[1997] UGSC 19

ANNEYTURE 4

## THE REPUBLIC OF UGANDA

## IN THE SUPREME COURT OF UGANDA AT MINGO

(CORAM: ODER, J. S. C., TSEKOOKO, J. S. C., AND KAROKORA, J. S. C.) CIVIL APPLICATION NO. 41 OF 1996

BETWEEN.

SKILL CONSULTANTS 111111111111111111111111 APPLICATTS AND :::::::::::::::::::: RESPONDENT PEARL FLOWERS LTD.

> (An application to strike out an appeal arising from a Judgment of the High Court of Uganda at Kampala (Porter, J) dated 5.6.1995, in H. C. C. S. $628/94$ .)

## REASONS FOR ORDERS OF THE COURT.

The applicant made an application under rules 80, and 42 of the Rules of this Court, seeking an order for striking out the respondent's appeal in this court on the ground that the appeal was incompetent.

We allowed the application and struck out the appeal. The reasons for doing so were, however, reserved to be given later, which we now proceed to give

The application was based on two grounds, set out in the notice of motion as follows:

- The notice of appeal against the decision of Porter, J., $\overline{1}$ was not served on the applicant's counsel within the prescribed time, and - The appeal was lodged out of time without leave of the 2. court.

$\frac{1}{2}$

The application was supported by an affidavit deponed to on 27.10.1995 by Mr. Jemes Nangwala, learned counsel for the applicant. The essance of what stated in the affidavit is that the judgment against which the respondent intended to appeal was delivered on 5.6.1995; on 20.6.1995 the applicant was served with the notice of appeal as indicated by a High Court stamp marked 8.5.1395; on 19.10.1995, the applicant's counsel were served with a record of appeal, indicating that the record had been lodged in court on/ 6.10.1995; the applicant's counsel discovered that there was another record of appeal in respect of the same appeal, dated 25.7.1995, lodged in the High Court Registry on 25.7.1995, fees paid for it on 26.7.1995, and filed in this court on 6.10.1995. No leave had been obtained by the respondent for lodging it's appeal out of time.

An affidavit deponed to on 16.12.1996 by Mr. Hamwilson Ewebembezi, of the firm of M/S Kibirige & Co. Advocates representin the respondent in this matter, was filed in reply to Mr. Nangwala's affidavit. The affidavit in reply was to the effect that due to delays in the High Court, the record of appeal was not filed in this court until 6.10.1996; by a letter dated 5.9.1995, copied to the applicant's counsel, the Deputy Registrar of the High Court informed the respondent's counsel that the record of proceedings in High Court Civil Suit No. 628 of 1994 (the judgment against which the respondent intended to appeal) was ready. It was then collected from the High Court on 14.8.1995: the period within which the respondent was required to appeal by the Rules of this court begins to run the date after the record of proceedings is released to the intending appellant.

On the evidence by affidavit it is evident: that the intended appellant (the respondent in this application) filed their Notice of Appeal on 8.6.1995. Under rule 76(1)

of the Rules of this court the applicant should have been served with the Notice of Appeal $(N/A)$ on or before 5.6.1995. But as stated in the affidavit supporting the opplication this was done on 20.6.1995.

This was outside the prescribed period, and no leave had been obtained by the respondent for extension of time. This court has held in the case of Francis Nansio Micah V. Nuwa Walakira, Civil Appedl No. 24 of 1994 (SCU) (unreported) that serving a notice of appeal on a litigant affected by the intended appeal is an essential requirement under rule 80 of the Rules of this court. Being an essential step if it is not done within time, it renders the appeal incompetent. As the N/A was served on the applicant outside the required period ground one of Application had to succeed, and we upheld it.

With regard to the second ground, the appeal should have been filed on or before 8,8.1995, which was 60 days after the $N/A$ was filed. Under rule 81(1) of Rules of the Court, there is a provisio to the effect that when an application for a copy of the proceedings in the suit is made to the High Court within 30 days from the date of the decision intended to be appealed, then the time taken for preparation of the record of proceedings would not be taken into account in computing the period of 60 days. However, the proviso operates only if the application for record of proceedings is made in writing and a copy thereof sent to the intended respondent.

In the instant case, the judgment was delivered on 5.6.1995. The respondent should therefore have applied It appears that for the proceedings on or before 5.7.1995. no such written application was made. Paragraph 8 of the affidavit supporting the application is to that effect; and the affidavit in reply is silent on the matter. It only

$\ldots$ $\ldots$ $\ldots$ /4

states that the record of proceedings was collected from the High Court on 15.8.1995. It does not say whether a written application for the proceedings was made, and if so when, and whether a copy of such an application was sent to the intended respondent (the present applicant); nor does it say when the preparation of the proceedings was completed. In the circumstances the respondent cannot benefit from, the provisio under rule $80(1)$ .

$\mathcal{M}^{\mathcal{A}}$

comment and settlement of the comment

The appeal was lodged on 6.10.1995 as indicated by the affidavit supporting the application. This was 58 days out of. time from 8.8.1995 when it should have been filed. No leave of court for extension of time was sought or given.

These two grounds of the application, which we upheld, were sufficient to render the appeal incomptent.

Mr. Nangwala, learned counsel for the applicant put forward other grounds in his submission. But we consider it unnecessary to go into them since the first two sufficiently disposed of the application.

For these reasons, we allowed the application with costs and struck out the appeal as incomputant.

Dated at Mengo this $\ldots$ day of $\ldots$ A. M. 1997.

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