In The Case of Butebi Investment Enterprises Limited V Kibalama Mugwanya Civil Application No.354 Of 2013 In The Court of Appeal of Uganda.
CORAM; EZEKIEL MUHANGUZI, STEPHEN MUSOTA & REMMY KASULE, Judgement delivered on the 6th day of January 2020.
This was a case where the Applicant applied to this Court to dismiss an Appeal lodged by the Respondent on the grounds that the Respondent served the Notice and Record of Appeal out of the prescribed time under the law. The Applicant raised a Preliminary Objection stating that the Appeal was barred by time and thus it should be dismissed. The Respondent on the other hand conceded to the fact that the Appeal was lodged within time however, the service of the same was done out of time.
The Justices of the Court of Appeal in dismissing the Preliminary Objection stated that for a Preliminary Objection to stand, the error must be apparent on the face of the pleadings which rises by implication out of the pleadings and which if argued, has the ability to dispose of the entire suit.
The Preliminary Objection was accordingly dismissed because it was not proved to the satisfaction of Court since the appellant didn’t show when he was served with the pleadings and when he was supposed to be served.
The other issue raise by the Respondent was that failure to serve the pleadings was a mistake of his legal representative since he had given him instructions to file and serve the same.
The Justices of the Court of Appeal in directing the Court to set a date for hearing the Appeal relied on the principle that a mistake by the legal representative should not be put on the client because justice must be served with undue regard to technicalities.