and that a copy of such request must be sent to intended $% \left\vert \mathcal{A}\right\vert$ respondent: See Supreme Court Civil Application No. 40 of 1995 -Kanobolic Group of Companies (U) Ltd vs Sugar Corporation

$\mbox{Mr.}$ Cheborion contended that the request was made in time, that since Rule $81(2)$ does not specify the mode and time within which to send the copy of the request for proceedings, $\hbox{\textbf{he}}$ $\overline{\text{fulfilled}}$ the requirements of the rule by annexing the request to his affidavit filed in this Court on $11/12/1996$ . Further contended, in effect, that it is the duty of the Registrar to $\frac{1}{2}$ issue the Certificate.

$\hbox{Mr.}\,$ Turyakira submitted that the above provisions were not complied with because $(i)$ although the request for the proceedings was made, that request was not sent to his client or served upon his client, $(ii)$ the request was filed in the registry of High Court on $7/9/1995$ and (iii) there is not $\operatorname{certificate}$ of the Registrar Certifying any period as having been required for the preparation and delivery to the present respondent (as an intended appellant) a copy of the request. Mr. Turyakira cited S. Mabosi vs Uganda Revenue Authority (Supreme Court Civil Application No. 16 of 1995 (unreported) and Kanobolic Group of Companies vs Sugar Corporation of Uganda, (Supreme Court Civil Application No. 40/1995) to support his arguments.

(2) As appellant shall not be entitled to rely on the proviso to subrule $(1)$ unless his application for such copy was in writing and a copy of it was sent to the respondent."

the date of the 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 $\ldots\ldots\ldots$ . Court as having been required for preparation and delivery to the appellant of such copy.

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(Uganda Lta (supra); Delia Almeida VS Dr. Carmo Rui Almeida -Supreme Court Civil Application No. 6 of 1990 (unreported) at page 2 of the ruling of Platt, J. S. C., H. G. Gandesha Kampala Estates vs. G. J. Lutaya - Supreme Court Civil Application NO. 14/89 and Plaxeda Sembatya Nakiwala vs Libyan Arab Uganda Bank for Foreign Trade (supreme Court civil Appeal 6/6/1986). Further more we think it is illogical simplistic and contrary to commonsense to argue that because the applicant for the first time saw the request after the same had filed in this Court therefore the applicant should be deemed to have been served with the request. We think that Rule $81(2)$ requires the intending appellant to deliver a copy of the written request to the intended respondent. We expect the written request to indicate on its face that it had been copied to the intended respondent.

We do not accept Mr. Cheborion's submission that the registrar should have on his own volition issued a Certificate of the time taken in preparing the record. It is the bounder duty of an intending appellant to ask for such a certicate in as much as it is his duty to activity take steps necessary to prosecute an appeal.

I)

## These conclusions really dispose of this application.

Mr. Cheborion relied on Article 126(2) of the Constitution of 1995 and the ruling of Odoki, J. S. C., in Stephen Mabosi vs Uganda Revenue Authority - (supra) for his view that we should not strike out the Notice of appeal on the basis Of technicalities. He argued that the Attorney General's inability to raise the fees of shillings $167,000/$ = for filing the appeal is exclusable by virtue of Rule 4 of the Rules of the Court. Other than citing rule 4, the learned Principal State Attorney was unable to cite any authority to support the last part of his arguments.

With respect, we think that rule 4 is wholly inapplicable to the facts of this application. We don't see how rule 4 can save the respondent's predicement since the respondent has not

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applied for leave to extend time.

Regarding Article 126(2)(e) and the Mabosi case we are not persuaded that the Constituent Assembly Delegates intended to wipe out the rules of procedure of our Courts by enacting Article $126(2)(e)$ . Paragraph (e) contains a caustion against undue regard to techinicalities. We think that the article appears to be a reflection of the saying that rules of procedure are handmaids to Justice - meaning that they should be applied with due regard to the circumstances of each case. We can not see how in this case article 126(2)(e) or Mabosi case can assist the respondent who sat on its rights since 18/8/1995 without seeking leave to appeal out of time. It is perhaps pertinent here to quote paragraph (b) of the same clause (2) of Article 126. It states:-

"justice shall not be delayed."

Thus to avoid delays rules of Court provide a timetable within which certain steps ought to be taken. For any delay to be excused, it must be explained satisfactorily.

For the reasons we have endeavoured to give we are satisfied that the respondent has not complied with the requirements of Rules $81(1)$ and $(2)$ and therefore the application must succeed. We order that the Notice of Appeal be struck out with costs to the applicant.

Deliverd at Mengo this...5th.. day od ... May.., 1997.

O. H. A. ODER, JUSTICE OF THE SUPREME COURT

J. W. N. TSEKOOKO,

JUSTICE OF THE SUPREME COURT

A. N. KAROKORA

JUSTICE OF THE SUPREME COURT

I CERTIFY THAT THIS IS A COPY OF THE ORIGINAL TURYAMUBONA<br>KEGISTRAR, SUPREME COURT. ELIY. **DEPUTY**

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