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Busulwa Blasio v Uganda [2017] UGSC 28

Supreme Court · 2017 Reference Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Criminal reference to a panel of three Justices of the Supreme Court from a single Justice's refusal of bail pending appeal
Decision
Reference dismissed by majority; the single Justice's refusal of bail pending appeal affirmed. Criminal Appeal No. 75 of 2015 remains pending.

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Holding

On a reference from a single Justice's refusal of bail pending appeal, the Supreme Court held (Mwondha JSC dissenting) that the applicant's pending appeal was a third appeal, since it is the number of times proceedings are reviewed by a higher court that counts, not which party appealed below. A single Justice may, ancillary to a bail application, assess the competence and probability of success of a pending appeal under section 8(1) of the Judicature Act, without hearing counsel on a pure question of law. A third appeal that has failed before two appellate courts has little probability of success, so refusing bail was a proper exercise of discretion. Reference dismissed.

Facts

The applicant was tried before a Magistrate Grade 1 at Buganda Road Chief Magistrate's Court for intermeddling with a deceased's estate and fraud, and was acquitted on 10 June 2010. The Director of Public Prosecutions appealed to the High Court, which overturned the acquittal, convicted the applicant and sentenced him to 30 months' imprisonment. The applicant appealed to the Court of Appeal, which upheld the conviction and sentence. He then filed Criminal Appeal No. 75 of 2015 in the Supreme Court and, alongside it, Criminal Application No. 06 of 2015 for bail pending appeal. A single Justice (Opio-Aweri JSC) dismissed the bail application, finding that the appeal appeared to be an incompetent third appeal lodged without a certificate of importance from the Court of Appeal, and therefore had no high probability of success. The applicant brought this reference to a panel of three Justices to vary or reverse that decision.

Issues

  1. Whether Criminal Appeal No. 75 of 2015, lodged in the Supreme Court, constitutes a third appeal under section 5(5) of the Judicature Act.
  2. Whether the absence of a certificate of importance from the Court of Appeal renders the pending appeal incompetent.
  3. Whether a single Justice of the Supreme Court has jurisdiction to consider the competence of a pending appeal while determining an application for bail pending appeal.
  4. Whether the single Justice denied the applicant a fair hearing by deciding the competence of the appeal without inviting counsel's submissions on that issue.
  5. Whether the single Justice's exercise of discretion in refusing bail pending appeal should be varied or reversed.

Orders

  • The reference is dismissed.
  • The orders of the single Justice refusing bail pending appeal are affirmed.

Key headnotes

Criminal Appeals — Definition of "Third Appeal" under Judicature Act s.5(5)
A third appeal under section 5(5) of the Judicature Act is determined by the number of times proceedings have been placed before a higher court for review, not by which party appealed at each stage; an appeal originating from a Magistrate's exercise of original jurisdiction and passing through the High Court and the Court of Appeal is a third appeal to the Supreme Court.
Bail Pending Appeal — Probability of Success as the Governing Consideration
On an application for bail pending appeal in the Supreme Court the most important consideration is the probability of success of the appeal; an appeal that has failed before two appellate courts, or that is an incompetent third appeal, cannot be said to have a high probability of success, and a single strong ground can suffice to justify refusing bail.
Supreme Court — Powers of a Single Justice in Interlocutory Matters
Under section 8(1) of the Judicature Act a single Justice may exercise any power of the Supreme Court in an interlocutory cause or matter, including assessing, as a question ancillary to an application for bail pending appeal, whether a pending appeal is on its face competently before the Court.
Fair Hearing — Determination of a Pure Question of Law
A judicial officer determining a pure question of law need not invite submissions from counsel before deciding it; the competence of an appeal is a question of law, not of fact peculiar to a party, and a single Justice may decide it without affording a further hearing.
Certificate of Importance — Timing of the Notice of Appeal
Under the Supreme Court Rules an application for a certificate of importance may be made before or after a notice of appeal is lodged, so the filing of a notice of appeal in a third appeal without first obtaining the certificate does not, of itself, render the appeal incompetent.
References — Nature of a Reference and Interference with Discretion
A reference under section 8(2) of the Judicature Act is in essence an appeal from a single Justice to a panel of three Justices; the panel applies the settled principles governing interference with a judicial discretion and will not reverse the decision merely because it would have exercised the discretion differently.

Legislation cited (20)

  • Judicature Act s.5(5)
  • Judicature Act s.8(1)
  • Judicature Act s.8(2)
  • Magistrates Courts Act s.204(1)
  • Magistrates Courts Act s.127
  • Trial on Indictments Act s.132
  • Civil Procedure Act s.73
  • Administrator General's Act s.11(1)
  • Registration of Titles Act s.190(1)
  • Constitution of Uganda Article 44(c)
  • Constitution of Uganda Article 126(2)(e)
  • Supreme Court Rules r.38(1)(b)
  • Supreme Court Rules r.40
  • Supreme Court Rules r.41(2)
  • Supreme Court Rules r.50(1)
  • Supreme Court Rules r.50(2)
  • Supreme Court Rules r.52(b)
  • Supreme Court Rules r.56(3)
  • Supreme Court Rules r.57(3)
  • Supreme Court Rules r.60

Cases cited (11)

  • Mbogo v Shah [1968] 1 EA 93
  • Arvind Patel v Uganda (Supreme Court Criminal Appeal No. 1 of 2003)
  • Twagira v Uganda (Supreme Court Criminal Appeal No. 27 of 2003)
  • Gashumba Maniraguha v Sam Nkundiye (Civil Application No. 24 of 2015)
  • Kifamunte Henry v Uganda (Supreme Court Criminal Appeal No. 10 of 1997)
  • Namuddu and Ssenyonga v Uganda (Criminal Appeal No. 6 of 1999)
  • Lt Col. Badru Kiyingi v Uganda (Criminal Appeal No. 19 of 1999)
  • Singh Lamba v R (1958) EA 337
  • Jethwa and Another v Republic [1969] EA 459
  • Republic v Wandira [1975] EA 262
  • Republic v Kidasa [1973] EA 368
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.