Automated Summary
Key Facts
The court ruled on a civil appeal (No. 74 of 2010) involving Simplesius Felix Kijuu Issaka (appellant) and the National Bank of Commerce (respondent). The respondent objected to the appeal's incompleteness, citing missing documents: the application for extension of time to file the Notice of Appeal, its ruling, and a drawn order granting leave to defend the summary suit. The court found the appeal record lacking these mandatory documents under Rule 96(1)(k) of the Court of Appeal Rules 2009 and upheld the objection, striking the appeal out with costs to the respondent.
Issues
The court upheld a preliminary objection that the record of appeal was incomplete, lacking (i) copies of the application for extension of time to file the Notice of Appeal and its ruling, and (ii) a drawn order granting leave to defend the summary suit. The court emphasized that Rule 96(1)(k) mandates inclusion of these documents unless excluded by a High Court or Tribunal justice/registrar. The appeal was deemed incompetent and struck out with costs to the respondent.
Holdings
The Court of Appeal upheld the preliminary objection to the appeal, ruling that the record of appeal was incomplete under Rule 96(1)(k) of the Court of Appeal Rules 2009. The court emphasized that the mandatory requirement to include all specified documents (e.g., application for extension of time, drawn order for leave to defend, and exhibits) in the record of appeal cannot be circumvented by parties, as this power is vested in the Justice or Registrar. The appeal was struck out with costs to the respondent.
Remedies
The appeal is struck out with costs to the respondent.
Legal Principles
The court applied the principle that the record of appeal must strictly comply with mandatory procedural requirements under Rule 96(1)(k) of the Court of Appeal Rules 2009. Failure to include required documents (application for extension of time, drawn order for leave to defend) rendered the appeal incompetent, necessitating its dismissal with costs.
Cited Statute
- Civil Procedure Code, Cap. 33 RE 2002
- Court of Appeal Rules 2009
Judge Name
- Luanda
- Mmilla
- Mziray
Passage Text
- In sum, we uphold the preliminary objection raised. The appeal is incompetent. The same is struck out with costs to the respondent.
- The respondent (the NBC) instituted a summary suit against the appellant. In terms of O.XXV, rr. 2 (1) and 3 of the Civil Procedure Code, Cap. 33 RE 2002 (the CPC) if a defendant intends to defend such suit, then he is required to obtain leave. The appellant applied for leave and as it was not contested the same was granted.
- With due respect to Mr. Tuliyemwesiga we were unable to see any rule in the Rules which allows a party to an appeal to choose and pick as to what document should be included in the record of appeal. As shown above, it is clear that a party to an appeal has no such powers. The powers to do so is vested upon the Justice or Registrar of the High Court or Tribunal upon an application by a party to an appeal. This point is meritorious.