[2022] UGSC 14

⁵ THE REPUBLIC OF UGANDA

# IN THE SUPREME COURT OF UGANDA

## AT KAMPALA

crvrr APPLTCATToN No. 57 0F 202l

(An opplicolion orising oul of Civil Applicolion No. 56 ot 2021 orising

from Civil Appeol No. I I o12021) 10

#### BETWEEN

. GtOBAt CAPITAL SAVE 2OO4 tTD . BEN KAVUYA APPLICANTS ,l 2

AND

1. ALICE OKIROR 2. AUCE OKIROR (ADMTNTSTRATRTX OF THE ESTATE OF IATE MTCHAET oKrRoR) RESPONDENT

#### RULING OF MIKE J. CHIBITA, JSC

This is on opplicotion brought by Notice of Motion under Rules 2(2), 6(2) (bl, 41 , 42 & 43 of the Judicoture (Supreme Court) Rules, seeking the following reliefs:

(o) An order for stoy of execution of the decree ond orders of the Court of Appeol entered in Civil Appeol No. l5l of ²⁰¹² pending the disposol of Civil Applicotion No. 56 of 2021 pending before this Court.

⁵ (b) Costs of this opplicotion.

The opplicont swore on offidovit in supporl of the Notice of Motion. The respondent hod not filed o reply by the time of heoring.

At the heoring, the opplicont, Ben Kovuyo, wos in courl represented by leorned Counsel Joseph Kyoue ond Muhumuzo Mwene Kohimo.

The respondent, Alice Okiror, wos in court represenled by leorned Counsel Gilbert Nuwogobo. 10

Leorned Counsel Nuwogobo roised o preliminory point of low to the effect thot one of the conditions for gront of on lnterim Order, to wit, filing ond service of o Notice of Appeol wos locking.

He submitted thot under rule 74(1) of ihe Judicoture (Supreme Court Rules) Directions, o Notice of Appeol musi be served within seven (7) doys of filing. ln lhe instont cose, he continued, the Noiice of Appeol wos served ofter nine (9) doys. 15

He referred courl to the copy of lhe Nolice of Appeol ottoched to the opplicotion ond poinled out thot il wos received, slomped ond fees poid on 7tn Jvly,2O2O ond served on the respondent on l6th Ju|y,2020, more lhon seven doys ofter filing. 20

Moreover, he continued, lhere wos no opplicolion for extension of time. He lherefore conlended thot there wos no Nolice of Appeol in low ond therefore, the opplicotion oughl 1o be struck out for being incompetenl.

⁵ ln reply, leorned Counsel Kyozze submitted thot the Notice of Appeol bore two dotes from the Registry. lndeed, it wos filed, stomped ond fees poid on 7m July, 2020. However, it wos on 9tn July, 2020 thot the Registror doted ond signed il os duly lodged. The lime, therefore, he contended, siorted running on gtn ofter the Registror hod oppended her signoture, not before. 10

He therefore osked courl lo find thot the opplicolion wos properly before couri.

### CONSIDERATION BY COURT

The issue for considerotion by the preliminory poinl roised by leorned Counsel Nuwogobo is whether the Notice of Appeolwos lodged on 7tn July, 2020 the doy fees wos poid, nolice received ond stomped by the Regislry, or wheiher the Notice of Appeol wos not duly received, filed ond lodged unlil the Registror hod doted it os lodged ond oppended her signoture on 9th July,2020. 15

Counsel referred court to rule 7 4(1) of the Judicoture (Supreme Court Rules) Directions, which we reproduce for eose of reference" 20

#### "74. Service of notice of oppeol on person offecfed

(l) An intended oppellont sholl. belore or wilhin seven doys ofter lodging nofice of oppeol, serve copies of if on oll persons direclly offecled by the oppeol.' ... "

⁵ It is cleor thot the specific rule cited by leorned counsel uses the word "lodging" o notice of oppeol. The copy of lhe notice of oppeol cleorly shows thot it wos lodged on 9tn Jv\y,2020. Thot is the dote when the Registror oppended her signoture.

It is sofe to soy thoi the process of filing the notice of oppeol slorled on 7th with ihe poyment of the requisite fees, receiving ond stomping the documenis with the courl stomp ond culminoted in the finol ocl of being doted ond signed by the Registror os duly lodged on 9th July, 2020. 10

The dote thot is of essence, therefore, is the finol dote of the process,

which in the inslont cose is the 9th of Jvly,2020 ln ony cose, the rule cited by counsel for the oppliconl himself uses ihe word 'lodging' os the operotive word. lt would be curious for court lo ignore lhe dole on which the document wos lodged os required by the rule ond go by onother dole. 15

^Itherefore find thot the notice of oppeolwos lodged in courl ond duly signed on 91h July, 2020. Service wos effected on the respondenls wiihin seven doys, on I 6rh July, 2020, os per court documents.

The preliminory point rolsed by leorned counsel for the respondents is therefore dismissed for locking meril. Costs will be in the couse. 25

Consequently, counsel for the respondents is to file and serve an $\mathsf{S}$ affidavit of reply to the application and skeletal arguments by 3rd February, 2022

Any rejoinder should be filed and served by the applicant by 10^th February, 2022.

$10$

Ruling will be delivered on 17^th February, 2022 at 2.30pm.

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

He Palaita

Mike J. Chibita

#### JUSTICE OF THE SUPREME COURT

Delivered by the Registran

$27/1122$