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Sophatia & 3 Others v Nangobi & 2 Others (Civil Application 7 of 2015)

Supreme Court · [2017] UGSC 80 · 2017 Application Granted ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application to the Supreme Court for leave to file a third appeal and for a stay of execution, following the Court of Appeal's refusal of a certificate of importance.
Decision
Leave to file a third appeal granted and execution of the Court of Appeal's orders stayed pending the appeal.

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Holding

On an application for leave to bring a third appeal from the Court of Appeal, the Supreme Court held that, unlike the Court of Appeal, it is not confined to certifying matters of great public or general importance: under section 6(2) of the Judicature Act it may grant leave wherever, in its overall duty to see that justice is done, it considers the appeal should be heard. The unresolved distinction between a will or bequest and a gift inter vivos of land, together with an outstanding compensation claim, warranted a final hearing. The affidavit objection under the Illiterates Protection Act was rejected. Leave was granted and execution of the Court of Appeal's orders stayed pending the appeal.

Facts

The 1st applicant sold a piece of land at Magamaga Trading Centre, Mayuge District, to the 4th applicant. The respondents, daughters of the 1st applicant, claimed their father had earlier donated the suit land to them by a document executed on 15 December 2000, having on the same day donated other land to his sons (the 2nd and 3rd applicants). The respondents took possession and built on their portion. They challenged the later sale and succeeded in the Chief Magistrate's Court (Civil Suit No. 27 of 2005) at Iganga. On the applicants' appeal the High Court at Jinja partly succeeded, substituting orders for valuation and payment for the buildings. The respondents appealed to the Court of Appeal (Civil Appeal No. 97 of 2011), which held the transfer was a gift inter vivos that the father could not revoke, rendering the sale null and void, and ordered possession to the daughters. The applicants sought to bring a third appeal; the Court of Appeal refused a certificate of importance, prompting this application to the Supreme Court.

Issues

  1. Whether the 1st applicant's affidavits were defective for non-compliance with the Illiterates Protection Act and should be struck out.
  2. Whether the Supreme Court should grant leave under section 6(2) of the Judicature Act for the applicants to file a third appeal notwithstanding the Court of Appeal's refusal of a certificate of importance.
  3. Whether execution of the Court of Appeal's judgment and orders should be stayed pending the intended appeal.

Orders

  • Leave granted to the applicants to file a third appeal in the Supreme Court.
  • Execution of the judgment and orders of the Court of Appeal stayed pending determination of the intended appeal or any further orders of the Court.
  • Costs of the application to abide the outcome of the appeal.

Key headnotes

Civil Procedure — Third Appeals — Leave under section 6(2) Judicature Act — Supreme Court's overall duty to do justice
On an application for leave to bring a third appeal, the Supreme Court is not confined to the certificate criteria that bind the Court of Appeal; under section 6(2) of the Judicature Act it may grant leave whenever, in its overall duty to see that justice is done, it considers that the appeal should be heard, including to avert a substantial miscarriage of justice.
Civil Procedure — Stay of Execution — Conditions for grant pending appeal
A stay of execution pending appeal will be granted where the intended appeal raises serious, non-frivolous issues meriting the court's consideration, the applicant would otherwise suffer irreparable damage, and the balance of convenience favours preserving the status quo so that the appeal is not rendered nugatory.
Evidence — Affidavits — Illiterate deponent — Certificate of translation under section 3 Illiterates Protection Act
An affidavit by an illiterate deponent is admissible where it is sworn before a commissioner for oaths and accompanied by a certificate of translation as required by section 3 of the Illiterates Protection Act; the absence of a thumbprint, where the signature is consistent with the deponent's other documents, does not invalidate it.

Legislation cited (7)

  • Judicature Act s.6(2)
  • Supreme Court Rules r.39(1)
  • Supreme Court Rules r.42(1)
  • Illiterates Protection Act (Cap 78) s.3
  • Succession Act s.179
  • Land Act s.27
  • Constitution of Uganda art.132(3)

Cases cited (7)

  • Kasaala Growers Cooperative Society v Kakooza Jonathan & Anor (Civil Appeal No. 19 of 2010)
  • Hermanus Phillipus Steyn v Giovani Gnecchi-Ruscone (Application No. 4 of 2012)
  • Farook Aziz v Abdalla Abdu Makuru (Civil Appeal No. 4 of 2002)
  • Namuddu Christine v Uganda (Criminal Appeal No. 3 of 1999)
  • Glancare Teorada V A.N Board Pleanala [2006] FEHC 250
  • Bitamisi Namuddu v Rwabuganda Godfrey (Civil Appeal No. 4 of 2015)
  • Gashumba Maniraguha v Sam Nkundiye (Civil Application No. 24 of 2015)
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.