Lwanga vs. Kabagambe (Civil Application No. 125 of 2009)

Court of Appeal · [2015] UGCA 22 · 2015 Application Dismissed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Application for a certificate that an intended third appeal to the Supreme Court concerns a matter of law of great public or general importance

Decision

Application for a certificate to appeal to the Supreme Court dismissed with costs

The full judgment

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Treatment recorded in citing cases followed in 1 Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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Holding

The Court of Appeal dismissed an application for a certificate to appeal to the Supreme Court under section 6(2) of the Judicature Act. To grant a certificate the Court must be satisfied the intended appeal concerns a matter of law of great public or general importance. The question whether 3,000 acres is too big for a customary holding was a question of fact, not law, and did not form the ratio decidendi of the appealed judgment, which turned on an unaccepted lease offer. Adopting the Kenyan Steyn principles, the Court held the applicant bore the onus and had adduced no evidence of public or general importance. The Court's power, unlike the Supreme Court's, is restricted to questions of law.

Facts

The applicant sued the respondents for trespass to land in the Mityana Chief Magistrate's Court (Civil Suit No. 34/2001), describing himself as owner and asserting that his late father held a lease offer over the land. He obtained judgment, but on appeal to the High Court at Nakawa (Civil Appeal No. 27/2004) the respondents succeeded. The applicant's further appeal to the Court of Appeal (Civil Appeal No. 58/2008) was dismissed with costs; the Court found his claim was based on a lease offer never accepted, that any customary tenancy was at sufferance, and that his claim over 3,000 acres was too large to be a customary holding. The applicant sought a certificate to mount a third appeal to the Supreme Court, contending that the appeal raised questions of law of great public or general importance, principally whether 3,000 acres is too big to constitute a customary holding. The respondents did not appear at the hearing despite service. Applicant's counsel conceded that the original suit was based on a lease offer, not customary tenure.

Issues

Whether the intended appeal raises a question of law of great public or general importance under section 6(2) of the Judicature Act warranting a certificate to appeal to the Supreme Court.
Whether the question of whether 3,000 acres is too big to constitute a customary holding is a question of law or of fact.
Whether the Court of Appeal has power to certify an appeal on grounds outside the ambit of section 6(2) of the Judicature Act.

Orders

Application dismissed with costs.

Key headnotes

Appeals — Certificate for Third Appeal — Section 6(2) Judicature Act — Matter of Law of Great Public or General Importance

The Court of Appeal may grant a certificate for a third appeal to the Supreme Court under section 6(2) of the Judicature Act only where the intended appeal concerns a matter of law that is either of great public importance or of general importance, and the onus lies on the applicant to satisfy the Court by evidence that such a question arises.

Appeals — Certificate for Third Appeal — Distinction Between Questions of Law and Questions of Fact

What constitutes a customary tenancy must be proved as a fact, and the question whether a given acreage is too large to constitute a customary holding is a question of fact, not a question of law, and therefore cannot ground a certificate under section 6(2) of the Judicature Act.

Appeals — Certificate for Third Appeal — Question Must Form Ratio Decidendi and Have Been Judicially Determined

A certificate for a third appeal cannot be granted on a question that did not form the ratio decidendi of the judgment sought to be appealed and was not a subject of judicial determination in the lower courts.

Appeals — Powers of Court of Appeal Distinguished from Supreme Court — Restricted to Questions of Law

Unlike the Supreme Court, whose power to grant leave extends to anything relevant to doing justice, the Court of Appeal's power on an application for a certificate is restricted to questions of law of great public or general importance and it cannot consider matters outside the ambit of section 6(2) of the Judicature Act.

Section 6(2) Judicature Act — Meaning of 'Great Public Importance' and 'General Importance'

Where the statute does not define 'great public importance' or 'general importance', a matter qualifies where its determination transcends the circumstances of the particular case and has a significant bearing on the public interest; mere apprehension of a miscarriage of justice or determinations of fact between parties are not a proper basis for certification.

Legislation cited (3)

Judicature Act Cap 13 s.6(2)
Land Act s.1(1)
Constitution of Kenya Article 163(4)(b)

Cases cited (4)

Hermanus Phillippus Steyn vs Giovanni Gnecchi-Ruscone Application No. 4 of 2010 (Supreme Court of Kenya)
Kampala District Land Board and Another v Babweyaka and Others (Civil Appeal No. 2 of 2001)
Kalya and Another v Ikagobya (Civil Appeal No. 82 of 2012)
Namudu Christine v Uganda (Criminal Appeal No. 3 of 1999)

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.