THE REPUBLIC OF UGANDA
IN THE SUPREME COURT OF UGANDA
[CORAM: ODOKI, CJ, ODER, TSEKOOKO, MULENGA AND
CIVIL APPEAL NO. 20 OF 2001
HORIZON COACHES LTD:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPELLANT
KAMARA DEODOTA MUTABAZI} ::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENTS
SHARON MUTABAZI }
HABAKURAMA MUTABAZI }
[Appeal from the ruling of the Court of Appeal at Kampala
(Mukasa Kikonyogo, DCJ, Twinomujuni and Kitumba JJA)
dated 4 September 2001 in Civil Application No. 97 of 2002]
JUDGMENT OF THE COURT
The brief back ground to this appeal is as follows. In 1997, the Respondents filed a suit in the High Court against the Appellant claiming special and general damages for negligence. On 23 June 2000 judgment was entered against the Appellant. On 7 July 2000 the Appellant filed a notice of appeal against the decision of the High Court. On the same day the Appellant wrote a letter to the Registrar of the High Court requesting for a copy of the proceedings. The letter was not copied to the Respondents. On 4 December 2000 the Appellant filed an application for stay of execution and served it on the Respondents. The notice of appeal and the letter requesting for proceedings were attached to the application.
On 8 December 2000, the Respondents filed a notice of motion to strike out the notice of appeal on the ground that the notice of appeal had been served out of time since they were only served on 4 December 2000. The notice of motion was supported by an affidavit Sworn by the first Respondent Francis Mutabazi to the effect that the Appellant did not serve a copy of the notice to the Respondents or their counsel. Francis Mutabazi deponed further that he found the notice of appeal attached to the application for stay of execution, which was served on him on 4 December 2000. He also stated that the letter addressed to the Registrar requesting for proceedings was also attached to the application for stay, but was not copied to him, nor received by his Counsel.
An affidavit in reply was sworn by Geoffrey Nangumya, Company Secretary of the Respondent, to the effect that on 10 July 2000 counsel for the Applicant had duly served the notice of appeal and the letter requesting for the record of proceedings to counsel for the Applicant at Counsel’s Chambers. Adroni Wilfred, a clerk in the chambers of counsel for the Appellant, swore an affidavit of service on 23 February 2001 to the effect that on 10 July 2000 he went to the Chambers of Counsel for the Respondents and served the notice of appeal and the letter requesting for proceedings on Robert Okis the law clerk of the Respondent’s Counsel who was known to him but who refused to endorse upon the copy of the notice of appeal and the letter requesting for a copy of proceedings, though he retained both documents.
Richard Okis, the Process Server and Clerk in the Chambers of Counsel for the Respondents swore an affidavit dated 16 May 2001 in which he averred that his name is Richard Okis and not Robert Okis, and denied that he was ever served with a notice of appeal and a copy of the letter addressed to the Registrar requesting for the record of proceedings. He denied refusing to endorse the documents.
The Court of Appeal held that the Appellant had failed to comply with the mandatory Provisions of Rules 77 (1) of the Rules of the Court of Appeal requiring the intended Appellant to serve notice of appeal to the Respondents within seven days after lodging the notice of appeal. The Court also held that the Appellant had failed to comply with Rule 82 of the Rules of that Court in that it had failed to copy and serve the letter requesting for a copy of the proceedings on the Respondents, and therefore could not be entitled to rely on the provision of Rule 82 (1) which would entitle it to lodge the appeal within sixty days after receipt of the record of proceedings. The Court therefore upheld the application for striking out the notice of appeal as incompetent, under Rule 81 of the Rules of that Court.
2. The learned Justices of Appeal erred to hold that the affidavit of Adroni Wilfred was suspect;
3. The Learned Justices of Appeal erred to have relied on the Respondents’ Affidavits, which contained falsehoods;
4. The learned Justices of Appeal erred to hold that the Appellants’ () appeal had not been lodged within the prescribed time when:
(b) There was no evidence to support such a holding.
In reply learned counsel for the Respondents submitted that the. Appellant had served the notice of appeal and the letter requesting for proceedings in the manner described in the affidavit of the 1st Respondent. He argued that there was no person called Robert Okis employed in his chambers whom Adroni Wilfred Claimed in his affidavit to have served with the two documents. A prudent Counsel, according to learned counsel for-the Respondent would have sworn a affidavit to rebut the above facts. He contended that the statement of learned counsel for the Appellant that the error in the name of Richard Okis may have been a mistake, Was not evidence Furthermore Counsel for the Respondent submitted that the Appellant took a period of seven months before preparing an affidavit of service. Instead of filing the affidavit in court immediately and not merely attaching it to the affidavit of another person namely Mr. Nangumya. In these circumstances learned counsel argued, the affidavit of Adroni Wilfred was suspect and the Appellant failed to discharge the burden of proof imposed upon it by Rule 82 (3) of the Court of Appeal Directions.
Rule 77 (1) of the Rules of the Court of Appeal Directions provides,
In coming to its conclusion that the Appellant did not comply with the requirement of Rule 77 (1) the Court of Appeal said,
In our view the mistake in the name does not necessarily point to a deliberate lie. It could have been an innocent mistake. However the failure to swear an affidavit of service immediately after the refusal to accept service and the attachment of the notice of appeal and the letter requesting for proceedings seems to cast doubts on the claim by the Appellant that it served these documents to the Respondents earlier than 4 December 2000. If those documents had been served earlier on the Respondents why were they annexed to the notice of motion for stay of execution? The justification for this course of action was not explained. Although there is no time limit for filing an affidavit of service, we think that it ought to be sworn immediately the service is rejected as evidence of service. The burden was upon the Appellant to prove that service was effected within the prescribed time. The Appellant failed to do so. We are therefore unable to fault the conclusion of the Court of Appeal that the Appellant failed to comply with the requirement of Rule 77 (1) of the Rules of that Court. Accordingly grounds 1, 2 and 3 must fail.
The complaint in ground 4 is that the Court of Appeal erred to hold that the Appellant’s appeal had not been lodged within the prescribed time when it was not an issue in the pleadings and when there was no evidence to support the finding. Learned counsel for the Appellant submitted that the application to strike out the notice of appeal was based on one ground only namely that the Notice of Appeal was served out of time. He contended that nowhere in the accompanying affidavit of Francis Mutabazi was it stated that the appeal was out of time. The issue was only alluded to in the submissions of learned counsel for the Respondents, but this was not evidence
On the other hand, learned counsel for the Respondents submitted that the learned Justices of the Court of Appeal were entitled to hold that the appeal could not lawfully be lodged in time because the letter of request was not served on the Respondents and the Appellant’s lawyer had informed the court that the Appellant had lodged the appeal. It was his contention that the ground was misconceived. The issue of failure to serve the notice of appeal and letter of request on the Respondents was canvassed in both the affidavits of Francis Mutabazi, the first Respondent, and Geoffrey Nangumya, the Company Secretary of the Appellant. The notice of appeal and letter requesting for proceedings were attached to the application to strike out the appeal. The information whether the appeal had been filed was volunteered by counsel for the Appellant. Therefore the Court of Appeal was entitled to consider the issue since it had a significant bearing on the effect of the decision in this application.
The Respondents’ contention was that the Appellant was also out of time in filing the appeal since it had not served them with a copy of the letter requesting for proceedings to entitle it to benefit from the provision of Rule 82 of the Rules of the Court of Appeal. Rule 82 (1) requires that an appeal be instituted by lodging a memorandum of appeal and the record of appeal within sixty days after filing a notice of appeal. Under Rule 82 (2) where an application for a copy of proceedings in the High Court has been made within thirty days after the date of the decision against which it is desired to appeal, in computing time within which the appeal is to be instituted, there shall be excluded such time as may be certified by the Registrar of the High Court u having been required for preparation and delivery to the Appellant of that copy. But Rule 82 (3) provides that an Appellant shall not rely on sub-rule (2) unless his or her application for a copy of proceedings was in writing and a copy was served on the Respondent, and the Appellant has retained proof of that service.
In the instant case, the Appellant’s letter requesting for proceedings was not copied to the Respondents nor was it served on them until after four months when the application for stay of execution was made. Clearly the Appellant failed to comply with the provision of Rule 82 (3) and (he Court of Appeal was correct in so holding with the result that the appeal could not be filed in time. Therefore ground 4 must also fail.
In the result we find no merit in this appeal. It is accordingly dismissed with costs here and in the court below.
Dated at Mengo this 4th day of September 2002
B. J. Odoki
JUSTICE OF SUPREME COURT
JUSTICE SUPREME COURT
J. N Mulenga
JUSTICE OF SUPREME COURT
JUSTICEOF SUPREME COURT