THE REPUBLIC OF UGANDA
IN THE HIGH COURT UGANDA AT KAMPALA
MISCELLENEOUS APPLICATION NO.403 OF 2018
(ARISING FROM CIVIL APPEAL NO.129 OF 2017)
- NAKIRIBA AGNES
- MUWONGE JUSTINE
- NAMUSANGO JUSTINE
- MPAGI NORAH
- NAMBAJJA JUSTINE::::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPLICANTS
- KALEMERA EDWARD
- NAKIBINGE JAMES:::::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENTS
BEFORE: HON.MR. JUSTICE HENRY I. KAWESA
This application was brought by notice of motion under Section 98 of the Civil Procedure Act Cap 71; O.49 r 2 and O.52 rr.1, 2 &3 of the Civil Procedure Rules SI 71-1 seeking for orders that;
- The memorandum of appeal in Civil Appeal No.129 of 2017 be struck off.
- The Respondents pay the costs of the application.
The grounds upon which the application is premised are that;
- The Respondents’ Memorandum of Appeal in Civil Appeal No.129 of 2017 pending before this Court was filed outside time stipulated by law.
- The Respondents have never served neither the notice of appeal nor the Memorandum of Appeal.
- The Respondents failed to take necessary steps to prosecute their appeal before this Court, a clear indication of lack of interest in their own appeal.
- It is in the interest of justice that this application be allowed and the memorandum of appeal be struck off.
The application is supported by the affidavit of the 2nd Applicant wherein he avers as follows;
That the Respondents filed Civil Suit No.181 of 2016 in the Chief Magistrates Court of Luwero which was dismissed on the 19th day of September, 2017, on the preliminary point of law. That the Respondents being dissatisfied with the order dismissing their suit, applied for the record of proceedings in furtherance of the appeal and the same was prepared and available to them on the 20th day of October, 2017. A copy of the certificate of correctness was attached as annexure “A” in proof whereof.
Further, that the Respondents thereafter filed a memorandum of appeal in Civil Appeal No.129 of 2017 on the 21st day of November 2017, outside the mandatory period of 30 days and without leave of Court.
Additionally that since the day of filing, the memorandum has never been served on the Applicants or their Advocates and; also that neither have the Respondents served on them the notice of appeal nor letter requesting for the record of proceedings. It is his evidence also that the Respondents’ failure to take steps towards their prosecution of the appeal is clear proof of lack of interest in it.
The application was opposed through an affidavit in reply sworn by their Counsel in personal conduct of this application, Mr. Wandera Moses. Counsel for the Applicants, however, put it to my notice, in his submissions in rejoinder that this affidavit contradicts Regulation 9 of the Advocates(Professional Conduct) Regulations S1 267-1; and that it was also filed outside time.
In reply, Counsel for the Respondents filed submissions to the rejoinder arguing that the Applicants’ rejoinder raised new objections which necessitated a reply. With due respect to Counsel, I disagree with this view as there is no right in law. Perhaps, Counsel ought to have sought the leave of Court in order to attain such a right.
Accordingly, I shall disregard these submissions in determining whether the said affidavit ought to be considered.
Regarding the first point, I agree with Counsel for the Applicant that the affidavit in reply offends Regulation 9 of the Advocates (Professional Conduct) Regulations which bars Advocates from being witnesses in contentious matters they are personally involved in.
For long, Courts have denounced this practice and cautioned Advocates to stick to the function of legal representation and leave their clients to make their own affidavits. See Among others, Banco Arabe Espanol versus Bank of Uganda SCCA No.8 of 1998; Simon Tendo Kabenge Advocates versus M/S Mineral Access Systems (U) Ltd HCMA No.565 of 2011 cited by Counsel for the Applicants. Considering that this is a contentious matter, I am constrained to find the Respondents’ affidavit in reply incurably defective.
Regarding the second point, the affidavit of service indicates that the Respondents’ Advocates were served with a copy of this application on the 18th day of May, 2018 and that Counsel for the Applicants also endeavored to follow up by letter dated 11th day of June 2018, to the Respondents’ Counsel reminding them to file a reply to this application.
Despite of all this, the Respondents only managed to file their reply on the 27th day of August, 2018, about nine (9) days from the date of hearing of the application. In the view of the Applicants’ Counsel, the affidavit in reply offends also O.12 r3(2) of the Civil Procedure Rules on ground that it was filed outside the 15 days from the date of service.
I seek to depart from the view of the Applicant Counsel’s as regards the applicability of O.12 r.3 (2) of the Civil Procedure Rules.
In my view, O.12 r3 of the Civil Procedure Rules is meant to give timelines for all interlocutory applications that are envisaged after the completion of the scheduling conference or alternative dispute resolution. This application having arisen from an appeal, the logical conclusion is that it cannot be subject to O.12 of the Civil Procedure Rules.
However, as Court observed, in Stop and See (U) Ltd versus Tropical Africa Bank Ltd HCMA No.333 of 2010, that the time lines applicable to plaints and written statement of defences also apply to interlocutory applications, I am of the view that this ought to extend to interlocutory applications in appeals made this Court under the Civil Procedure Rules. This, therefore, means that a reply or defence to an application arising from an appeal has to be filed within 15 days of service failure of which puts the affidavit in reply out of time. It is clear that the Respondents’ affidavit in reply was filed out of time without leave of Court.
Accordingly, I also find that the said affidavit is improperly before this Court.
In view of the foregoing reasons, I am constrained to strike out the Respondent’s affidavit in reply. Consequently, the Applicants’ application remains unopposed save on matters of law to which I shall consider the Respondent Counsel’s submissions, if any.
Regarding the contention that the appeal was filed out of time, Counsel for the Applicants started off by citing Section 79(1)(a), and Section 79(2) of the Civil Procedure Act. The provisions of the foregoing Section require that appeals must be lodged within 30 days from the date of the decree or order of the Court exclusive of the time taken by Court in preparing the record to be appealed against. Further, Counsel cited the case of Okwanya Valentino & Others versus Gulu District Local Council Government CACA No.265 of 2013 wherein Court observed that;
‘in applications of this nature, it is critical to establish when the record of proceedings was ready for collection in order to establish the legal timelines’.
Referring to the certificate of correctness dated 20th October, 2017, Counsel argued that the Respondents ought to have filed their memorandum of appeal by 20th November, 2017. He accordingly argued that the memorandum was filed outside time since it was filed on the 21st day of November, 2017.
In reply, Counsel for the Respondents argued that though the certificate of correctness was ready by 20th October, 2017, the same was only served onto them on the 20th day of November, 2017. Premised on this, he argued that there was no way the Respondents could have known that the record was available to them until it was received by them through their Counsel. By that he argued that since the memorandum of appeal was filed just one day after receipt of the record of appeal, the same was within time. Though maintaining this view, he also cited Section 79(2) of the Civil Procedure Act and the case of Buso Foundation Ltd versus Bob Mate Philips HCCA No.40 of 2009 which is, however, only in support of the proposition that time taken by Court in preparing the record of appeal ought to be excluded in computing the time within which to appeal.
According to Section 79(1)(a) of the Civil Procedure Act Cap 71, every appeal must be entered within 30 days of the date of the decree or order of court. It suffices to note that the 30 days period is exclusive of the time taken by the lower court in preparing the record of appeal under Section 79(2) of the of the Civil Procedure Act. As noted in the case of Maviri versus Jomayi Property Consultants Ltd CACA No.274 of 2014, it is indeed crucial to determine when the record of proceedings was made available for collection in determining whether or not the appeal was lodged within time.
In the instant case, certificate of correctness indicates that the record of proceedings was available by 20th October, 2017.
From that date to the 21st day of November, 2017 when the appeal was lodged is exactly 31 days which is one day outside the time within which to appeal. It is the contention of the Respondents’ Counsel that it was receipt of the certificate of correctness on the 20th day of November, 2017, that the record of proceedings was available for collection. With respect, I depart from this view. Firstly, there is no evidence before me that the certificate of correctness was received by the Respondent’s Counsel on the 20th November, 2017.
The absence of this evidence makes it highly probable that this claim is merely concocted to circumvent the wrath of Section 79(1)(a) of the Civil Procedure Act. In as far as I am concerned; the record of proceedings was available for collection on the 20th day of October, 2017. The appeal having been lodged on the 21st day of November, 2017, I am at no choice but to agree with the Applicant’s Counsel that the same was lodged out of time.
According to the Court of Appeal in Maviri versus Jomayi Property Consultants Ltd (supra), any appeal lodged outside time, and without leave of Court is incompetent.
In view of this, I find that this appeal should as well suffer the same fate as the affidavit in reply.
The second contention related to the nonservice of memorandum of appeal. According to Counsel for the Applicants, whereas O.43 of the Civil Procedure Rules relating to appeals is silent as regards the mode of service of appeals, recourse must be made to O.49 of the Civil Procedure Rules.
According to O.49 r2 of the Civil Procedure Rules, all orders, notices and documents required to be served upon the opposite party must be served in a manner provided for service of summons. According, Counsel for the Applicants submitted that since O.5 r2 of the Civil Procedure Rules requires summons to be served within 21 days, the Respondents ought to have served on the Respondents the memorandum of appeal by 12th December 2017 following lodgment, on the 21st November, 2017.
In support of his case, he also cited the case of Lubega Robert Smith & Others versus Walonze Malaki HCCA No.36 of 2016 wherein it was observed that a Respondent has a right to service of the memorandum of appeal as much as a defendant or Respondent in any other type of civil proceeding has. Premised on this, it was Counsel’s view that the Respondents’ failure to serve the memorandum of appeal is a clear indication of lack of interest in the appeal. Ultimately, he invited me to strike out the appeal with costs.
I agree with Counsel for the Applicants that recourse may be made to O.49 r2 of the Civil Procedure Rules in as far as the right to service of memorandum of appeal to the Respondents is concerned.
That said, I became doubtful of the Applicants’ claim having had regard to the affidavit of service on record which, on the other hand, reveals that the memorandum of appeal was served on the Applicants’ Counsel who refused to acknowledge receipt of the same. Since none of the deponents on the affidavits was cross examined to test the veracity of their respective averments, I find myself at a choice of deciding which one of the two averments to consider. Since O.5 r16, read together with O.49, of the Civil Procedure Rules requires service of court process to be proved by an affidavit of service, I am inclined to give the averments in the affidavit of service a benefit of a doubt over those in the Applicants’ in support of the application.
Ultimately, this application succeeds only on the ground that the appeal was filed out of time, without leave of Court. Consequently, it is hereby struck out with costs to the Applicants.
I so order.
Henry I. Kawesa
Rubeize Jacob; applicant’s Counsel present.
2nd Applicant present.
Wandera Moses for the Respondents
1st Respondent present.
2nd Respondent absent.
Ruling communicated to the parties above.
Henry I. Kawesa