Lukwago ( Lord Mayor KCCA) v Attorney General & Anor

Supreme Court · [2014] UGSC 405 · 2014 Application Struck Out ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Application by Notice of Motion to the Supreme Court for a mandatory injunction, temporary injunction and stay of execution pending an intended appeal against a ruling of a single Justice of the Court of Appeal (Kavuma, Ag. DCJ).

Decision

Application struck out as incompetent; matter referred to a bench of three Justices of the Court of Appeal for hearing, with the status quo maintained until disposal.

The full judgment

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Holding

The Court initially overruled a preliminary objection and held the Notice of Motion competent, reserving its reasons. On reviewing the merits and the applicable law, it held that the Supreme Court has no jurisdiction to entertain an appeal from a decision of a single Justice of the Court of Appeal: under section 12(2) of the Judicature Act a dissatisfied party must first refer the matter to a bench of three Justices of the Court of Appeal, which may confirm, vary or reverse it. As the right of appeal did not yet exist, the Notice of Appeal was incompetent and could not found an application for stay. The application was struck out as incompetent and the matter referred to a full bench.

Facts

Lukwago Erias was elected Lord Mayor of Kampala Capital City Authority (KCCA) in 2011. In 2013 KCCA councilors petitioned the responsible Minister for his removal on grounds of abuse of office and misconduct. A tribunal investigated and recommended his removal, and the Council voted to remove him. Multiple High Court proceedings followed, including orders by Justices Nyanzi and Mugambe restraining a by-election for the position. On 31 March 2014 the applicant resumed his office. On the same day, Kavuma, Ag. DCJ, sitting as a single Justice of the Court of Appeal, heard an ex parte application and issued orders staying execution and restraining the applicant from performing his functions. Dissatisfied, the applicant lodged a Notice of Appeal to the Supreme Court and then brought this Notice of Motion seeking an injunction and stay of execution pending the intended appeal. The respondents raised a preliminary objection that the application was incompetent.

Issues

Whether the Notice of Motion / application for stay of execution and injunction was competent and properly before the Supreme Court.
Whether a decision or order of a single Justice of the Court of Appeal is appealable to the Supreme Court, or must first be referred to a bench of three Justices of the Court of Appeal.

Orders

The application for stay of execution is incompetent and is struck out.
The matter be referred back to a bench of three Justices of the Court of Appeal to expeditiously hear and determine the application for stay of execution, as a reference from the decision of Kavuma, Ag. DCJ., sitting as a single Justice of Appeal.
The status quo be maintained until the application is disposed of.
No order as to costs in the Supreme Court; the costs of the application in the Court of Appeal to abide the outcome of the reference.

Key headnotes

Civil Procedure — Appeals — Right of Appeal as a Creature of Statute

The right of appeal is a creature of statute; there is no inherent right of appeal known to law.

Civil Procedure — Jurisdiction — Appeal from a Single Justice of the Court of Appeal

A decision or order of a single Justice of the Court of Appeal is not appealable to the Supreme Court; under section 12(2) of the Judicature Act the dissatisfied party must first refer the matter to a bench of three Justices of the Court of Appeal, which may confirm, vary or reverse the decision.

Civil Procedure — Stay of Execution — Foundation in a Competent Right of Appeal

An application for stay of execution pending appeal is founded on an existing right of appeal and a valid notice of appeal; where the right of appeal does not exist, the notice of appeal is incompetent and cannot form the basis for a stay because there is no pending appeal.

Statutory Interpretation — Inherent Powers — Subordination to Statute

The inherent power of the court under its rules to make orders for achieving the ends of justice cannot be applied to override the clear provisions of the Judicature Act, which is the parent and superior law.

Legislation cited (12)

Judicature Act (Cap. 13) s.12
Judicature Act s.6(1)
Civil Procedure Act s.98
Constitution of Uganda art.135(1)
Rules of the Supreme Court r.2(2)
Rules of the Supreme Court r.6(2)(b)
Rules of the Supreme Court r.42(1) and (2)
Rules of the Supreme Court r.43(1)
Rules of the Supreme Court r.72(1)
Court of Appeal Rules r.2(2)
Court of Appeal Rules r.53(1) and (2)
Court of Appeal Rules r.55(1)

Cases cited (6)

Elizabeth Robertson vs. Christina Wasliburn & Another, (Eastern Caribbean Supreme Court Claim No. BVIHCV 2011/0158)
National Housing & Construction Corporation v Kampala District Land Board & Chemical Distributors Ltd (Civil Application No. 06 of 2001)
Makula International Ltd v His Eminence Cardinal Nsubuga (1982) HCB 11
B. Kobusingye v Fiona Nyakana & G. Nyakana (Civil Appeal No. 05 of 2004)
Komakech G. & Another v Okullo & Others (Civil Appeal No. 20 of 2010)
L. M. Kyazze vs. Busingye (supra)

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.