The long-running dispute between MTN and former Deputy Inspector General of Police Julius Odwe has taken another turn, after the court declined Odwe’s request to throw out an appeal lodged by the telecom company.
The case dates back to 2012, when MTN rolled out a project to extend network connectivity to Dokolo. During that exercise, the company laid fibre optic cables across Odwe’s land located in Dokolo town council.
Odwe told court that this was done without his consent and that the cables interfered with his plans to expand buildings on the land. He sued MTN in the High Court in Lira, accusing the company of trespass, breach of contract, and seeking compensation and damages.
The case was heard by Justice Winifred Nabisinde, who even visited the disputed land before delivering her judgment. She ruled in favour of Odwe, declaring him the rightful owner of the land and finding that MTN had indeed trespassed.
Justice Nabisinde awarded Odwe Shs300 million in general damages, with interest at 23 per cent per year from the time of judgment until full payment. Over time, the total amount has grown to Shs 526 million.
MTN was dissatisfied with that decision and filed a notice of appeal in September 2020, signalling its intention to challenge the ruling.
But before MTN’s appeal could be heard, Odwe returned to court with a fresh application. This time, he was not arguing about the land, but about procedure.
He asked the Court of Appeal to strike out MTN’s appeal entirely, arguing that the company had filed and served its appeal documents too late, without seeking permission from court.
In his affidavit, Odwe said judgment had been delivered on August 21, 2020, and that MTN only filed its record of appeal on November 23, 2022, “five months and ten days out of time”. He also complained that the company served the appeal late and had “no reasonable excuse” for the delay.
His lawyers, Simon Moses Semaganda and Oyugi Onono Quirinus of Oyugi Onono & Co Advocates, told court that the law requires an appeal to be filed within 60 days.
They relied on rules of the Court of Appeal which state that failure to act in time renders an appeal incompetent.
“If a party who has lodged a notice of appeal fails to institute an appeal within the prescribed time, he or she shall be taken to have withdrawn his or her notice of appeal,” they argued.
They urged court to strike out MTN’s appeal for being filed out of time and without leave.
On the other side, MTN, represented by Nicholas Mwasame and Bryd Ssebuliba of Shonubi, Musoke & Co Advocates, strongly opposed the application.
Their argument was simple but technical. They told court that time stopped running when they requested for typed court proceedings, which are necessary to prepare an appeal.
They explained that they had applied for the record of proceedings within the required 30 days after judgment.
They further argued that they only received official notification that the record was ready on October 5, 2022. From that date, they had 60 days to file the appeal.
Since they filed on November 23, 2022, they said this was on the 49th day from the date of service and therefore within time.
“It would be against the interests of justice for the appeal to be dismissed,” the lawyers argued.
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The Court of Appeal judges carefully reviewed both sides. The panel comprised justices Eva Luswata, Stella Alibateese and Jesse Rugyema Byaruhanga.
They agreed that the key issue was whether MTN filed its appeal within the time allowed by law.
The judges explained that when a party requests for proceedings in time, the time the registrar takes to prepare and serve the certified copy shall be excluded when counting the 60 days.
They also emphasised that once a party has requested the proceedings and served the other side, he is not required to do anything more until the registrar has finished compilation”.
The court then examined the confusion over dates.
Odwe argued that the proceedings were ready in June 2022. However, the judges found no proof that MTN had been notified at that time.
Instead, they noted that a later letter dated September 14, 2022, was served on MTN’s lawyers on October 5, 2022, informing them that the record was ready.
The judges concluded that this October date is what matters.
“We thus deem October 5th 2022 as the date [MTN] was served,” they ruled.
Because MTN filed its appeal on November 23, 2022, the judges found that it acted within the required time.
As a result, the court dismissed Odwe’s application saying they found no merit in it.
However, this decision does not overturn the original High Court judgment but it clears the way for MTN’s appeal to be heard on its merits.
