Wakilii

Denis Bireje v Attorney General (Civil Application No. 31 of 2005)

Court of Appeal · [2006] UGCA 39 · 2006 Application Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application by notice of motion to strike out a notice of appeal on the ground that no appeal lies from judicial review orders of the High Court
Decision
Application to strike out the notice of appeal dismissed; the intended appeal may proceed

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Holding

The Court dismissed an application to strike out a notice of appeal. It held that an appeal lies to the Court of Appeal from decisions of the High Court made in exercise of its judicial review jurisdiction under section 36 of the Judicature Act. Section 10 of the Judicature Act makes appealable any decision prescribed by law, and the High Court's orders here exceeded a bare certiorari and conclusively determined the parties' rights, amounting to a decree appealable as of right under section 66 of the Civil Procedure Act. The Court found Inspector General of Government v Orochi wrongly decided, and held that the Civil Procedure (Amendment) (Judicial Review) Rules 2003 confirm an automatic right of appeal.

Facts

The applicant was the Director of Civil Litigation in the Ministry of Justice and Constitutional Affairs. On 8 September 2004 the Solicitor General, on the directions of the Minister of Justice, interdicted him from service. Aggrieved, he petitioned the High Court for judicial review, seeking the prerogative orders of mandamus, certiorari and prohibition. By ruling dated 14 March 2005, Okumu-Wengi J granted the orders, quashing the interdiction, declaring the removal null and void, and ordering that the applicant resume office and recover emoluments and costs. On 16 March 2005 the Attorney General filed a notice of appeal against that ruling. The applicant then brought this application to strike out the notice of appeal, contending that no appeal lies from prerogative orders made by the High Court in exercise of its judicial review jurisdiction.

Issues

  1. Whether an appeal lies to the Court of Appeal from a decision of the High Court made in exercise of its judicial review jurisdiction under section 36 of the Judicature Act.
  2. Whether the orders made by the High Court amounted to a decree appealable as of right under section 66 of the Civil Procedure Act.

Orders

  • Application dismissed.
  • Costs to the respondent.

Key headnotes

Judicial Review — Right of Appeal — Appeals from Prerogative Orders under Judicature Act s.36
An appeal lies as of right to the Court of Appeal from a decision of the High Court made in exercise of its judicial review jurisdiction under section 36 of the Judicature Act, since section 10 of the Act renders appealable any decision prescribed by law.
Civil Procedure — Decree — Definition under Civil Procedure Act s.2 and Right of Appeal under s.66
Where a High Court order in judicial review goes beyond a prerogative order and conclusively determines the rights of the parties on all matters in controversy, it amounts to a decree within section 2 of the Civil Procedure Act and is appealable as of right under section 66.
Civil Procedure — Appeals — Orders Made under Statutes Other than the Civil Procedure Act
An order made by the High Court on a matter brought before it under a statutory provision other than the Civil Procedure Act is appealable as of right unless an appeal is specifically excluded by law.
Statutory Interpretation — Appellate Jurisdiction as a Creature of Statute
Appellate jurisdiction is a creature of statute and a right of appeal must be conferred by law; however section 10 of the Judicature Act, unlike its earlier equivalent, supplies that conferral by making appealable any High Court decision prescribed by law.

Legislation cited (14)

  • Judicature Act Cap.13 s.10
  • Judicature Act Cap.13 s.34
  • Judicature Act Cap.13 s.35
  • Judicature Act Cap.13 s.36
  • Judicature Act Cap.13 s.36(3)
  • Civil Procedure Act Cap.71 s.2
  • Civil Procedure Act Cap.71 s.66
  • Civil Procedure Act Cap.71 s.81
  • Constitution of Uganda art.134(2)
  • Civil Procedure (Amendment) (Judicial Review) Rules 2003, S.I. 75 of 2003, rule 4(3)
  • Civil Procedure (Amendment) (Judicial Review) Rules 2003, S.I. 75 of 2003, rule 10(4)
  • Civil Procedure (Amendment) (Judicial Review) Rules 2003, S.I. 75 of 2003, rule 12
  • Rules of the Court of Appeal rule 81
  • Rules of the Court of Appeal rule 52(2)

Cases cited (5)

  • Attorney General vs Shah (No. 4) [1971] EA 50
  • Baku Raphael Obudra and Obiga Kania v Attorney General (Constitutional Petition No. 4 and 6 of 2006)
  • Inspector General of Government vs Orochi
  • Priamit Enterprises Ltd v Attorney General (Civil Appeal No. 3 of 1999)
  • Makula International Ltd vs His Eminence Cardinal Nsubuga and Another [1982] HCB 11
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.