In The Margarete Lugarama V Nkumba College School Misc. App No.4 Of 2013 In The Court of Appeal of Uganda at Kampala.
CORAM; HON JUSTICE EZEKIEL MUHANGUZI, STEPHEN MUSOTA & REMMY KASULE, Judgement delivered on the 10th day of January 2020.
This was an Application to strike out a Notice of Appeal filed by the Respondent on the grounds that the service of court process was not proper in law and that the leave to Appeal granted to the Respondent was procured without necessary extension of time. The Respondent in 2012, filed an Application in Court against the Applicant seeking leave to Appeal the decision of the lower Court and its agent swore a fraudulent affidavit of service purporting to have served the Applicant. The registrar heard and determined the Application and granted the Respondents leave to Appeal and file a memorandum within 14 days from 11th June 2012. The Applicants case is that the Court process was never served on them and that the Respondent has not filed an Appeal since 11th June 2012. The Respondents also claim that it was mistake of their legal representatives which mistake should not be visited on them.
The issue for determination was whether mistake of the lawyers is sufficient ground to allow the Appeal to go on.
The Justices of the Court of Appeal in striking out the Notice of Appeal relied on Rule 82 of the Court of Appeal rules which provides that a person on whom a Notice of Appeal has been served may at any time either before or after the institution of Appeal, apply to the Court to strike out the notice of Appeal as the case maybe on the ground that no Appeal lies or that some essential step in the proceedings has not been taken or has not been taken within the prescribed time. The Justices in addition stated that taking an essential step is the performance of an act by a party whose duty is to perform that fundamentally necessary action demanded by the legal process, so that subject to permission by the Court, if the action is not performed as led by the law prescribed, then whether the legal process has been done before becomes a nullity.
In this case therefore, the Respondent did not take the necessary steps to file the Appeal after seven years of the order of extension of time thus the Respondents Notice of Appeal was struck out.