Yekoyakimu Mwima Hyabene v The Attorney General (Civil Application No. 46 of 1997)

Court of Appeal · [1998] UGCA 24 · 1998 Application Dismissed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Reference to a full bench under section 13(2) of the Judicature Statute and rule 54(1)(b), following a single judge's dismissal of an application for leave to appeal as a pauper

Decision

Application for pauper status dismissed; applicant to bear his own costs

The full judgment

Read the complete, verbatim text of this judgment.

Cited — treatment unverified cited in 1 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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Holding

On a reference to the full Court, the applicant sought pauper status under rule 112(1) of the Court of Appeal Rules to appeal without paying fees or depositing security. The Court accepted, on the unrebutted affidavit, that the elderly applicant lacked the means to meet the costs. However, rule 112(1) also requires that the intended appeal have a reasonable possibility of success. As the intended appeal challenged the same judge's refusal to disqualify himself on facts and parties identical to an earlier Supreme Court appeal (Civil Appeal No. 14 of 1994), which had been dismissed, the Court found no chance of success. The application was dismissed.

Facts

The applicant, aged about 78, was a party in a civil case before Tinyinondi, J. Dissatisfied with the conduct of the case, he asked the judge to disqualify himself, which the judge refused. The applicant sought to appeal that refusal. Faced with the requirement to deposit security for costs, he applied under rule 112(1) of the Court of Appeal Rules for a declaration that he was a pauper, which would relieve him of paying fees or security. A single judge, Twinomujuni, J.A., dismissed that application on 10 March 1998, holding that although the applicant could be regarded as a pauper, his intended appeal had no chance of success. The applicant brought the matter before a three-judge bench by way of reference. He swore an affidavit stating he was poor, medically invalid and unable to work, which was not rebutted. His intended appeal again challenged the same judge's refusal to step down in the same case, the subject of an earlier Supreme Court appeal between the same parties.

Issues

Whether the applicant lacked the means to pay the required fees or deposit security for costs so as to be declared a pauper under rule 112(1).
Whether the applicant's intended appeal had a reasonable possibility of success as required by rule 112(1).

Orders

Application to grant the applicant the status of a pauper is dismissed.
No costs awarded to the respondent, who did not appear.
The applicant is to bear his own costs.

Key headnotes

Civil Procedure — Pauper Status — Leave to Appeal Without Security for Costs under Court of Appeal Rules r.112(1)

Rule 112(1) of the Court of Appeal Rules confers a discretionary power to permit an intended appellant to lodge an appeal without paying fees or depositing security for costs, exercisable only where the court is satisfied both that the applicant lacks the means to pay and that the intended appeal is not without reasonable possibility of success; that discretion must be exercised judiciously according to established principles.

Civil Procedure — Pauper Status — Proof of Means by Affidavit Evidence

Whether a person is poor and fit to be declared a pauper is a question of fact decided on the evidence adduced by the applicant; where the applicant's affidavit asserting indigence is not rebutted by reply, the court has no reason to disbelieve it and may accept on a balance of probabilities that the applicant cannot raise the required security for costs.

Civil Procedure — Reasonable Possibility of Success — Effect of Prior Appellate Decision on Identical Facts

An intended appeal has no reasonable possibility of success under rule 112(1) where it is founded on essentially the same facts and between the same parties as a matter already determined by a higher court; the court will not depart from the earlier binding decision and will find no prospect of the appeal succeeding.

Legislation cited (4)

Judicature Statute No. 6 of 1996 s.13(2)
Court of Appeal Rules 1996 r.54(1)(b)
Court of Appeal Rules 1996 r.55(2)
Court of Appeal Rules 1996 r.112(1)

Cases cited (1)

Hyabene v Attorney General (Civil Appeal No. 14 of 1994)

Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.