[2000] UGCA 55

CORAM: HON. MR. JUSTICE G. M. OKELLO, J. A. HON. LADY JUSTICE A. E. MPAGI-BAHIGEINE, JA HON. LADY JUSTICE C. N. B. KITUMBA, J. A.

Tro order. Extraction of a formal decree.

THE COURT OF APPEAL OF UGANDA AT KAMPALA

**APPEAU** CIVIL APPLICATION NO.58 2000

UBLIC OF UGANDA^o

**UGAND ELECTRICITY BOARD ::::::** $:$ CIDX: **APPLICANT**

CHARLES KABAGAMBE ::::::::::

1.

$10$

$20$

**RESPONDENT**

## RULING OF THE COURT

This ruling is on the preliminary objection raised by Mr. Mohamed Mbabazi challenging the competence of the appeal before this court.

His sole ground of objection was that this court lacked the jurisdiction to hear the appeal as the record of appeal did not contain a formally extracted order as prescribed by law.

The background, briefly, is that Uganda Electricity Board filed this appeal against the ruling of the High Court (Magezi J.) dated 2000, granting an interim injunction to the respondent, Mr. Charles Kabagambe, who had sought the order restraining the appellant from evicting him from the house at Plot No.8 Windsor Crescent, Kololo.

At the commencement ofthe hearing ofthe appeal, Mr. Mbabazi argued that the right of appeal to this court is contained in Article 134 (2) of the constitution, Section 68 ofthe Civil Procedure Act, the Judicature Act Section 11, Order 18 r 4, Civil Procedure rules which required a formal order to be extracted and included in the record of appeal.

He' submitted that it was the extracted order that vested this court with jurisdiction to hear the appeal and that in its absence the appeal was incompetent and should be struck out. He asserted that this was not a mere technicality but a substantial omission and compliance was mandatory. He prayed-court to strike out the appeal.

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**20**

Mr. Yusuf Kagumire, learned counsel, for the appellant submitted that the preliminary objection was unsustainable in view of the explicit provisions ofRule 86 (1) read together with Article 126 (e) ofthe Constitution. He prayed court to overrule the objection and proceed with the hearing ofthe appeal.

It will be observed that there are two aspects to this matter. First, Mr. Mbabazi should have availed himself of the provisions ofRule 81 ofthe rules ofthU^cuut-tonhave\_ the notice of appeal struck out on the ground tha^t no appeal, lies or that an essential step had not been taken or had not been taken with the prescribed time. Having failed to invoke Rule 81, Mr. Mbabazi is barred by Rule 101 (b) from raising any objection to the competence ofthe appeal, which might have .been raised by application under rule 81 without leave of the court-see Standard Chartered Bank


## [Lhianda) Limited vs Grand Hotel (Uganda) Limited Civil Appeal No.13 of 1999.

¹ he second aspect concerns the laws cited by Mr. Mbabazi in support ol his argument. Curiously, Mr. Mbabazi, for one reason or another, overlooked the fact that the practice and procedure of this court in connection with appeals and intended appeals from the High Court is set out in the Court ol Appeal Rules, 1996 as clearly stipulated by Rule ¹ (I) and (2) thereof.

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Rnk\_S6 (1) (g) of these tries which prescribes the contents of records o( appeal Irotn' thc\_l lij^h\_CQ.url-itL.i.ts..a.riRtnaI jurisdiction specifically provides for the judgement or reasoned order to be included in the record aiid npt. a formally extracted order. This court had earlier considered this ^Imint io Banco ifyraabc ICspangil vs Bank of Uganda Civil Application No.42/98 and .<made.it> clear relying on.its earlier decision in Kibuka Musoke William and Another vs Dr. Appollo Kaggwa Civil Appeal No.46 of 1997 that.11ic ex tr.a c.1 ⁱ o.iⁱ o f a formal decree embodying the decision appealed against is no longer a legal requirement in the institution of an appcal. The appeal is against thejndgment or reasoned order.-Ikstafed-that the decree is-only included in the record of appeal where the appeal is disputing the date of the decree .or that the terms of the decree are at variance with the judgement upon which the decree was drawn. (Rule 86(10)). This is no^t the position here, 'flic court went further to state thatdlie-extraction of a fornialdecree\_QLQr.dcr.is. against tlic.spirrt.oLArtic.le. 126 (e) ofthe Co11stitnlion-Jvhich stj.pul.alcsJLliat substantive justice shall be administered ■-


without undue regard to technicalities. Extraction of a formal decree is no longer a legal requirement.

We consider this objection to have been frivolous. It is overruled with costs.

Dated this ....................................

HON. MR. JUSTICE G. M. OKELLO, Justice of Appeal

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$10$

$20$

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HON. LADY JUSTICE A. E. MPAGI-BAHIGEINE, Justice of Appeal

CALS Keins HON. LADY JUSTICE C. N. B. KITUMBA, Justice of Appeal.