[2001] UGCA 44

Notice<br>appea THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

## HON. JUSTICE J. P. BERKO. J. A. CORAM: HON. JUSTICE S. G. ENGWAU, J. A. HON. JUSTICE A. TWINOMUJUNI, J. A.

## CIVIL APPLICATION NO.24 OF 2001

$15$ AFRIC CO-OPERATIVE SOCIETY .................................... **VERSUS**

UGANDA RAILWAYS CORPORATION.................................... $20$

## **RULING OF THE COURT:** $25$

This application is made under rule 81 of the Court of Appeal Rules 1996 seeking for orders that:

$30$

$\overline{5}$

$10$

$\odot$

(a) the notice of appeal filed by the respondent in respect of H. C. C. S. No.35 of 1995 be struck out, and

(b) costs of this application be provided for.

The grounds for this application are stated in the Notice of Motion to be that

(a)The judgment sought to be appealed against is a consent judgment and accordinglY no aPPeal lies;

(b)the Notice of Appeat '"r'as served on the applicant out of rir're' and

(c) the applicant was never sen'ed a copl' of a ien:: ;equesiing ioi ploceedings as required b}' lari" yet the apoeal rvas i:oi :-:led ri iinin ⁵⁰ l0 days.

The application is supported b;' an affidavit of Rcharc Oci=:e- cou:s3- :o: the appiicant, deponed to on 6'h April 2001 in u'hich he s:::s:

I5 "1. That I am an Advocate of the High Court and all courts subordinate thereto practisine larr. under rhe firm of Odimbe & Co' Advocates'

- 2. That t had the personal conduct of this c:se in the Higtr Court and I am conl'ersant rvith all the issues pertaining thereto having handled the maner in the High Court. - 3. That on the 12th day of October 2000 before the court could return to rvrite judgment in the High Court Civil Suit No.35 of 1995, behveen the parties hereto Mr' Nl[atovu. then counsel for the defendant and mvself as counsel for the plaintiff reached a consent on the decretal amount payable to the plaintiff'

- 4. That the said agrecment s,as recorded in a decree. A cop1, of the said decree is herervith attached and marked "A" and a certified cop), of the proceedings shotving lrorv the consent w.as arrived at is hereu,ith attached and marked "B". - 5. That subsequentl5,the defendant changed counsel. and then applied to the High Court for serting aside the consent judgment. A copr. of the apptication is hereu,ith a tta ch ed and marked.,C,'. - 6. That the said applicarion u,as heard and dismissed. -4. cop)' of the certified ruling is here,n.ith attached and nrarked "D". - 7. That'on the 13th da1'of November 2000 I u.as serr.ed rvith a notice of appeal against the judgmenr in the I5 maln case. - 8. That as the said notice of appeal rvas filed on the lg.h da5, of October 2000 the said norice of appeal \*.as sen/ed outside the period permitted br. lan.. -{ copr-of the notice of appeal is attached and marked \*E-. - 9. That I have cross-checked the Court of -{ppeal Registry and established as a fact, that no appeal has to this date been filed. - lQ. That further, I verilv believe that in as much as the judgment handed dou,n in the High Court rvas ^a consent j udgment, no appeal lies to this court.,, ²⁵

IO

/

2A

The motion is opposed by the respondent through her counsel Jacqueline . Kansiirne of Senrpasa & Co. Advocates who swore an affidavit the relerrant parts of which state: -

t0

l5

t0

/

)

- ^J That a consent judgnrent \$'as entered behvecn the applicant and respondent on the l2tr' da.r, of October 2000. - That subsequentll,the respondent d isassocia ted itself from the same Order since it had not given instructions to counsel Mr. Lubega Matovu, to enter into such an arrangement as the resp-ondent believed it had a good defence. 4. - That our firm u'as subsequenth, instructed ro represent the respondent in the matter u'ith a vieu' of setting aside the same Consent Order. - 6 7 8 9 - 10. That earlier on we had requested for proceedings from the High Court s,ith a vieu, of appealing against the judgment of Justice Magezi made on the l2th da1, of October 2000 thereafter rve filed ^a Notice of Appeal on the 24th day of October 2000- - 11. That subsequently rve rvrote to the Registrar on the 24'h day of October 2000 requesting for the record of proceedings and sen,ed a cop1, of the same letter

to counsel for the applicant who accepted service on the 13^th day of November 2000. A copy of the letter is hereto attached and marked as Anneture "It".

- $12.$ . . . . . . . . . . . . . . . . . . . - 13. **.....................................** - That it is not true that the applicant has never been $14.$ served with copies of the letter requesting for proceedings. - That it is not true the respondent cannot appeal 15. against the judgment entered on the 12^th day of October 2000 since it is the respondent's contention that he wasn't party to the said judgment and whatever counsel did was at his own volition and can't be held against the respondent. - That believe the applicant hasn't suffered any 16. injustice which can't be adequately compensated by way of damages and justice demands that the respondent's appeal be heard. - In their written submissions, learned counsel for the applicant aband in d the 20 third ground of application which averred that the applicant was never served with a letter requesting the Registrar to give them the rimind of proceedings in H. C. C. S. No.35 of 1995. In arguing the first grout in this application, counsel for the applicant submitted that the learned trim judge entered a consent judgment in the Civil Suit on 12^th October 2000 ≥ 12^th under $25$ section 69(2) of the Civil Procedure Act (Cap. 65) no appeal liss. They contented that on this ground alone, this application should succeed.

$\mathsf{S}$

$C$ 10

$\overline{5}$

The relevant parts of the respondent's reply states:

"On further scrutin), of tlre Ruling of her Lordship Justice Magezi on 9tr' dav of Januar1,,, 200I one realises that rvhat transpircd in court u,as just a consent judgment or conrpromise j udgment on the guantunt of damages. but not on the u'hole case before the court since court had proceeded as normall)' until onh, the respondent had failed to produce her last ivitness.

With that factor in mind, our client believed and so did rve, that there lvas no valid co.nsent judgment.,,

Section 69(2) of the Civil Procedure Act provides thar: - I5

\*t 0

p

/

"No appeal shall lie from a decree passed b1, court rvith the consent of the parties."

20 This clearll, means that if the Couns Decree u,hich was passed on l2'h October 2000 u,as a consent decree extracted from a consent judgment, then no appeal lies to this court from the ciecree. The only issue then is rvhether . that judgment \ /as a consent judgment. According to scanty records relating to H. C. C. S. No.35 of 1995 avaiiable on this file, there is no doubt rhat N4,/s 25 Lubega-Matovu & Co. Advocates u,ere duly instructed to represent the respondent in this case and they remained so up to the I2'h October 2001.. on June 2000 they wrote ro the respondent suggesting that the case be settled out of court because it appeared to him that no defence to the suir,,^,as available. The respondent replied that they belie'ed they had a defence and sugeested the calling of thlee u,itnesses all of wlrom u,ere former employees of the respondent. Ttre respondent,s counsel \ /as given se'eral adjoumments to enable hinr produce these witnesses in court. Though counsel dutifully informed the respondent of various dates to rvhich the case u'as being adjoumed and the reasons thereof, the respondent did nothing to assist their advocate produce tl.rese witnesses in court. on 3'd october 2000, counsel for the respondent u,as given the last adjournrnent to enable him produce the witnesses. The case u,as adjoumed to I2'h october 2000. on that.dal', counsel had no witnesses though he had notified the respondent of the hearing date. Being an officer of the court and realising that he had been given the final adjournment, he reaiised that he had no choice but to close the defence which in fact had not began at all. The court rren invited both counsel to rnake their final submissions.

/

IO

t5

n

During the submission counsel for the respondent indicated rhat he would dispute only the quantum of damages rvhereupon the court ga'e both counsel opportunity to negotiate and come to an agreed figure of a just settlemenr in damages. on that dal,and before botli counsel the learned trial judge entered a consenr judgment for shs.204,gg2,6g5r= in favour of the plaintifflapplicant and interest ar coun rares and the costs of rhe suit. These terms were extracted into a decree dated the same da1, to rvhich learned counsel for the respondent affixed his si\_enature of consent. In these circumstances, we have no doubt that counsel for the respondent, as an 2A 25

officer ofthe court and a professional, acted u,ithin his authority on behalfof the respondent in consenting to the judgment in this case. The judgrnent is therefore, binding on the respondent. Under section 69(2) of the Civil Procedure ffi no appeal Iies fronr such a decree. We agree with counsel for the applicant that on this ground alone. this application succeeds.

We wish to briefl1, cornlnent on the nterirs of the second ground of this application. The ground is that the Notice of Appeal in H. C. C. S. No.35 of ¹⁹⁹⁵was served out of time. \\/e have carefully perused both affldavits in support and against the Notice of Motion, and the wrifren submissions on this ground. The follou'ing facts emerge: -

(a)Judgment in Civil Suit No.35/1995 was passed on l2l10/2000.

(b)Two notices of appeal were filed on behalf of the lespondent, one by

Lubega-Matovu & Co. Advocates on 18'h October 2000 and another b), Sempasa & Co. Advocates on 24'h October 2000.

(c) The notice of appeal u,a5 served on the applicant on 13'h November 2000. This is not disputed by affidavit filed on behalf of the respondent or in arguments of counsel for the respondent.

Learned counsel for the applicant has contended that u,hatever date one accepts as the date of fiiing a notice of appeal, seryice of the same on him on. 13'h November 2000 u'as clearly outside the seven dal,s stipulated by rule l!(51- 77(1) of the Court of Appeal Rules 1996 and\*on the authoritv of Skills Consultants vs. Pearl Florvers Ltd Civil Anolication No.-1l96 (SC)

(unreoorted). the appeal was incompetent and must be struck out. In reply,

t0

)

l5

e

leamed counsel for tlre respondent sought to distinguish this case on facts from Skills Consu lta n ts sU ra) that the issue in the case u,as not about the time fi-aure but applies only rvhere a litigant is not served rvith a Notice of Appeal at all. Since it is admitted in this case that the Norice of Appeal was duly served, the case does not appl1,.

It u,as furlher contended that the applicant had failed ro show an1, injury suffered as a result of failure to sel've the notice in seven da1,s that cannot be cured by paynrent of daruages or that he had been seriousll,prejudiced.

With respect to leamed counsel for the respondent this case is not distinguishable frorn Skills ConsultantS suora. In thar case, the Suprerne Court ofUganda held:

"On the evidence b1, affidavit it is evident that the intended appellant (respondent in this application) filed their notice on 18/6/95. Under rule 76 of the rules of this court, the applicant should ha'r,e been sen'ed rvith the Notice of Appeal (N/A) on or before 5/6/95. But as he stated in the affidavit supporting his application this u,as done on 20/6/95.

This u,as outside the prescribed period and no lcave has been obtained b1, the respondent for extension of time. This court has held in the case of Francis Nansio I\{ichah vil Aprreal vs. Nuu'a \\/a la kira. Ci No.24 of 1994 (SCU)

r0

)

/

t5

a

ti

(unreported) that sen'ing a notice of appcal on a Iitigant affectcd b1, the intendcd appeal is an esscntial rcquircment undcr rulc 80 of the Rulcs of this Court. Being an esscntial stcp if it is not donc u,ithin tinrc it rcndcrs the appeal incom petent."

It should be noted that Rule 77 of rhe rules of rhis courr (\\,irich is sinrilar to Rule 80 of tlie Rules of the Supreure Court) stares: -

"An intended appellant shall. before or rvithin seven davs after lodging notice of appeal, sene copies of it on all pcrsons directll affected b'r the appeal

c l0 .f

In the instant case. the last of the r\\'o notices of appeal on record r.r,as filed on 24'h October 2000. This notice should have been sen,ed on the applicant on or before 31t' October 2000. ir u,as sen,ed on hirn on i3,h November 2000 almost tu,o rteeks after the deadline.. )

Cornpliance rvith Rule 77 of the ruies of this courl is nrandatory,. Failur.e ro complf is not an irregularitl that can be cured bl belared service. The o.11, available remedl, under the rules is to appl1, for lea'e of couft to ser\/e the Notice of Appeal out of iime. See Ses an ^S inqh Bahra vs. Hallins Manzoor N{isc. Appl. No.27l99 (C.{) unre ported. In this case it u'as not done. The applicant need not shori,rhat he had suffered injury rvhich cannot be atoned for in damages or tl'rat he had been seriously pr-ejudiced. For this reason too, we hold that appeal is incompetent and must be struck out. a t0

l0

I I :

In the result, this appeal is incompetent and is accordingly struck out with costs to the applicant.

23rd day of August: 2001 Date at Kampala this. $\overline{5}$

Hon. Justice-J. P. Berko. $10$ JUSTICE OF APPEAL $\mathcal{O}$ $\overbrace{\cdots\cdots\cdots\cdots}$ . . . . . . . . . . . **.** Hon. Justice S. G. Engwau $15$ JUSTICE OF APPEAL 20 Hon. Justice A. Twinomujuni $\mathcal{O}_{\mathcal{L}}$ JUSTICE OF APPEAL

$25$