IN THE SUPREME COURT OF UGANDA
AT MENGO
(CORAM: ODOKI, J.S.C., ODER, J.S.C., AND KAROKORA, J.S.C.)
CIVIL APPEAL NO.64 OF 1995
BETWEEN

1. SALIM JAMAL
2. SHABIR ABJI ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPELLANTS
3. ALNOOR JAMAL

 

AND

 

1. UGANDA OXYGEN LTD.
2. OXYCO HOLDING LTD. : : : :: : :: : :: :::::::::::::::::::::::::::::::::::: RESPONDENTS
3. B.E. SHAMJI

 

(Appeal from Judgment and orders of the High Court of Uganda at Kampala (Egonda - Ntende J.) dated 12.12.1995 in H.C.C.S. No. 282 of 1994)

 

JUDGMENT OF ODER J.S.C.
This appeal arises out of a suit in the High Court in which the appellants were the unsuccessful defendants and the respondents the successful plaintiffs. The appeal is against the judgment and orders of the High Court in that suit in favour of the respondents.

 

When the appeal was called for hearing, the respondents raised a preliminary objection on a point of law. It was that the appeal had been prematurely made to this Court then it out to have been made first to the Court of Appeal, established by the new Constitution, which one into force on October, 8, 1995. Only after such an appeal had been considered by the Court of Appeal should a further appeal have been filed in this Court by the unsuccessful party if it so wished.

 

The objection was opposed by the appellants. After hearing sides, we overruled the objection reserving our reasons for doing so, which are now given in this judgment.

 

In his submission and reply, Mr. Mubiru - Kalenge, learned counsel for the respondents, contended that under the new Constitution this Court had jurisdiction to hear appeals only from the Court of Appeal. It had no jurisdiction to hear appeals from the High Court. Further, Civil Appeals to this Court are instituted by filing, inter alia, memorandum and records of Appeal under rule 81(1) of the Rules of this Court, and not merely by filing notices of appeal under rule 74(1). The situation was different from that of Criminal Appeals, which were instituted by lodging notices of appeal under rile 58(1) of the Rules. If the legislature had intended that Civil Appeals to this Court should be instituted by filing notices of appeal without more, then it would have said so. The procedure of instituting Civil appeals would have been made identical to that of instituting Criminal appeals.

 

In the instant case, counsel said, the notice of appeal was filed on 18.4.1995, before the Constitution came into force, but the memorandum and record of appeal were filed on 29.12.1995 after the new Constitution had been promulgated. In view of the provisions of rule 81(1), it was contended; this meant that the appeal was instituted in this Court subsequent to the new Constitution having come into force, by lodging the documents specified in rule 81(1). The appeal, therefore, prematurely came to this Court when he ought to have been filed in the Court of appeal first. It is therefore, incompetent and should be struck out.

 

Opposing the objection, Mr. Babigumira, learned counsel for the appellants, submitted that under the provisions of Article 280 of the new Constitution this Court had jurisdiction to entertain this appeal as a matter which was pending in this Court, when the Constitution came into force, because the notice of appeal was filed before October, 8, 1995. Counsel contended that for all intents and purposes a notice of appeal filed under rule 74(1) institutes an apea1 in this Court. Rule 81(1) is a follow up from rule 74 (1), because without a notice of appeal an appeal cannot be instituted under Rule 84 (1). So, the institution of an appeal commences with the filing of a notice of appeal. This view is strengthened; it was said, by the definition provisions under rule 2, where