Wakilii

Beatrice Kobusingye v Fiona Nyakana and Anor (Civil Appeal 5 of 2004)

Supreme Court · [2005] UGSC 3 · 2005 Appeal Struck Out ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Third appeal to the Supreme Court from an interlocutory ruling of the Court of Appeal overruling an objection to the competence of two grounds of a second appeal.
Decision
Appeal struck out as incompetent; no order as to costs.

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Holding

The Supreme Court held the appeal incompetent: under s.6(2) of the Judicature Act no appeal lies to it from an interlocutory order of the Court of Appeal that is incidental to, and not the final determination of, an appeal. The Court of Appeal had not yet decided the appeal, so its certificate granting leave was wrongly given, and the appeal was struck out. Exercising its duty to correct an illegality once drawn to its attention, the Court nonetheless held that the Civil Procedure Act, including its old sections 74 and 75 (now 72 and 74), does apply to the Court of Appeal, and that the Court of Appeal had erred in holding otherwise.

Facts

The two respondents sued the appellant in the Chief Magistrate's Court, Fort Portal, claiming damages for malicious prosecution and false imprisonment. A Magistrate Grade I dismissed the suit as improperly brought before the court. The respondents' appeal to the High Court failed. They then lodged a second appeal to the Court of Appeal on four grounds. The appellant, as respondent in that court, objected to two of the grounds, arguing that since the trial magistrate and the High Court had made concurrent findings of no malice, the Court of Appeal as a second appellate court lacked jurisdiction to reopen the matter, and that old sections 74 and 75 of the Civil Procedure Act restricted it. The Court of Appeal overruled the objection, holding that section 11 (old) of the Judicature Act gave it wide powers and that old sections 74 and 75 of the Civil Procedure Act did not apply to it. The appellant obtained leave and appealed that interlocutory ruling to the Supreme Court.

Issues

  1. Whether an appeal lies to the Supreme Court from an interlocutory order of the Court of Appeal that is incidental to, but not the final determination of, an appeal.
  2. Whether the old sections 74 and 75 (now sections 72 and 74) of the Civil Procedure Act apply to the Court of Appeal.
  3. Whether the Court should correct an illegality drawn to its attention notwithstanding that the appeal is incompetent.

Orders

  • Appeal struck out as incompetent.
  • No order as to costs.

Key headnotes

Civil Procedure — Appeals — Competence — Interlocutory Orders of the Court of Appeal
No right of appeal lies to the Supreme Court from an interlocutory order of the Court of Appeal that is incidental to an appeal but does not result from the final determination of the appeal itself; a certificate granting leave to lodge such an appeal is improperly given and the appeal is incompetent.
Civil Procedure — Appellate Jurisdiction — Applicability of the Civil Procedure Act to the Court of Appeal
The Civil Procedure Act, and in particular its old sections 74 and 75 (now sections 72 and 74), applies to the Court of Appeal; nothing in section 1 of the Act prohibits its application to procedure in the Court of Appeal or the Supreme Court, and a decision holding that the Act or those sections do not apply to the Court of Appeal is bad law.
Statutory Interpretation — Judicature Act and Civil Procedure Act — Source of Appellate Jurisdiction
Section 11 (old, now section 10) of the Judicature Act confers appellate jurisdiction on the Court of Appeal in general terms, while the detailed classes of civil appeals are set out in the Civil Procedure Act; rules of procedure such as rule 31(2) of the Court of Appeal Rules do not themselves create jurisdiction but merely regulate the exercise of jurisdiction already conferred.
Civil Procedure — Illegality — Duty of Court to Correct
Where an illegality is brought to the attention of the court, the court is bound to correct it, even where the appeal in which it arises is itself incompetent.

Legislation cited (19)

  • Judicature Act s.6(2)
  • Judicature Act s.5 (old, now s.4)
  • Judicature Act s.11 (old, now s.10)
  • Judicature Act s.12 (old, now s.11)
  • Judicature Act s.13
  • Judicature Act s.14
  • Judicature Act, 1967 s.40
  • Civil Procedure Act s.1
  • Civil Procedure Act s.68 (old)
  • Civil Procedure Act s.74 (old, now s.72)
  • Civil Procedure Act s.74A (old)
  • Civil Procedure Act s.75 (old, now s.74)
  • Civil Procedure Act s.77 (old)
  • Constitution of Uganda 1995 Article 132(2)
  • Constitution of Uganda 1995 Article 134(2)
  • Constitution of Uganda 1967 Article 89(2)
  • Court of Appeal Rules r.31(2)
  • Court of Appeal Rules r.65(2)
  • Magistrates Courts Act

Cases cited (4)

  • Uganda National Examinations Board v Mpora General Contractors (Civil Application No. 19 of 2004)
  • Mukula International v Cardinal Nsubuga (1982) HCB 11
  • Ephrain Ongom Odongo v Francis Renega Bonge (Civil Appeal No. 10 of 1987)
  • Francis Sembuya v Allports Services (U) Ltd (Civil Appeal No. 6 of 1995)
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.