[1999] UGCA 33

## THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

ORAM:

$58 - 170$

HON. LADY JUSTICE A. E. MPAGI-BAHIGEINE, J. A. HON. MR. JUSTICE J. P. BERKO, J. A. HON. LADY JUSTICE C. N. B. KITUMBA, J. A.

## MISCELLANEOUS CIVIL APPLICATION NO.43 OF 1998

$\ldots$ APPLICANT JOHN MATSIKO .....

**VERSUS**

$\ldots$ RESPONDENT BANYANKOLE KWETERANA CO. U LT. ...

## RULING OF THE COURT:

This application is brought under Rules 42 and 81 of the Rules of this Court by Notice of Motion in which the applicant is seeking for an order that the respondent's Notice of Appeal which it filed in the High Court on 11-3-1998 be struck out with costs.

The application is supported by an affidavit deponed to by the applicant on 28-8-1998.

The grounds of the application are:

- That no appeal lies to this Court; $(a)$ - $(b)$ That some important steps have not been taken by the appellant/respondent and; - That time has elapsed within which to file an appeal. $(c)$

According to the affidavit of the applicant sixty days had elapsed since the notice of appeal was filed in court, and that neither the applicant, nor his counsel, Mr. Kakuru had been served with a

letter requesting for a copy of the proceedings and judgment of the High Court within 30 days from the date of the judgment.

In an affidavit in reply deponed to on 14th December 1998 by one Charles Sonko, a law clerk of M/s Mwesigwa-Rukutana and Company Advocates, Counsel for the appellant/respondent, it is stated that on 16th March 1998 he served the notice of appeal and the letter requesting for the judgment and record of proceedings on Mr. Kakuru, at the Chambers of Kakuru & Company Advocates. Mr. Kakuru accepted service of both documents, read through, signed and stamped the notice of appeal. One Obed Mwebesa, an advocate of M/s Mwesigwa Rukutana & Company Advocates also swore an affidavit in reply deponed to on 14th December 1998, in which he stated that the $9 - 3 - 1998$ and that High delivered judgment on the Court appellant/respondent instructed their firm to appeal against the The Notice of Appeal and a letter requesting for judgment. proceedings were filed on 11 - 3 - 1998. He further stated that the notice of appeal and the letter requesting for proceeding were served on Mr. Kakuru.

In his affidavit in reply Mr. Kakuru admitted that he received a notice of appeal on 16-3-1998, but denied ever receiving a letter requesting for a copy of the proceedings.

At the hearing of this application, Mr. Mwesigwa Rukutana, counsel for the respondent/appellant raised a preliminary objection. He contended that Mr. Kakuru was not competent to argue the application because the issue whether he was served with the letter requesting for the proceedings or not was a contentious one. Mr. Kakuru had sworn an affidavit and counsel wished to cross-examine him. Mr. Mwesiqwa-Rukutana submitted that Rule 8 of the Advocates' (Professional Conduct) Regulations - S. I. 79/97 barred Mr. Kakuru from appearing as counsel in the application as he was a potential witness. Mr. Kakuru responded that the preliminary objection was misconceived and untenable as the matter before court was the

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interpretation of Rule 82(2) of the Rules of this Court. He quoted Utex Industries Ltd v. Attorney General, S. C. Civil App. No.52/95 where the affidavits which were relied on were sworn by the same counsel who argued the case before the Supreme Court. However, Mr. Kakuru informed this Court that he would step down for another counsel from his firm to argue the application That made it unnecessary to rule on the preliminary objection. We allowed an adjournment for 30 minutes and Ms Bushara appeared for the applicant.

$\mathcal{L}_{\mathcal{A}} = \mathcal{L}_{\mathcal{A}}$

Ms Bushara submitted that the appellant filed a notice of appeal in the High Court on 11-3-1996 and a memorandum of appeal and the record of appeal should have been filed in this Court within sixty days, that is by 11-5-1998. Up to-date no memorandum of appeal and no record of appeal have been filed and the time within which to file the appeal had elapsed. She prayed this Court to strike out the notice of appeal.

Mr. Mwesigwa Rukutana, Counsel for the respondent conceded that the memorandum of appeal and the record of appeal should have been filed within sixty days after filing the notice of appeal. He requested this Court to believe what is stated in the affidavit of Charles Sonko that the notice of appeal and the letter requesting for proceedings were served on Mr. Kakuru on 16-3-1996. He conceded that his firm had been negligent in so far as no advocate from his firm checked to confirm that both the notice of appeal and the letter requesting for proceedings were signed by Mr. Kakuru. Mr. Mwesigwa Rukutana argued that it is trite law that the negligence of an advocate should not be visited on his client. He urged this Court to use article $126(2)(e)$ of the Constitution which provides:

"Substantive justice shall be administered without undue regard to technicalities"

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It was his contention that Mr. Kakuru had actually been served with a letter requesting for a copy of the proceedings and the fact that he did not sign the same to acknowledge receipt of service was a mere technicality.

$\cdots, \quad \cdots$

In reply Ms Bushara contended that rule 82 $(2)$ and $(3)$ of the Rules of this Court are mandatory. She said that the rule requiring service of letter of request for the proceedings on the respondent and the retention of proof on the same by the appellant is not a mere technicality. The onus is on respondent to prove that it served the letter on the applicant. She relied on <u>Utex Industries</u> Ltd v. Attorney General (supra).

The only issue for determination in this application is whether the respondent complied with Rule 82(2)&(3) of the Rules of this Court which provides:

$"82(2)$ Where an application for a copy of the proceedings in the High Court has been made within thirty days after 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 High Court as having been required for the preparation and delivery to the appellant of that 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 it was served on the respondent, and the appellant has retained proof of that service."

We find that the provisions of Rule 82(3) are mandatory. The duty rests on the appellant to serve the respondent and to retain proof That requirement is not a mere technicality, and of service. counsel for the respondent cannot rely on article 126(2)(e) of the Constitution. We quote what the Supreme Court said on Utex <u>Industries Ltd v. Attorney General (supra):</u>

"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. ....... 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."

Mr. Kakuru categorically denied that he was served with the letter requesting for the proceedings. Counsel for the respondent was unable to show to us the proof of service he is required by law to retain when such a dispute arises. Consequently he failed to discharge the onus of proof which the law imposes on him. Counsel for the respondent stated from the bar that their negligence should not affect his client's appeal. We agree that it is trite law that the negligence of counsel should not be visited on his client. However, we find that the alleged negligence of the firm has not been proved. We accept the evidence of Mr. Kakuru that he was not served with a letter requesting for court proceedings. Accordingly the respondent cannot rely on sub-rule 2 of rule 82. We agree that the appeal was not filed within time.

In the result we allow this application with costs to the applicant.

Dated at Kampala this ..... ..day of December A. E. Mpagi Bahigeine JUSTICE OF APPEAL J. P. Berker JUSTICE OF APPEAL res Cilce C. N. B. Kitumba JUSTICE OF APPEAL