Beatrice Kobusingye v Fiona Nyakana & Anor (Civil Appeal 18 of 2001)

Supreme Court · [2002] UGSC 42 · 2002 Appeal Struck Out ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Third appeal to the Supreme Court from the Court of Appeal; preliminary objection to the competence of the appeal.

Decision

Appeal struck out as incompetent for failure to include the certificate of the Court of Appeal.

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.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions — always read the source judgment before relying on it.

Holding

On a third appeal, the respondents were granted leave under rule 97(b) to raise a preliminary objection. The Supreme Court held that a certificate of the Court of Appeal (or leave of the Supreme Court) under section 7(2) of the Judicature Statute 1996 — certifying a matter of law of great public or general importance — is an essential document for a third appeal, and its absence rendered the appeal incompetent. The illegality principle in Makula International did not entitle the Court to consider the merits where the appellant had failed to take the steps necessary to invoke its jurisdiction. The appeal was struck out with costs.

Facts

The respondents sued the appellant in the Chief Magistrate's Court at Fort Portal for malicious prosecution and false imprisonment, seeking special and general damages. The Grade I Magistrate who heard the case dismissed it with costs. The respondents' first appeal to the High Court at Fort Portal was dismissed in the main, the court holding that the appellant had not been actuated by malice in instituting the criminal proceedings. On a second appeal to the Court of Appeal, the appellant raised a preliminary objection that the court, as a second appellate court, had no jurisdiction over grounds based on matters of fact under sections 74 and 75 of the Civil Procedure Act; the Court of Appeal overruled the objection. The appellant then lodged a third appeal to the Supreme Court. The record of appeal did not contain a certificate of the Court of Appeal, or leave of the Supreme Court, that the appeal concerned a matter of law of great public or general importance.

Issues

Whether the respondents should be granted leave under rule 97(b) of the Rules of the Court to raise a preliminary objection to the competence of the appeal.
Whether the appeal is incompetent for failure to include in the record a certificate of the Court of Appeal (or leave of the Supreme Court) that the appeal concerns a matter of law of great public or general importance, as required for a third appeal.
Whether the Court should nonetheless consider the merits of the appeal on the basis of the illegality principle despite the appeal being incompetent.

Orders

Leave granted to the respondents to raise the preliminary objection.
Preliminary objection upheld; the appeal is incompetent.
Appeal struck out with costs.

Key headnotes

Appeals — Third Appeal — Certificate of the Court of Appeal as an essential document

A certificate of the Court of Appeal, or leave of the Supreme Court, under section 7(2) of the Judicature Statute 1996 certifying that the appeal concerns a matter of law of great public or general importance is an essential document in the record of a third appeal, and its absence renders the appeal incompetent.

Preliminary Objections — Leave to raise under rule 97(b)

A respondent may, with the leave of the Court under rule 97(b), raise an objection to the competence of an appeal that could have been raised by application under rule 77; the discretion to grant leave is wide and is exercised judiciously, and may be granted where the objection was raised by inadvertence yet the appellant has had sufficient notice and has responded to it.

Incompetent Appeal — Illegality principle and jurisdiction

An incompetent appeal ought to be struck out, and the principle that a court cannot sanction an illegality does not entitle the court to consider the merits of an appeal where the appellant has failed to take the essential steps necessary to invoke the court's jurisdiction.

Legislation cited (13)

Judicature Statute 1996 s.7(2)
Judicature Statute 1996 s.5
Judicature Statute 1996 s.11
Judicature Statute 1996 s.49(b)
Civil Procedure Act (Cap. 65) s.74
Civil Procedure Act (Cap. 65) s.75
Civil Procedure Act s.74A
Rules of the Supreme Court r.38(1)
Rules of the Supreme Court r.77
Rules of the Supreme Court r.82
Rules of the Supreme Court r.93
Rules of the Supreme Court r.95
Rules of the Supreme Court r.97(b)

Cases cited (1)

Makula International Ltd v His Eminence Cardinal Nsubuga and Another (Civil Appeal No. 4 of 1981)

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.